<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON APRIL 23, 1998
FILE NO. 333-47631
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
--------------------------
AMENDMENT NO. 2
TO
FORM S-1
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
--------------------------
DUNN COMPUTER CORPORATION
(Exact Name of Registrant as Specified in Its Charter)
<TABLE>
<S> <C> <C>
COMMONWEALTH OF VIRGINIA 5060 54-1890464
(State or Other Jurisdiction of (Primary Standard Industrial (I.R.S. Employer Identification Number)
Incorporation Classification Code Number)
or Organization)
</TABLE>
--------------------------
1306 SQUIRE COURT, STERLING VIRGINIA 20166 TEL. (703) 450-0400
(Address, Including Zip Code, and Telephone Number, Including Area Code, of
Registrant's
Principal Executive Offices)
------------------------------
JOHN D. VAZZANA
EXECUTIVE VICE PRESIDENT AND CHIEF FINANCIAL OFFICER
DUNN COMPUTER CORPORATION
1306 SQUIRE COURT
STERLING, VIRGINIA 20166
(703) 450-0400
(Name, Address Including Zip Code, and Telephone
Number, Including Area Code, of Agent For Service)
------------------------------
COPIES TO:
<TABLE>
<S> <C>
KENNETH J. AYRES JOHN L. SULLIVAN, III
CATHERINE M. STAVRAKIS ANNE W. MARCULEWICZ
JONES, DAY, REAVIS & POGUE VENABLE, BAETJER AND HOWARD, LLP
1450 G STREET, N.W. 2010 CORPORATE RIDGE, SUITE 400
WASHINGTON, DC 20005 MCLEAN, VA 22102
(202) 879-3939 (703) 760-1655
</TABLE>
--------------------------
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: As soon as
practicable after the Registration Statement becomes effective.
If any of the securities being registered on this form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, check the following box. / /
If this form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, check the following box and
list the Securities Act registration statement number of the earlier effective
registration statement for the same offering. / /
If this form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. / /
If this form is a post-effective amendment filed pursuant to Rule 462(d)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. / /
If delivery of the prospectus is expected to be made pursuant to Rule 434,
check the following box. / /
--------------------------
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
PROPOSED MAXIMUM PROPOSED MAXIMUM
TITLE OF EACH CLASS OF AMOUNT TO BE OFFERING PRICE AGGREGATE OFFERING AMOUNT OF
SECURITIES TO BE REGISTERED REGISTERED (1) PER UNIT (2) PRICE (2) REGISTRATION FEE
<S> <C> <C> <C> <C>
Common Stock, par value $0.001 per share 3,737,500 $9.50 $35,506,250 $10,475
</TABLE>
(1) Includes 487,500 shares subject to an option granted to the Underwriters to
cover over-allotments, if any.
(2) Estimated solely for purposes of calculating the registration fee and based
upon the average of the high and low price of Dunn Computer Corporation, a
Delaware corporation, as reported on the Nasdaq National Market on March 25,
1998.
------------------------
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF
THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(A),
MAY DETERMINE.
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
<PAGE>
PART II
INFORMATION NOT REQUIRED IN THE PROSPECTUS
ITEM 13. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The following table sets forth the expenses (other than underwriting
discounts and commissions) in connection with the Offering described in this
Registration Statement, all of which shall be paid by the Company. All of such
amounts (except the SEC Registration Fee, and the NASD Filing Fee) are
estimated.
<TABLE>
<S> <C>
SEC Registration Fee.............................................. $ 10,475
NASD Filing Fee................................................... 2,980
Nasdaq Filing Fee................................................. 17,500
Blue Sky Fees and Expenses........................................ 5,000
Printing and Engraving Costs...................................... 150,000
Legal Fees and Expenses........................................... 225,000
Accounting Fees and Expenses...................................... 150,000
Transfer Agent and Registrar Fees and Expenses.................... 5,500
Miscellaneous..................................................... 333,545
---------
Total......................................................... $ 900,000
---------
---------
</TABLE>
ITEM 14. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
VIRGINIA STOCK CORPORATION ACT
Section 697 A of the Virginia Stock Corporation Act ("VSCA") provides that a
corporation may indemnify an individual made a party to a proceeding because he
is or was a director against liability incurred in the proceeding if (1) he
conducted himself in good faith, (2) he believed, in the case of conduct in his
official capacity with the corporation, that his conduct was in its best
interests, and, in all other cases, that his conduct was at least not opposed to
its best interests, and (3) in the case of any criminal proceeding, he had no
reasonable cause to believe his conduct was unlawful. Section 697 C of the VSCA
provides that the termination of a proceeding by judgment, order, settlement or
conviction is not, of itself, determinative that the director did not meet the
standard of conduct set forth in Section 697 A.
Section 697 D of the VSCA provides that a corporation may not indemnify a
director under Section 697 in connection with a proceeding by or in the right of
the corporation in which the director was adjudged liable to the corporation, or
in connection with any other proceeding charging improper personal benefit to
him, whether or not involving action in his official capacity, in which he was
adjudged liable on the basis that personal benefit was improperly received by
him. Indemnification permitted under Section 697 of the VSCA in connection with
a proceeding by or in the right of the corporation is limited to reasonable
expenses incurred in connection with the proceeding.
Section 698 of the VSCA states that, unless limited by its articles of
incorporation, a corporation shall indemnify a director who entirely prevails in
the defense of any proceeding to which he was a party because he is or was a
director of the corporation against reasonable expenses incurred by him in
connection with the proceeding.
Section 701 of the VSCA provides that a corporation may not indemnify a
director under Section 697 unless authorized in the specific case after a
determination has been made that indemnification of the director is permissible
in the circumstances because he has met the standard of conduct set forth in
Section 697. Such determination is to be made (1) by the board of directors by a
majority vote of a quorum consisting of directors not at the time parties to the
proceeding, (2) if such a quorum is not obtainable, by majority vote of a
committee duly designated by the board of directors (in which designation
directors who
II-1
<PAGE>
are parties may participate), consisting solely of two or more directors not at
the time parties to the proceeding, (3) by special legal counsel selected as set
forth in the statute, or (4) by the shareholders (without the vote of shares
owned by or voted under the control of directors who are at the time parties to
the proceeding).
Section 699 of the VSCA provides that a corporation may pay for or reimburse
the reasonable expenses incurred by a director who is a party to a proceeding in
advance of the final disposition of the proceeding if (1) the director furnishes
the corporation a written statement of his good faith belief that he has met the
standard of conduct described in Section 697, (2) the director furnishes the
corporation a written undertaking to repay the advance if it is ultimately
determined that he did not meet the standard of conduct, and (3) a determination
is made that the facts then known to those making the determination would not
preclude indemnification. Determinations and authorizations of payments under
Section 699 are to be made in the manner specified in Section 701 of the VSCA.
Under Section 700.1 of the VSCA, an individual who is made a party to a
proceeding because he is or was a director of a corporation may apply to a court
for an order directing the corporation to make advances or reimbursement for
expenses or to provide indemnification. The court shall order the corporation to
make advances and/or reimbursement for expenses or to provide indemnification if
it determines that the director is entitled to such advances, reimbursement or
indemnification and shall also order the corporation to pay the director's
reasonable expenses incurred to obtain the order. With respect to a proceeding
by or in the right of the corporation, the court may (1) order indemnification
of the director to the extent of his reasonable expenses if it determines that,
considering all the relevant circumstances, the director is entitled to
indemnification even though he was adjudged liable to the corporation and (2)
also order the corporation to pay the director's reasonable expenses incurred to
obtain the order of indemnification.
Section 702 of VSCA states that, unless limited by a corporation's articles
of incorporation, (1) an officer of the corporation is entitled to mandatory
indemnification under Section 698 of the VSCA, and is entitled to apply for
court-ordered indemnification under Section 700 of the VSCA, to the same extent
as a director, and (2) the corporation may indemnify and advance expenses to an
officer, employee or agent of the corporation to the same extent as to a
director.
Section 703 of the VSCA provides that a corporation may purchase and
maintain insurance on behalf of an individual who is or was a director, officer,
employee or agent of the corporation, or who, while a director, officer,
employee, or agent of the corporation, is or was serving at the request of the
corporation as a director, officer, partner, trustee, employee or agent of
another foreign or domestic corporation, partnership, joint venture, trust,
employee benefit plan or other enterprise, against liability asserted against
him or incurred by him in that capacity, or arising from his status as such,
whether or not the corporation would have the power to indemnify him against
such liability under the provisions of Sections 697 or 698 of the VSCA.
Section 704 of the VSCA states that a corporation shall have power to make
any further indemnity, including indemnity with respect to a proceeding by or in
the right of the corporation, and to make additional provision for advances and
reimbursement of expenses, to any director, officer, employee or agent that may
be authorized by its articles of incorporation or any bylaw made by the
shareholders or any resolution adopted, before or after the event, by the
shareholders, except an indemnity against (1) his willful misconduct, or (2) a
knowing violation of the criminal law. Unless the articles of incorporation, or
any such bylaw or resolution expressly provide otherwise, any determination as
to the right to any further indemnity shall be made in accordance with Section
701 B of the VSCA. Each such indemnity may continue as to a person who has
ceased to have the capacity referred to above and may inure to the benefit of
the heirs, executors and administrators of such person.
II-2
<PAGE>
CERTIFICATE OF INCORPORATION
Article 11 of the Company's Articles of Incorporation provides that the
Company shall, to the fullest extent permitted by the law of Virginia, indemnify
an individual who is or was a director or officer of the Company and who was,
is, or is threatened to be made, a named defendant or respondent in any
threatened, pending or completed action, suit or proceeding, whether civil,
criminal, administrative or investigative and whether formal or informal
(collectively, a "proceeding"), against any obligation to pay a judgment,
settlement, penalty, fine (including any excise tax assessed with respect to any
employee benefit plan) or other liability and reasonable expenses (including
counsel fees) incurred with respect to such a proceeding, except such
liabilities and expenses as are incurred because of such director's or officer's
willful misconduct or knowing violation of criminal law.
Article 11 also provides that unless a determination has been made that
indemnification is not permissible, the Company shall make advances and
reimbursements for expenses reasonably incurred by a director or officer in a
proceeding as described above upon receipt of an undertaking from such director
or officer to repay the same if it is ultimately determined that such director
or officer is not entitled to indemnification.
Article 11 also provides that the determination that indemnification is
permissible, the authorization of such indemnification (if applicable), and the
evaluation as to the reasonableness of expenses in a specific case shall be made
as provided by law. Special legal counsel selected to make determinations under
such Article 11 may be counsel for the Company. The termination of a proceeding
by judgment, order, settlement, conviction, or upon a plea of nolo contendere or
its equivalent shall not of itself create a presumption that a director or
officer acted in such a manner as to make him or her ineligible for
indemnification.
For the purposes of Article 11, every reference to a director or officer
includes, without limitation, (1) every individual who is a director or officer
of the Company, (2) an individual who, while a director or officer, is or was
serving at the Company's request as a director, officer, partner, trustee,
employee or agent of another foreign or domestic corporation, partnership, joint
venture, trust, employee benefit plan or other enterprise, (3) an individual who
formerly was a director or officer of the Company or who, while a director or
officer, occupied at the request of the Company any of the other positions
referred to in clause (2) of this sentence, and (4) the estate, personal
representative, heirs, executors and administrators of a director or officer of
the Company or other person referred to herein. Service as a director, officer,
partner, trustee, employee or agent of another foreign or domestic corporation,
partnership, joint venture, trust, employee benefit plan or other enterprise
controlled by the Company is deemed service at the request of the Company. A
director or officer is deemed to be serving an employee benefit plan at the
Company's request if such person's duties to the Company also impose duties on,
or otherwise involve services by, such person to the plan or to participants in
or beneficiaries of the plan.
INDEMNIFICATION AGREEMENTS
The Company may enter into indemnification agreements with its directors and
officers for the indemnification of and advancing of expenses to such persons to
the fullest extent permitted by law.
UNDERWRITING AGREEMENT
The Underwriting Agreement provides for reciprocal indemnification between
the Company and the Underwriters against certain liabilities in connection with
this Offering, including liabilities under the Act.
INSURANCE
Dunn has purchased directors and officers liability insurance in the amount
of $1.0 million.
II-3
<PAGE>
ITEM 15. RECENT SALES OF UNREGISTERED SECURITIES.
The following information relates to securities of Dunn Delaware issued or
sold within the past three years which were exempt from registration under the
Securities Act pursuant to Section 4(2) thereof:
During the past three years, the Company sold securities in the transactions
described below. There were no underwriters involved in the transactions and
there were no underwriting discounts or commissions paid in connection
therewith, except as disclosed below. The issuance of these securities were
considered to be exempt from registration under Section 4(2) of the Act, as
amended, and the regulations promulgated thereunder. The purchasers of the
securities in such transactions represented their intentions to acquire the
securities for investment only and not with a view to or for sale in connection
with any distribution thereof and appropriate legends were affixed to the
certificate for the securities issued in such transaction. The purchaser of the
securities in such transactions had adequate access to information about the
Registrant.
In September, 1997 Dunn Delaware issued 150,000 shares of common stock to
the shareholders of STMS, a Virginia-based IT services company, as consideration
valued at $975,000 for all of the outstanding shares of common stock of STMS. In
addition, two selling stockholders received an option to purchase an additional
25,000 shares of Dunn common stock at an exercise price of $6.125 per share,
exercisable at any time prior to September 12, 2000. In November 1997, Dunn
reacquired 2,257 shares of its common stock in connection with a loan
forgiveness of approximately $63,000. In March 1998, Dunn repurchased from two
of the STMS selling stockholders 50,000 shares of its common stock and an option
to acquire 25,000 shares of its common stock for $457,500 and $75,750,
respectively.
In connection with Dunn's initial public offering in April 1997, Dunn sold
to the underwriter a warrant to purchase up to 100,000 shares of Dunn's common
stock, exercisable at $6.00 per share for a period of four years commencing
April 21, 2002.
In connection with a consulting agreement with JDK Associates, Inc., Dunn
granted a warrant to purchase up to 100,000 shares of Dunn, which vests over a
period of one year, exercisable at $6.50 per share.
As of the date of this Prospectus under Dunn's 1997 Stock Option Plan, Dunn
has granted 1,832,000 options to purchase shares of Dunn.
In the Merger, all of the shares, options and warrants of Dunn will be
exchanged on a one-for-one basis for shares of the Company (subject to
adjustments in the event of stock splits, stock dividends, recapitalizations and
other adjustments). The Company has filed a separate registration statement on
Form S-4 relating to the Merger.
ITEM 16. EXHIBITS AND FINANCIAL STATEMENT SCHEDULE.
(a) Exhibits.
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
- --------- -------------------------------------------------------------------------------------------------------
<C> <S>
*1.1 Form of Underwriting Agreement.
*2.1 Acquisition Agreement, dated March 9, 1998, by and among Dunn, the Company, George D. Fuster, D. Oscar
Fuster, Carol N. Fuster and Wendy E. Fuster (refiling to add index of exhibits and schedules).
*2.2 Agreement of Merger, dated as of March 18, 1998, by and among Dunn Merger Corp., a Delaware
corporation, Dunn and the Company.
</TABLE>
II-4
<PAGE>
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
- --------- -------------------------------------------------------------------------------------------------------
<C> <S>
2.3 Stock Purchase Agreement, dated September 12, 1997, by and among STMS Acquisition Corp., Dunn, STMS,
Inc., John Signorello, Timothy McNamee, Steve Salmon and certain other stockholders of Dunn. (Filed as
Exhibit 2.1 to Dunn's Current Report on Form 8-K, dated September 12, 1997, filed September 27, 1997
(File No. 0-22263) and hereby incorporated by reference).
3.1 Articles of Incorporation of the Company, dated February 25, 1998, and effective as of February 26,
1998 (previously filed).
3.2 By-laws of the Company, effective as of March 5, 1998 (previously filed).
3.3 Certificate of Incorporation and amendments thereto of Dunn (Filed as Exhibit 3.1 to Dunn's
Registration Statement on Form SB-2, dated January 13, 1997 (File No. 333-19635) and hereby
incorporated by reference).
*3.4 By-Laws and amendments thereto of Dunn.
*4.1 Specimen common stock certificate for the Company (refiling to reflect revised form).
*5.1 Opinion of Jones, Day, Reavis & Pogue regarding the validity of the securities being registered.
10.1 GSA Schedule (Filed as Exhibit 10.2 to Dunn's Registration Statement on Form SB-2, Amendment 1, dated
March 14, 1997 (File No. 333-19635) and hereby incorporated by reference).
10.2 Agreement, dated November 21, 1995, by and between GCH Systems, Inc. and Dunn regarding Lockheed (Filed
as Exhibit 10.4 to Dunn's Registration Statement on Form SB-2, Amendment 1, dated March 14, 1997 (File
No. 333-19635) and hereby incorporated by reference).
10.3 Agreement, dated March 25, 1997, by and between Dunn and the Social Security Administration (Filed as
Exhibit 10.5 to Dunn's Registration Statement on Form SB-2, Amendment 2, dated April 4, 1997 (File No.
333-19635) and hereby incorporated by reference).
10.4 Agreement, dated June 12, 1995, by and between Dunn and the Administrative Office of the U.S. Courts
(Filed as Exhibit 10.6 to Dunn's Registration Statement on Form SB-2, Amendment 2, dated April 4, 1997
(File No. 333-19635) and hereby incorporated by reference).
10.5 Agreement, dated September 29, 1994, by and between Dunn and the Health Care Finance Administration
(Filed as Exhibit 10.7 to Dunn's Registration Statement on Form SB-2, Amendment 2, dated April 4, 1997
(File No. 333-19635) and hereby incorporated by reference).
10.6 Agreement effective September 8, 1997, by and between Virginia Contracting Authority and Dunn (Filed as
Exhibit 10.6 to Dunn's Form 10-KSB, dated January 30, 1998 (File No. 0-22263) and hereby incorporated
by reference).
10.7 Employment Agreement by and between Dunn and John D. Vazzana (Filed as Exhibit 99.1 to Dunn's
Registration Statement on Form SB-2, Amendment 2, dated April 4, 1997 (File No. 333-19635) and hereby
incorporated by reference).
10.8 Employment Agreement by and between Dunn and Thomas P. Dunne (Filed as Exhibit 99.2 to Dunn's
Registration Statement on Form SB-2, Amendment 2, dated April 4, 1997 (File No. 333-19635) and hereby
incorporated by reference).
</TABLE>
II-5
<PAGE>
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
- --------- -------------------------------------------------------------------------------------------------------
<C> <S>
10.9 Deed of Lease, dated October 31, 1994, between C&T Partnership and Dunn and addenda thereto (Filed as
Exhibit 10.9 to Dunn's Form 10-KSB, dated January 30 , 1998 (File No. 0-22263) and hereby incorporated
by reference).
10.10 Deed of Lease, dated February 7, 1997, between APA Properties No. 6 L.P. and STMS, Inc. and First
Amendment thereto, dated July 23, 1997 (Filed as Exhibit 10.10 to Dunn's Form 10-KSB, dated January 30,
1998 (File No. 0-22263) and hereby incorporated by reference).
*10.11 1997 Stock Option Plan, as amended.
*10.12 General Service Administration Schedule for International Data Products, Corp.
*10.13 Agreement, dated May 5, 1997, by and between International Data Products, Corp. and the U.S. Air Force,
the Desktop V Contract.
*10.14 Agreement, dated January 6, 1998, by and between International Data Products, Corp. and the Department
of the Navy.
*10.15 Deed of Lease, dated January 31, 1995, between Northtech Business Park and International Data Products.
*10.16 Deed of Lease, dated July 15, 1994, between Puerto Rico Industrial Development Company and Puerto Rico
Industrial Manufacturing Operations, Corp.
*10.17 Agreement, dated July 11, 1995, by and between International Data Products, Corp. and the Social
Security Administration.
*10.18 Form of Employment Agreement by and between the Company and each of George D. Fuster and D. Oscar
Fuster (refiling to reflect revised form).
*10.19 Form of Lock-up Agreement.
*10.20 Consent Agreement by and among Dunn, the Company, Network 1 Financial Securities, Inc., a Texas
corporation, and Damon Testaverde, William Hunt and Richard Hunt, dated as of April 20, 1998.
*10.21 Support Agreement by and between Ferris, Baker, Watts, Incorporated, Gerard Klauer Mattison & Co., Inc.
and certain other individuals, dated as of April 3, 1998.
10.22 Loan and Security Agreement, dated as of May 28, 1996 by and between Dunn and SIGNET BANK and Amendment
Nos 1, 2 and 3 thereto (Filed as Exhibit 4.2 to Dunn's Form 10-KSB, for the fiscal year ended October
31, 1997 (File No. 0-22263) and hereby incorporated by reference).
*10.23 Amendment No. 4, dated February 28, 1998 to the Loan and Security Agreement by and between Dunn and
SIGNET BANK, dated as of May 28, 1996.
21.1 List of Subsidiaries (previously filed).
23.1 Consents of Ernst & Young LLP, Independent Auditors (previously filed).
23.2 Consent of KPMG Peat Marwick LLP, Independent Auditors (previously filed).
23.3 Consent of Davis, Sita & Company, P.A., Independent Auditors (previously filed).
*23.4 Consent of Jones, Day, Reavis & Pogue (included in Exhibit 5.1).
24.1 Power of Attorney (previously filed).
27.1 Financial Data Schedule (previously filed).
27.2 Financial Data Schedule (previously filed).
</TABLE>
II-6
<PAGE>
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
- --------- -------------------------------------------------------------------------------------------------------
<C> <S>
*99.1 Stock Exchange Agreement, dated January 6, 1997, by and among Dunn, Thomas P. Dunne, John Vazzana,
Claudia Dunne and Dunn Computer Corporation (n/k/a Dunn Computer Operating Company) (providing for the
exchange of the shares of common stock of Dunn Computer Operating Company for shares of common stock of
Dunn).
*99.2 Reciprocal Release, dated as of September 12, 1997, by and among Barry D. Bergman, Jacqueline L.
Bergman, Primary Telecommunications, Inc., a Pennsylvania corporation, STMS (f/k/a Service and
Technology Micro Systems, Inc.), a Virginia corporation, John Signorello, Timothy McNamee, Steve Salmon
and Dunn.
*99.3 Supplemental Agreement, dated as of March 26, 1998, by and among Dunn, Barry D. Bergman and Jacqueline
L. Berman.
</TABLE>
- ------------------------
* Filed herewith.
(b) Financial Statement Schedule.
Schedule II - Valuation and Account Reserve.
ITEM 17. UNDERTAKINGS.
Insofar as indemnification for liabilities arising under the Act may be
permitted to directors, officers and controlling persons of the registrant
pursuant to the foregoing provisions or otherwise, the registrant has been
advised in the opinion of the Commission such indemnification is against public
policy as expressed in the Act and is, therefore, unenforceable. In the event
that a claim for indemnification against such liabilities (other than the
payment by the registrant of expenses incurred or paid by a director, officer or
controlling person of the registrant in the successful defense of any action,
suit or proceeding) is asserted by such director, officer or controlling person
in connection with the securities being registered, the registrant will, unless
in the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the Act and
will be governed by the final adjudication of such issue.
The undersigned hereby undertakes that:
(i) For purposes of determining any liability under the Act, the
information omitted from the form of Prospectus filed as part of this
registration statement in reliance upon Rule 430A and contained in a form of
Prospectus filed by the registrant pursuant to Rule 424(b)(1), or (4) or
497(h), under the Act shall be deemed to be part of this registration
statement as of the time the Commission declared it effective.
(ii) For the purposes of determining any liability under the Act, each
post-effective amendment that contains a form of Prospectus shall be deemed
to be a new registration statement relating to the Securities offered
therein, and the offering of such securities at that time shall be deemed to
be the initial bona fide offering of those securities.
The undersigned registrant hereby undertakes to provide to the underwriter
at the closing specified in the underwriting agreement, certificates in such
denominations and registered in such names as required by the underwriter to
permit prompt delivery to each purchaser.
II-7
<PAGE>
SIGNATURES
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THE REGISTRANT
HAS DULY CAUSED THIS REGISTRATION STATEMENT TO BE SIGNED ON ITS BEHALF BY THE
UNDERSIGNED, THEREUNTO DULY AUTHORIZED IN THE CITY OF STERLING, COMMONWEALTH OF
VIRGINIA ON APRIL 22, 1998.
DUNN COMPUTER CORPORATION
BY: /S/ THOMAS P. DUNNE
-----------------------------------------
Thomas P. Dunne
PRESIDENT
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THIS
REGISTRATION STATEMENT HAS BEEN SIGNED BY THE FOLLOWING PERSONS IN THE
CAPACITIES AND ON THE DATES INDICATED.
<TABLE>
<CAPTION>
CAPACITY IN
SIGNATURE WHICH SIGNED DATE
- --------------------------------- --------------------------- -------------------
<C><C> <S> <C>
Chairman, Chief Executive
/s/ THOMAS P. DUNNE Officer and President
- --------------------------------- (Principal Executive April 22, 1998
Thomas P. Dunne Officer)
Executive Vice President,
/s/ JOHN D. VAZZANA Chief Financial Officer
- --------------------------------- and Director (Principal April 22, 1998
John D. Vazzana Financial and Accounting
Officer)
*
- --------------------------------- Vice President and Director April 22, 1998
Claudia N. Dunne
*
- --------------------------------- Director April 22, 1998
VADM E.A. Burkhalter, Jr., USN
(Ret.)
*
- --------------------------------- Director April 22, 1998
Daniel Sinnott
</TABLE>
By his signature set forth below, John D. Vazzana, pursuant to duly executed
Powers of Attorney duly filed with the Securities and Exchange Commission, has
signed this Amendment No. 2 to the Registration Statement on behalf of the
persons whose signatures are printed above, in the capacities set forth opposite
their respective names.
/s/ JOHN D. VAZZANA
-----------------------------------------
John D. Vazzana
II-8
<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT SEQUENTIAL
NUMBER DESCRIPTION PAGE NO.
- --------- ------------------------------------------------------------------------------------------- ---------------
<C> <S> <C>
*1.1 Form of Underwriting Agreement.
*2.1 Acquisition Agreement, dated March 9, 1998, by and among Dunn, the Company, George D.
Fuster, D. Oscar Fuster, Carol N. Fuster and Wendy E. Fuster (refiling to add index of
exhibits and schedules).
*2.2 Agreement of Merger, dated as of March 18, 1998, by and among Dunn Merger Corp., a Delaware
corporation, Dunn and the Company.
2.3 Stock Purchase Agreement, dated September 12, 1997, by and among STMS Acquisition Corp.,
Dunn, STMS, Inc., John Signorello, Timothy McNamee, Steve Salmon and certain other
stockholders of Dunn. (Filed as Exhibit 2.1 to Dunn's Current Report on Form 8-K, dated
September 12, 1997, filed September 27, 1997 (File No. 0-22263) and hereby incorporated by
reference).
3.1 Articles of Incorporation of the Company, dated February 25, 1998, and effective as of
February 26, 1998 (previously filed).
3.2 By-laws of the Company, effective as of March 5, 1998 (previously filed).
3.3 Certificate of Incorporation and amendments thereto of Dunn (Filed as Exhibit 3.1 to Dunn's
Registration Statement on Form SB-2, dated January 13, 1997 (File No. 333-19635) and hereby
incorporated by reference).
*3.4 By-Laws and amendments thereto of Dunn.
*4.1 Specimen common stock certificate for the Company (refiling to reflect revised form).
*5.1 Opinion of Jones, Day, Reavis & Pogue regarding the validity of the securities being
registered.
10.1 GSA Schedule (Filed as Exhibit 10.2 to Dunn's Registration Statement on Form SB-2,
Amendment 1, dated March 14, 1997 (File No. 333-19635) and hereby incorporated by
reference).
10.2 Agreement, dated November 21, 1995, by and between GCH Systems, Inc. and Dunn regarding
Lockheed (Filed as Exhibit 10.4 to Dunn's Registration Statement on Form SB-2, Amendment 1,
dated March 14, 1997 (File No. 333-19635) and hereby incorporated by reference).
10.3 Agreement, dated March 25, 1997, by and between Dunn and the Social Security Administration
(Filed as Exhibit 10.5 to Dunn's Registration Statement on Form SB-2, Amendment 2, dated
April 4, 1997 (File No. 333-19635) and hereby incorporated by reference).
10.4 Agreement, dated June 12, 1995, by and between Dunn and the Administrative Office of the
U.S. Courts (Filed as Exhibit 10.6 to Dunn's Registration Statement on Form SB-2, Amendment
2, dated April 4, 1997 (File No. 333-19635) and hereby incorporated by reference).
10.5 Agreement, dated September 29, 1994, by and between Dunn and the Health Care Finance
Administration (Filed as Exhibit 10.7 to Dunn's Registration Statement on Form SB-2,
Amendment 2, dated April 4, 1997 (File No. 333-19635) and hereby incorporated by
reference).
</TABLE>
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<TABLE>
<CAPTION>
EXHIBIT SEQUENTIAL
NUMBER DESCRIPTION PAGE NO.
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10.6 Agreement effective September 8, 1997, by and between Virginia Contracting Authority and
Dunn (Filed as Exhibit 10.6 to Dunn's Form 10-KSB, dated January 30, 1998 (File No.
0-22263) and hereby incorporated by reference).
10.7 Employment Agreement by and between Dunn and John D. Vazzana (Filed as Exhibit 99.1 to
Dunn's Registration Statement on Form SB-2, Amendment 2, dated April 4, 1997 (File No.
333-19635) and hereby incorporated by reference).
10.8 Employment Agreement by and between Dunn and Thomas P. Dunne (Filed as Exhibit 99.2 to
Dunn's Registration Statement on Form SB-2, Amendment 2, dated April 4, 1997 (File No.
333-19635) and hereby incorporated by reference).
10.9 Deed of Lease, dated October 31, 1994, between C&T Partnership and Dunn and addenda thereto
(Filed as Exhibit 10.9 to Dunn's Form 10-KSB, dated January 30, 1998 (File No. 0-22263) and
hereby incorporated by reference).
10.10 Deed of Lease, dated February 7, 1997, between APA Properties No. 6 L.P. and STMS, Inc. and
First Amendment thereto, dated July 23, 1997 (Filed as Exhibit 10.10 to Dunn's Form 10-KSB,
dated January 30, 1998 (File No. 0-22263) and hereby incorporated by reference).
*10.11 1997 Stock Option Plan, as amended.
*10.12 General Service Administration Schedule for International Data Products, Corp.
*10.13 Agreement, dated May 5, 1997, by and between International Data Products, Corp. and the
U.S. Air Force, the Desktop V Contract.
*10.14 Agreement, dated January 6, 1998, by and between International Data Products, Corp. and the
Department of the Navy.
*10.15 Deed of Lease, dated January 31, 1995, between Northtech Business Park and International
Data Products.
*10.16 Deed of Lease, dated July 15, 1994, between Puerto Rico Industrial Development Company and
Puerto Rico Industrial Manufacturing Operations, Corp.
*10.17 Agreement, dated July 11, 1995, by and between International Data Products, Corp. and the
Social Security Administration.
*10.18 Form of Employment Agreement by and between the Company and each of George D. Fuster and D.
Oscar Fuster (refiling to reflect revised form).
*10.19 Form of Lock-up Agreement.
*10.20 Consent Agreement by and among Dunn, the Company, Network 1 Financial Securities, Inc., a
Texas corporation, and Damon Testaverde, William Hunt and Richard Hunt, dated as of April
20, 1998.
*10.21 Support Agreement by and between Ferris, Baker, Watts, Incorporated, Gerard Klauer Mattison
& Co., Inc. and certain other individuals, dated as of April 3, 1998.
10.22 Loan and Security Agreement, dated as of May 28, 1996 by and between Dunn and SIGNET BANK
and Amendment Nos. 1, 2 and 3 thereto (Filed as Exhibit 4.2 to Dunn's Form 10-KSB, for the
fiscal year ended October 31, 1997 (File No. 0-22263) and hereby incorporated by
reference).
*10.23 Amendment No. 4, dated February 28, 1998 to the Loan and Security Agreement by and between
Dunn and SIGNET BANK, dated as of May 28, 1996.
</TABLE>
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<TABLE>
<CAPTION>
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NUMBER DESCRIPTION PAGE NO.
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21.1 List of Subsidiaries (previously filed).
23.1 Consents of Ernst & Young LLP, Independent Auditors (previously filed).
23.2 Consent of KPMG Peat Marwick LLP, Independent Auditors (previously filed).
23.3 Consent of Davis, Sita & Company, P.A., Independent Auditors (previously filed).
*23.4 Consent of Jones, Day, Reavis & Pogue (included in Exhibit 5.1).
24.1 Power of Attorney (previously filed).
27.1 Financial Data Schedule (previously filed).
27.2 Financial Data Schedule (previously filed).
*99.1 Stock Exchange Agreement, dated January 6, 1997, by and among Dunn, Thomas P. Dunne, John
Vazzana, Claudia Dunne and Dunn Computer Corporation (n/k/a Dunn Computer Operating
Company) (providing for the exchange of the shares of common stock of Dunn Computer
Operating Company for shares of common stock of Dunn).
*99.2 Reciprocal Release, dated as of September 12, 1997, by and among Barry D. Bergman,
Jacqueline L. Bergman, Primary Telecommunications, Inc., a Pennsylvania corporation, STMS
(f/k/a Service and Technology Micro Systems, Inc.), a Virginia corporation, John
Signorello, Timothy McNamee, Steve Salmon and Dunn.
*99.3 Supplemental Agreement, dated as of March 26, 1998, by and among Dunn, Barry D. Bergman and
Jacqueline L. Berman.
</TABLE>
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* Filed herewith.
<PAGE>
EXHIBIT 1.1
3,250,000 Shares
DUNN COMPUTER CORPORATION
COMMON STOCK
(PAR VALUE $0.001 PER SHARE)
UNDERWRITING AGREEMENT
___________ ___, 1998
FERRIS, BAKER WATTS, INCORPORATED
GERARD KLAUER MATTISON & CO., INC.
As Representatives of the
Several Underwriters Identified
In Schedule I Hereto,
c/o Ferris, Baker Watts, Incorporated
1720 Eye Street, N.W.
Washington, D.C. 20006
Ladies and Gentlemen:
SECTION 1. INTRODUCTION. Dunn Computer Corporation, a Virginia
corporation (the "Company"), proposes, subject to the terms and conditions
stated herein, to issue and sell to the Underwriters named in Schedule I
hereto (the "Underwriters"), for which Ferris, Baker Watts, Inc. ("FBW") and
Gerard Klauer Mattison & Co., Inc. are acting as the Representatives (the
"Representatives"), an aggregate of 3,250,000 shares of Common Stock, par
value $0.001 per share ("Stock"), of the Company; and the Company and the
individuals listed on Schedule II hereto ("Selling Stockholders") propose,
subject to the terms and conditions stated herein, to sell to the
Underwriters, at the election of the Underwriters, up to 487,500 additional
shares of Stock. The 3,250,000 shares to be sold by the Company are herein
called the "Firm Shares" and the 487,500 additional shares to be sold by the
Company and the Selling Stockholders are herein called the "Optional Shares."
Up to 243,750 shares of the Optional Shares are to be sold by the Selling
Stockholders and are herein referred to as the "Selling Stockholders'
Optional Shares." Up to 243,750 shares of the Optional Shares are to be sold
by the Company and are herein
<PAGE>
referred to as the "Company's Optional Shares." The Firm Shares and the
Optional Shares that the Underwriters elect to purchase pursuant to Section 3
hereof are herein collectively called the "Shares."
It is contemplated that the closing with respect to the Firm
Shares will occur concurrently with the closing of (i) a merger of a subsidiary
of the Company with and into Dunn Computer Corporation, a Delaware corporation
("Dunn") (the "Merger") pursuant to which _________ shares of the Company's
Stock will be issued in a share-for-share exchange for all of the outstanding
shares of common stock of Dunn, and (ii) the acquisition by the Company of 100%
of the outstanding stock of International Data Products, Corp. ("IDP"), through
a subsidiary, and substantially all the net assets of IDP's affiliate, Puerto
Rico Industrial Manufacturing Operations, Corp. ("PRIMO") (the acquisition of
the IDP stock and the PRIMO assets are collectively referred to herein as the
"IDP Acquisition").
SECTION 2A. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company
represents and warrants to, and agrees with, each of the Underwriters that:
(a) A registration statement on Form S-1 (File No.
333-47631) under the Securities Act of 1933, as amended (the "Act"), with
respect to the Shares, including a form of prospectus subject to completion,
has been prepared by the Company in conformity with the requirements of the
Act and the rules and regulations of the Securities and Exchange Commission
(the "Commission") thereunder (the "Rules and Regulations"). Such
registration statement has been filed with the Commission under the Act and
one or more amendments to such registration statement may also have been so
filed. After the execution of this Agreement, the Company shall file with the
Commission a Prospectus (as hereinafter defined) which shall have been
provided to, and approved by, the Representatives prior to the filing
thereof. As used in this Agreement, the term "Registration Statement" means
such registration statement, as amended and revised at the time when such
registration statement becomes effective, including all financial schedules
and exhibits thereto and any information omitted therefrom pursuant to Rule
430A under the Act and included in the Prospectus (as hereinafter defined).
The term "Preliminary Prospectus" means each prospectus subject to completion
contained in such registration statement or any amendment thereto before the
Registration Statement was or is declared effective, or such prospectus
subject to completion filed pursuant to Rule 424(a) under the Act which omits
the information permitted under Rule 430A. The term "Prospectus" means a
prospectus, including any amendments or supplements thereto, relating to the
Registration Statement that includes all the information contained in the
most recently filed Preliminary Prospectus in addition to such information
which may have been omitted in any Preliminary Prospectus pursuant to Rule
430A under the Act. To the extent the Company relies on Rule 462(b) under the
Act to increase the maximum aggregate offering price, the Company shall have
made in a timely manner any filing required under Rule 462(b) and such
filing shall be in compliance with such Rule. Copies of the Registration
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Statement, any amendment thereto and any Preliminary Prospectus
filed with the Commission have been delivered by the Company to the
Representatives on behalf of the Underwriters. The Registration Statement and
any post-effective amendments thereto have been declared effective by the
Commission.
(b) The Commission has not issued any order suspending the
effectiveness of the Registration Statement, any post-effective amendment
thereto or Rule 462(b) Registration Statement, if any, or preventing or
suspending the use of any Preliminary Prospectus, the Prospectus, the
Registration Statement or any amendment or supplement thereto or suspending the
registration of the Shares, nor has the Commission instituted or threatened to
institute any proceedings with respect to such an order. Each Preliminary
Prospectus, at the time of filing thereof, conformed in all material respects to
the requirements of the Act and the Rules and Regulations thereunder, and did
not contain an untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the statements therein,
in the light of the circumstances under which they were made, not misleading;
PROVIDED, HOWEVER, that this representation and warranty shall not apply to any
statements or omissions made in reliance upon and in conformity with information
furnished in writing to the Company by an Underwriter through the
Representatives expressly for use therein.
(c) The Registration Statement conforms, and the Prospectus
(or the most recent Preliminary Prospectus) and any further amendments or
supplements to the Registration Statement or the Prospectus will conform, in all
material respects, to the requirements of the Act and the Rules and Regulations
thereunder. The Registration Statement and any post-effective amendment thereto,
as of the applicable effective date or dates, and each Preliminary Prospectus
and Prospectus, as of the date each such Preliminary Prospectus or Prospectus is
filed and at all times subsequent thereto up to and including the Closing Date
(as defined in Section 5 hereof) and any Option Closing Date (as defined in
Section 5 hereof), and during such longer period during which the Prospectus may
be required to be delivered in connection with sales to any dealer and during
such longer period until any post-effective amendment thereto shall become
effective, do not and will not contain an untrue statement of a material fact or
omit to state a material fact required to be stated therein or necessary to make
the statements therein not misleading; PROVIDED, HOWEVER, that this
representation and warranty shall not apply to any statements or omissions made
in reliance upon and in conformity with information furnished in writing to the
Company by an Underwriter through the Representatives expressly for use therein,
and no event will have occurred which should have been set forth in an amendment
or supplement to the Registration Statement or the Prospectus which has not then
been set forth in such an amendment or supplement.
(d) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of Virginia, its
jurisdiction of incorporation, and has been duly qualified as a foreign
corporation for the transaction of business and is
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<PAGE>
in good standing under the laws of each other jurisdiction in which it owns
or leases properties or conducts any business so as to require such
qualification, except for those jurisdictions in which the failure to so
qualify has not had and will not have a Material Adverse Effect (as
hereinafter defined), and has all power and authority necessary to own or
hold its properties and to conduct the business in which it is engaged. Each
subsidiary (as defined in Rule 405 under the Act) of the Company in existence
and to be in existence as of the Closing Date (as defined Section 5 hereof)
(each a "Subsidiary" and together the "Subsidiaries") has been duly
incorporated and is validly existing as a corporation in good standing under
the laws of its jurisdiction of incorporation and each has been duly
qualified as a foreign corporation for the transaction of business and is in
good standing under the laws of each other jurisdiction in which it owns or
leases properties, or conducts any business so as to require such
qualification, except for those jurisdictions in which the failure to so
qualify has not had and will not have a Material Adverse Effect (as
hereinafter defined). "Material Adverse Effect" means, when used in
connection with the Company, any development, change or effect that is
materially adverse to the business, properties, assets, net worth, condition
(financial or other), results of operations, or prospects of the Company and
its Subsidiaries, taken as a whole.
(e) The Company has the duly authorized capitalization as
set forth in the Prospectus (or most recent Preliminary Prospectus) and will
have the adjusted capitalization set forth therein at the Closing Date, based
on the assumptions set forth therein. All of the shares of capital stock of
the Company to be issued and outstanding as of the Closing Date have been
duly and validly authorized and, when issued, will be fully paid and
non-assessable, without personal liability attaching to the ownership
thereof, and none of such shares will have been issued, owned, or held in
violation of any preemptive or other rights of security holders or other
persons to acquire securities of the Company. As of the Closing Date, the
securities of the Company including, without limitation, the Stock and the
Shares conform in all material respects to all statements relating thereto
contained in the Registration Statement or the Prospectus. With respect to
each Subsidiary of the Company, all of the issued and outstanding shares of
capital stock are fully paid and non-assessable, without personal liability
attaching to the ownership thereof, and none of such shares have been issued
or are owned or held in violation of any preemptive or other rights of
security holders or other persons to acquire securities of the Company and
(except as otherwise described in the Prospectus or the most recent
Preliminary Prospectus) are or, as of the Closing Date, will be owned
directly or indirectly by the Company, free and clear of all liens,
encumbrances, equities or claims. Other than as disclosed in the Prospectus
(or the most recent Preliminary Prospectus), there are no holders of the
securities of the Company having rights to registration thereof or preemptive
rights to purchase capital stock of the Company. Except as created hereby or
described in the Prospectus or most recently filed Preliminary Prospectus,
there are no commitments, plans or arrangements to issue, and no outstanding
options, warrants or other rights, calling for issuance of, any shares of
capital stock of the Company or any of its Subsidiaries or any security or
other instrument which, by its terms, is convertible into,
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<PAGE>
exercisable for, or exchangeable for capital stock of the Company or any of
its Subsidiaries. Except as described in the Prospectus or the most recently
filed Preliminary Prospectus, there is no outstanding security or other
instrument which, by its terms, is convertible into, exercisable for, or
exchangeable for capital stock of the Company or any of its Subsidiaries.
(f) The Firm Shares and the Company's Optional Shares have
been duly and validly authorized. When the Firm Shares and the Company's
Optional Shares are issued and delivered against payment therefor as provided
herein, they will be duly and validly issued, fully paid and non-assessable,
will not have been issued in violation of any preemptive or other rights of
security holders or other persons to acquire securities of the Company and will
conform in all material respects to all statements relating thereto in the
Registration Statement and the Prospectus. Good and marketable title to the Firm
Shares and the Company's Optional Shares will pass to the Underwriters on the
Closing Date and Option Closing Date free and clear of any lien, encumbrance,
security interest, claim or other restriction whatsoever. The Company has
received, subject to notice of issuance, approval to have the Shares qualified
for inclusion on the Nasdaq National Market ("NNM") and the Company knows of no
reason or set of facts which is likely to adversely affect such approval. The
Stock is registered pursuant to Section 12(g) under the Securities Exchange Act
of 1934 (the "Exchange Act").
(g) The financial statements and the related notes and
schedules thereto included in the Registration Statement and the Prospectus or
the most recent Preliminary Prospectus present fairly the financial condition,
results of operations, stockholders' equity and cash flows, and the other
information purported to be shown therein, of the Company and its Subsidiaries,
on a consolidated basis at the respective dates and for the respective periods
specified therein. Such financial statements and the related notes and schedules
thereto have been prepared in accordance with generally accepted accounting
principles consistently applied throughout the periods involved (except as
otherwise noted therein) and have been properly derived from the books and
records of the Company and such financial statements as are audited have been
examined by Ernst and Young LLP, who are independent public accountants within
the meaning of the Act and the Rules and Regulations, as indicated in their
reports filed therewith. The selected financial information and statistical data
set forth under the captions "Prospectus Summary--Summary Financial Data,"
"Capitalization," "Selected Financial Data," "Management's Discussion and
Analysis of Financial Condition and Results of Operations" and "Business" in the
Prospectus (or the most recent Preliminary Prospectus) present fairly, on the
basis stated in the Prospectus or such Preliminary Prospectus, the information
included therein and have been properly derived from the financial statements
and other operating records of the Company and its Subsidiaries. No other
financial statements or financial information, except that which is contained in
the Registration Statement, the Prospectus or the most recent Preliminary
Prospectus, is required by Form S-1, the Rules and
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<PAGE>
Regulations, or otherwise, to be included in the Registration Statement, the
Prospectus or such Preliminary Prospectus.
(h) Since the respective dates as of which information is
given in the Prospectus (or the most recent Preliminary Prospectus), and
except as may be stated therein in connection with the Merger, the IDP
Acquisition or otherwise, (i) neither the Company, nor any of its
Subsidiaries has entered into any transaction or incurred any liability or
obligation, contingent or otherwise, which is material to the Company and its
Subsidiaries, taken as a whole; (ii) there has not been any change in the
outstanding capital stock of the Company or any of its Subsidiaries, or any
issuance of options, warrants or rights to purchase the capital stock of the
Company or any of its Subsidiaries, or any material increase in the long-term
debt of the Company or any of its Subsidiaries, or any material adverse
change in the business, condition (financial or otherwise) or results of
operations of the Company or any of its Subsidiaries; (iii) no loss or damage
(whether or not insured) to the properties of the Company or any of its
Subsidiaries has been sus tained which has resulted in a Material Adverse
Effect; (iv) neither the Company nor any of its Subsidiaries has paid or
declared any dividend or other distribution with respect to its capital
stock; and (v) there has not been any change, contingent or otherwise, in the
direct or indirect control of the Company or any of its Subsidiaries nor, to
the best knowl edge of the Company, do there exist any circumstances which
would likely result in such a change.
(i) The Company and each of its Subsidiaries has filed all
foreign, federal, state and local income, franchise and other material tax
returns required to be filed (or have obtained extensions with respect thereto)
and has paid all taxes shown as due thereunder (except taxes being contested in
good faith as to which adequate provision has been made to the extent required
by generally accepted accounting principles) and all assessments received by it
to the extent that payment has become due, and the Company has no knowledge of
any tax deficiency which might be assessed against the Company or any of its
Subsidiaries which, if so assessed, would be reasonably expected to have a
Material Adverse Effect.
(j) The Company and each of its Subsidiaries maintains
insurance of the types and in amounts which the Company reasonably believes to
be adequate for its business, in such amounts and with such deductibles as are
customary for companies in the same or similar business, all of which insurance
is in full force and effect.
(k) Other than as set forth in the Prospectus (or most recent
Preliminary Prospectus), there are no legal or governmental proceedings pending
to which the Company or any of its Subsidiaries is a party or to which any
property of the Company or any of its Subsidiaries is the subject which (i)
challenges the validity of the capital stock of the Company or this Agreement or
of any action taken or to be taken by the Company pursuant to or in connection
herewith or therewith; (ii) is required to be disclosed in the
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Registration Statement or Prospectus (or most recent Preliminary Prospectus;
or (iii) if determined adversely to the Company or any of its Subsidiaries,
could reasonably be expected, individually or in the aggregate, to have a
Material Adverse Effect, and to the Company's best knowledge, no such
proceedings are threatened or contemplated by governmental authorities or
threatened by others. Any such proceedings that are set forth in the
Prospectus (or most recent Preliminary Prospectus) are fairly and accurately
summarized therein.
(l) The Company has full legal right, power and authority to
enter into this Agreement, the Merger and the IDP Acquisition and to consummate
the transactions and perform its obligations as provided for herein. All
necessary corporate proceedings of the Company have been duly taken to authorize
the execution, delivery and performance by the Company of this Agreement and the
operative documents relating to the Merger and the IDP Acquisition, except for
shareholder approval to be obtained pursuant to action at a meeting of Dunn's
shareholders scheduled for April 30, 1998. This Agreement has been duly
authorized, executed and delivered by the Company and, assuming it is a binding
agreement of yours, constitutes a legal, valid and binding agreement of the
Company enforceable against the Company in accordance with its terms (except as
such enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or other laws of general application relating to or
affecting the enforcement of creditors' rights and the application of equitable
principles relating to the availability of remedies and except as rights to
indemnity or contribution may be limited by federal or state securities laws and
the public policy underlying such laws).
(m) The Company's execution and performance of this Agreement,
including, without limitation, application of the net proceeds of the offering,
if and when received, as described in the Prospectus (or most recent Preliminary
Prospectus) under the caption "Use of Proceeds," will not violate any provision
of the Charter or Bylaws or any similar constitutive documents of the Company or
any of its Subsidiaries, or any law, rule or regulation applicable to the
Company or any of its Subsidiaries of any government, court, regulatory body,
administrative agency or other governmental body having jurisdiction over the
Company or any of its Subsidiaries or any of their respective businesses or
properties, and will not result in the breach, or be in contravention, of any
loan agreement, lease, franchise, license, note, bond, other evidence of
indebtedness, indenture, mortgage, deed of trust, voting trust agreement,
stockholders' agreement, note agreement or other agreement or instrument to
which the Company or any of its Subsidiaries is a party or by which their
respective properties are or may be subject, or any statute, judgment, decree,
order, rule or regulation applicable to the Company or any of its Subsidiaries
of any government, arbitrator, court, regulatory body or administrative agency
or other governmental agency or body, domestic or foreign, having jurisdiction
over the Company or any of its Subsidiaries or any of their respective
businesses, activities or properties, except those, if any, that are described
in the Prospectus (or most recent
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<PAGE>
Preliminary Prospectus) or those which would not, individually or in the
aggregate, have a Material Adverse Effect.
(n) All executed agreements or copies of executed
agreements filed as exhibits to the Registration Statement to which the
Company or any of its Subsidiaries is a party or by which any of them is or
may be bound or to which any of their respective assets, properties or
businesses is or may be subject have been duly and validly authorized,
executed and delivered by the Company or the relevant Subsidiary or
Subsidiaries and, assuming that each is a binding obligation of the other
party or parties thereto, constitutes the legal, valid and binding agreement
of the Company or such Subsidiary or Subsidiaries, enforceable against it or
them in accordance with its terms (except as such enforceability may be
limited by applicable bankruptcy, insolvency, reorganization, moratorium or
other laws relating to or affecting enforcement of creditors' rights, and the
application of equitable principles relating to the availability of remedies,
and except as rights to indemnity or contribution may be limited by federal
or state securities laws and the public policy underlying such laws). The
descriptions in the Prospectus and Preliminary Prospectus of contracts and
other documents are accurate and fairly present in all material respects the
information required to be disclosed with respect thereto by the Act and the
Rules and Regulations, and there are no contracts or other documents which
are required by the Act or the Rules and Regulations to be described in the
Prospectus or filed as exhibits to the Registration Statement which are not
described or filed as required, and the exhibits which have been filed are
complete and correct copies of the documents of which they purport to be
copies.
(o) The Company and each of its Subsidiaries has good and
marketable title in fee simple to all real property and good title to all other
property and assets owned thereby as set forth in the Prospectus (or most recent
Preliminary Prospectus), in each case free and clear of all liens, security
interests, pledges, charges, mortgages and other defects and encumbrances,
except such as are described in the Prospectus (or most recent Preliminary
Prospectus) or such as do not materially affect the value of such property, and
do not interfere with the use made and proposed to be made of such property by
the Company or its Subsidiaries; and any real properties and buildings held
under lease by the Company or any of its Subsidiaries are held under valid,
subsisting and enforceable leases with such exceptions as are not material and
do not interfere with the use made and proposed to be made of such property and
buildings by the Company and its Subsidiaries. No real property owned, leased,
licensed or used by the Company or any of its Subsid iaries is situated in an
area which is, or to the best knowledge of the Company, will be subject to
zoning, use, or building code restrictions which would prohibit (and no state of
facts relating to the actions or inaction of another person or entity or his or
its ownership, leasing, licensing, or use of any real or personal property
exists or will exist which would prevent) the continued effective ownership,
leasing, licensing, or use of such real property in the business of the Company
or its Subsidiaries as presently conducted or as the Prospectus (or most recent
Preliminary Prospectus) indicates any of them contemplate
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<PAGE>
conducting such business in the future, except as disclosed in the Prospectus
(or most recent Preliminary Prospectus).
(p) No consent, authorization, approval, order, license,
certificate, declaration or permit of or from, or filing with, any
governmental or regulatory authority, agent, board or other body is required
for the consummation of the Merger and the IDP Acquisition, the issue and
sale of the Shares by the Company and the execution, delivery or performance
by the Company of this Agreement except for the registration under the Act of
the Shares and the registration of the Stock under the Exchange Act, each of
which has been made or obtained, and such consents, approvals,
authorizations, registrations or qualifications as may be required under
state securities or blue sky laws in connection with the purchase and
distribution of the Shares by the Underwriters, and such approval as may be
required from the NNM to have the Shares qualified for inclusion thereon.
Except as set forth in the Registration Statement, the Company has obtained
all consents required of any party to any contract, agreement, instrument,
lease, license, arrangement or understanding to which the Company or any of
its Subsidiaries is a party, or to which any of their properties or assets
are subject, for the execution, delivery or performance of this Agreement or
the consummation of the Merger and the IDP Acquisition.
(q) Neither the Company nor any of its Subsidiaries is in
violation of its Articles of Incorporation or Bylaws or similar constitutive
documents; neither the Company nor any of its Subsidiaries is (or, as a result
of the passage of time) in default in the performance or observance of any
obligation, agreement, covenant or condition contained in any indenture,
mortgage, deed of trust, loan agreement, lease or other agreement or instrument
to which it is a party or by which it or any of its properties may be bound,
which default may reasonably be expected to have, individually or in the
aggregate, a Material Adverse Effect, or which could in any way, individually or
in the aggregate, impair or delay the consummation of the transactions
contemplated by this Agreement or the offering of the Shares in the manner
contemplated herein and in the Registration Statement and the Prospectus (or
most recent Preliminary Prospectus), and each such indenture, mortgage, deed of
trust, loan agreement lease or other agreement or instrument is in full force
and effect and is a legal, valid and binding obligation of the Company or its
Subsidiary or Subsidiaries, as the case may be and, to the best knowledge of the
Company, of each other party thereto.
(r) The statements set forth in the Prospectus (or most recent
Preliminary Prospectus) under the caption "Description of Capital Stock,"
insofar as they purport to constitute a summary of the terms of the Company's
securities, and under the captions "Shares Eligible for Future Sale,"
"Business," "Management," "The Reorganization and the IDP Acquisition" and
"Underwriting" (except, with respect to the statements under the caption
"Underwriting," for information furnished in writing to the Company by the
Underwriters through the Representatives expressly for use therein), insofar as
they purport to describe the provisions of the laws and the provisions of
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documents referred to therein, are accurate and fairly summarize such
provisions in all material respects.
(s) The Company is not and, after giving effect to the
offering and sale of the Shares, the Merger and the IDP Acquisition, will not
be, an "investment company" or an "affiliated person" of or a "promoter" or
"principal underwriter" of or an entity "controlled" by an "investment company,"
as such terms are defined in the Investment Company Act of 1940 (the "Investment
Company Act").
(t) The Company and each of its Subsidiaries owns or is
licensed or otherwise has sufficient right to use the proprietary knowledge,
inventions, patents, trademarks, service marks, trade names, logo marks and
copyrights ("Intellectual Property") currently used in the conduct of their
respective businesses, except for those patents, trademarks, service marks,
trade names, logo marks or copyrights with respect to which the failure to
own or license same would not have a Material Adverse Effect. To the best
knowledge of the Company, none of the activities engaged in by the Company or
any of its Subsidiaries infringes upon or otherwise conflicts with
Intellectual Property rights of others, except for any such conflicts that
would not have a Material Adverse Effect, and no claims have been asserted
against the Company or any of its Subsidiaries by any person with respect to
the use of any such rights or challenging or questioning the validity or
effectiveness of any such rights.
(u) No labor disturbance by, or labor dispute with, the
employees of the Company or any of its Subsidiaries exists or, to the Company's
knowledge, is threatened or imminent which may have a Material Adverse Effect.
(v) Neither the Company nor any Subsidiary is subject to any
liability arising under or as a result of the application of the provisions of
the Act.
(w) To the best knowledge of the Company, each of the Company
and its Subsidiaries (i) is in compliance with all environmental, safety, health
or similar law or regulation relating to the protection of human health and
safety, the environment or hazardous or toxic substances or wastes, pollutants
or contaminants ("Environmental Laws") applicable to its business; (ii) has
received all permits, licenses or other approvals required under applicable
Environmental Laws to conduct its business; and (iii) is in compliance with all
terms and conditions of any such permit, license or approval, except where such
noncompliance, failure to receive such license or approval or failure to comply
would not have a Material Adverse Effect.
(x) To the best knowledge of the Company, each of the Company
and its Subsidiaries is in compliance with all federal or state laws, including
the rules and regulations promulgated thereunder, relating to discrimination in
the hiring, promotion or pay of employees, any applicable federal or state wages
and hours law, and the provisions
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of the Employee Retirement Income Security Act of 1974, as amended,
applicable to its business, except where such noncompliance would not have a
Material Adverse Effect. Neither the Company nor any of its Subsidiaries is a
party to any collective bargaining or other labor contract.
(y) The Company and each of its Subsidiaries has full
corporate power and authority and has obtained and holds all necessary
consents, authorizations, approvals, orders, certificates and permits of and
from, and have made all declarations and filings with, all U.S. and foreign,
federal state or provincial, local and other governmental authorities, all
self-regulatory organizations and all courts and other tribunals, to own,
lease, license and use its properties and assets and to conduct its business
in the manner described in the Prospectus (or most recent Preliminary
Prospectus), except to the extent that the failure to obtain or file would
not have Material Adverse Effect, and except as otherwise described in the
Prospectus (or most recent Preliminary Prospectus). Neither the Company nor
any of its Subsidiaries has received any notice of proceedings relating to,
and does not have reason to believe that any governmental body or agency is
considering limiting, suspending, modifying or revoking, any such consent,
authorization, approval, order, certificate or permit which, individually or
in the aggregate, if the subject of an unfavorable decision, ruling or
finding, would have a Material Adverse Effect.
(z) None of the Company, its Subsidiaries, or any other person
associated with or acting on behalf of the Company or any Subsidiary, including,
without limitation, any director, officer, agent, or employee of the Company or
any Subsidiary has, directly or indirectly, while acting on behalf of the
Company (i) used any corporate funds for unlawful contributions, gifts,
entertainment, or other unlawful expenses relating to political activity, (ii)
made any unlawful contribution to any candidate for foreign or domestic office,
or to any foreign or domestic government officials or employees or other person
charged with similar public or quasi-public duties, other than payments required
or permitted by the laws of the United States or any jurisdiction thereof or to
foreign or domestic political parties or campaigns from corporate funds, or
failed to disclose fully any contribution in violation of law, (iii) violated
any provision of the Foreign Corrupt Practices Act of 1977, as amended, or (iv)
made any other unlawful payment.
(aa) None of the Company, its Subsidiaries, or, to the
Company's best knowledge, any employee or agent of the Company or any
Subsidiary, has made any payment of funds of the Company or any Subsidiary, or
received or retained any funds which constitutes a violation by the Company or
any Subsidiary of any law, rule or regulation or of a character required to be
disclosed in the Prospectus (or most recent Preliminary Prospectus).
(bb) The Company and each of its Subsidiaries has filed with
the applicable foreign and domestic regulatory authorities each and every
statement, report, information or form required by any applicable law,
regulation or order, except where the
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failure to so file would not have a Material Adverse Effect, and all such
filings or submissions were in compliance with applicable laws when filed,
and no deficiencies have been asserted by any regulatory commission, agency
or authority with respect to such filings or submissions, except where the
failure to so file or cure would not have a Material Adverse Effect. The
Company and each of its Subsidiaries has maintained in full force and effect
all licenses and permits necessary or proper for the conduct of its business,
except where the failure to do so would not have a Material Adverse Effect,
and neither the Company nor any of its Subsidiaries has received any
notification that any revocation or limitation thereof is threatened or
pending that would have such an Effect. Except as disclosed in the
Registration Statement and the Prospectus (or most recent Preliminary
Prospectus), there is not pending any change under any law, regulation,
license or permit that would have a Material Adverse Effect. Neither the
Company nor any of its Subsidiaries has received any notice of, or, to the
best knowledge of the Company, been threatened with or is under investigation
with respect to, a violation or a possible violation of any provision of any
law, regulation or order, except such violation or violations as would not
have a Material Adverse Effect.
(cc) The books, records and accounts and systems of
internal accounting controls of Dunn and the Company currently comply with
the requirements of Section 13(b)(2) of the Exchange Act.
(dd) None of the Company, any of its Subsidiaries or any of
its officers, directors or affiliates (within the meaning of the Rules and
Regulations) has taken, directly or indirectly, any action designed to stabilize
or manipulate the price of any security of Dunn or the Company, or which has
constituted or which might in the future reasonably be expected to, cause or
result in, stabilization or manipulation of the price of any security of Dunn or
the Company, to facilitate the sale or resale of the Shares or otherwise.
(ee) The minute books of the Company and each of its
Subsidiaries are current and contain a correct and complete record of all
corporate action taken by the respective Boards of Directors and stockholders of
the Company and the Subsidiaries and all signatures contained therein are true
signatures of the persons whose signatures they purport to be.
(ff) Except as described in the Prospectus (or most recent
Preliminary Prospectus), to the best knowledge of the Company there is no loss
or threatened loss of any key customer, supplier, or account which loss would
result in a Material Adverse Effect.
(gg) Neither the Company nor any of its Subsidiaries has
incurred, directly or indirectly, any liability for a fee, commission or other
compensation on account of the employment of a broker or finder in connection
with the offering and sale of the Shares contemplated by this Agreement other
than as described in the Prospectus.
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(hh) There are no business relationships or related party
transactions of the nature described in Item 404 of Regulation S-K of the Rules
and Regulations involving the Company, any of its Subsidiaries and any person
referred to in Items 401 or 404 of such Regulation S-K, except as required to be
described, and as so described, in the Prospectus (or most recent Preliminary
Prospectus).
(ii) The Company and each applicable Subsidiary has full legal
right, power and authority to enter into the Merger and the IDP Acquisition. All
necessary corporate proceedings of the Company and each applicable Subsidiary
have been duly taken to authorize the execution, delivery and performance by
each party to the Merger and the IDP Acquisition of the operative agreements,
instruments and documents relating to the Merger and the IDP Acquisition, except
for shareholder approval to be obtained pursuant to action at a meeting of
Dunn's shareholders scheduled for April 30, 1998. Each such operative
agreements, instruments and documents have been duly authorized, executed and
delivered by the Company and each such Subsidiary, as the case may be, and are
binding against the Company and each such Subsidiary in accordance with the
terms of such agreements, instruments and documents.
(jj) Except as disclosed in the Prospectus, the Company and
each Subsidiary is in material compliance with all terms and conditions of each
material contract or agreement to which it is a party and each such material
contract has been filed as an exhibit to the Registration Statement. The
Prospectus accurately and adequately describes each such material contract or
agreement required to be included therein by the Rules and Regulations. Except
as disclosed in the Prospectus, the Company has complied in all material
respects with all applicable statutory and regulatory requirements with respect
to each such material contract or agreement and each such bid, quotation, or
proposal submitted by the Company to the Government or any prospective prime
contractor or the Government within the past two years.
(kk) Except as disclosed in the Prospectus, any and all facts
set forth in or acknowledged by the Company or any Subsidiary in any
certifications, representations, or disclosure statements submitted by the
Company or any Subsidiary with respect to any Government contract awarded to the
Company or any Subsidiary within the past two years were current, accurate, and
complete in all material respects, as of the date of submission.
(ll) Except as disclosed in the Prospectus, neither the
Government nor any prime contractor has notified the Company or any Subsidiary
in writing that the Company or any Subsidiary has breached or violated any
regulation, statute, certification, representation, or clause, provision, or
requirement with respect to any contract awarded to the Company or any
Subsidiary within the past two years or with respect to any bid,
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quotation, or proposal submitted by the Company or any Subsidiary within the
past two years.
(mm) Except as disclosed in the Prospectus, neither the
Company nor any Subsidiary is currently debarred or suspended from doing
business with the Government and does not know of any facts that would warrant
the institution of debarment or suspension proceedings against the Company or
any Subsidiary in the future.
(nn) No show cause notices or cure notices have been issued
against the Company or any Subsidiary on any Government contracts awarded to the
Company or any Subsidiary within the past two years.
(oo) No default terminations have been issued against the
Company or any Subsidiary on any Government contracts awarded to the Company
within the past two years.
(pp) No negative determinations of responsibility have been
issued against the Company or any Subsidiary with respect to any bid, quotation,
or proposal submitted by the Company or any Subsidiary within the past two years
with respect to a Government contract.
(qq) Neither the Government nor any prime contractor under a
Government prime contract has withheld or setoff, or attempted to withhold or
setoff, monies due to the Company or any Subsidiary under any of its contracts
awarded within the past two years except as is done in the normal course of
business under standard Government contract terms.
(rr) Neither the Company nor any Subsidiary is currently under
administrative, civil, or criminal investigation or indictment with respect to
any alleged irregularity, misstatement, or omission arising under or in any way
relating to any of its Government contracts, bids, quotations, or proposals,
past or present, except as set forth in the Prospectus.
(ss) The Company and each Subsidiary is not undergoing and has
not undergone any audit, and has no knowledge or any basis for impending audits
in the future, arising under or relating to any Government contract.
(tt) The Company and each Subsidiary has no interest in any
pending or potential claims against the Government or against any prime
contractor, subcontractor, or vendor arising under or relating to any Government
contract. The Company and each Subsidiary has no knowledge of any facts upon
which such a claim could reasonably be based in the future.
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(uu) The Company and each Subsidiary has entered into no
financing arrangements with respect to the performance of any current material
Government contract.
(vv) The Company and each Subsidiary possesses all necessary
security clearances and permits for the execution of its obligations under any
Government contract to which each is currently a party. The Company and each
Subsidiary has never been denied a Government security clearance.
(ww) Other than the filing of the Certificate of Merger with
the Secretary of State for the State of Delaware which will be filed on or prior
to the Closing Date, all approvals, consents and filings required or necessary
to effectuate the Merger have been obtained, except for shareholder approval to
be obtained pursuant to action at a meeting of Dunn's shareholders scheduled for
April 30, 1998. The Company knows of no reason why the Merger would not be
approved and effective by the Closing Date.
(xx) The registration statement on Form S-4 (the "S-4") with
respect to the Stock to be issued in connection with the Merger has been
declared effective and no stop order has been issued pertaining thereto, nor has
the Commission instituted or threatened to institute any proceedings with
respect to such an order. The S-4 and the proxy statement/prospectus contained
therein conformed in all material respects to the requirements of the Act and
the Rules and Regulations thereunder, and did not contain an untrue statement of
a material fact or omit to state a material fact required to be stated therein
or necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading.
(yy) All conditions for closing of the IDP Acquisition with
respect to any party to the IDP Acquisition Agreement have been met or will be
met or waived or waived as of the Closing Date and all actions required or
contemplated to be completed prior to closing of the IDP Acquisition shall be
been completed. All approvals, consents and filings required or necessary to
effectuate the IDP Acquisition shall have been obtained.
The representations and warranties set forth in this Section 2A
relating to IDP and PRIMO, (i) if and to the extent they address matters that
are not addressed by the representations and warranties regarding IDP and
PRIMO set forth in Sections 2.1 to 2.18 of the Acquisition Agreement dated
March 9, 1998 among George Fuster, D. Oscar Fuster, Carol N. Fuster and Wendy
E. Fuster, Dunn and the Company (the "Acquisition Agreement"), are made to
the best knowledge of the Company, and (ii) to the extent that they address
the same matters that are addressed by such representations and warranties in
the Acquisition Agreement, are subject to the same express qualifications as
such representations and warranties in the Acquisition Agreement.
SECTION 2B. REPRESENTATIONS AND WARRANTIES OF THE SELLING STOCKHOLDERS.
The Selling Stockholders jointly and severally represent and warrant to, and
agree with, each of the Underwriters that:
(a) They (i) have the full right, power and authority to
execute and deliver this Agreement; (ii) on the Option Closing Date will be the
owners of the Selling Stockholders' Optional Shares, free and clear of all
liens, charges, encumbrances and restrictions; (iii) have paid the full purchase
price required to be paid for such Stock; (iv) on the Option Closing Date will
have paid or provided for all stock transfer or other taxes (other than income
taxes) required to be paid by the Selling Stockholders in connection
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with the sale and transfer of the Selling Stockholders' Optional Shares and all
laws imposing such taxes will have been fully complied with; and (v) on the
Option Closing Date will have the full legal right, power and authority to
sell, transfer and deliver the Selling Stockholders' Optional Shares hereunder
and convey good and marketable title to such Selling Stockholders' Optional
Shares, free and clear of all liens, charges, encumbrances, equities, claims
and restrictions whatsoever.
(b) This Agreement has been duly authorized executed and
delivered by the Selling Stockholders. This Agreement constitutes the valid and
binding agreements of the Selling Stockholders enforceable in accordance with
its terms.
(c) Neither the execution and delivery of this Agreement nor
the consummation of the transactions herein or contemplated nor the compliance
with the terms hereof by the Selling Stockholders will conflict with, or result
in a breach of any of the terms or provisions of, or constitute a default under
any indenture, mortgage deed of trust, purchase agreement or other agreement or
instrument to which the Selling Stockholders or any one of them is a party or by
which the Selling Stockholders are bound and no consent, approval, authorization
or order of any court or governmental agency or body is required for the
consummation by the Selling Stockholders of the transactions on the Selling
Stockholders' part herein contemplated, except such as may be required under the
Act or under state securities or blue sky laws.
(d) The Selling Stockholders have not, and at the Option
Closing Date will not have, taken, and agree that they will not take, directly
or indirectly, any action to cause or result in, or which has constituted, or
might reasonably be expected to constitute, the stabilization or manipulation
of the price of the Stock to facilitate the sale or resale of any of the
Shares. Other than as permitted by the Act and the Rules and Regulations
thereunder, the Selling Stockholders have not distributed and will not
distribute any Preliminary Prospectus, the Prospectus or any other offering
material in connection with the offering and sale of the Shares.
SECTION 3. PURCHASE OF SECURITIES BY THE UNDERWRITERS. On the basis of
the representations, warranties, covenants and agreements herein contained, and
subject to the terms and conditions herein set forth (i) the Company agrees to
sell to each of the Underwriters, and each of the Underwriters agrees, severally
and not jointly, to purchase from the Company, at a purchase price per share of
$_____, the number of Firm Shares set forth opposite the name of such
Underwriter in Schedule I hereto and (ii) in the event and to the extent that
the Underwriters shall exercise the election to purchase Optional Shares as
provided below, the Company and the Selling Stockholders agree to sell to each
of the Underwriters, and each of the Underwriters agrees, severally and not
jointly, to purchase from the Company and the Selling Stockholders, at the
purchase price per share set forth in clause (i) of this Section 3, its
proportionate share of the number of Optional Shares as to which such election
shall have been exercised (based on the monetary
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obligation of the several Underwriters hereunder on account of the purchase of
Firm Shares).
The Company and the Selling Stockholders hereby grant to the
Underwriters the right to purchase at their election up to 487,500 Optional
Shares, at the purchase price per share set forth in the paragraph above, for
the sole purpose of covering over-allotments, if any, in the sale of the Firm
Shares. Each such election to purchase Optional Shares may be exercised only by
written notice from the Representatives to the Company and the Selling
Stockholders, given within a period of thirty (30) calendar days after the date
of this Agreement which notice shall set forth the aggregate number of Optional
Shares to be purchased and the date on which such Optional Shares are to be
delivered, as determined by you but in no event earlier than the Closing Date
or, unless you and the Company and the Selling Stockholders otherwise agree in
writing, no earlier than two (2) nor later than ten (10) business days after the
date of such notice. In the event that the over-allotment option is not
exercised in full, the Company and the Selling Stockholders will each sell 50%
of such Optional Shares as to which the option has been exercised.
SECTION 4. OFFERING OF THE SHARES BY THE UNDERWRITERS. Upon the
authorization by the Representatives of the release of the Firm Shares, the
several Underwriters propose to offer the Firm Shares for sale upon the terms
and conditions set forth in the Prospectus.
SECTION 5. DELIVERY OF AND PAYMENT FOR THE SHARES.
(a) The Firm Shares to be purchased by each Underwriter
hereunder, in definitive form, and in such authorized denominations and
registered, in such names as the Representatives may request upon at least
forty-eight (48) hours' prior notice to the Company shall be delivered by or on
behalf of the Company to the Representatives, for the account of such
Underwriter, against payment by or on behalf of such Underwriter of the
purchase price therefor in Federal (same day) funds. The Company will cause the
certificates representing the Firm Shares to be made available for checking and
packaging at least twenty-four (24) hours prior to the Closing Date (as defined
below) with respect thereto at the office of Ferris, Baker Watts, Incorporated,
1720 Eye Street, N.W., Washington, D.C. 20006 or such other location as the
Representatives may reasonably designate (the "Designated Office"). The time and
date of such delivery and payment shall be, with respect to the Firm Shares, at
10:00 o'clock a.m., Washington, DC time, on ______________________, 1998 or such
other time and date as the Representatives and the Company may agree. Such time
and date for delivery of the Firm Shares is herein called the "Closing Date,"
which shall also be the closing date for the Merger and the IDP Acquisition.
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(b) Delivery and payment of any Optional Shares to be
purchased by each Underwriter pursuant hereto shall be made at the Designated
Office at 10:00 o'clock a.m., Washington, DC time, on the date specified by the
Representatives in the written notice of the Underwriters' election to purchase
such Optional Shares, or such other time and date as the Representatives and
Company and the Selling Stockholders may agree. Such time and date for delivery
of Optional Shares is herein called the "Option Closing Date." Payment for the
Optional Shares shall be made by wire transfer or certified or bank cashier's
check in Federal (next day) funds, payable to the order of the Company or the
applicable Selling Stockholders upon delivery to the Representatives of
certificates representing the Optional Shares being purchased for the respective
accounts of the Underwriters. The certificates representing the Optional Shares
to be delivered shall be in such denominations and registered in such names as
the Representatives request not less than forty-eight (48) hours prior to the
Option Closing Date, and shall be made available to the Representatives for
inspection, checking and packaging at the aforesaid office of the Company's
transfer agent or correspondent not less than twenty-four (24) hours prior to
such Closing Date.
(c) The documents to be delivered at the Closing Date or
Option Closing Date, as the case may be, by or on behalf of the parties hereto
pursuant to Section 8 hereof, including the cross-receipt for the Shares and any
additional documents requested by the Underwriters, will be delivered to the
offices of Venable, Baetjer and Howard, LLP, 1800 Mercantile Bank & Trust
Building, Two Hopkins Plaza, Baltimore, Maryland 21201 or such other location as
may be agreed upon by the Representatives and the Company or the Selling
Stockholders, as the case may be (the "Closing Location"), and the Shares will
be delivered at the Designated Office, on the Closing Date or the Option Closing
Date, as the case may be.
(d) A meeting will be held at the Closing Location at 2:00
p.m., Washington, D.C. time, on the business day next preceding Closing Date or
Option Closing Date, as the case may be, or at such other time as is mutually
agreed upon by the parties hereto, at which meeting the final drafts of the
documents to be delivered pursuant to the preceding paragraph will be available
for review by the parties hereto.
SECTION 6. COVENANTS OF THE COMPANY. The Company covenants and agrees
with each of the Underwriters as follows:
(a) The Company will use its best efforts to cause the
Registration Statement, if not effective at the time of execution of this
Agreement, and any amendments thereto, to become effective as promptly as
practicable. If required, the Company will file the Prospectus and any
amendments or supplements thereto with the Commission in the manner and within
the time period required by Rule 424(b). During any time when a prospectus
relating to the Shares is required to be delivered under the Act, the Company
will comply with all requirements imposed upon it by the Act and the
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Rules and Regulations to the extent necessary to permit the continuance of
sales of or dealings in the Shares in accordance with the provisions hereof and
of the Prospectus, as then amended or supplemented. With respect to any
registration statement, prospectus, amendment, or supplement to be filed with
the Commission in connection with the Shares, the Company will provide a copy
of each such document to the Representatives a reasonable time prior to the
date such document is proposed to be filed with the Commission and will not
file any such document without the consent of the Representatives. Any such
registration statement, prospectus, amendment or supplement, when filed, will
comply with the Act. In the event that the Registration Statement is effective
at the time of execution of this Agreement, but the total number of Shares
subject to this Agreement exceeds the number of Shares covered by the
Registration Statement, the Company will promptly file with the Commission on
the date hereof a registration statement pursuant to Rule 462(b) in accordance
with the requirements of such Rule and will make payment of the filing fee
therefor in accordance with the requirements of Rule 111(b) under the Act.
(b) The Company will advise the Representatives promptly (i)
when the Registration Statement, as amended, has become effective; (ii) if the
provisions of Rule 430A promulgated under the Act will be relied upon, when the
Prospectus has been filed in accordance with said Rule 430A; (iii) when any
post-effective amendment to the Registration Statement becomes effective; (iv)
of any request made by the Commission for amendments or supplements to the
Registration Statement, any Preliminary Prospectus or Prospectus or for
additional information; (v) of the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement or any post-effective
amendment thereto or any order preventing or suspending the use of any
Preliminary Prospectus or Prospectus or any amendment or supplement thereto or
the institution or threat of any investigation or proceeding for that purpose,
and will use its best efforts to prevent the issuance of any such order; and
(vi) of the receipt of any comments from the Commission regarding the
Registration Statement, any post-effective amendment thereto, the Preliminary
Prospectus, the Prospectus, or any amendment or supplement thereto. The Company
will use its best efforts to prevent the issuance of any stop order by the
Commission, and if at any time the Commission shall issue any stop order, the
Company will use its best efforts to obtain the withdrawal of such stop order at
the earliest possible moment.
(c) The Company will cooperate with the Representatives, their
counsel and the Underwriters in qualifying or registering the Shares for sale,
or obtaining an exemption therefrom, under the blue sky laws of such
jurisdictions as the Representatives shall designate, and will continue such
qualifications or registrations or exemptions in effect so long as reasonably
requested by the Representatives to effect the distribution of the Shares. The
Company shall not be required to qualify as a foreign corporation or to file a
general consent to service of process in any such jurisdiction where it is not
presently qualified.
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(d) The Company consents to the use of the Prospectus (and any
amendment or supplement thereto) by the Underwriters and all dealers to whom the
Shares may be sold, in connection with the offering or sale of the Shares and
for such period of time thereafter as the Prospectus is required by law to be
delivered in connection therewith. If, at any time when a prospectus relating to
the Shares is required to be delivered under the Act, any event occurs as a
result of which the Prospectus, as then amended or supplemented, would include
any untrue statement of a material fact or omit to state a material fact
necessary to make the statements therein not misleading, or if it becomes
necessary at any time to amend or supplement the Prospectus to comply with the
Act or the Rules and Regulations, the Company promptly will so notify the
Representatives and will prepare and file with the Commission an amendment to
the Registration Statement or an amendment or supplement to the Prospectus which
will correct such statement or omission or effect such compliance; each such
amendment or supplement to be reasonably satisfactory to counsel to the
Underwriters.
(e) As soon as practicable, but in any event not later than
forty-five (45) calendar days after the end of the 12-month period beginning on
the day after the end of the fiscal quarter of the Company during which the
effective date of the Registration Statement occurs (90 calendar days in the
event that such quarter is the Company's last fiscal quarter), the Company will
make generally available to its security holders, in the manner specified in
Rule 158(b) of the Rules and Regulations, and will deliver to the
Representatives, an earnings statement which will be in the detail required by,
and will otherwise comply with, the provisions of Section 11(a) of the Act and
Rule 158(a) of the Rules and Regulations, which statement need not be audited
unless required by the Act or the Rules and Regulations, covering a period of at
least twelve (12) consecutive months after the effective date of the
Registration Statement.
(f) During the period of three (3) years commencing with the
date hereof, the Company will deliver to the Representatives:
(i) within ninety (90) calendar days after the end of each
fiscal year, financial statements for the Company, certified by the Company's
independent certified public accountants, including a balance sheet, statement
of operations, statement of stockholders' equity and statement of cash flows,
with supporting schedules, prepared in accordance with generally accepted
accounting principles, as at the end of such fiscal year and for the twelve
(12) months then ended, accompanied by a copy of the certificate or report
thereon of such independent certified public accountants; provided that if,
during such five-year period, the Company has active subsidiaries, the
foregoing financial statements will be on a consolidated basis to the extent
that the accounts of the Company and its subsidiaries are consolidated, and
will be accompanied by similar financial statements for any significant
subsidiary which is not so consolidated;
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(ii) as soon as practicable after filing with the
Commission, all such reports, forms or other documents as may be required from
time to time, under the Act, the Rules and Regulations, the Exchange Act and the
rules and regulations thereunder;
(iii) as soon as available, copies of all information
(financial or other) mailed to stockholders;
(iv) as soon as they are available, copies of all reports
and financial statements furnished to or filed with the National Association of
Securities Dealers, Inc. ("NASD"), the NNM or any other securities exchange or
market;
(v) promptly following release by the Company, every press
release and every material news item or article of interest to the financial
community in respect of the Company or its affairs which was released or
prepared by the Company; and
(vi) as soon as possible following receipt of a
request, any additional information publicly available nature concerning the
Company or its business which the Representatives may reasonably request.
(g) The Company will maintain a transfer agent and, if
necessary under the jurisdiction of incorporation of the Company, a registrar
(which may be the same entity as the Transfer Agent) for its Stock.
(h) The Company will furnish, without charge, to the
Representatives or on the Representatives' order, at such place as the
Representatives may designate, copies of the Preliminary Prospectus, the
Registration Statement and any pre-effective or post-effective amendments
thereto, and any registration statement filed pursuant to Rule 462(b) (of which
three (3) copies will be signed and will include all financial statements and
exhibits) and the Prospectus, and all amendments and supplements thereto in each
case as soon as available and in such quantities as the Representatives may
reasonably request.
(i) Except pursuant to this Agreement, the Company will not,
directly or indirectly, without the prior written consent of the
Representatives, issue, offer, sell, offer to sell, contract to sell, grant any
option to purchase, pledge or otherwise dispose (or announce any issuance,
offer, sale, offer of sale, contract of sale, grant of any option to purchase,
pledge or other disposition) of any shares of Stock or any securities
convertible into, or exchangeable or exercisable for, shares of Stock for a
period of one hundred eighty (180) calendar days after the date hereof, other
than issuances pursuant to the exercise of stock options outstanding on or
granted subsequent to the date hereof, pursuant to a stock option or other
employee benefit plan in existence on the date hereof. The Company will use its
best efforts to cause its officers and directors and significant security
holders to agree to refrain for a period of one hundred eighty (180) calendar
days
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from the date of this agreement not to sell, transfer or otherwise dispose of
any securities of the Company.
(j) The Company will cause the Shares to be duly approved for
listing on the NNM prior to the Closing Date. The Company shall take all
necessary and appropriate action such that the Shares are included for quotation
on the NNM as soon as practicable after the effectiveness of the Registration
Statement and the Shares shall remain so authorized for at least thirty-six (36)
months thereafter.
(k) Neither the Company nor any of its officers or directors,
nor affiliates of any of them (within the meaning of the Rules and Regulations)
will take, directly or indirectly, any action designed to, or which might in the
future reasonably be expected to, cause or result in, or which will constitute,
stabilization or manipulation of the price of any securities of the Company.
(l) The Company will apply the net proceeds of the offering
received in the manner set forth under the caption "Use of Proceeds" in the
Prospectus. The Company will operate its business in such a manner and, pending
application of the net proceeds of the offering for the purposes and in the
manner set forth under the caption "Use of Proceeds" in the Prospectus, will
invest such net proceeds in such securities so as not to become an "investment
company" as such term is defined under the Investment Company Act.
(m) The Company will timely file all such reports, forms or
other documents as may be required from time to time, under the Act, the Rules
and Regulations, the Exchange Act and the rules and regulations thereunder, and
all such reports, forms and documents so filed will comply as to form and
substance with the applicable requirements under the Act, the Rules and
Regulations, the Exchange Act and the rules and regulations thereunder which may
from time to time be applicable to the Company. The Company shall comply with
the provisions of all undertakings contained in the Registration Statement.
(n) Except as described in the Prospectus, the Company will
not, until the earlier to occur of (i) thirty (30) calendar days following the
date of this Agreement or (ii) the Option Closing Date immediately after which
all Optional Shares shall have been so purchased, incur any liability or
obligation, direct or contingent, or enter into any material transaction, other
than in the ordinary course of business.
(o) Other than in connection with the Merger and the IDP
Acquisition, for a period of thirty (30) calendar days following the date of
this Agreement the Company will not acquire any of the Company's capital stock,
declare or pay any dividend or make any other distribution upon its capital
stock payable to its holders of record on a date prior to the expiration of
such 30-day period.
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(p) The Company will comply or cause to be complied with the
conditions to the Underwriters' obligations set forth in Section 8 hereof.
(q) During the period of thirty (30) calendar days commencing
with the date of this Agreement, the Company shall neither issue any press
release or other communication, directly or indirectly, nor hold any press
conference with respect to the offering of the Shares, the Company, its
Subsidiaries or its business, results of operations, condition (financial or
otherwise), property, assets, liabilities or prospects of the Company or any of
its Subsidiaries, without the prior written consent of the Representatives,
which consent shall not unreasonably be denied or delayed; PROVIDED, HOWEVER,
that if counsel to the Company is of the opinion that the issuance of a press
release or other communication or a press conference is required to comply with
or avoid a violation of applicable law, and having been so informed the
Representatives decline to consent thereto, the Company shall be permitted to
issue such press release or other communication or hold such press conference in
the manner advised by its counsel.
SECTION 7. EXPENSES.
(a) The Company agrees to pay (i) the costs incident to the
issuance, sale and delivery of the Shares and any taxes payable in that
connection; (ii) the costs incident to the preparation, printing and filing
under the Act of the registration statement and any amendments and exhibits
thereto; (iii) the costs of distributing the registration statement as
originally filed and each amendment thereto and any pre-effective and
post-effective amendments thereto, any Preliminary Prospectus, the Prospectus
and any amendment or supplement to the Prospectus, all as provided in this
agreement; (iv) any applicable listing or other fees; (v) the fees and expenses
of filing, if any, with foreign securities administrators and of qualifying the
Shares under the securities laws of any applicable state and of preparing,
printing and distributing a Blue Sky Memorandum (including related fees and
expenses of counsel to the underwriters); (vi) the cost incident to tombstone
advertising with respect to the offer and sale of the Shares up to a maximum of
$12,500; and (vii) all other costs and expenses incident to the performance of
the obligations of the Company and the Selling Stockholders under this
Agreement.
(b) If the purchase of the Firm Shares as herein contemplated
is not consummated for any reason other than the Underwriters' default under
this Agreement or other than by reason of Section 11(a), the Company shall
reimburse the several Underwriters, for their out-of-pocket expenses (including
but not limited to counsel fees and disbursements) in connection with any
investigation made by them, and any preparation made by them in respect of
marketing of the Shares or in contemplation of the performance by them of their
obligations hereunder.
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SECTION 8. CONDITIONS OF THE UNDERWRITERS' OBLIGATIONS. The
obligations of each Underwriter to purchase and pay for the Shares set forth
opposite the name of such Underwriter in Schedule I are subject to the
continuing accuracy of the representations and warranties of the Company and
the Selling Stockholders herein as of the date hereof, as of the Closing Date,
and as of each Option Closing Date, if any, as if they had been made on and as
of the Closing Date or Option Closing Date, as the case may be; the accuracy on
and as of the Closing Date, and each Option Closing Date, if any, of the
statements of officers of the Company made pursuant to the provisions hereof;
the performance by the Company on and as of the Closing Date, and each Option
Closing Date, as the case may be, of their respective covenants and agreements
hereunder; and the following additional conditions:
(a) The Registration Statement shall have been declared
effective, and the Prospectus (containing the information omitted pursuant to
Rule 430(A)) shall have been filed with the Commission not later than the
Commission's close of business on the second business day following the date
hereof or such later time and date to which the Representatives shall have
consented. No stop order suspending the effectiveness of the Registration
Statement or any amendment thereto shall have been issued, and no proceedings
for that purpose shall have been instituted or threatened or, to the best
knowledge of the Company or the Representatives, shall be contemplated by the
Commission. The Company shall have complied with any request of the Commission
for additional information (to be included in the Registration Statement or the
Prospectus or otherwise).
(b) The Representatives shall not have advised the Company
that the Registration Statement, or any amendment thereto, contains an untrue
statement of fact which, in the Representatives' opinion, is material, or omits
to state a fact which, in the Representatives' opinion, is material and is
required to be stated therein or is necessary to make the statements therein not
misleading, or that the Prospectus, or any supplement thereto, contains an
untrue statement of fact which, in the Representatives' opinion, is material, or
omits to state a fact which, in the Representatives' opinion, is material and is
required to be stated therein or is necessary to make the statements therein, in
the light of the circumstances under which they were made, not misleading
(c) On or prior to the Closing Date, and any Option Closing
Date, as the case may be, the Representatives shall have received from counsel
to the Underwriters, such opinion or opinions with respect to the issuance and
sale of the Firm Shares or the Optional Shares, as the case may be, the
Registration Statement and the Prospectus and such other related matters as the
Representatives reasonably may request and such counsel shall have received such
documents and other information as they request to enable them to pass upon such
matters.
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(d) On the Closing Date or any Option Closing Date, the
Underwriters shall have received the opinion, dated the Closing Date or such
Option Closing Date as the case may be, of Jones, Day, Reavis & Pogue, counsel
to Dunn and the Company, to the effect set forth in Exhibit A attached hereto.
(e) On the Closing Date or any Option Closing Date, the
Underwriters shall have received the opinion, dated the Closing Date or such
Option Closing Date as the case may be, of Thacher, Proffitt and Wood, LLP,
counsel to IDP, to the effect set forth in Exhibit B attached hereto.
(f) On or prior to the Closing Date or any Option Closing
Date, as the case may be, counsel to the Underwriters shall have been furnished
such documents, certificates and opinions as they may reasonably require in
order to evidence the accuracy, completeness or satisfaction of any of the
representations or warranties of the Company or conditions herein contained.
(g) At the time that this Agreement is executed by the Company
the Underwriters shall have received from Ernst & Young, LLP a letter as of the
date of this Agreement in form and substance satisfactory to the Representatives
(the "E & Y Original Letter"), and on the Closing Date and any Option Closing
Date the Underwriters shall have received from such firm a letter dated the
Closing Date or such Option Closing Date, stating that, as of a specified date
not earlier than five (5) calendar days prior to the Closing Date or Option
Closing Date, as the case may be, nothing has come to the attention of such firm
to suggest that the statements made in the E & Y Original Letter are not true
and correct.
(h) At the time that this Agreement is executed by the Company
the Underwriters shall have received from KPMG Peat Marwick, LLP a letter as of
the date of this Agreement in form and substance satisfactory to the
Representatives (the "KPMG Original Letter"), and on the Closing Date and any
Option Closing Date the Underwriters shall have received from such firm a letter
dated the Closing Date or such Option Closing Date, stating that, as of a
specified date not earlier than five (5) calendar days prior to the Closing Date
or Option Closing Date, as the case may be, nothing has come to the attention of
such firm to suggest that the statements made in the Original Letter are not
true and correct.
(i) At the time that this Agreement is executed by the
Company the Underwriters shall have received from Davis, Sita & Company, P.A. a
letter as of the date of this Agreement in form and substance satisfactory to
the Representatives (the "DS Original Letter"), and on the Closing Date and any
Option Closing Date the Underwriters shall have received from such firm a
letter dated the Closing Date or such Option Closing Date, stating that, as of
a specified date not earlier than five (5) calendar days prior to the Closing
Date or Option Closing Date, as the case may be, nothing has come to the
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attention of such firm to suggest that the statements made in the DS Original
Letter are not true and correct.
(j) On the Closing Date and any Option Closing Date, the
Underwriters shall have received a certificate, dated the Closing Date or such
Option Closing Date, as the case may be, of the principal executive officer and
the principal financial or accounting officer of the Company to the effect that
each such person has carefully examined the Registration Statement and the
Prospectus and any amendments or supplements thereto and this Agreement, and
that:
(i) the representations and warranties of the Company in
this Agreement are true and correct, as if made on and as of the Closing Date or
the Option Closing Date, as the case may be, and the Company has complied, in
all material respects, with all agreements and covenants and satisfied all
conditions contained in this Agreement on its part to be performed or satisfied
at or prior to the Closing Date or such Option Closing Date; and
(ii) No stop order suspending the effectiveness of the
Registration Statement has been issued, and no proceedings for that purpose have
been instituted or are pending or, to the best knowledge of each such person,
are contemplated or threatened under the Act and any and all filings required by
Rule 424, Rule 430A and Rule 462(b) have been timely made.
References to the Registration Statement and the Prospectus in
this paragraph (j) are to such documents as amended and supplemented at the date
of the certificate required hereby.
(k) Subsequent to the respective dates as of which information
is given in the Registration Statement and the Prospectus up to and including
the Closing Date or any Option Closing Date, as the case may be, there has not
been (i) any change or decrease specified in the letter or letters referred to
in paragraph (g), (h) & (i) of this Section 8 or (ii) any change, or any
development involving a prospective change, in the business or properties of the
Company which change or decrease in the case of clause (i) or change or
development in the case of clause (ii) makes it impractical or inadvisable in
the Representatives' judgment to proceed with the public offering or the
delivery of the Shares as contemplated by the Prospectus.
(l) No order suspending the sale of the Shares in any
jurisdiction designated by you pursuant to Section 6(c) hereof has been issued
on or prior to the Closing Date or any Option Closing Date, as the case may be,
and no proceedings for that purpose have been instituted or, to the best
knowledge of such persons or that of the Company, have been or are contemplated.
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(m) The Representatives shall have received from each person
who is a director or officer of the Company, each stockholder, and each other
person or group of persons who has the right to acquire more than five percent
(5%) or more of the outstanding shares of Stock, assuming exercise of currently
exercisable stock options on a fully diluted basis, an agreement to the effect
that such person will not, directly or indirectly, without the prior written
consent of the Representatives, on behalf of the Underwriters, offer, sell,
contract to sell, grant any option to purchase, pledge or otherwise dispose (or
announce any offer, sale, contract of sale, grant of an option to purchase,
pledge or other disposition) of any shares of Common Stock or any securities
convertible into, or exchangeable or exercisable for, shares of Common Stock
for a period of 180 calendar days after the date of the Prospectus.
(n) The Shares shall have been accepted for inclusion on the
NNM.
(o) The NASD, upon review of the terms of the public offering
of the Shares contemplated hereby, shall have indicated that it has no objection
to the underwriting arrangements pertaining to the sale of the Shares and the
Underwriters' participation in the sale of the Shares as so contemplated.
(p) The Merger and the Agreement of Merger shall have been
approved by the necessary affirmative vote of the stockholders of Dunn. A
Certificate of Merger with respect to the Merger shall have been duly filed with
the Secretary of State of the State of Delaware and all approvals, consents and
filings required or necessary to effectuate the Merger as of the Closing Date
shall have been obtained and the Merger shall be effective as of the Closing
Date.
(q) The registration statement on Form S-4 with respect to the
Stock to be issued in connection with the Merger shall have been declared
effective and no stop order shall have been issued pertaining thereto.
(r) Except for the closing of the offering contemplated hereby
and the closing of the Merger, all other conditions for closing for the IDP
Acquisition with respect to each party to the IDP Acquisition Agreement shall
have been met or waived and all actions required or contemplated to be completed
prior to closing of the IDP Acquisition shall be been completed. All approvals,
consents and filings required or necessary to effectuate the IDP Acquisition
shall have been obtained. The IDP Acquisition shall be effective on the Closing
Date.
(s) FBW shall have received $300,000 from the Company in
satisfaction of the advisory fee owed to FBW pursuant to the letter agreement
between the Company and FBW dated January 15, 1998, $50,000 of which has been
received as of the date of this Agreement.
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(t) The Company shall have furnished the Underwriters with
such further opinions, letters, certificates or documents as the Representatives
or counsel for the Underwriters may reasonably request.
All opinions, certificates, letters and documents to be furnished by
the Company will comply with the provisions hereof only if they are reasonably
satisfactory in all material respects to the Underwriters and to counsel for the
Underwriters. The Company shall furnish the Underwriters with manually signed or
conformed copies of such opinions, certificates, letters and documents in such
quantities as you reasonably request. The certificates delivered under this
Section 8 shall constitute representations, warranties and agreements of the
Company as to all matters set forth therein as fully and effectively as if
such matters had been set forth in Section 2 of this Agreement.
If any condition to the Underwriters' obligations hereunder to be
satisfied prior to or at either the Closing Date or any Option Closing Date is
not so satisfied, this Agreement, at the Representatives' election, will
terminate upon notification to the Company without liability on the part of any
Underwriter (including the Representatives) or the Company, except for the
expenses to be paid by the Company pursuant to Section 7 hereof and except to
the extent provided in Section 9 hereof.
SECTION 9. INDEMNIFICATION.
(a) The Company agrees to indemnify and hold harmless each
Underwriter, and its officers, directors, partners, employees, agents and
counsel, and each person, if any, who controls such Underwriter within the
meaning of Section 15 of the Act or Section 20 of the Exchange Act, against any
and all losses, claims, damages, liabilities or expenses whatsoever (which
shall include, for all purposes of this Section 9, but not be limited to,
attorneys' fees and any and all fees and expenses whatsoever incurred in
investigating, preparing or defending against any litigation, commenced or
threatened, or any claim whatsoever and any and all amounts paid in
settlement), joint or several (and actions in respect thereof), to which such
Underwriter, officer, director, partner, employee, agent, counsel or
controlling person may become subject, under the Act or other federal or state
statutory law or regulation, at common law or otherwise, insofar as such
losses, claims, damages, liabilities, expenses or actions arise out of or are
based upon any untrue statement or alleged untrue statement of any material
fact contained in the Registration Statement or the Prospectus or any
Preliminary Prospectus, or any amendment or supplement thereto, or any blue sky
application or other document executed by the Company specifically for the
purposes of qualifying, or based upon written information furnished by the
Company in any state or other jurisdiction in order to qualify, any or all of
the Shares under the securities or blue sky laws thereof (any such application,
document or information being hereinafter called a "Blue Sky Application"), or
arise out of or are based upon the omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein not
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misleading, and will reimburse, as incurred, reasonable expenses of such
Underwriter, partner, employee, agent, counsel or controlling person in
connection with investigating, defending or appearing as a third party witness
in connection with any such loss, claim, damage, liability, expense or action;
PROVIDED, HOWEVER, that the Company will not be liable in any such case to the
extent that any such loss, claim, damage, liability, expense or action arises
out of or is based upon any untrue statement or alleged untrue statement or
omission or alleged omission made in any of such documents in reliance upon and
in conformity with information furnished in writing to the Company on behalf of
such Underwriter through the Representatives expressly for use therein, and
PROVIDED, FURTHER, that such indemnity with respect to any Preliminary
Prospectus shall not inure to the benefit of any Underwriter (or to the benefit
of any person controlling such Underwriter) from whom the person asserting any
such loss, claim, damage, liability, expense or action purchased Shares which
are the subject thereof to the extent that any such loss, claim, damage,
liability or action (i) results from the fact that such Underwriter failed to
send or give a copy of the Prospectus (as amended or supplemented) to such
person at or prior to the confirmation of the sale of such Shares to such
person in any case where such delivery is required by the Act and (ii) arises
out of or is based upon an untrue statement or omission of a material fact
contained in such Preliminary Prospectus that was corrected in the Prospectus
(as amended and supplemented), unless such failure resulted from non-compliance
by the Company with Section 6(h) hereof. The indemnity agreement in this
paragraph (a) shall be in addition to any liability which the Company may
otherwise have.
(b) Each of the Underwriters agrees severally, but not
jointly, to indemnify and hold harmless the Company, each of its directors, each
of its officers who has signed the Registration Statement and each person, if
any, who controls the Company within the meaning of Section 15 of the Act or
Section 20 of the Exchange Act against any and all losses, claims, damages,
liabilities or expenses whatsoever (which shall include, for all purposes of
this Section 9, but not be limited to, attorneys' fees and any and all fees and
expenses whatsoever incurred in investigating, preparing or defending against
any litigation, commenced or threatened, or any claim whatsoever and any and all
amounts paid in settlement), (and actions in respect thereof) to which the
Company or any such director, officer, or controlling person may become subject,
under the Act or other federal or state statutory law or regulation, at common
law or otherwise, insofar as such losses, claims, damages, liabilities, expenses
or actions arise out of or are based upon any untrue statement or alleged untrue
statement of any material fact contained in the Registration Statement or the
Prospectus or any Preliminary Prospectus, or any amendment or supplement thereto
or in any Blue Sky Application, or arise out of or are based upon the omission
or the alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements not misleading, in each case to the
extent, but only to the extent, that such untrue statement or alleged untrue
statement or omission or alleged omission was made in reliance upon and in
conformity with information furnished in writing by that Underwriter through the
Representatives to the Company expressly for use therein. The Company
acknowledges that the statements with respect to the public
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offering of the Shares set forth under the caption "Underwriting" and the
stabilization legend in the Prospectus have been furnished by the Underwriters
to the Company expressly for use therein and constitute the only information
furnished in writing by or on behalf of the Underwriters for inclusion in the
Prospectus. The indemnity agreement contained in this paragraph (b) shall be in
addition to any liability which the Underwriters may otherwise have.
(c) Promptly after receipt by an indemnified party under this
Section 9 of notice of the commencement of any action, such indemnified party
will, if a claim in respect thereof is to be made against one or more
indemnifying parties under this Section 9, notify such indemnifying party or
parties of the commencement thereof; but the failure so to notify the
indemnifying party shall not relieve it from any liability which it may have to
any indemnified party otherwise than under paragraph (a) or (b) of this Section
9 to the extent that the indemnifying party was not adversely affected by such
omission. In case any such action is brought against an indemnified party and
it notifies an indemnifying party or parties of the commencement thereof, the
indemnifying party or parties against which a claim is to be made will be
entitled to participate therein and, to the extent that it or they may wish, to
assume the defense thereof, with counsel reasonably satisfactory to such
indemnified party; PROVIDED, HOWEVER, that if the defendants in any such action
include both the indemnified party and the indemnifying party and the
indemnified party has reasonably concluded that there may be legal defenses
available to it and/or other indemnified parties which are different from or
additional to those available to the indemnifying party, the indemnified party
or parties shall have the right to select separate counsel to assume such legal
defenses and otherwise to participate in the defense of such action on behalf
of such indemnified party or parties. In no event shall the indemnifying party
be liable for fees and expenses of more than one counsel separate from their
own counsel for all indemnified parties in connection with any one action or
separate but similar or related actions in the same jurisdictions arising out
of the same general allegations or circumstances. Upon receipt of notice from
the indemnifying party to such indemnified party of its election so to assume
the defense of such action and approval by the indemnified party of counsel,
the indemnifying party will not be liable to such indemnified party under this
Section 9 for any legal or other expenses (other than the reasonable costs of
investigation) subsequently incurred by such indemnified party in connection
with the defense thereof unless (i) the indemnified party has employed such
counsel in connection with the assumption of such different or additional legal
defenses in accordance with the proviso to the immediately preceding sentence,
(ii) the indemnifying party has not employed counsel reasonably satisfactory to
the indemnified party to represent the indemnified party within a reasonable
time after notice of commencement of the action, or (iii) the indemnifying
party has authorized in writing the employment of counsel for the indemnified
party at the expense of the indemnifying party.
(d) If the indemnification provided for in this Section 9 is
unavailable or insufficient to hold harmless an indemnified party under
paragraph (a) or (b) above in
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respect of any losses, claims, damages, liabilities or expenses (or actions in
respect thereof) referred to therein, then each indemnifying party shall
contribute to the amount paid or payable by such indemnified party as a result
of such losses, claims, damages, liabilities or expenses (or actions in respect
thereof) (i) in such proportion as is appropriate to reflect the relative
benefits received by each of the contributing parties, on the one hand, and the
party to be indemnified, on the other hand, from the offering of the Shares or
(ii) if the allocation provided by clause (i) above is not permitted by
applicable law, in such proportion as is appropriate to reflect not only the
relative benefits referred to in clause (i) above but also the relative fault
of each of the contributing parties, on the one hand, and the party to be
indemnified, on the other hand in connection with the statements or omissions
that resulted in such losses, claims, damages or liabilities, as well as any
other relevant equitable considerations. In any case where the Company is a
contributing party and the Underwriters are the indemnified party, the relative
benefits received by the Company on the one hand, and the Underwriters, on the
other hand, shall be deemed to be in the same proportion as the total net
proceeds from the offering of the Shares (before deducting expenses) bear to
the total underwriting discounts received by the Underwriters hereunder, in
each case as set forth in the table on the cover page of the Prospectus.
Relative fault shall be determined by reference to, among other things, whether
the untrue or alleged untrue statement of a material fact or the omission or
alleged omission to state a material fact relates to information supplied by
the Company or the Underwriters and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such untrue
statement or omission. The amount paid or payable by an indemnified party as a
result of the losses, claims, damages, liabilities or expenses (or actions in
respect thereof) referred to above in this paragraph (d) shall be deemed to
include any legal or other expenses reasonably incurred by such indemnified
party in connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this paragraph (d), the Underwriters shall
not be required to contribute any amount in excess of the underwriting
discounts applicable to the Shares purchased by the Underwriters hereunder. The
Underwriters' obligations to contribute pursuant to this paragraph (d) are
several in proportion to their respective underwriting obligations, and not
joint. No person guilty of fraudulent misrepresentations (within the meaning of
Section 11(f) of the Act) shall be entitled to contribution from any person who
was not guilty of such fraudulent misrepresentation. For purposes of this
paragraph (d), (i) each person, if any, who controls an Underwriter within the
meaning of Section 15 of the Act or Section 20 of the Exchange Act shall have
the same rights to contribution as such Underwriter and (ii) each director of
the Company, each officer of the Company who has signed the Registration
Statement, and each person, if any, who controls the Company within the meaning
of Section 15 of the Act or Section 20 of the Exchange Act shall have the same
rights to contribution as the Company. Any party entitled to contribution will,
promptly after receipt of notice of commencement of any action, suit or
proceeding against such party in respect to which claim for contribution may be
made against another party or parties under this paragraph (d), notify such
party or parties from whom contribution may be sought, but the omission so to
notify such party or parties shall not
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<PAGE>
relieve the party or parties from whom contribution may be sought from any
other obligation (x) it or they may have hereunder or otherwise than under this
paragraph (d) or (y) to the extent that such party or parties were not
adversely affected by such omission. The contribution agreement set forth above
shall be in addition to any liabilities which any indemnifying party may
otherwise have.
SECTION 10. REPRESENTATIONS, ETC. TO SURVIVE DELIVERY. The respective
representations, warranties, agreements, covenants, indemnities and statements
of, and on behalf of, the Company and its officers and the Underwriters,
respectively, set forth in or made pursuant to this Agreement will remain in
full force and effect, regardless of any investigation made by or on behalf of
the Underwriters, and will survive delivery of and payment for the Shares. Any
successors to the Underwriters shall be entitled to the indemnity, contribution
and reimbursement agreements contained in this Agreement.
SECTION 11. EFFECTIVE DATE AND TERMINATION.
(a) This Agreement shall become effective at 9:00 a.m.,
Washington, D.C. time, on the first business day following the date hereof, or
at such earlier time after the Registration Statement becomes effective as the
Representatives, in its sole discretion, shall release the Shares for the sale
to the public, unless prior to such time the Representatives shall have
received written notice from the Company that it elects that this Agreement
shall not become effective, or the Representatives shall have given written
notice to the Company that the Representatives on behalf of the Underwriters
elect that this Agreement shall not become effective; PROVIDED, HOWEVER, that
the provisions of this Section 11 and of Section 7 and Section 9 hereof shall
at all times be effective. For purposes of this Section 11(a), the Shares to be
purchased hereunder shall be deemed to have been so released upon the earlier
of notification by the Representatives to securities dealers releasing such
Shares for offering or the release by the Representatives for publication of
the first newspaper advertisement which is subsequently published relating to
the Shares.
(b) This Agreement (except for the provisions of Sections 7
and 9 hereof) may be terminated by the Representatives by notice to the Company
in the event that the Company has failed to comply in any respect with any of
the provisions of this Agreement required on its part to be performed at or
prior to the Closing Date or any Option Closing Date, as the case may be, or if
any of the representations or warranties of the Company are not accurate in any
respect or if the covenants, agreements or conditions of, or applicable to, the
Company herein contained have not been complied with in any respect or satisfied
within the time specified on the Closing Date or any Option Closing Date, as the
case may be, or if prior to the Closing Date or any such Option Closing Date:
(i) the Company shall have sustained a loss by strike, fire,
flood, accident or other calamity of such a character as to interfere materially
with the
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<PAGE>
conduct of the business and operations of the Company regardless of whether or
not such loss was insured;
(ii) trading in the Stock shall have been suspended by the
Commission or the NNM or trading in securities generally on the New York Stock
Exchange or the NNM shall have been suspended or a material limitation on such
trading shall have been imposed or minimum or maximum prices shall have been
established on either such exchange or market;
(iii) a banking moratorium shall have been declared by New
York or United States authorities;
(iv) there shall have been an outbreak or escalation of
hostilities between the United States and any foreign power or an outbreak or
escalation of any other insurrection or armed conflict involving the United
States;
(v) there shall have been commenced any action, suit or
proceeding at law or in equity against the Company, or by any federal, state or
other commission, board or agency, wherein any unfavorable decision would
materially adversely affect the business, properties or financial condition of
the Company;
(vi) there shall have occurred any material adverse market
conditions, of which the Representatives shall be the sole judge;
(vii) Company's independent public accountants shall have
imposed qualifications in certifying to, or its attorneys in opining upon,
material items including, without limitation, information in the footnotes to
the financial statements or matters incident to the issuance and sale of the
Shares, corporate proceedings or other subjects; or
(viii) there shall have been a material adverse change in
(i) general economic, political or financial conditions or (ii) the present or
prospective business or condition (financial or other) of the Company that, in
each case, in the Representatives judgment makes it impracticable or inadvisable
to make or consummate the public offering, sale or delivery of the Company's
Shares on the terms and in the manner contemplated in the Prospectus and the
Registration Statement.
(c) Termination of this Agreement under this Section 11 or
Section 12 after the Firm Shares have been purchased by the Underwriters
hereunder shall be applicable only to the Optional Shares. Termination of this
Agreement shall be without liability of any party to any other party other than
as provided in Sections 7 and 9 hereof.
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<PAGE>
SECTION 12. SUBSTITUTION OF UNDERWRITERS. If one or more of the
Underwriters shall fail or refuse (otherwise than for a reason sufficient to
justify the termination of this Agreement under the provisions of Section 8 or
11 hereof) to purchase and pay for (a) in the case of the Closing Date, the
number of Firm Shares agreed to be purchased by such Underwriter or Underwriters
upon tender to the Representatives such Firm Shares in accordance with the terms
hereof or (b) in the case of any Option Closing Date, the number of Optional
Shares agreed to be purchased by such Underwriter or Underwriters upon tender to
the Representatives of such Optional Shares in accordance with the terms hereof,
and the number of such Shares shall not exceed ten percent (10%) of the Firm
Shares or Optional Shares required to be purchased on the Closing Date or such
Option Closing Date, as the case may be, then, each of the non-defaulting
Underwriters shall purchase and pay for (in addition to the number of such
Shares which it has severally agreed to purchase hereunder) its proportionate
share (based on the monetary obligations of the several Underwriters hereunder
on account of the purchase of Firm Shares, excluding the Firm Shares allocable
to the defaulting Underwriter or Underwriters) which the defaulting Underwriter
or Underwriters shall have so failed or refused to purchase on such Closing Date
or Option Closing Date, as the case may be. In such case, the Representatives,
on behalf of the Underwriters, shall have the right to postpone the Closing Date
or the Option Closing Date, as the case may be, to a date not exceeding seven
(7) full business days after the date originally fixed as such Closing Date or
the Option Closing Date, as the case may be, pursuant to the terms hereof in
order that any necessary changes in the Registration Statement, the Prospectus
or any other documents or arrangements may be made.
If one or more of the Underwriters shall fail or refuse (otherwise than
for a reason sufficient to justify the termination of this Agreement under the
provisions of Section 8 or 11 hereof) to purchase and pay for (a) in the case of
the Closing Date, the number of Firm Shares agreed to be purchased by such
Underwriter or Underwriters upon tender to you of such Firm Shares in accordance
with the terms hereof or (b) in the case of the Option Closing Date, the number
of Optional Shares agreed to be purchased by such Underwriter or Underwriters
upon tender to you of such Optional Shares in accordance with the terms hereof,
and the number of such Shares shall exceed ten percent (10%) of the Firm Shares
or Optional Shares required to be purchased by all the Underwriters on the
Closing Date or the Option Closing Date, as the case may be, then (unless within
forty-eight (48) hours after such default arrangements to your satisfaction
shall have been made for the purchase of the defaulted Shares by an Underwriter
or Underwriters) and subject to the provisions of Section 11(b) hereof, this
Agreement will terminate without liability on the part of any non-defaulting
Underwriter or on the part of the Company except as otherwise provided in
Sections 7 and 9 hereof. As used in this Agreement, the term "Underwriter"
includes any person substituted for an Underwriter under this paragraph. Nothing
in this Section 12, and no action taken hereunder, shall relieve any defaulting
Underwriter from liability in respect of any default of such Underwriter under
this Agreement.
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<PAGE>
SECTION 13. NOTICES. All communications hereunder shall be in writing
and if sent to the Representatives shall be mailed or delivered or sent by
facsimile transmission and confirmed by letter to Ferris, Baker Watts,
Incorporated at 7601 Lewinsville Road, Suite 101, McLean, VA 22102, Attention:
Richard K. Prins (facsimile number: (703) 761-9610) or, if sent to the Company,
shall be mailed or delivered or sent by facsimile transmission and confirmed by
letter to the Company at 1306 Squire Court, Sterling Virginia 20166, attention:
Thomas Dunne (facsimile number: (703) 450-0406).
SECTION 14. SUCCESSORS. This Agreement shall inure to the benefit of
and be binding upon the Company and each Underwriter and the Company's and each
Underwriter's respective successors and legal representatives, and nothing
expressed or mentioned in this Agreement is intended or shall be construed to
give any other person any legal or equitable right, remedy or claim under or in
respect of this Agreement, or any provisions herein contained, this Agreement
and all conditions and provisions hereof being intended to be and being for the
sole and exclusive benefit of such persons and for the benefit of no other
person, except that the representations, warranties, indemnities and
contribution agreements of the Company contained in this Agreement shall also be
for the benefit of the partners, employees and agents of each Underwriter and
any person or persons, if any, who control any Underwriter within the meaning of
Section 15 of the Act or Section 20 of the Exchange Act, and except that the
Underwriters' indemnity and contribution agreements shall also be for the
benefit of the directors of the Company, the officers of the Company who have
signed the Registration Statement and any person or persons, if any, who control
the Company within the meaning of Section 15 of the Act or Section 20 of the
Exchange Act. No purchaser of Shares from the Underwriters will be deemed a
successor because of such purchase.
SECTION 15. APPLICABLE LAW; JURISDICTION. This Agreement shall be
governed by and construed in accordance with the laws of the State of Maryland,
without giving effect to the choice of law or conflict of law principles
thereof. Each party hereto consents to the jurisdiction of each court in which
any action is commenced seeking indemnity or contribution pursuant to Section 9
above and agrees to accept, either directly or through an agent, service of
process of each such court.
SECTION 16. COUNTERPARTS. This Agreement may be executed 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.
If the foregoing is in accordance with your understanding,
please sign and return to us three counterparts hereof, and upon the acceptance
hereof by you, on behalf of each of the Underwriters, this letter and such
acceptance hereof shall constitute a binding agreement among each of the
Underwriters and the Company. It is understood that your acceptance of this
letter on behalf of each of the Underwriters is pursuant to the authority set
forth in a form of Agreement among Underwriters, the form of which shall be
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<PAGE>
submitted to the Company for examination, upon request, but without warranty on
your part as to the authority of the signers thereof.
Very truly yours,
Dunn Computer Corporation
By: ________________________________
Name: _____________________________
Title: ____________________________
Selling Stockholders
------------------------------------
Thomas P. Dunne
------------------------------------
John D. Vazzana
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<PAGE>
ACCEPTED AS OF THE DATE HEREOF
FERRIS, BAKER WATTS, INCORPORATED
1720 EYE STREET, N.W.
WASHINGTON, D.C. 20006
BY: FERRIS, BAKER WATTS, INCORPORATED
ON BEHALF OF EACH OF THE UNDERWRITERS
By: _________________________________
Name: _______________________________
Title: ______________________________
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<PAGE>
SCHEDULE I
NUMBER OF SHARES TO BE
PURCHASED BY EACH UNDERWRITER
Number of Firm
Shares to be Purchased
Name of Underwriter Percentage from the Company
------------------- ---------- ----------------------
Ferris, Baker Watts, Incorporated......
Gerard Klauer Mattison & Co., Inc.
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<PAGE>
SCHEDULE II
SELLING STOCKHOLDERS
Thomas P. Dunne
John D. Vazzana
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<PAGE>
Exhibit 2.1
ACQUISITION AGREEMENT
This ACQUISITION AGREEMENT (the "Agreement") is made and entered into
on the 9th day of March, 1998 among George Fuster, an individual resident in
Maryland, D. Oscar Fuster, an individual resident in Maryland, Carol N. Fuster,
an individual resident in Maryland and Wendy E. Fuster, an individual resident
in Maryland (collectively the "Sellers", and individually each a "Seller"), Dunn
Computer Corporation, a Delaware corporation, with its principal place of
business in Virginia (the "Purchaser") and Dunn Computer Corporation, a Virginia
corporation ("AHC");
RECITALS
A. George Fuster and D. Oscar Fuster (the "IDP Sellers") together own
all of the issued and outstanding capital stock of International Data Products,
Corp., a Maryland corporation ("IDP");
B. Carol N. Fuster and Wendy E. Fuster (the "PRIMO Sellers") together
own all of the issued and outstanding capital stock of Puerto Rico Industrial
Manufacturing Operations Corp., a Puerto Rican corporation ("PRIMO");
C. The Purchaser has caused to be established AHC, and AHC will cause
to be established two wholly-owned subsidiaries of AHC, Dunn Computer Merger
Subsidiary, Inc., a Delaware corporation ("Merger Sub"), a company set up solely
for the purpose of carrying out the merger contemplated in Section 1.2 hereof,
and a Puerto Rican corporation to which will be
<PAGE>
2
transferred the PRIMO Assets and the PRIMO Liabilities at Closing (as such terms
are defined below) ("PAC"), all with a view to carrying out the following
transactions concurrently with the closing of the initial public offering of
shares of common stock of AHC referred to in Sections 5.1(i) and 5.2(j) hereof
(the "IPO"): (i) Merger Sub will merge into the Purchaser which will be the
surviving corporation (and all of the outstanding securities of the Purchaser
will be converted into and become securities of AHC), (ii) all of the
outstanding capital stock of IDP after giving effect to the Redemption (as
defined in Section 1.9 hereof) (the "IDP Shares") will be contributed by the IDP
Sellers to AHC in exchange for shares of AHC and cash and (iii) the PRIMO
Sellers will cause all of the assets of PRIMO (as defined in Section 2.11(h)
hereof) except for the Inter-company Indebtedness (as defined in Section 1.7
hereof) (the "PRIMO Assets"), and all of the liabilities of PRIMO reflected on
the audited balance sheet of PRIMO as of September 30, 1997 attached hereto as
Schedule A, and liabilities incurred by PRIMO in the ordinary course of business
in arms length transactions, or incurred by PRIMO with the consent of the
Purchaser in accordance with Section 4.4 hereof, since September 30, 1997, (the
"PRIMO Liabilities") to be transferred to PAC for cash, all with the result that
AHC will acquire and own all of the capital stock of the Purchaser and of IDP
and PAC will acquire and own all of the PRIMO Assets and assume all of the PRIMO
Liabilities.
NOW, THEREFORE, in consideration of the mutual promises,
representations and covenants set forth herein, and other good and valuable
consideration, the parties hereto hereby agree as follows:
<PAGE>
3
I. The Acquisition Transactions
1.1 The Closing. Each of the transactions described in Sections 1.2-1.4
hereof (collectively, the "Closing") shall take place concurrently with the
closing of the IPO (the "Closing Date").
1.2 The Merger. On the terms and conditions of the Agreement of Merger
attached hereto as Exhibit A (the "Agreement of Merger"), Merger Sub will be
merged into the Purchaser which will be the surviving corporation, and which
will be named Dunn Computer Corporation (the "Merger"). Pursuant to the Merger
the shareholders of Purchaser will receive solely AHC voting stock in exchange
for their Purchaser stock.
1.3 Contribution of IDP Shares. On the terms and conditions hereof, the
IDP Sellers shall contribute to AHC the IDP Shares. In consideration of the
contribution of the IDP Shares, AHC shall issue to the IDP Sellers 750,000
shares of AHC (Dunn Computer Corporation) common stock, par value $.001 per
share ("Dunn Common") (the "Share Portion") and shall pay to the IDP Sellers in
cash the "IDP Cash Amount" as determined as provided on Exhibit B hereto. If AHC
declares or effects a stock dividend, reclassification, recapitalization,
split-up, combination, exchange of shares or similar transaction between the
date of this Agreement and the Closing Date, the Share Portion shall be
appropriately adjusted to account therefor.
1.4 Transfer of PRIMO Assets and Liabilities. On the terms and
conditions hereof, the PRIMO Sellers shall cause PRIMO to transfer to PAC (i)
good and valid, and as to owned real property, marketable, title to all of the
PRIMO Assets, free and clear of any mortgage, claim, lien, security interest or
other encumbrance whatsoever (collectively, "Liens"), except as provided in
Section 2.11(g) hereof, and (ii) the PRIMO Liabilities. All of the other
liabilities of PRIMO shall be retained by and shall be the sole responsibility
of PRIMO. In consideration of the transfer of
<PAGE>
4
the PRIMO Assets and the other undertakings of the Sellers herein, AHC shall pay
to the PRIMO Sellers in cash $2,500,000, the "PRIMO Cash Amount".
1.5 Adjustment to Share Portion. If the Average Closing Price (as
defined below) for a share of Dunn Computer Corporation (the Purchaser) common
stock, par value $.001 per share ("Purchaser Common") is less than $7.50, the
Share Portion shall be adjusted upward to that number of shares which multiplied
by the Average Closing Price equals $5,625,000. "Average Closing Price" shall be
the average of the mean between the closing high bid and asked prices for a
share of Purchaser Common, as reported on the Nasdaq National Market System for
the twenty consecutive trading days immediately preceding the date two business
days before the Closing Date. If the Purchaser declares or effects a stock
dividend, reclassification, recapitalization, split-up, combination, exchange of
shares or similar transaction between the date of this Agreement and the Closing
Date, the Share Portion shall be appropriately adjusted to account therefor.
1.6 Adjustment to Purchase Price.
(a) The "Purchase Price" shall mean the Share Portion plus the
sum of the IDP Cash Amount, the PRIMO Cash Amount and the Inter-company
Indebtedness (which sum shall equal $14,900,000).
(b) The Purchase Price shall be adjusted downward if and to
the extent that the Closing Balance Sheet (as defined in Section 1.6(c) hereof)
reflects a net asset value (net worth) of IDP and PRIMO on a combined basis of
less than $5,108,826 at Closing (any such difference, the "Shortfall Amount"),
and the Sellers shall pay to AHC the Shortfall Amount, in cash or shares of Dunn
Common (valued for this purpose at $8.50 per share), or a combination thereof,
as the IDP Sellers shall elect, within ten days of written acceptance by AHC of
the Closing Balance
<PAGE>
5
Sheet or within ten days of completion of the Revised Closing Balance Sheet (as
defined in Section 1.6(d) hereof), as the case may be.
(c) Within thirty days after the Closing Date, the Sellers
shall cause to be delivered to AHC a combined balance sheet of IDP and PRIMO as
at the Closing Date prepared on the basis of the same accounting principles,
consistently applied, as were used in the preparation of the Sellers' Balance
Sheet (as defined in Section 2.4 hereof) and reviewed by KPMG Peat Marwick, LLP
("Sellers' Accountants") (the "Closing Balance Sheet").
(d) Sellers' Accountants shall make available to the
Purchaser's independent public accountants, Ernst & Young ("Purchaser's
Accountants") all work papers used in connection with the preparation of the
Closing Balance Sheet. Upon review of the Closing Balance Sheet and such work
papers, if Purchaser's Accountants disagree with the Closing Balance Sheet and
if Purchaser's Accountants and Sellers' Accountants fail to resolve such
disagreement within thirty days following receipt by the Purchaser of the
Closing Balance Sheet and the work papers of Sellers' Accountants, then at the
request of either Purchaser or Sellers, a third independent public accountant,
selected jointly by the Sellers' Accountants and the Purchaser's Accountants
shall resolve the disagreement between Purchaser's Accountants and Sellers'
Accountants and shall revise the Closing Balance Sheet (the "Revised Closing
Balance Sheet") to reflect the resolution. On the basis of the Closing Balance
Sheet, if Purchaser advises Sellers in writing that the Closing Balance Sheet is
accepted (either after review or after Purchaser's Accountants and Sellers'
Accountants have resolved any disagreements in respect of the Closing Balance
Sheet) or, if required, on the basis of the Revised Closing Balance Sheet, it
shall be determined whether or not there is a Shortfall Amount.
<PAGE>
6
(e) The Purchase Price shall be adjusted upward if the Closing
Balance Sheet, or if there is a Revised Closing Balance Sheet, the Revised
Closing Balance Sheet, reflects a net asset value (net worth) of IDP and PRIMO
on a combined basis of more than $5,242,634 at Closing (any such difference, the
"Excess Amount"); such adjustment shall be the amount of the Excess Amount up to
a maximum adjustment of $500,000. For purposes of this Section 1.6(e) there
shall be deducted from the liabilities reflected on the Closing Balance Sheet
(or the Revised Closing Balance Sheet, as the case may be) any amounts reflected
in the liabilities for accounting, investment banking and legal fees in
connection with this Agreement and the IPO.
1.7 Discharge of IDP Indebtedness. Promptly after the Closing, AHC
shall pay to PRIMO on behalf of IDP, and in full discharge thereof, the
inter-company indebtedness running from IDP to PRIMO, which amount shall be
agreed in good faith by the Sellers and the Purchaser two business days before
Closing (the "Inter-company Indebtedness"). The Inter-company Indebtedness shall
not exceed $12,400,000 as provided on Exhibit B hereto.
1.8 Payments by Wire Transfer. All of the cash payments to be made in
this Article I shall be made by bank wire transfers to accounts designated by
the appropriate Seller to AHC prior to the Closing.
1.9 Redemption. The IDP Sellers shall surrender to IDP for redemption
an appropriate number of IDP Shares (the "IDP Redemption Shares") pursuant to
the procedures, and in exchange for the consideration, described in Section 1.10
hereof (the "Redemption"), so that after the Redemption the IDP Shares shall
constitute all of the then issued and outstanding shares of capital stock of
IDP.
1.10 Redemption Procedures and Consideration. Prior to the Closing, IDP
shall transfer and assign all of the assets and liabilities of its IDP F2
Engineering division (as described
<PAGE>
7
in Exhibit G hereto) to F2 Engineering Corp., an inactive corporation previously
formed by IDP which has issued no shares of capital stock, has no assets or
liabilities and has conducted no activities, and at the Closing, IDP shall
transfer, or cause F2 Engineering Corp. to issue, all of the authorized shares
of capital stock of F2 Engineering Corp. to the IDP Sellers as consideration for
the IDP Redemption Shares.
II. Representations and Warranties of the Sellers
Each Seller hereby jointly and severally represents and warrants to the
Purchaser as follows:
2.1 Organization of IDP and PRIMO and Related Matters. IDP is a
corporation duly organized, validly existing and in good standing under the laws
of Maryland; PRIMO is a corporation duly organized, validly existing and in good
standing under the laws of the Commonwealth of Puerto Rico; each of IDP and
PRIMO has all requisite power and authority to own, operate and lease its
assets, and to carry on its business as heretofore and as presently conducted.
True and complete copies of the currently effective articles of incorporation
and bylaws of IDP and PRIMO are attached to this Agreement as Schedules 2.1(a)
and (b). Each of IDP and PRIMO is duly authorized, qualified or licensed as a
foreign corporation and is in good standing in each jurisdiction where its
business, operations or assets requires it so to be. Schedule 2.1(c) identifies
all of the jurisdictions in which IDP and PRIMO, respectively, are authorized,
qualified or licensed as a foreign corporation. Neither IDP nor PRIMO has any
subsidiaries or equity interests in any other entity.
<PAGE>
8
2.2 The Shares.
(a) Each Seller owns of record and beneficially, free and
clear of any Liens, the number of IDP Shares (before giving effect to the
Redemption, which shall reduce such number of Shares by the number of IDP
Redemption Shares) or PRIMO Shares listed by such Seller's name on Exhibit C;
collectively the Sellers so own all of the Shares. The only authorized, issued
and outstanding capital stock of IDP are the IDP Shares; the only authorized,
issued and outstanding capital stock of PRIMO are the PRIMO Shares.
(b) Each of the Shares is duly authorized, validly issued and
outstanding, fully paid and non-assessable. None of the Shares has been issued
in violation of, or is subject to, any preemptive or subscription rights and
there are no outstanding convertible or exchangeable securities, calls,
preferential rights, options or warrants relating to any of the Shares. Except
as set forth on Schedule 2.2, there are no voting trust agreements or other
agreements restricting or otherwise relating to the voting, dividend rights or
the disposition of any of the Shares.
2.3 Due Authorization and Execution; No Conflict; Consents. Each Seller
has all requisite power and authority and full capacity to execute, deliver and
perform this Agreement. This Agreement has been duly and validly executed and
delivered by each Seller, and constitutes a valid and binding obligation of each
Seller enforceable against each Seller in accordance with its terms except to
the extent that enforcement may be limited by bankruptcy, insolvency,
reorganization, moratorium, conservatorship, receivership or other similar laws
now or hereafter in effect relating to or affecting the enforcement of
creditors' rights generally. Except as set forth on Schedule 2.3, the execution,
delivery and performance of this Agreement will not (a) conflict with or violate
(i) the articles of incorporation or bylaws of IDP or PRIMO, (ii) any term of
any agreement, contract, instrument, lease, commitment or other obligation to
which IDP, PRIMO or
<PAGE>
9
any Seller is a party or by which IDP, PRIMO or any Seller is bound, (iii) any
order, judgment or decree to which IDP, PRIMO or any Seller is a party or
subject, or by which any properties and assets of IDP or PRIMO are bound or (iv)
any provision of any applicable law, statute, ordinance, rule or regulation or
common law obligation and (b) will not result in the creation or imposition of
any Lien in favor of any third party with respect to any of the properties and
assets of IDP or PRIMO. Except as described on Schedule 2.3, (y) the execution
and delivery of this Agreement and the consummation of the transactions
contemplated hereby by the Sellers will not require the consent or approval of
or notice to any governmental authority, or constitute a violation of any law,
regulation or order of any such authority, by IDP, PRIMO, or any Seller; and (z)
none of IDP, PRIMO or any Seller is a party to or bound by any agreement,
instrument, order, judgment or decree which would require the consent of another
person to the execution and delivery of this Agreement and the consummation of
the transactions contemplated hereby.
2.4 Financial Statements. The Sellers have delivered to the Purchaser
the combined statements of profit and loss for the years ended September 30,
1996 and 1997 and the combined balance sheet as at September 30, 1996 and 1997
(the balance sheet at September 30, 1997 shall be referred to as the "Sellers'
Balance Sheet" and September 30, 1997 shall be referred to as the "Sellers'
Balance Sheet Date") of IDP and PRIMO, as audited by Sellers' Accountants, and
the respective individual statements of profit and loss and balance sheets for
IDP and PRIMO for such period and at such date, as audited by Sellers'
Accountants (collectively, the "Sellers' Financial Statements"). The Sellers'
Financial Statements were prepared in accordance with generally accepted
accounting principles, consistently applied as in prior periods, are correct and
complete, and fairly present the financial condition of IDP and PRIMO on a
combined basis, and of IDP and PRIMO individually, as the case may be, and the
results of their combined operations,
<PAGE>
10
or their respective operations, as the case may be, as of the dates and for the
periods indicated therein.
2.5 Liabilities. Except as set forth on Schedule 2.5 hereto, neither
IDP nor PRIMO has any liabilities or obligations (whether accrued, absolute,
contingent, known, unknown, derivative or otherwise) other than those (i)
reflected in the Sellers' Balance Sheet and not since paid or otherwise
discharged, (ii) listed or described on any Schedule hereto and (iii)
liabilities arising after the Sellers' Balance Sheet Date in the ordinary course
of business of IDP or PRIMO.
2.6 Interim Operations.
(a) Ordinary Course. Except as described on Schedule 2.6
hereto, the business of each of IDP and PRIMO has been conducted only in the
ordinary course since the Sellers' Balance Sheet Date.
(b) Absence of Adverse Change. There has not been, since the
Sellers' Balance Sheet Date, any material adverse change in the business, assets
or financial condition of IDP and PRIMO considered as one entity. To the
knowledge of Sellers, there has been no occurrence, circumstance or combination
thereof which might reasonably be expected to result in any such material
adverse change.
2.7 Litigation. Except as set forth on Schedule 2.7 hereto, there is no
action, suit, proceeding, arbitration, demand, claim or investigation pending
or, to any Seller's knowledge, threatened against or involving IDP or PRIMO or
affecting or which might materially adversely affect this Agreement or the
business or assets of IDP or PRIMO or the consummation of the transactions
contemplated hereby before any court or arbitral tribunal or before or by any
governmental department, agency or body, or otherwise. Neither IDP nor PRIMO is
subject to any judgment, order, writ, injunction, decree, settlement agreement,
compliance agreement or
<PAGE>
11
consent decree of any court, administrative or governmental authority or
arbitrator except as set forth on Schedule 2.7 hereto.
2.8 Agreements and Commitments.
(a) Written and Oral Agreements and Commitments. Schedules
2.8(a)(i) through and including 2.8(a)(xii) hereto set forth a complete list as
of the date hereof of all written agreements (true and correct copies of each of
which have heretofore been delivered to Purchaser) and describe all oral
agreements and commitments of IDP and of PRIMO in force as of the date hereof,
as follows:
(i) Supply Contracts; Purchase Orders. Each outstanding supply
contract or purchase order and commitment as of December 31, 1997 exceeding
$250,000 for the purchase by IDP or PRIMO of capital assets, inventory,
semi-finished goods, supplies, services or other items.
(ii) Customer Contracts. Each outstanding contract and
commitment as of December 31, 1997 exceeding $150,000 for the sale by IDP or
PRIMO of goods or services, including all Government Contracts (as defined in
Section 2.9(g)).
(iii) Licenses. Each patent, trademark, copyright, technology
and other license agreement to which IDP or PRIMO is a party, either as licensor
or as licensee.
(iv) Real Estate Documents. Each lease and sublease relating
to the real estate interests of IDP and of PRIMO; neither IDP nor PRIMO owns any
real estate.
(v) Leases. Each lease to which either IDP or PRIMO is a
party, either as lessor or as lessee not identified in response to Section
2.8(a)(iv);
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12
(vi) Distributorship and Sales Representation Agreements. Each
distributorship, sales representation and similar agreement to which either IDP
or PRIMO is a party.
(vii) Indebtedness. Each outstanding loan, loan agreement,
credit agreement, note, guarantee, security agreement, book entry advance in
respect of borrowing or commitment (including, without limitation, any amounts
owing to IDP or PRIMO from, or owed by IDP or PRIMO to, any affiliated
individual or entity) to which either IDP or PRIMO is a party or by which any of
the assets of either are bound.
(viii) Employment and Benefit Agreements. Each employment,
consulting, or collective bargaining agreement to which either IDP or PRIMO is a
party, and each, pension, retirement, profit sharing, deferred compensation,
bonus, life insurance and other benefit plan or agreement which applies in any
way to past or present directors, officers, employees or consultants of either
IDP or PRIMO.
(ix) Stock Option Plans. Each stock option plan and each
option granted under each stock option plan of IDP or PRIMO.
(x) Insurance Contracts. Each insurance contract to which
either IDP or PRIMO is a party.
(xi) Product and Service Warranties. A sample of each type of
product, service or other guarantee, warranty or indemnity by which IDP or PRIMO
is bound.
(xii) Other Agreements. Each material contract, agreement, and
commitment to which either IDP or PRIMO is a party or by which the assets of
either are bound other than those disclosed pursuant to the preceding clauses of
this Section 2.8.
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13
(b) Status of Agreements. Except as set forth on Schedule
2.8(b) hereto, each of the contracts, agreements, commitments, licenses and
leases to which either IDP or PRIMO is a party, is a valid, legally binding and
enforceable obligation of IDP or PRIMO, and is in full force and effect. There
is no default by either IDP or PRIMO or, to the knowledge of any Seller, by the
other parties thereto under the terms of any such material contract, commitment,
license or lease, and no condition (including without limitation, the execution,
delivery and performance of this Agreement) exists which, with the passage of
time, the giving of notice, or both, is likely to result in a default by IDP or
PRIMO, as the case may be, under the terms of any thereof.
2.9 Government Contracts.
(a) Except as set forth on Schedule 2.9 hereto, to the
knowledge of the Sellers, each of IDP and PRIMO has complied in all material
respects with all applicable laws, rules, policies, procedures, regulations,
accounting standards, cost principles, cost accounting standards, solicitation
provisions and contract clauses in conducting all past and present activities
relating to Government Contracts (as defined in Section 2.9(g)) and Government
Contract procurements, including, without limitation, accounting and record
keeping activities, disclosures, reports, wage and hour regulations,
certifications and representations, product testing, marketing activities,
proposal and bid preparation and submissions, negotiations and contract
performance. To the knowledge of the Sellers, all proposals, representations,
statements, disclosures, reports, invoices and certifications made in connection
with Government Contracts were, when made, current, accurate and complete in all
material respects. Except as set forth on Schedule 2.9 hereto, there are not
now, nor have there been since the formation of IDP or PRIMO, as the case may
be, any government investigations or
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14
audits of the IDP or PRIMO, or any officer or employee of either in connection
with Government Contract activities. Each Government Contract of IDP and of
PRIMO, as the case may be, is expected to finish on schedule and within budget
and neither IDP nor PRIMO presently has any basis to conclude that existing
schedules or budgets are not reasonable.
(b) To the knowledge of the Sellers, neither IDP nor PRIMO has
been determined by a governmental agency to be "non-responsible" in connection
with any Government Contract procurement. Neither IDP nor PRIMO has received any
notice, and neither IDP, nor PRIMO, nor any Seller is aware of any circumstances
that reasonably would be expected to justify such a notice, that any of its
Government Contracts have been or may be terminated for default. Neither IDP nor
PRIMO is debarred or suspended, or proposed for debarment or suspension from
procurements or other activities at the federal, state or local governmental
levels, and none of IDP, PRIMO or any Seller is aware of any circumstances that
would justify a proposal or decision to suspend or debar IDP or PRIMO from
procurement or other activities. IDP and PRIMO and their respective personnel
have all necessary security clearances to perform outstanding Government
Contracts and neither IDP, nor PRIMO, nor any Seller is aware of any
circumstances (including the transfer of the IDP Shares to the Purchaser) that
may lead to the suspension or revocation of such security clearances. Neither
IDP nor PRIMO has engaged in any illegal or fraudulent conduct in connection
with Government Contract activities.
(c) Each Government Contract of IDP and of PRIMO that was
awarded, or is being considered for award, on the basis that IDP or PRIMO, as
the case may be, is classified as a small business, a small disadvantaged
business or a minority-owned business
<PAGE>
15
under a set aside or similar program under any federal, state or local laws or
procurement regulations is identified on Schedule 2.9 hereto.
(d) Neither IDP, nor PRIMO, nor any Seller has received
written notice from, or engaged in any discussions with, any Governmental
Authority (as defined in Section 2.9(g)) regarding the termination of any
Government Contract, the cessation of any delivery orders thereunder, any
reduction by any Governmental Authority in the amount of its business with IDP
or PRIMO or allegations of defective pricing in connection with Government
Contract activities.
(e) Except as set forth on Schedule 2.9 hereto, there have
been no outstanding claims (as defined by the Federal Acquisition Regulations)
by any government procurement agency submitted by or against IDP or PRIMO in
connection with its Government Contract activities and neither IDP nor PRIMO has
any basis to conclude that any claims may be submitted by or against either
company in connection with past or present government contracting activities.
(f) To the knowledge of Sellers, each of IDP and PRIMO has at
all times complied in all material respects with all governmental and state
rules, laws and regulations relating to the payment of commissions or contingent
fees and those relating to disclosure of the payment of commissions or
contingent fees in connection with Government Contract activities.
(g) For purposes of this Agreement, (i) "Government Contracts"
shall mean contracts for procurements by or on behalf of any Governmental
Authority, including instances when IDP, PRIMO or Purchaser, as the case may be,
has acted as a subcontractor at any tier,
<PAGE>
16
and (ii) "Governmental Authority" shall mean any government or political
subdivision, whether federal, state, local or foreign, or any agency or
instrumentality of any such government or political subdivision, or any federal,
state, local or foreign court or arbitrator.
2.10 Certain Governmental Matters.
(a) Taxes.
(i) Each of IDP and PRIMO has filed all federal, state and
local returns, reports, schedules, declarations and estimates related to taxes
("Tax Returns") required to be filed. All such Tax Returns were correct and
complete in all respects. All taxes owed by IDP and PRIMO, as the case may be,
for all periods (and any portion of any period) have been paid or reflected as a
liability on the Sellers' Balance Sheet or will be reflected as a liability on
the Closing Balance Sheet. No claim has ever been made by an authority in a
jurisdiction where either IDP or PRIMO does not file Tax Returns that it is or
may be subject to taxation by that jurisdiction. There are no security interests
on any of the assets of IDP or PRIMO that arose in connection with any failure
(or asserted failure) to pay any tax.
(ii) Each of IDP and PRIMO has withheld and paid all taxes
required to have been withheld and paid in connection with amounts paid or owing
to any employee, independent contractor, creditor, stockholder or other third
party.
(iii) There is no dispute or claim concerning any tax liability
of either of IDP or PRIMO either (A) claimed or raised by any authority in
writing or (B) as to which any of the Sellers has knowledge based upon personal
contact with any agent of such authority. Schedule 2.10(a) lists all federal,
state, local, and foreign income tax returns filed with respect to either IDP
or PRIMO for taxable periods ended on or after January 1, 1992, indicates those
tax returns that have been audited, and indicates those tax returns that
currently are the subject of
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17
audit. The Sellers have delivered to the Purchaser correct and complete copies
of all federal, state, and foreign income tax returns, examination reports, and
statements of deficiencies assessed against or agreed to by IDP or PRIMO since
January 1, 1992.
(iv) Neither IDP nor PRIMO has waived any statute of limitations
in respect of taxes or agreed to any extension of time with respect to a tax
assessment or deficiency.
(v) Neither IDP nor PRIMO has filed a consent under Code
- -SECTION-341(f) concerning collapsible corporations. Neither IDP nor PRIMO has
made any payments, is obligated to make any payments, or is a party to any
agreement that under certain circumstances could obligate it to make any
payments that will not be deductible under -SECTION-280G of the Internal Revenue
Code of 1986, as amended (the "Code"). Neither IDP nor PRIMO has been a United
States real property holding corporation within the meaning of Code
- -SECTION-897(c)(2) during the applicable period specified in Code
- -SECTION-897(c)(1)(A)(ii). Neither IDP nor PRIMO is a party to any tax
allocation or sharing agreement. Neither IDP nor PRIMO (A) has been a member of
an affiliated group filing a consolidated federal income tax return, or (B) has
any liability for the taxes of any person under Reg. -SECTION-1.1502-6 (or any
similar provision of state, local, or foreign law), as a transferee or
successor, by contract, or otherwise.
(vi) For purposes of this Agreement, the following definitions
shall apply:
"tax" means any federal, state, local or foreign income, gross
receipts, license, payroll, employment, excise, severance, stamp, occupation,
premium, windfall profits, environmental (including taxes under Code
- -SECTION-59A), customs duties, capital stock, franchise, profits, withholding,
social security (or similar), unemployment, disability, real property, personal
property, sales, use,
<PAGE>
18
transfer, registration, value added, alternative or add-on minimum, estimated,
or other tax of any kind whatsoever, including any interest, penalty, or
addition thereto, whether disputed or not; and
"tax return" means any return, declaration, report, claim for refund,
or information return or statement relating to taxes, including any schedule or
attachment thereto, including any amendment thereof.
(b) Compliance with Legal Requirements. The business and
operations of each of IDP and PRIMO have not involved and do not now involve,
and, assuming that no changes occur in applicable law, the continuation thereof
in the manner in which they are now conducted will not involve, a violation of
any material legal requirement of or administered by any federal, state or local
governmental agency. To the extent that compliance with this Section 2.10 (b)
depends upon the existence or continuing validity of any governmental permit or
other authorization, each such permit or authorization is identified on Schedule
2.10 (b) hereto, and the Sellers have heretofore delivered or have caused to be
delivered to Purchaser true and correct copies of each thereof. Except as set
forth on Schedule 2.10(b), each such permit and other authorization is valid and
in full force and effect, and will not be affected by the execution, delivery
and performance of this Agreement and the change in control of IDP and PRIMO
resulting therefrom. All material obligations with respect to such permits and
other authorizations have been fulfilled, and no event has occurred which
allows, or after notice or lapse of time or both, would allow suspension,
revocation, material adverse variation or termination thereof or result in any
other impairment of the rights of IDP or PRIMO, and no Seller is aware of any
facts or circumstances which will or are likely to result in any of such permits
or other authorizations being suspended, revoked, materially and adversely
varied or terminated, or which may prejudice their renewal. To the knowledge of
the Sellers, all certificates of occupancy and permits
<PAGE>
19
necessary for the present use and occupancy of any building by IDP or PRIMO have
been obtained.
(c) ERISA. Schedule 2.10(c) attached hereto is a complete list
of all employee benefit plans, as such term is defined in Section 3(3) of the
Employee Retirement Income Security Act of 1974, as amended ("ERISA"), life
insurance, hospitalization, medical and dental plans, severance, executive
compensation, bonus, deferred compensation, pension, retirement, profit sharing,
excess benefit, stock purchase and option plans (including multi-employer and
multiple employer plans), and all other plans, arrangements or practices whether
written or oral, qualified or nonqualified, sponsored, maintained, contributed
to or required to be contributed to by IDP or PRIMO or any trade or business
whether or not incorporated that together with IDP and/or PRIMO is treated as a
"single employer" under Section 414(b), (c), (m) or (o) of the Code and the
rules and regulations promulgated thereunder (referred to as "ERISA Affiliate")
(each such plan is hereinafter referred to as an "Employee Benefit Plan").
Neither IDP nor PRIMO nor its ERISA Affiliates maintains or has any liability in
respect of any Employee Benefit Plan which is not disclosed on Schedule 2.10(c)
hereto. Each Employee Benefit Plan has been operated and administered in
accordance with its provisions and is in compliance in all respects with all
applicable federal and state laws, rules and regulations governing each such
plan including but not limited to ERISA, the Code, and the Consolidated Omnibus
Budget Reconciliation Act of 1985, as amended ("COBRA") except to the extent
that failure to so qualify, administer or comply would not have a material
adverse effect on the business of IDP and PRIMO taken as a whole.
<PAGE>
20
There have been no non-exempt "prohibited transactions" within
the meaning of Section 4975 of the Code or Section 406 of ERISA resulting in the
imposition of excise taxes or other monetary liability on IDP or PRIMO. Neither
IDP nor PRIMO nor any ERISA Affiliate has sponsored, ever maintained, or
contributed to an Employee Benefit Plan that is subject to Title IV of ERISA.
Each Employee Benefit Plan intended to be "qualified" within the meaning of
Section 401(a) of the Code is so qualified and the trusts maintained thereunder
are exempt from taxation under Section 501(a) of the Code. No Employee Benefit
Plan provides benefits, including without limitation, death or medical benefits
(whether or not insured), with respect to current or former employees of the
company or any ERISA Affiliate beyond their retirement or other termination of
service other than coverage mandated by COBRA or applicable state or local law.
There is no pending or, to the knowledge of Sellers threatened assessment,
complaint, proceeding, voluntary compliance application or investigation of any
kind in any court or government agency with respect to any Employee Benefit
Plan. All benefits, expenses and other amounts due and payable under any
Employee Benefit Plan and all contributions, transfers or payments required to
be made, accrued or booked to any Employee Benefit Plan, have been paid or made,
accrued and booked. With respect to each Employee Benefit Plan, Sellers have
heretofore delivered to the Purchaser true and complete copies of any documents
requested by the Purchaser.
(d) Worker's Compensation. Except as described on Schedule
2.10(d) hereto, worker's compensation and unemployment compensation matters with
respect to IDP or PRIMO have been conducted and are being conducted so as to be
in compliance in all material respects with all laws and regulations applicable
thereto.
<PAGE>
21
(e) Plant Closing Legislation. As of the Closing Date, no
employee of IDP or PRIMO, without 60 days written notice, shall have suffered,
an "employment loss" as a result of a "plant closing" or "mass layoff" as those
terms are defined in the Worker Adjustment and Retraining Notification Act, 29
U.S.C. -SECTION-2101-2109 ("WARN") in either case during the six month period
ending with and including the Closing Date. Each of IDP and PRIMO is in
compliance in all material respects with the requirements of WARN.
(f) Environmental Matters. Each of IDP and PRIMO and any other
person or entity for whose conduct they are or may be held responsible, have no
liability under, have never violated, and are presently in compliance in all
material respects with all Environmental Laws (as defined below) applicable to
the properties owned, leased or used by such parties (collectively, the
"Sellers' Properties") and any facilities and operations thereon, and, except as
set forth on Schedule 2.10(f) hereto, to the best of each Seller's knowledge,
there exists no Environmental Condition (as defined below) with respect to the
Sellers' Properties or any facilities or operations thereon, or with respect to
any property at which materials from the Sellers' Properties have been disposed.
Neither IDP, nor PRIMO, nor any Seller has generated, manufactured, refined,
transported, treated, stored, handled, disposed, transferred, produced, or
processed any Hazardous Material (as defined below) or any solid waste on, under
or about the Sellers' Properties. Seller has no knowledge of the Release or
threat of Release (as defined below) of any Hazardous Material at the Sellers'
Properties. Neither IDP, nor PRIMO, nor any Seller has received notice under the
citizen suit provision of any Environmental Law in connection with the Sellers'
Properties or any facilities or operations thereon.
<PAGE>
22
For purposes of this Agreement, (i) "Environment" shall mean soil,
surface waters, groundwaters, land, stream sediments, surface or subsurface
strata, ambient air and any environmental medium, (ii) "Environmental Condition"
shall mean any condition with respect to the Environment on or off the Sellers'
Properties or Purchaser Properties, as the case may be, that could or does
result in any damage, loss, cost, expense, claim, demand, order or liability to
any Seller, IDP, PRIMO or Purchaser by any third party (including, without
limitation, any government entity), including, without limitation, any condition
resulting from the operation of the business of IDP, PRIMO or Purchaser, as the
case may be, or any activity or operation in the vicinity of the Sellers'
Properties or the Purchaser Properties, as the case may be, or any activity or
operation formerly conducted by any person or entity on or off the Sellers'
Properties or the Purchaser Properties, as the case may be, (iii) "Environmental
Law" shall mean any environmental or health and safety related law, regulation,
rule, ordinance, bylaw, order or determination of any governmental or judicial
authority at the federal, state or local level, whether existing as of the date
hereof, previously enforced or subsequently enacted, (iv) "Hazardous Material"
shall include, without limitation, any pollutant, contaminant, toxic substance,
hazardous waste, hazardous material, hazardous substance, petroleum or petroleum
product, asbestos, polychlorinated biphenyls, underground storage tanks and the
contents thereof or any other material defined in or regulated pursuant to any
Environmental Law, whether existing as of the date hereof, previously enforced,
or subsequently enacted, including, without limitation, the Resource
Conservation and Recovery Act, as amended, the Comprehensive Environmental
Response, Compensation and Liability Act, as amended, the Federal Clean Water
Act, as amended, and the Toxic Substances Control
<PAGE>
23
Act, as amended, and (v) "Release" shall mean any releasing, spilling, leaking,
pumping, pouring, emitting, emptying, discharging, injecting, escaping,
leaching, disposing, dumping or migrating into the Environment.
2.11 Assets.
(a) Real Estate. Schedule 2.11(a) hereto sets forth a true and
complete list and a description of all of the land and interests in land of IDP
and of PRIMO (the "Sellers' Land") and a description of all of the buildings and
other structures of IDP and of PRIMO including leases of buildings and other
structures (and fixtures therein and improvements thereto), and the improvements
on and to the Sellers' Land (the "Sellers' Buildings"). The Sellers' Buildings
are located entirely on the Sellers' Land and, except as provided in Schedule
2.11(a) hereto, none of the Sellers' Buildings is subject to any mortgages,
liens, encumbrances, equities, restrictions, easements, rights-of-way or other
conflicting interests except (i) those items that secure liabilities that are
reflected in the Sellers' Balance Sheet, and (ii) statutory liens for amounts
not yet delinquent or which are being contested in good faith. To the knowledge
of Sellers, the Sellers' Buildings are in good structural condition except as
set forth on Schedule 2.11(a) hereto.
(b) Inventories. Schedule 2.11(b) hereto sets forth a
description of all of the inventories as of December 31, 1997, of raw materials,
parts, supplies, work-in-progress and finished goods of IDP and PRIMO (the
"Sellers' Inventories"), and identifies all such inventories that, as of
December 31, 1997, are more than 90 days old. Substantially all of the Sellers'
Inventories consist of quantities and qualities usable and salable in the
ordinary course of the business of IDP and PRIMO. Except as set forth on
Schedule 2.11(b) hereto, all of the Sellers' Inventories are located in the
Sellers' Buildings.
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24
(c) Machinery, Equipment and Other Tangibles. Schedule 2.11(c)
hereto sets forth a description as of December 31, 1997 (including the location)
of all of the machinery, equipment and other tangible assets of every kind and
description and wheresoever situated (whether real or personal and whether
attached or unattached to real estate) which at December 31, 1997 were used or
useful in the business of IDP or PRIMO (the "Sellers' Machinery, Equipment and
Other Tangibles"). The Sellers' Machinery, Equipment and Other Tangibles are in
good operating condition and repair, ordinary wear and tear excepted, and are
free of any material defects, and are located in the Sellers' Buildings.
(d) Intellectual Property. The business and operations of
neither IDP nor PRIMO have infringed or violated or required the use of, except
as set forth on Schedule 2.11(d) hereto, and do not now infringe or violate or
require the use of, except as set forth on Schedule 2.11(d) hereto, any patent,
copyright, trademark, trade name, invention, discovery, trade secret, secret
process or other proprietary asset of any other person. Except as set forth in
Schedule 2.11(d) hereto, there are no patents or patentable inventions developed
by any director, officer or employee of IDP or PRIMO used or useful in the
business of IDP and PRIMO considered as one enterprise which have not been
transferred to, and are not owned free of any encumbrances by, IDP or PRIMO.
(e) Accounts and Notes Receivable. All accounts and notes
receivable reflected in the Sellers' Balance Sheet and all accounts and notes
receivable arising subsequent to the Sellers' Balance Sheet Date (the "Sellers'
Accounts and Notes Receivable"), have arisen in the ordinary course of business
of IDP or PRIMO and represent valid obligations due to IDP or PRIMO, as the case
may be, and, except as set forth on Schedule 2.11(e) hereto, have been collected
or are collectible in accordance with their terms in the ordinary course of
business of
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25
IDP or PRIMO, as the case may be, in the aggregate recorded amounts thereof less
the bad debt reserve shown on the Sellers' Balance Sheet or accrued after the
Sellers' Balance Sheet Date in accordance with past practice.
(f) Assets Used in Business. Since one year before the
Sellers' Balance Sheet Date, neither IDP nor PRIMO has utilized any assets in
the conduct of its business and operations other than (i) assets reflected on
the Sellers' Balance Sheet or the combined balance sheet of IDP and PRIMO as of
September 30, 1996 included in the Sellers' financial statements, (ii) assets
set forth on Schedules 2.11(a) through and including 2.11(f) hereto and (iii)
supplies and inventories consumed or disposed of by IDP or PRIMO in the ordinary
course of business.
(g) Title to Assets. Except as set forth on Schedule 2.11(g)
hereto, either IDP or PRIMO has good, and as to owned real property, marketable,
title to, or in the case of property held under lease, a valid and enforceable
right to use, all of the Sellers' Land, Buildings, Inventories, Machinery,
Equipment and Other Tangibles, Intellectual Property, Accounts and Notes
Receivable and all assets reflected in the Sellers' Balance Sheet except those
disposed of in the ordinary course of business since the Sellers' Balance Sheet
Date, and such assets are not subject to any Liens except as set forth on
Schedule 2.11(g) hereto except (i) those items that secure liabilities that are
reflected in the Sellers' Balance Sheet and (ii) statutory liens for amounts not
yet delinquent or which are being contested in good faith. None of the assets of
either IDP or PRIMO are subject to any pending or, to the knowledge of Sellers,
threatened judicial order, ordinance or planning restriction as to which any
Seller has knowledge which might have a material adverse effect on the business
of IDP and PRIMO. Except as affected by the transactions contemplated hereby,
IDP and PRIMO as lessees have the right under valid and
<PAGE>
26
subsisting leases to occupy, use, possess and control all real property leased
by IDP and PRIMO as presently occupied, used, possessed and controlled by IDP
and PRIMO.
(h) PRIMO Assets. The assets of PRIMO reflected on the PRIMO
Balance Sheet, the names "PRIMO" and "Puerto Rico Industrial Manufacturing
Operations Corp.", and all other assets of PRIMO and all contracts to which
PRIMO is a party, other than assets disposed of in the ordinary course of
business since the date of the PRIMO Balance Sheet, are the "PRIMO Assets."
2.12 Insurance. All of the assets of IDP and of PRIMO are insured in
accordance with good industry practice with respect to loss due to fire and
other risks (except that PRIMO does not have product liability insurance), in
amounts and coverage which are reasonable and customary in light of the business
conducted by IDP or PRIMO, as the case may be, pursuant to the policies of
insurance listed and described on Schedule 2.8(a)(x) hereto. All insurance
policies in effect on the date hereof which relate to product liability of IDP,
together with the amounts reserved on the Sellers' Balance Sheet for product
liability and expenses to contest product liability, are in amounts and coverage
which are reasonable and customary in light of the business conducted by IDP.
The amount of insurance coverage with respect to the risks associated with the
operation of PRIMO meet the minimum requirements mandated by the government of
Puerto Rico.
2.13 Distributions. Prepayment. Etc. Except as set forth on Schedule
2.13 hereto, neither IDP nor PRIMO has since the Sellers' Balance Sheet Date
sold or disposed of, or created Liens upon, any material assets, except in the
ordinary course of business. Except as set forth on Schedule 2.13 hereto,
neither IDP nor PRIMO has since the Sellers' Balance Sheet Date declared or paid
any dividend or made any other distribution to any of its shareholders; and has
not prepaid
<PAGE>
27
or otherwise discharged any outstanding indebtedness, or made any expenditures
or disbursements of funds or commitments, except in the ordinary course of
business.
2.14 Concerning Employees.
(a) Labor Relations. Except as described on Schedule 2.14(a)
hereto, there are no labor controversies pending against either IDP or PRIMO in
the form of a proceeding, claim or litigation. Neither IDP nor PRIMO has, with
respect to its employees, recognized any labor organization; no such
organization has been certified as the exclusive bargaining agent of any such
employees; there has been no demand on behalf of any labor organization to
represent any such employees; and no Seller has any knowledge of any present
efforts of any labor organization seeking to represent any such employees.
Except as set forth on Schedule 2.14(a) hereto, neither IDP nor PRIMO has had,
and to the knowledge of any Seller there is not now threatened, a strike, work
stoppage or work slowdown.
(b) Set forth on Schedule 2.14(b) hereto is a true and
complete list of all employees of IDP and of PRIMO and their respective
compensation (including commissions and bonuses), dates of birth and dates of
hire.
(c) There are no employee benefits provided by IDP or PRIMO
except for benefits disclosed on Schedule 2.8(a)(viii) or Schedule 2.10(c)
hereto and matters covered by insurance.
2.15 Warranties. All products and services have been produced,
performed or sold heretofore by IDP and by PRIMO in a condition which meets all
applicable written warranty obligations and applicable governmental and industry
standards, codes and regulations.
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28
2.16 Books and Records. All books and records of IDP and of PRIMO are
in all material respects complete and correct and have been maintained in
accordance with good industry practice and have heretofore been made available
to Purchaser.
2.17 Investment Intent. The IDP Sellers are purchasing the shares
included in the Share Portion for their own account and each IDP Seller has the
present intention of holding such shares for investment purposes and not with a
view to any public distribution of such shares in violation of any federal or
state securities laws.
2.18 Registration Statement. To the best knowledge and belief of the
IDP Sellers, the descriptions of IDP and PRIMO and their historical businesses
and operations contained in the registration statement of AHC (Dunn Computer
Corporation), draft of the date hereof do not contain any untrue statement of
material fact and do not omit to state a material fact required in order to make
the statements therein not misleading. This representation is made only by the
IDP Sellers.
III. Representations and Warranties of the Purchaser and AHC
The Purchaser (which term shall mean for purposes of this Article III
the Purchaser and Dunn Computer Corporation, a Virginia corporation, except
where the context requires otherwise) and AHC hereby represent and warrant to
the Sellers as follows:
3.1 Organization of Purchaser and Related Matters. The Purchaser is a
corporation duly organized, validly existing and in good standing under the laws
of Delaware and has all requisite power and authority to enter into and perform
this Agreement. Dunn Computer Corporation, a Virginia corporation, is a
wholly-owned subsidiary of the Purchaser, is duly organized, validly existing
and in good standing under the laws of Virginia, and has all requisite power and
authority to own its assets and to carry on its business as it has been and is
conducted.
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29
3.2 Due Authorization and Execution; No Conflict. This Agreement has
been duly and validly authorized, executed and delivered by the Purchaser and
constitutes a valid and legally binding obligation of the Purchaser enforceable
against the Purchaser in accordance with its terms. The execution, delivery and
performance of this Agreement by the Purchaser does not and will not conflict
with or violate its charter and by-laws or any term of any agreement, contract,
instrument, lease, commitment or other obligation to which the Purchaser is a
party or by which the Purchaser is bound, or any order, judgment or decree to
which the Purchaser is a party or subject, by which any properties and assets of
the Purchaser are bound, or any provision of any applicable law, statute,
ordinance, rule, regulation or common law obligation and will not result in the
creation or imposition of any Lien in favor of any third party with respect to
any of the properties and assets of Purchaser. The execution and delivery of
this Agreement and the consummation of the transactions contemplated hereby by
the Purchaser and AHC will not require the consent or approval of or notice to
any governmental authority, or constitute a violation of any law, regulation or
order of any such authority by the Purchaser or AHC, and neither the Purchaser
nor AHC is a party to or bound by any agreement, instrument, order, judgement or
decree which would require the consent of another person to the execution and
delivery of this Agreement and the consummation of the transactions contemplated
hereby.
3.3 Capitalization. The authorized capital stock of the Purchaser is
20,000,000 shares of Dunn Computer Corporation common stock, $.001 par value per
share ("Purchaser Common") of which (i) 5,150,000 shares are issued and
outstanding, (ii) 2,200,000 shares underlie employee stock options that may be
granted pursuant to the 1997 stock option plan of Purchaser, options to purchase
1,832,000 shares have been granted in accordance therewith, (iii) 25,000 shares
underlie options granted to Barry D. Bergman and Jacqueline L. Bergman in
September 1997 in
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30
connection with the Purchaser's acquisition of STMS, and (iv) 100,000 shares
underlie warrants held by the underwriters in the initial public offering of the
shares of Purchaser, and 2,000,000 shares of Dunn Computer Corporation preferred
stock, $.001 par value per share, none of which have been issued, and there is
no present intention to issue any such shares. All of such Purchaser Common are,
or when issued upon exercise of such employee stock options or such warrants
will be, duly authorized, validly issued and outstanding, fully paid and
non-assessable. There are no voting trust agreements or other agreements
restricting or otherwise relating to the voting, dividend rights or the
disposition of any Purchaser Common. Except as set forth above, there are no
Purchaser Common reserved for issuance. All of the outstanding Purchaser Common,
and all of the Purchaser Common which underlie such employee stock options and
warrants will be converted into shares of Dunn Common on a one-for-one basis
pursuant to the Agreement of Merger.
3.4 Interim Operations - Ordinary Course. The business of the Purchaser
has been conducted only in the ordinary and usual course since the Purchaser
Balance Sheet Date.
3.5 Absence of Adverse Change. There has not been, since the Purchaser
Balance Sheet Date any material adverse change in the business, assets,
financial condition or prospects of the Purchaser. There has been no occurrence,
circumstance or combination thereof which might reasonably be expected to result
in any such material adverse change.
3.6 Investment Intent. AHC is purchasing the IDP Shares for its own
account and AHC has the present intention of holding the IDP Shares for
investment purposes and not with a view to any public distribution of the IDP
Shares in violation of any federal or state securities laws.
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31
3.7 Reports.
(a) As of their respective dates, none of the registration
statement of AHC on Form S-1, expected to be filed with the SEC soon after the
date hereof, or the related Prospectus nor the Purchaser's Annual Report on Form
10-KSB for the fiscal year ended October 31, 1997, nor any other document filed
under Section 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934
after the date hereof, each in the form (including exhibits and any documents
specifically incorporated by reference therein) filed with the SEC contained or
will contain any untrue statement of a material fact or omitted or will omit to
state a material fact required to be stated therein or necessary to make the
statements made therein, in light of the circumstances under which they were
made, not misleading.
(b) The Purchaser has timely filed all material reports,
registrations and statements, together with any amendments required to be made
with respect thereto, that it was required to file since April 21, 1997, with
(i) any federal or state regulatory authority having jurisdiction over the
Purchaser, (ii) the SEC, and (iii) the National Association of Securities
Dealers, Inc., and any other self-regulatory organization), and has paid all
fees and assessments due and payable in connection therewith.
3.8 Financial Statements. The Purchaser has delivered to the Sellers
the statement of profit and loss for the years ended October 31, 1996 and 1997
and the balance sheet as at October 31, 1996 and 1997 (the balance sheet at
October 31, 1997 shall be referred to as the "Purchaser Balance Sheet" and
October 31, 1997 shall be referred to as the "Purchaser Balance Sheet Date"), as
audited by Purchaser's Accountants (collectively, the "Purchaser Financial
Statements"). The Purchaser Financial Statements were prepared in accordance
with generally accepted accounting principles, consistently applied as in prior
periods, are correct and complete, and fairly present the
<PAGE>
32
financial condition of Purchaser and the results of its operations as of the
dates and for the periods indicated therein.
3.9 Liabilities. The Purchaser has no liabilities or obligations
(whether accrued, absolute, contingent, known, unknown, derivative or otherwise)
other than those (i) reflected in the Purchaser Balance Sheet or the notes
thereto and not since paid or otherwise discharged, (ii) listed or described on
any Schedule hereto and (iii) liabilities arising after the Purchaser Balance
Sheet Date in the ordinary course of business of Purchaser.
3.10 Litigation. Except for the Pulsar litigation involving a dispute
as to a rebate from Hewlett-Packard in the amount of approximately $125,000,
there is no action, suit, proceeding, arbitration, demand, claim or
investigation pending or, to Purchaser's knowledge, threatened against or
involving Purchaser or affecting or which might materially adversely affect this
Agreement or the business or assets of Purchaser or the consummation of the
transactions contemplated hereby before any court or arbitral tribunal or before
or by any governmental department, agency or body, or otherwise. Purchaser is
not subject to any judgment, order, writ, injunction, decree, settlement
agreement, compliance agreement or consent decree of any court, administrative
or governmental authority or arbitrator except as set forth on Schedule 3.10
hereto.
3.11 Agreements and Commitments. Each of the contracts, agreements,
commitments, licenses and leases to which Purchaser is a party, is a valid,
legally binding and enforceable obligation of Purchaser, and is in full force
and effect. There is no default by Purchaser or, to the knowledge of Purchaser,
by the other parties thereto under the terms of any such material contract,
commitment, license or lease, and no condition (including without limitation,
the execution, delivery and performance of this Agreement) exists which, with
the passage of time,
<PAGE>
33
the giving of notice, or both, is likely to result in a default by Purchaser
under the terms of any thereof.
3.12 Government Contracts.
(a) To the knowledge of Purchaser, Purchaser has complied in
all material respects with all applicable laws, rules, policies, procedures,
regulations, accounting standards, cost principles, cost accounting standards,
solicitation provisions and contract clauses in conducting all past and present
activities relating to Government Contracts and Government Contract
procurements, including, without limitation, accounting and record keeping
activities, disclosures, reports, wage and hour regulations, certifications and
representations, product testing, marketing activities, proposal and bid
preparation and submissions, negotiations and contract performance. To the
knowledge of Purchaser, all proposals, representations, statements, disclosures,
reports, invoices and certifications made in connection with Government
Contracts were, when made, current, accurate and complete in all material
respects. Except as set forth on Schedule 3.12 hereto, there are not now, nor
have there been since the formation of Purchaser, any government investigations
or audits of Purchaser, or any officer or employee of Purchaser in connection
with Government Contract activities. Each Government Contract of Purchaser is
expected to finish on schedule and within budget and Purchaser presently does
not have any basis to conclude that existing schedules or budgets are not
reasonable.
(b) To the knowledge of Purchaser, Purchaser has not been
determined by a governmental agency to be "non-responsible" in connection with
any Government Contract procurement. Purchaser has not received any notice and
Purchaser is not aware of any
<PAGE>
34
circumstances that reasonably would be expected to justify such a notice, that
any of its Government Contracts have been or may be terminated for default.
Purchaser is not debarred or suspended, nor proposed for debarment or suspension
from procurements or other activities at the federal, state or local
governmental levels, and Purchaser is not aware of any circumstances that would
justify a proposal or decision to suspend or debar Purchaser from procurement or
other activities. Purchaser and its personnel have all necessary security
clearances to perform outstanding Government Contracts and Purchaser is not
aware of any circumstances that may lead to the suspension or revocation of such
security clearances. Purchaser has not engaged in any illegal or fraudulent
conduct in connection with Government Contract activities.
(c) Purchaser has not received written notice from, or engaged
in any discussions with, any Governmental Authority regarding the termination of
any Government Contract, the cessation of any delivery orders thereunder, any
reduction by any Governmental Authority in the amount of its business with the
Purchaser or allegations of defective pricing in connection with Government
Contract activities.
(d) There are no outstanding claims (as defined by the Federal
Acquisition Regulations) by any government procurement agency submitted by or
against Purchaser in connection with its Government Contract activities and
Purchaser has no basis to conclude that any claims may be submitted by or
against Purchaser in connection with past or present government contracting
activities.
(e) To the knowledge of Purchaser, Purchaser has at all times
complied in all material respects with all governmental and state rules, laws
and regulations relating to the
<PAGE>
35
payment of commissions or contingent fees and those relating to disclosure of
the payment of commissions or contingent fees in connection with Government
Contract activities.
3.13 Certain Governmental Matters.
(a) Taxes.
(i) Purchaser has filed all Tax Returns required to be filed.
All such Tax Returns were correct and complete in all respects. As of the
Purchaser Balance Sheet Date, all taxes owed by Purchaser for all periods (and
any portion of any period) have been paid or reflected as a liability on the
Purchaser Balance Sheet. No claim has ever been made by an authority in a
jurisdiction where Purchaser does not file Tax Returns that it is or may be
subject to taxation by that jurisdiction. There are no security interests on any
of the assets of Purchaser that arose in connection with any failure (or
asserted failure) to pay any tax.
(ii) Purchaser has withheld and paid all taxes required to have
been withheld and paid in connection with amounts paid or owing to any employee,
independent contractor, creditor, stockholder or other third party.
(iii) There is no dispute or claim concerning any tax
liability of
Purchaser either (A) claimed or raised by any authority in writing or (B) as to
which Purchaser has knowledge based upon personal contact with any agent of such
authority.
(iv) Purchaser has not waived any statute of limitations in
respect of taxes or agreed to any extension of time with respect to a tax
assessment or deficiency.
(b) Compliance with Legal Requirements. The business and operations
of Purchaser have not involved and do not now involve, and, assuming that no
changes occur in applicable law, the continuation thereof in the manner in which
they are now conducted will not involve, a violation of any material legal
requirement of or administered by any federal, state or
<PAGE>
36
local governmental agency. Except as set forth on Schedule 3.13(b), each permit
and other authorization of Purchaser is valid and in full force and effect, and
will not be affected by the execution, delivery and performance of this
Agreement. All material obligations with respect to such permits and other
authorizations have been fulfilled, and no event has occurred which allows, or
after notice or lapse of time or both, would allow suspension, revocation,
material adverse variation or termination thereof or result in any other
impairment of the rights of Purchaser, and Purchaser is not aware of any facts
or circumstances which will or are likely to result in any of such permits or
other authorizations being suspended, revoked, materially and adversely varied
or terminated, or which may prejudice their renewal. All certificates of
occupancy and permits necessary for the present use and occupancy of any
building by Purchaser have been obtained.
(c) ERISA. Neither Purchaser nor its ERISA Affiliates
maintains or has any liability in respect of any Employee Benefit Plan. Each
Employee Benefit Plan has been operated and administered in accordance with its
provisions and is in compliance in all respects with all applicable federal and
state laws, rules and regulations governing each such plan including but not
limited to ERISA, the Code, and COBRA except to the extent that failure to so
qualify, administer or comply would not have a material adverse effect on the
business of Purchaser.
There have been no non-exempt "prohibited transactions" within
the meaning of Section 4975 of the Code or Section 406 of ERISA resulting in the
imposition of excise taxes or other monetary liability on Purchaser. Neither
Purchaser nor any ERISA Affiliate has sponsored, ever maintained, or contributed
to an Employee Benefit Plan that is subject to Title IV of ERISA. Each Employee
Benefit Plan intended to be "qualified" within the meaning of Section 401(a) of
the Code is so qualified and the trusts maintained thereunder are exempt
<PAGE>
37
from taxation under Section 501(a) of the Code. No Employee Benefit Plan
provides benefits, including without limitation, death or medical benefits
(whether or not insured), with respect to current or former employees of
Purchaser or any ERISA Affiliate beyond their retirement or other termination of
service other than coverage mandated by COBRA or applicable state or local law.
There is no pending or, to the knowledge of Purchaser, threatened assessment,
complaint, proceeding, voluntary compliance application or investigation of any
kind in any court or government agency with respect to any Employee Benefit
Plan. All benefits, expenses and other amounts due and payable under any
Employee Benefit Plan and all contributions, transfers or payments required to
be made, accrued or booked to any Employee Benefit Plan, have been paid or made,
accrued and booked.
(d) Worker's Compensation. Worker's compensation and
unemployment compensation matters with respect to Purchaser have been conducted
and are being conducted so as to be in compliance in all material respects with
all laws and regulations applicable thereto.
(e) Plant Closing Legislation. As of the Closing Date, no
employee of Purchaser, without 60 days written notice, shall have suffered, an
"employment loss" as a result of a "plant closing" or "mass layoff" as those
terms are defined in WARN. Purchaser is in compliance in all material respects
with the requirements of WARN in either case during the six month period ending
with and including the Closing Date.
(f) Environmental Matters. Purchaser and any other person or
entity for whose conduct it is or may be held responsible, have no liability
under, have never violated, and are presently in compliance in all material
respects with all Environmental Laws applicable to the properties owned, leased
or used by such parties (collectively, the "Purchaser
<PAGE>
38
Properties") and any facilities and operations thereon, and, to the best of
Purchaser's knowledge, there exists no Environmental Condition with respect to
the Purchaser Properties or any facilities or operations thereon, or with
respect to any property at which materials from the Purchaser Properties have
been disposed. Purchaser has not generated, manufactured, refined, transported,
treated, stored, handled, disposed, transferred, produced, or processed any
Hazardous Material or any solid waste on, under or about the Purchaser
Properties. Purchaser has no knowledge of the Release or threat of Release of
any Hazardous Material at the Purchaser Properties. Purchaser has not received
notice under the citizen suit provision of any Environmental Law in connection
with the Purchaser Properties or any facilities or operations thereon.
3.14 Assets.
(a) Real Estate. None of the real estate assets of Purchaser
is subject to any mortgages, liens, encumbrances, equities, restrictions,
easements, rights-of-way or other conflicting interests. To the knowledge of
Purchaser, the real estate assets of Purchaser are in good structural condition.
(b) Inventories. Substantially all of the Purchaser's
inventories consist of quantities and qualities usable and salable in the
ordinary course of the business of Purchaser.
(c) Machinery, Equipment and Other Tangibles. The Purchaser's
machinery, equipment and other tangibles are in good operating condition and
repair, ordinary wear and tear excepted, and are free of any material defects,
and are located at the Purchaser Properties.
(d) Intellectual Property. The business and operations of
Purchaser have not infringed or violated or required the use of, and do not now
infringe or violate or require the use of, any patent, copyright, trademark,
trade name, invention, discovery, trade secret, secret process
<PAGE>
39
or other proprietary asset of any other person. There are no patents or
patentable inventions developed by any director, officer or employee of
Purchaser used or useful in the business of Purchaser which have not been
transferred to, and are not owned free of any encumbrances by, Purchaser.
(e) Accounts and Notes Receivable. All accounts and notes
receivable of Purchaser have arisen in the ordinary course of business of
Purchaser and represent valid obligations due to Purchaser, and have been
collected or are collectible in accordance with their terms in the ordinary
course of business of Purchaser in the aggregate recorded amounts thereof less
the bad debt reserve shown on the Purchaser's balance sheet in accordance with
past practice.
(f) Assets Used in Business. Since one year before the
Purchaser Balance Sheet Date, Purchaser has not utilized any assets in the
conduct of its business and operations other than (i) assets reflected on the
Purchaser Balance Sheet and (ii) supplies and inventories consumed or disposed
of by Purchaser in the ordinary course of business.
(g) Title to Assets. Purchaser has good, and as to owned real
property, marketable, title to, or in the case of property held under lease, a
valid and enforceable right to use, all of Purchaser's land, buildings,
inventories, machinery, equipment and other tangibles, intellectual property,
accounts and notes receivable and all assets reflected in the Purchaser Balance
Sheet except those disposed of in the ordinary course of business since the
Purchaser Balance Sheet Date, and such assets are not subject to any Liens. None
of the assets of Purchaser are subject to any pending or, to the knowledge of
Purchaser, threatened judicial order, ordinance or planning restriction as to
which Purchaser has knowledge which might have a material adverse effect on the
business of Purchaser. Purchaser as lessee has the right under valid and
subsisting
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40
leases to occupy, use, possess and control all real property leased by Purchaser
as presently occupied, used, possessed and controlled by Purchaser.
3.15 Insurance. All of the assets of Purchaser are insured in
accordance with good industry practice with respect to loss due to fire and
other risks in amounts and coverage which are reasonable and customary in light
of the business conducted by Purchaser.
3.16 Distributions. Prepayment. Etc. Since the Purchaser Balance Sheet
Date, Purchaser has not sold or disposed of, or created Liens upon, any material
assets, except in the ordinary course of business. Since the Purchaser Balance
Sheet Date, Purchaser has not declared or paid any dividend or made any other
distribution to any of its shareholders; and has not prepaid or otherwise
discharged any outstanding indebtedness, or made any expenditures or
disbursements of funds or commitments, except in the ordinary course of
business.
3.17 Employee Matters. There are no labor controversies pending against
Purchaser in the form of a proceeding, claim or litigation. Purchaser has not,
with respect to its employees, recognized any labor organization; no such
organization has been certified as the exclusive bargaining agent of any such
employees; there has been no demand on behalf of any labor organization to
represent any such employees; and Purchaser has no knowledge of any present
efforts of any labor organization seeking to represent any such employees.
Except as set forth on Schedule 3.17 hereto, Purchaser has not had, and to the
knowledge of Purchaser, there is not now threatened, a strike, work stoppage or
work slowdown.
3.18 Warranties. All products and services have been produced,
performed or sold heretofore by Purchaser in a condition which meets all
applicable written warranty obligations and applicable governmental and industry
standards, codes and regulations.
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41
3.19 Books and Records. All books and records of Purchaser are in all
material respects complete and correct and have been maintained in accordance
with good industry practice.
3.20 Organization of AHC and Related Matters. AHC is a corporation duly
organized, validly existing and in good standing under the laws of Virginia. AHC
has engaged in no business since the date of its incorporation, except for
entering into this Agreement and preparing and filing the Registration Statement
in connection with the proposed IPO (the "Registration Statement"), and will
engage in no business until the Closing except amending the Registration
Statement. The execution, delivery and performance of this Agreement by AHC does
not and will not conflict with or violate its charter and by-laws or any term of
any agreement, contract, instrument, lease, commitment or other obligation to
which AHC is a party or by which AHC is bound, or any order judgment or decree
to which AHC is a party or subject, by which any properties and assets of AHC
are bound, or any provision of any applicable law, statute, ordinance, rule or
regulation and will not result in the creation or imposition of any Lien in
favor of any third party with respect to any of the properties and assets of
AHC.
3.21 Due Authorization and Execution by AHC. AHC has all requisite
power and authority to execute, deliver and perform this Agreement. This
Agreement has been duly and validly executed and delivered by AHC, and
constitutes a valid and binding obligation of AHC enforceable against AHC in
accordance with its terms.
3.22 Capitalization of AHC. The authorized capital stock of AHC is
20,000,000 shares of common stock, $.001 par value per share ("Dunn Common"), of
which (i) 5,150,000 shares will be issued in the Merger, (ii) 2,200,000 shares
will underlie employee stock options granted pursuant to the 1997 stock option
plan of Purchaser (which plan will be adopted by and become a
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42
plan of AHC), 1,832,000 of which have been issued in accordance therewith, (iii)
25,000 shares will underlie options granted to Barry D. Bergman and Jacqueline
L. Bergman in September 1997 in connection with the Purchaser's acquisition of
STMS (which options will be adopted by and become options of AHC), (iv) 100,000
shares will underlie warrants held by the underwriters in the initial public
offering of the shares of Purchaser (which warrants will be adopted by and
become warrants of AHC), (v) 7,500,000 shares are proposed to be issued in the
IPO, (vi) 750,000 shares will be issued as provided in Section 1.3 hereof, and
(vii) 600,000 shares underlie options to be issued (300,000 to each) to the IDP
Sellers pursuant to the employment agreements referred to in Sections 5.1(e) and
5.2(d), subject to increase to 800,000 (400,000 to each IDP Seller) as provided
in such agreements, and 2,000,000 shares of preferred stock, $.001 par value per
share, none of which have been issued, and there is no present intention to
issue any such shares. All of such shares of Dunn Common when issued will be
duly authorized, validly issued and outstanding, fully paid and non-assessable.
There are no voting trust agreements or other agreements restricting or
otherwise relating to the voting, dividend rights or the disposition of any
shares of Dunn Common.
3.23 Concerning Merger Sub. Merger Sub will be organized by AHC solely for
the purpose of carrying out the Merger; AHC will own all of the outstanding
shares of capital stock of Merger Sub; there will be no options, warrants or
rights to acquire shares of Merger Sub outstanding ; and Merger Sub will engage
in no business activity and will hold no assets other than those necessary to
consummate the Merger.
IV. Pre-Closing Covenants
4.1 Press Releases. Prior to the Closing, no party will issue or cause
the publication of any press release or other public announcement with respect
to this Agreement or the transactions
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43
contemplated hereby without the prior consent of, the other (in the case of the
Sellers, George Fuster or D. Oscar Fuster) which consent will not be
unreasonably withheld; provided, however, that nothing herein will prohibit any
party from issuing or causing the publication of any such press release or
public announcement to the extent that such party determines such action to be
required by law or the rules of any stock exchange applicable to it, in which
case the party making such determination will use reasonable efforts to allow
the other parties reasonable time to comment on such release or announcement in
advance of its issuance.
4.2 Registration Statement. From the date hereof until the Closing
Date, the Sellers and AHC and the Purchaser will cooperate among themselves and
use all reasonable efforts to respond to comments of the Securities and Exchange
Commission ("SEC"), prepare amendments to the Registration Statement, and
generally to seek to have the Registration Statement declared effective by the
SEC as soon as is practicable.
4.3 Confidential Nature of Information. Subject to Section 4.1, whether
or not the Closing occurs, each of the parties hereto will treat, and will cause
their respective advisors and representatives (collectively, "Representatives")
to treat, in confidence all documents, materials and other information disclosed
by the other party, whether during the course of the negotiations leading to the
execution of this Agreement or thereafter, in its investigation of the other
party and in the preparation of agreements and other documents relating to the
consummation of such transactions. Prior to the Closing, and if this Agreement
is terminated, none of the parties will use, and each of them will cause its
Representatives not to use in its business, any non-public information furnished
by any other party. If this Agreement is terminated, each of the parties will
return, and will cause its Representatives to return, to the other party all
originals and copies of
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44
non-public documents and materials of the type provided for in this Section 4.3
which have been furnished in connection with this Agreement.
4.4 Operation of the Business.
(a) Except as contemplated herein or as otherwise consented to
by the Purchaser in writing (which consent will not be unreasonably withheld),
prior to the Closing, the Sellers will cause IDP and PRIMO to:
(i) Use reasonable efforts to keep the business of IDP and of
PRIMO intact and not take or knowingly permit to be taken or do or knowingly
suffer to be done anything other than in the ordinary course of business as the
same is presently being conducted, to maintain the goodwill and reputation
associated with their business;
(ii) Continue their existing practices relating to the
maintenance of assets used in their business;
(iii) Not purchase, sell, lease or dispose of, or make any
contract for the purchase, sale, lease or disposition of, or subject to Lien,
any assets other than in the ordinary course of their business;
(iv) Except to the extent required by law or specifically
provided for elsewhere herein or on Schedule 4.4(d) hereto, not increase the
rates of compensation of any employee except for normal salary increases in the
ordinary course of business consistent with past practice; and
(v) Not amend their governing documents or make any change in
their capital stock or grant any option, warrant or other right to purchase or
to convert any obligation into shares of capital stock
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45
(b) Except as contemplated herein or as otherwise consented to
by the IDP Sellers in writing (which consent will not be unreasonably withheld),
prior to the Closing, the Purchaser (which shall mean for purposes of this
Section 4.4(b) the Purchaser and Dunn Computer Corporation, a Virginia
corporation and AHC) will:
(i) Use reasonable efforts to keep the business of the
Purchaser intact and not take or not permit to be taken or do or knowingly
suffer to be done anything other than in the ordinary course of business as the
same is presently being conducted, and to maintain the goodwill and reputation
associated with the business of the Purchaser;
(ii) Continue its existing practices relating to the maintenance
of assets used in its business; and
(iii) Not amend its governing documents, or make any change in
its capital stock or, except pursuant to the Purchaser's existing Employee Stock
Option Plan, grant any option, warrant or other right to purchase or to convert
any obligation into shares of capital stock.
4.5 Satisfaction of Conditions. Prior to the Closing, each of the
parties hereto will use reasonable efforts to satisfy promptly all conditions
required hereby to be satisfied by such party in order to expedite the
consummation of the transactions contemplated hereby.
4.6 Registration Statement, Amendments. At the time the Registration
Statement is filed with the SEC and at the time each amendment thereto is filed
with the SEC, the IDP Sellers shall certify in writing to AHC and the Purchaser
to the effects set forth in Section 2.18 hereof to their best knowledge and
belief, referring to the relevant filing.
4.7 Waivers by Small Business Administration. The Purchaser and the IDP
Sellers shall, together, use reasonable efforts to seek to have IDP's
governmental counterparty in each
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46
"Section 8(a)" contract request from the Small Business Administration a waiver
of termination for convenience that would result from the transfer of control of
IDP upon the Closing.
V. Conditions Precedent to the Closing
5.1 Conditions Precedent to Obligations of the Purchaser. The
obligations of the Purchaser under this Agreement to consummate the transactions
contemplated hereby are subject to the satisfaction, at or prior to the Closing,
of all of the following conditions, any one or more of which, other than the
condition set forth in Section 5.1(i) hereof, may be waived at the option of the
Purchaser:
(a) No Misrepresentation or Breach of Covenants and Warranties. There
shall have been no material breach by the Sellers in the performance of any of
the covenants herein to be performed by them prior to the Closing, and the
representations and warranties of the Sellers contained in this Agreement shall
be true and correct in all material respects as of the Closing, except for
representations and warranties made as of a specified date (other than those
contained in Sections 2.11(e) and (f) which shall be dated within two weeks of
the Closing Date), which shall be true and correct in all material respects as
of the specified date, and the Sellers shall have delivered to the Purchaser a
certificate of all of the Sellers certifying each of the foregoing, dated the
Closing Date;
(b) Transfer Documents. There shall have been delivered to AHC
by the IDP Sellers certificates representing the IDP Shares, which certificates
shall be duly endorsed for transfer or accompanied by duly executed stock
powers. There shall have been delivered to PAC bills of sale and all other
documents appropriate to transfer to PAC all of the PRIMO Assets. There shall
have been entered into assignment and assumption agreements as to all of the
<PAGE>
47
contracts of PRIMO and the PRIMO Liabilities transferring such contracts and
Liabilities to PAC.
(c) Consents; No Legal Obstruction. Except for (i) the
approval of the tax authority in Puerto Rico, (ii) any approval of the Small
Business Administration, and (iii) the approvals marked with an asterisk, each
as referred to on Schedule 2.3 hereto, the governmental and private approvals
and consents identified on Schedule 2.3 hereto shall have been obtained and
shall be in full force and effect. As to the approvals and consents marked with
an asterisk, the Sellers shall use commercially reasonable efforts to obtain
them. There shall not have been entered a preliminary or permanent injunction,
temporary restraining order or other judicial or administrative order or decree
in any jurisdiction, the effect of which prohibits the Closing;
(d) No Material Adverse Change. Without limiting the
generality of Section 5.1(a), since the Sellers' Balance Sheet Date, no material
adverse change shall have occurred with respect to the financial condition,
assets or business of IDP and PRIMO considered as one entity;
(e) Employment Agreements. IDP and PRIMO shall have entered into
employment agreements with each of George Fuster and D. Oscar Fuster in the
forms attached as Exhibits D and E hereto;
(f) Certain Indebtedness. The IDP indebtedness in the
principal amount of $1,557,057 as of January 31, 1998, running to the Sellers
and certain relatives of the Sellers and set forth on Exhibit F hereto shall
have been refinanced (i) to provide for three year terms and interest rates of
8% per annum in the case of indebtedness running to a Seller and (ii) to provide
for one year terms and interest rates of 11% per annum in the other cases. The
IDP Sellers shall cause IDP and PRIMO not to incur indebtedness from any Seller
or any relative of any Seller
<PAGE>
48
other than on commercially reasonable and arms length terms between the date
hereof and the Closing Date.
(g) The Redemption provided for in Sections 1.9 and 1.10 hereof shall
have occurred.
(h) Opinion of Counsel. The Sellers shall have furnished to
the Purchaser a favorable opinion of Thacher Proffitt & Wood dated the Closing
Date substantially in the form attached as Exhibit H hereto.
(i) Concurrent Public Offering. The IPO in which the net
proceeds are at least equal to the Cash Portion shall have occurred, and the
shares of Dunn Common to be issued in the Merger and such shares to be issued in
the IPO shall have been designated as a national market system security on an
interdealer quotation system by the National Association of Securities Dealers,
Inc.
5.2 Conditions Precedent to Obligations of the Sellers. The obligations
of the Sellers under this Agreement to consummate the transactions contemplated
hereby are subject to the satisfaction, at or prior to the Closing, of all the
following conditions, any of or more of which, other than the condition set
forth in Section 5.2(j) hereof, may be waived at the option of the Sellers:
(a) No Misrepresentation or Breach of Covenants and
Warranties. There shall have been no material breach by the Purchaser in the
performance of any of the covenants herein to be performed by it prior to the
Closing, and the representations and warranties of the Purchaser contained in
this Agreement shall be true and correct in all material respects as of the
Closing, except for representations and warranties made as of a specified date,
which shall be true and correct in all material respects as of the specified
date, and the Purchaser shall have delivered to
<PAGE>
49
the Sellers a certificate certifying each of the foregoing, dated the Closing
Date and signed by one of its executive officers on its behalf;
(b) Purchase Price. AHC shall have (i) delivered to the IDP
Sellers share certificates standing in the respective names of the IDP Sellers
representing the Share Portion of the Purchase Price and (ii) delivered to the
IDP Sellers the IDP Cash Amount and to PRIMO the PRIMO Cash Amount.
(c) No Legal Obstruction. There shall not have been entered a
preliminary or permanent injunction, temporary restraining order or other
judicial or administrative order or decree in any jurisdiction, the effect of
which prohibits the Closing;
(d) Employment Agreements. IDP and PRIMO shall have entered into
employment agreements with each of George Fuster and D. Oscar Fuster in the
forms attached as Exhibits D and E hereto;
(e) No Material Adverse Change. Without limiting the
generality of Section 5.2(a), since the date of this Agreement, no material
adverse change shall have occurred with respect to the financial condition,
assets, business or prospects of the Purchaser;
(f) Registration Rights Agreement. AHC shall have entered into
a registration rights agreement in the form attached as Exhibit I hereto.
(g) Opinion of Counsel. The Purchaser shall have furnished to
the Sellers a favorable opinion of Jones, Day, Reavis & Pogue dated the Closing
Date substantially in the form set forth in Exhibit J hereto.
(h) Fairness Opinion. Purchaser shall have received an opinion
from Ferris Baker Watts, to the effect that, in its opinion, the consideration
to be paid by the Purchaser hereunder is fair to the Purchaser and its
stockholders from a financial point of view ("Fairness
<PAGE>
50
Opinion"), and Purchaser shall not have taken any action which causes Ferris
Baker Watts to withdraw its Fairness Opinion prior to Closing;
(i) Directors. George Fuster and D. Oscar Fuster shall be duly
appointed by the Boards of Directors of AHC and PAC to the Boards of Directors
of AHC and PAC effective on the Closing Date;
(j) Concurrent Public Offering. The IPO in which the net
proceeds are at least equal to the Cash Portion shall have occurred.
VI. The Closing.
6.1 The Closing. Subject to the fulfillment of the conditions precedent
specified in Article V, the Closing will take place concurrently with the
closing of the IPO or on such other date as the parties may agree. The Closing
will take place at the offices of Jones, Day, Reavis & Pogue at 1450 G Street,
N.W., Washington, D.C. 20005.
6.2 Sellers' Obligations. At the Closing, the Sellers will deliver to the
Purchaser the following:
(a) Transfer Documents. The documents referred to in Section 5.1(b);
(b) Receipts. Appropriate receipts; and
(c) Other. All other documents and papers required to be delivered by
Section
5.1 as conditions to the Closing.
6.3 AHC's Obligations. At the Closing, AHC will deliver to the
Sellers:
(a) Purchase Price. The Purchase Price, in the manner specified in
Sections 1.3, 1.4 and 1.7; and
(b) Other. All other documents and papers required to be
delivered by Section 5.2 as conditions to the Closing.
<PAGE>
51
VII. Survival and Indemnification
7.1 Survival of Representations and Warranties. The respective
representations and warranties of the Sellers and of the Purchaser and AHC
herein shall survive until and including the second anniversary of the Closing,
provided that the representations and warranties of the Sellers contained in
Sections 2.2, 2.5, 2.9 and 2.10(a) hereof and of the Purchaser and AHC contained
in Sections 3.3, 3.9, 3.12, 3.13(a) and 3.22 hereof shall survive without
limitation. The parties hereto shall be entitled to rely on the representations
and warranties made pursuant to this Agreement notwithstanding any investigation
conducted before or after the Closing for or on behalf of any party.
7.2 General Indemnification Obligation of the Sellers.
(a) Subject to the limitations contained in Sections 7.1 and
7.4 hereof, each Seller jointly and severally agrees to indemnify and hold
harmless the Purchaser and AHC from and against any and all losses, liabilities,
damages, penalties, costs or expenses (including attorneys fees and expenses)
("Losses") based upon, arising out of or otherwise in respect of (i) any alleged
or actual inaccuracy in or breach of any representation or warranty of any
Seller contained in this Agreement or in any document delivered hereunder, or
(ii) any breach by any Seller of any covenant contained in this Agreement.
(b) The IDP Sellers shall indemnify and hold IDP harmless for
any tax liability attributable to any gain realized by IDP by reason of the
Redemption.
(c) The Purchaser shall, as to any asserted liability of
Sellers for taxes under Section 7.2(a) or (b), promptly notify Sellers of, and
permit the participation of Sellers in any investigation, audit or other
proceeding by any tax authority empowered to administer or enforce such tax and
shall not consent to the settlement or final determination in such proceeding
without
<PAGE>
52
the prior written consent of Sellers, which consent will not be unreasonably
withheld; provided, however that this Section 7.2(c) shall not permit Sellers to
have knowledge of or participate in the resolution of any other issues that may
be a part of any such investigation, audit or proceeding.
7.3 General Indemnification Obligation of the Purchaser and AHC.
Subject to the limitations contained in Sections 7.1 and 7.4 hereof, the
Purchaser and AHC jointly and severally agree to indemnify and hold harmless the
Sellers from and against any and all Losses based upon, arising out of or
otherwise in respect of (i) any alleged or actual inaccuracy in or breach of any
representation or warranty of the Purchaser and AHC contained in this Agreement
or in any document delivered hereunder, or (ii) of any breach by the Purchaser
or AHC of any covenant contained in this Agreement.
7.4 Limitations; Notice and Opportunity to Defend.
(a) Limitations. Neither the Purchaser, nor AHC nor any Seller
shall have any liability, or be subject to any claim under this Article VII
unless a Claims Notice (as defined in Section 7.4(b) hereof) in respect thereof
is given by the Purchaser or the Sellers, as the case may be, on or before the
second anniversary of the Closing, and unless and until all Losses on account of
matters covered by this Article VII (suffered by the Purchaser and AHC or the
Sellers, as the case may be) exceed $500,000, whereupon the Purchaser and AHC or
the Sellers, as the case may be, shall be entitled to receive indemnity payments
to the full extent of the aggregate amount of Losses not to exceed $10,000,000.
Notwithstanding anything else herein to the contrary, the provisions and
limitations contained in this Section 7.4 shall not apply to Losses (and
indemnifications in respect thereof) arising out of or otherwise in respect of
any alleged or actual (i) inaccuracies in or breach of any representation or
warranty of any Seller contained in Sections 2.2, 2.5, 2.9, or 2.10(a) hereof,
(ii) inaccuracies in or breach of any representation or warranty of
<PAGE>
53
the Purchaser contained in Sections 3.3, 3.9, 3.12, 3.13(a) or 3.22 hereof, or
(iii) breach of any covenant contained in this Agreement by the Purchaser or any
Seller.
(b) Notice and Opportunity to Defend.
(i) Notice of Asserted Liability. As soon as is reasonably
practicable after any party hereto becomes aware of any claim that it has under
this Article VII that may result in a Loss (a "Liability Claim"), the party
shall give notice thereof (a "Claims Notice") to the other parties. A Claims
Notice shall be given in good faith and shall describe the Liability Claim in
reasonable detail, and shall indicate the amount (estimated, if necessary and to
the extent feasible) of the Loss that has been or may be suffered by the party.
(ii) The Sellers' Opportunity to Defend. The Sellers may elect
to defend, at their own expense and by their own counsel, any Liability Claim
given by the Purchaser by giving notice to such effect to the Purchaser within
thirty days (or sooner if circumstances so require) of the receipt of the Claims
Notice; provided that if the Sellers so elect, the Purchaser shall cooperate
with such defense. If the Sellers elect to defend such Liability Claim, the
Purchaser shall have the right to participate, at the expense of the Purchaser,
in the defense of such Liability Claim. If the Sellers do not elect to defend a
Liability Claim, the Purchaser may defend, pay, or settle such Liability Claim
as it determines to be appropriate, provided that the Purchaser may not settle
or compromise any proceeding in respect of any Liability Claim without the prior
written consent of the Sellers, which consent shall not be unreasonably
withheld.
(iii) The Purchaser's and AHC's Opportunity to Defend. The
Purchaser and AHC may elect to defend on all the same terms upon which the
Sellers may do so under Section 7.4(b)(ii) hereof.
<PAGE>
54
VIII. Termination
8.1 Termination. This Agreement may be terminated at any time prior to the
Closing:
(a) By the mutual written consent of the Purchaser and the Sellers;
(b) By either the Purchaser or the Sellers if the Closing shall not
have occurred on or before June 30, 1998; or
(c) By either the Purchaser or the Sellers if there shall have
been entered a final non-appealable order or injunction of any court or
governmental authority restraining or prohibiting the consummation of the
transactions contemplated hereby or any material part thereof.
8.2 Expenses in the Event of Termination. In the event of termination
of this Agreement under Section 8.1 (except by the Sellers pursuant to clause
(b) thereof), no party shall have any obligation to reimburse the other for its
fees and expenses incurred in connection with this Agreement or transactions
contemplated hereby. There will be no further liability hereunder on the part of
any party hereto if this Agreement is so terminated, except under Section 4.3
and except by reason of a material breach of any covenant contained in this
Agreement. If this Agreement is terminated as provided in Section 8.1(b) hereof,
the Purchaser shall pay to the Sellers a termination fee in the amount of
$500,000, provided that if the Closing does not occur on or before June 30, 1998
because (i) the conditions in Section 5.1 were not met, or (ii) the IPO is
postponed or terminated because of general market conditions on the basis of a
joint decision of Ferris Baker Watts and Gruntal & Co. (or if such firms do not
agree, upon the decision of a third investment banking firm chosen by Ferris
Baker Watts and Gruntal & Co.), then no termination fee shall be paid.
<PAGE>
55
IX. Miscellaneous Provisions
9.1 Notices. All notices and other communications required or permitted
hereunder will be in writing and, unless otherwise provided in this Agreement,
will be deemed to have been duly given when delivered in person or when
dispatched by telegram or electronic facsimile transfer (confirmed in writing by
mail simultaneously dispatched) to the appropriate party at the address
specified below:
(a) If to the Purchaser or to AHC, to:
Dunn Computer Corporation
1306 Squire Court
Sterling, Virginia 20166
Facsimile No.: 703-450-0406
Attention: President
(b) If to the Sellers, to:
George and D. Oscar Fuster
20 Firstfield Road
Gaithersburg, MD 20878
Facsimile No.: 301-590-8133
With a copy not necessary to constitute notice to:
Robert C. Azarow
Thacher Proffitt & Wood
Two World Trade Center
New York, New York 10048
Facsimile No.: 212-912-7751
or to such other address or addresses as any such party may from time to time
designate as to itself by like notice.
9.2 Brokers. Each Seller represents and warrants to the Purchaser and
the Purchaser represents and warrants to the Sellers that it has not dealt with
any broker or finder in connection with any of the transactions contemplated by
this Agreement and, to its knowledge, no broker or
<PAGE>
56
other person is entitled to any commission or finder's fee in connection
therewith, except that the Sellers have engaged and, subject to Section 9.3
hereof, will pay Gruntal & Co. as their investment bankers in respect of such
transactions.
9.3 Expenses. Each of IDP and the Sellers will pay one-half of the fees
and expenses of IDP and Sellers (except that to the extent that payments to
Gruntal & Co. for their advice and services exceed $600,000 the excess will be
solely the responsibility of the Sellers), and the Purchaser will pay the
expenses of Purchaser, in connection with this Agreement and the consummation of
the transactions contemplated herein.
9.4 Headings. The headings in this Agreement are included for purposes
of convenience only, and shall not affect the construction or interpretation of
any of its provisions. Terms used in the Exhibits and Schedules hereto that are
defined herein are used therein as so defined.
9.5 Integration, Modification and Waiver. This Agreement and the
agreements contemplated herein constitute the entire agreement between the
parties pertaining to the subject matter hereof and supersede all prior
understandings of the parties. No supplement, modification or amendment of this
Agreement shall be binding unless executed in writing by all of the parties. No
waiver of any of the provisions of this Agreement shall be deemed to be or shall
constitute a continuing waiver. No waiver shall be binding unless executed in
writing by the party making the waiver.
9.6 Counterparts. This Agreement may be executed in one or more
counterparts, each of which together shall constitute one and the same
instrument.
9.7 Definition of "State". For purposes of this Agreement, "state"
shall include the Commonwealth of Puerto Rico.
<PAGE>
57
9.8 Governing Law. This Agreement shall be governed by and construed
and enforced in accordance with the laws of New York without giving effect to
its principles of conflicts of laws.
9.9 Further Assurances. Each party hereto agrees to execute and deliver
such instruments and take such other actions as may reasonably be requested in
order to carry out the intent of any of the agreements herein.
9.10 Knowledge. Any reference to a person's knowledge or best knowledge
shall mean, as of the date of the statement in question, such person's actual
knowledge and what such person should have known in the ordinary exercise of
that person's duties as an officer or director of IDP and PRIMO, considering for
these purposes, each Seller to be an officer and director of both IDP and PRIMO.
9.11 Puerto Rico Tax Exemption. If within 180 days of the Closing Date,
the appropriate tax authority in Puerto Rico has not granted or approved a tax
exemption for PAC that is substantially equivalent to the tax exemption now
enjoyed by PRIMO in Puerto Rico, then the Sellers shall reimburse and indemnify
PAC for the first $200,000 of taxes paid in or to Puerto Rico by PAC for the
period commencing on the Closing Date that PAC would not have paid if such tax
exemption had been granted or approved. Any such reimbursement will not be
subject to or counted against the $500,000 threshold set forth in Section 7.4.
9.12 Successors and Assigns. This Agreement will be binding upon and
inure to the benefit of the parties hereto and their respective successors,
heirs, personal representatives and permitted assigns, but will not be
assignable by any party without the prior written consent of the other parties.
<PAGE>
58
IN WITNESS WHEREOF, each party hereto has executed, or caused to be
executed by its representative thereunto duly authorized, this Agreement on the
date first above written.
-------------------------
George Fuster
-------------------------
D. Oscar Fuster
-------------------------
Carol N. Fuster
-------------------------
Wendy E. Fuster
DUNN COMPUTER CORPORATION
(Virginia)
By:
-----------------------
DUNN COMPUTER CORPORATION
(Delaware)
By:
-----------------------
<PAGE>
INDEX TO THE ACQUISITION AGREEMENT EXHIBITS AND SCHEDULES
<TABLE>
<S> <C>
Exhibit A Agreement of Merger
Exhibit B IDP Cash Amount; Inter-company Indebtedness
Exhibit C Ownership of Shares
Exhibit D and E Employment Agreement of George Fuster;
Employment Agreement of D. Oscar Fuster
Exhibit F IDP Indebtedness
Exhibit G Assets and Liabilities of IDP F Squared Engineering division
Exhibit H Opinion of Sellers' Counsel
Exhibit I Registration Rights Agreement
Exhibit J Opinion of Purchaser's Counsel
</TABLE>
<PAGE>
SCHEDULES TO THE ACQUISITION AGREEMENT
<TABLE>
<S> <C> <C>
Schedule A Audited Balance Sheet of PRIMO as of September 30, 1997
Disclosure Letter, dated February 27, 1998, with schedules and addendums thereto:
Schedule 2.1(a) Articles of Incorporation and Bylaws of IDP
2.1(b) Articles of Incorporation and Bylaws of PRIMO
2.1(c) Foreign Qualifications of IDP and PRIMO
2.2 Restrictions on Shares
2.3 Conflict; Creation of Lien; Consent, Approval, Notice, Violations
2.5 Liabilities
2.6 Interim Operations
2.7 Litigation
2.8(a)(i) Supply Contracts, Purchase Orders
(ii) Customer Contracts
(iii) Licenses
(iv) Real Estate Documents
(v) Leases
(vi) Distributor and Sales Representation Agreements
(vii) Indebtedness
(viii) Employment and Benefit Agreements
(ix) Stock Option Plans
(x) Insurance Contracts
(xi) Product and Service Warranties
(xii) Other Agreements
2.8(b) Status of Agreements
2.9 Government Contracts; Investigations, Audits; Small Disadvantaged
Minority Business Contracts; Claims
2.10(a) Tax Returns
2.10(b) Permits and Authorizations
2.10(c) Employee Benefit Plans
2.10(d) Worker's Compensation
2.10(f) Environmental Matters
2.11(a) Real Estate
2.11(b) Inventories
2.11(c) Machinery, Equipment and Other Tangibles
2.11(d) Intellectual Property
2.11(e) Accounts and Notes Receivable
2.11(f) Assets Used in Business
2.11(g) Title to Assets
2.13 Sold, Disposed of, Created Liens; Dividends, Distributions,
Prepayments, etc.
2.14(a) Labor Relations
2.14(b) Employees
3.10 Litigation
3.17 Employee Matters
4.4(d) Operation of Business--Compensation of Employees
</TABLE>
[Schedules and Exhibits will be provided upon request.]
<PAGE>
Exhibit 2.2
AGREEMENT OF MERGER
OF
DUNN COMPUTER CORPORATION
(a Virginia corporation),
DUNN MERGER CORP.
(a Delaware corporation)
AND
DUNN COMPUTER CORPORATION
(a Delaware corporation)
AGREEMENT OF MERGER dated as of March 18, 1998, by and
among Dunn Computer Corporation, a Virginia corporation ("Parent"), Dunn
Merger Corp., a Delaware corporation ("Sub"), and Dunn Computer Corporation,
a Delaware corporation ("Company").
WHEREAS the total number of shares of stock which Parent
has authority to issue is 22,000,000, 20,000,000 of which are shares of
common stock with a par value of $.001 each ("Parent Common Stock") and
2,000,000 of which are shares of preferred stock with a par value of $.001
each; and
WHEREAS the total number of shares of stock which Sub has
authority to issue is 100, all of which are of one class and without par
value ("Sub Common Stock"); and
WHEREAS the total number of shares of stock which Company
has authority to issue is 22,000,000, 20,000,000 of which are shares of
common stock with a par value of $.001 each ("Company Common Stock") and
2,000,000 of which are shares of preferred stock with a par value of $.001
each; and
WHEREAS, the respective Boards of Directors of Parent, Sub
and Company each have approved the merger of Sub with and into Company (the
"Merger") upon the terms and subject to the conditions set forth in this
Agreement, whereby (a) each issued and outstanding share of Company Common
Stock owned by Company will be retired and canceled, (b) each issued and
outstanding share of Company Common Stock will be converted into the right to
receive Parent Common Stock, (c) each outstanding option to purchase Company
Common Stock will be converted into an option to purchase a like number of
shares of Parent Common Stock, (d) each warrant to purchase shares of Company
Common Stock will be converted into a warrant to purchase shares of Parent
Common Stock and (e) each issued and outstanding share of Sub Common Stock
will be converted into a share of common stock of the Surviving Corporation
(as defined in Section 1.1); and
<PAGE>
WHEREAS, the respective Boards of Directors of Parent, Sub and
Company have determined that the Merger and the other transactions contemplated
hereby are consistent with, and in furtherance of, their respective business
strategies and goals and are in the best interest of their respective
stockholders; and
WHEREAS, for federal income tax purposes, it is intended that
the Merger will qualify as a reorganization under the provisions of Section
368(a) of the Internal Revenue Code of 1986, as amended (the "Code").
NOW, THEREFORE, in consideration of the covenants and
agreements contained in this Agreement, the parties agree as follows:
ARTICLE I
THE MERGER
Section 1.1 The Merger. Upon the terms and subject to the
conditions set forth in this Agreement, and in accordance with the provisions
of the Delaware General Corporation Law ("DGCL"), Sub shall be merged with
and into Company at the Effective Time (as defined in Section 1.2). Following
the Effective Time, Company shall be the surviving corporation (the
"Surviving Corporation") which shall continue to exist under the name Dunn
Computer Corporation and which shall become a wholly-owned subsidiary of
Parent and shall succeed to and assume all the rights and obligations of Sub
in accordance with the DGCL. The separate existence of Sub shall cease at the
Effective Time in accordance with the provisions of the DGCL.
Section 1.2 The Effective Time. Subject to the provisions of
this Agreement, as soon as practicable on the date of the closing under the
Acquisition Agreement dated March 9, 1998 among, inter alia, Parent and Company,
the parties shall cause the Merger to be consummated by filing a certificate of
merger or other appropriate documents (in any such case, the "Certificate of
Merger") executed in accordance with the relevant provisions of the DGCL and
shall make all other filings or recordings required under the DGCL. The merger
shall become effective at such time as the Certificate of Merger is duly filed
with the Secretary of State of the State of Delaware, or at such subsequent date
or time as Parent, Sub and Company shall agree and specify in the Certificate of
Merger (the time the Merger becomes effective being hereinafter referred to as
the "Effective Time").
Section 1.3 Effect of the Merger. The Merger shall have the
effects set forth in Section 259 of the DGCL.
Section 1.4 Certificate of Incorporation of the Surviving
Corporation. The Certificate of Incorporation of the Company as now in force and
effect shall continue to be the Certificate of Incorporation of the Surviving
Corporation,
<PAGE>
"1. The name of the corporation is [Dunn Computer Operating Company]."
and said Certificate of Incorporation shall continue in full force and effect
until further amended and changed as provided therein or by applicable law.
Section 1.5 By-laws of the Surviving Corporation. The
present by-laws of the Company as in effect immediately prior to the
Effective Time will become the by-laws of the Surviving Corporation at the
Effective Time and will continue in full force and effect until changed,
altered or amended as provided therein or by applicable law.
Section 1.6 Directors and Officers. The directors and officers
in office of the Company shall, at the Effective Time, become the members of the
first Board of Directors and the first officers of the Surviving Corporation,
all of whom shall hold their directorships and offices until the election and
qualification of their respective successors or until their tenure is otherwise
terminated in accordance with the by-laws of the Surviving Corporation.
Section 1.7 Concurrent Retirement of Share. The share of
Parent Common Stock held by the Company shall be, concurrently with the
Merger, retired and shall cease to be outstanding, and no consideration shall
be delivered in exchange therefor.
ARTICLE II
EFFECT OF THE MERGER ON THE CAPITAL STOCK
OPTIONS AND WARRANTS;
EXCHANGE OF CERTIFICATES
Section 2.1 Effect on Capital Stock, Options and Warrants. As
of the Effective Time, by virtue of the Merger and without any action on the
part of the holder of any shares of Company Common Stock, Company Stock Options
(as hereinafter defined), Bergman Stock Options (as hereinafter defined) or
Warrants (as hereinafter defined):
(a) Cancellation of Treasury Stock. Each share of Company Common Stock
that is owned directly or indirectly by the Company shall automatically be
canceled and retired and shall cease to exist, and no consideration shall be
delivered in exchange therefor.
(b) Conversion of Company Common Stock. Each issued and outstanding
share of Company Common Stock (other than shares to be canceled in accordance
with Section 2.1(a)) shall be converted into the right to receive one validly
issued, fully paid and nonassessable share of Parent Common Stock. Subject to
2.1(a), as of the Effective Time, all such shares of Company Common Stock shall
no longer be outstanding and shall automatically be canceled and retired and
shall cease to exist, and each holder of a certificate representing any such
shares of Company Common Stock shall cease to have any rights with respect
thereto, except the right to receive the same number of shares of Parent Common
Stock upon surrender of such certificate in accordance with Section 2.2 and any
dividends or distributions to which such holder is entitled pursuant to Section
2.2 (c).
(c) Conversion of Company Stock Options. The option holders listed on
Schedule 1 attached hereto each hold outstanding stock options as of the date
hereof, whether or not fully exercisable, to purchase shares of Company Common
Stock (the "Company Stock Options") heretofore granted or assumed by Company
pursuant to a stock option, stock purchase or similar plan adopted, assumed or
maintained at any time by Company, any of its controlled affiliates or
<PAGE>
any of their respective predecessors in interest, including but not limited to
the Dunn Computer Corporation 1997 Stock Option Plan, as amended and in effect
on the date hereof (collectively, the "Company Stock Option Plans"). The option
exercise price, the number of shares subject to the option, any related stock
appreciation rights, the dates of grant, vesting, exercisability and expiration
of the option and whether the option is an incentive stock option or a
non-qualified stock option with respect to each Company Stock Option are set
forth in the respective stock option agreement between such option holder and
Company. All rights under the Company Stock Options shall be treated as provided
herein, and to the extent the terms of the Company Stock Option Plans and/or of
any related agreements are inconsistent with the treatment to be accorded to the
Company Stock Options as provided herein, then Company shall cause the Company
Stock Option Plans and/or any related agreements with affected participants to
be amended, and all required third party, governmental and regulatory body
consents or approvals to such amendments to be procured, such that all such
inconsistencies shall be eliminated by the Effective Time.
Each Company Stock Option outstanding immediately prior to the
Effective Time shall be converted at the Effective Time into an outstanding
option to purchase Parent Common Stock ("Parent Stock Option"), so that (i) from
and after the Effective Time, each such Company Stock Option may be exercised
only for shares of Parent Common Stock notwithstanding any contrary provision of
the Company Stock Option Plans or stock option agreements executed in connection
therewith and (ii) each such Parent Stock Option shall at the Effective Time be,
on substantially the same terms and conditions as were applicable to the Company
Stock Option to which it relates, an option to purchase an equal number of
shares of Parent Common Stock at an exercise price per share equal to the
exercise price per share applicable to the Company Stock Option to which it
relates; provided, however, that in the case of any option to which Section 421
of the Code applies by reason of its qualification under any of Sections 422-424
of the Code, the option price, the number of shares purchasable pursuant to such
option and the terms and conditions of exercise of such option shall be further
adjusted to the extent necessary in order to comply with Section 424(a) of the
Code; and provided further, that the number of shares of Parent Common Stock
that may be purchased upon exercise of such stock option shall not include any
fractional share and, upon exercise of such stock option, a cash payment shall
be made for any fractional share based upon the closing price of a share of
Parent Common Stock on the last trading day of the calendar month immediately
preceding the date of exercise.
(d) Conversion of Bergman Stock Options. Barry D. Bergman and
Jacqueline L. Bergman each hold outstanding stock options as of the date hereof,
whether or not fully exercisable, to purchase shares of Company Common Stock
(the "Bergman Stock Options") heretofore granted by Company pursuant to
Attachment 1 to the Stock Acquisition, Stock Option, Settlement, and Reciprocal
Release Agreement dated September 12, 1997 entitled Dunn Computer Corporation
Common Stock Option (the "Bergman Stock Option Agreement"). The option exercise
price, the number of shares subject to the option, any related stock
appreciation rights and the dates of grant, vesting, exercisability and
expiration of the option with respect to each Bergman Stock Option are set forth
in the Bergman Stock Option Agreement. All rights under the Bergman Stock
Options shall be treated as provided herein, and to the extent the terms of the
Bergman Stock Option Agreement are inconsistent with the treatment to be
accorded to the Bergman Stock Options as provided herein, then Company shall
cause the Bergman Stock
<PAGE>
Option Agreement to be amended, and all required third party, governmental and
regulatory body consents or approvals to such amendments to be procured, such
that all such inconsistencies shall be eliminated by the Effective Time.
Each Bergman Stock Option outstanding immediately prior to the
Effective Time shall be converted at the Effective Time into a Parent Stock
Option, so that (i) from and after the Effective Time, each such Bergman Stock
Option may be exercised only for shares of Parent Common Stock notwithstanding
any contrary provision of the Bergman Stock Option Agreement and (ii) each such
Parent Stock Option shall at the Effective Time be, on substantially the same
terms and conditions as were applicable to the Bergman Stock Option to which it
relates, an option to purchase an equal number of shares of Parent Common Stock
at an exercise price per share equal to the exercise price per share applicable
to the Bergman Stock Option to which it relates; provided, however, that the
number of shares of Parent Common Stock that may be purchased upon exercise of
such stock option shall not include any fractional share and, upon exercise of
such stock option, a cash payment shall be made for any fractional share based
upon the closing price of a share of Parent Common Stock on the last trading day
of the calendar month immediately preceding the date of exercise.
(e) Conversion of Warrants. Richard Hunt, Network 1 Financial Services,
Inc., William Hunt and Damon Testaverde each hold outstanding warrants as of the
date hereof, whether or not fully exercisable, to purchase shares of Company
Common Stock (collectively, the "Warrants") heretofore granted or assumed by
Company pursuant to the Underwriting Agreement between Company and Network 1
Financial Securities, Inc. dated April 21, 1997 (the "Underwriting Agreement").
The warrant exercise price, the number of shares subject to the warrant, any
related stock appreciation rights, the dates of grant, vesting, exercisability
and expiration of the warrant are set forth in the respective Underwriter's
Warrant to Purchase 100,000 shares of Company Common Stock. All rights under the
Warrants shall be treated as provided herein, and to the extent the terms of the
Underwriting Agreement and/or of any related agreements are inconsistent with
the treatment to be accorded to the Warrants as provided herein, then Company
shall cause the Underwriting Agreement and/or any related agreements to be
amended, and all required third party, governmental and regulatory body consents
or approvals to such amendments to be procured, such that all such
inconsistencies shall be eliminated by the Effective Time.
At the Effective Time, the Warrants shall be assumed by
Parent. Notwithstanding any contrary provision of the Underwriting Agreement or
any related agreements executed in connection therewith, the Warrants shall, at
and after the Effective Time, evidence a warrant to purchase 100,000 shares of
Parent Common Stock on the same terms and conditions as stated in the respective
Underwriter's Warrant to Purchase 100,000 shares of Company Common Stock.
(f) Conversion of Sub Common Stock. Each issued and outstanding share
of Sub Common Stock shall be converted into one validly issued, fully paid and
nonassessable share of common stock, par value $.001 per share, of the Surviving
Corporation.
Section 2.2 Exchange of Certificates. (a) Exchange Agent.
As of the Effective Time, Parent shall enter into an agreement with such bank or
trust company as may be designated by Parent and reasonably satisfactory to
Company (the "Exchange Agent"), which shall provide
<PAGE>
that Parent shall deposit with the Exchange Agent as of the Effective Time, for
the benefit of the holders of shares of Company Common Stock, Company Stock
Options, Bergman Stock Options and Warrants, for exchange in accordance with
this Article II, through the Exchange Agent, certificates representing the
shares of Parent Common Stock issuable pursuant to Section 2.1 (b) in exchange
for outstanding shares of Company Common Stock, new option agreements
representing options to purchase Parent Common Stock executed and delivered
pursuant to Sections 2.1(c) and (d) in exchange for outstanding Company Stock
Options and Bergman Stock Options, respectively and new warrants representing
the right to purchase shares of Parent Common Stock pursuant to Section 2.1(e)
in exchange for the Warrants (such shares of Parent Common Stock, together with
any dividends or distributions with respect thereto with a record date after the
Effective Time, new option agreements and new warrants being hereinafter
referred to as the "Exchange Fund").
(b) Exchange Procedures. As soon as reasonably practicable after the
Effective Time, the Exchange Agent shall mail to each holder of record of a
stock certificate, option agreement or warrant which immediately prior to the
Effective Time represented rights with respect to shares of Company Common Stock
("Certificates") whose shares, options or warrants, as the case may be, were
converted into similar rights with respect to Parent Common Stock pursuant to
Section 2.1, (i) a letter of transmittal (which shall specify that delivery
shall be effected, and risk of loss and title to the Certificates shall pass,
only upon delivery of the Certificates to the Exchange Agent and shall be in
such form and have such other provisions as the Company and Parent may
reasonably specify) and (ii) instructions for use in surrendering the
Certificates in exchange for Parent Common Stock, a new option agreement or a
new warrant, as the case may be. Upon surrender of a Certificate for
cancellation to the Exchange Agent, together with such letter of transmittal,
duly executed, and such other documents as may reasonably be required by the
Exchange Agent, the holder of such Certificate shall be entitled to receive in
exchange therefor a certificate representing that number of whole shares of
Parent Common Stock, a new option agreement or a new warrant which such holder
has the right to receive pursuant to the provisions of this Article II and
dividends or other distributions on such shares of Parent Common Stock which
such holder has the right to receive pursuant to Section 2.2(c), and the
Certificate so surrendered shall forthwith be canceled. In the event of a
surrender of a Certificate which is not registered in the transfer records of
Company or otherwise documented in the books and records of the Company under
the name of the person surrendering such Certificate, a new stock certificate,
new option agreement or new warrant, as the case may be, representing the proper
number of shares of Parent Common Stock to which the Certificate relates may be
issued or delivered, as the case may be, to a person other than the person in
whose name the Certificate so surrendered is registered or recorded if such
Certificate shall be properly endorsed or otherwise be in proper form for
transfer and the person requesting such issuance and/or delivery shall pay any
transfer or other taxes required by reason of the issuance of shares of Parent
Common Stock or delivery of an option agreement or warrant to purchase Parent
Common Stock to a person other than the registered or recorded holder of such
Certificate or establish to the satisfaction of Parent that such tax has been
paid or is not applicable. Until surrendered as contemplated by this Section
2.2, each Certificate shall be deemed at any time after the Effective Time to
represent only the right to receive upon such surrender the Parent Common Stock,
the new option agreement or the new warrant, as the case may be, in respect of
such Certificate pursuant to the provisions of this Article II and dividends or
other distributions in respect of such Parent Common
<PAGE>
Stock which such Certificate holder has the right to receive pursuant to Section
2.2(c). No interest shall be paid or will accrue on any cash payable to holders
of Certificates pursuant to the provisions of this Article II.
(c) Distributions with Respect to Unexchanged Shares. No dividends or
other distributions with respect to Parent Common Stock with a record date after
the Effective Time shall be paid to the holder of any unsurrendered Certificate
with respect to the shares of Parent Common Stock issuable hereunder in respect
thereof, and all such dividends and other distributions shall be paid by Parent
to the Exchange Agent and shall be included in the Exchange Fund, in each case
until the surrender of such Certificate in accordance with this Article II,
subject to Section 2.2(e). Subject to the effect of applicable escheat or
similar laws, following surrender of any such Certificate there shall be paid to
the holder of the certificate representing whole shares of Parent Common Stock
issued in exchange therefor, without interest, (i) at the time of such
surrender, the amount of dividends or other distributions with a record date
after the Effective Time theretofore paid with respect to such whole shares of
Parent Common Stock and (ii) at the appropriate payment date, the amount of
dividends or other distributions with a record date after the Effective Time and
with a payment date subsequent to such surrender payable with respect to such
whole shares of Parent Common Stock.
(d) No Further Ownership Rights in Company Common Stock, Company Stock
Options, Bergman Stock Options or Warrants. All shares of Parent Common Stock,
new option agreements and new warrants issued or delivered upon the surrender
for exchange of Certificates in accordance with the terms of this Article II
shall be deemed to have been issued or delivered in full satisfaction of all
rights pertaining to the shares of Company Common Stock theretofore represented
by such Certificates, subject, however, to the Surviving Corporation's
obligation to pay any dividends or make any other distributions with a record
date prior to the Effective Time which may have been declared or made by the
Company on such shares of Company Common Stock which remain unpaid at the
Effective Time, and there shall be no further registration or recordation of
transfers on the stock transfer books or other records of the Surviving
Corporation of the shares of Company Common Stock, the Company Stock Options,
the Bergman Stock Options and the Warrants which were outstanding immediately
prior to the Effective Time. If, after the Effective Time, Certificates are
presented to the Surviving Corporation or the Exchange Agent for any reason
other than the exchange as provided in this Article II, they shall be canceled
and exchanged as provided in this Article II, except as otherwise provided by
law.
(e) Termination of Exchange Fund. Any portion of the Exchange Fund
which remains undistributed to the holders of the Certificates for six months
after the Effective Time shall be delivered to Parent, upon demand, and any
holders of the Certificates who have not theretofore complied with this Article
II shall thereafter look only to Parent for payment of their claim with respect
to Parent Common Stock or any dividends or distributions with respect to Parent
Common Stock.
(f) No Liability. None of Parent, Sub, Company, the Surviving
Corporation or the Exchange Agent shall be liable to any person in respect of
any shares of Parent Common Stock, any dividends or distributions with respect
thereto, any new options, any new warrants or any
<PAGE>
cash from the Exchange Fund, in each case delivered to a public official
pursuant to any applicable abandoned property, escheat or similar law.
(g) Investment of Exchange Fund. The Exchange Agent shall invest any
cash included in the Exchange Fund, as directed by Parent (provided that such
cash shall be invested only in high quality short-term instruments with low risk
of loss of principal), on a daily basis. Any interest and other income resulting
from such investments shall be paid to Parent. If, as a result of any loss
resulting from such investments, the amount of cash remaining in the Exchange
Fund is insufficient to pay the full amount to which holders of certificates
formerly representing rights with respect to Company Common Stock are entitled,
Parent shall, promptly upon demand by the Exchange Agent, deposit additional
cash into the Exchange Fund in an amount sufficient to satisfy its obligations
to such holders.
(h) Lost Certificates. If any Certificate shall have been lost, stolen
or destroyed, upon the making of an affidavit of that fact by the person
claiming such Certificate to be lost, stolen or destroyed and the posting by
such person of a bond in such reasonable amount as Parent may direct as
indemnity against any claim that may be made against it with respect to such
Certificate, the Exchange Agent shall issue in exchange for such lost, stolen or
destroyed Certificate the Parent Common Stock, any unpaid dividends and
distributions related thereto, new option agreement or new warrant deliverable
in respect thereof pursuant to this Agreement.
ARTICLE III
MISCELLANEOUS
Section 3.1 Further Assurances. In the event that this
Agreement shall have been fully approved and adopted upon behalf of Parent, Sub
and Company in accordance with the provisions of DGCL, such corporations agree
that they will cause to be executed and filed and recorded any document or
documents prescribed by the laws of the State of Delaware, and that they will
cause to be performed all necessary acts within the State of Delaware and
elsewhere to effectuate the merger herein provided for.
Section 3.2. Authorization. The Board of Directors and the
proper officers of Parent, Sub and Company are hereby authorized, empowered, and
directed to do any and all acts and things, and to make, execute, deliver, file
and record any and all instruments, papers and documents which shall be or
become necessary, proper, or convenient to carry out or put into effect any of
the provisions of this Agreement or of the merger herein provided for.
Section 3.3. Termination. Notwithstanding the full adoption of
this Agreement, this Agreement may be terminated at any time prior to the filing
of the Certificate of Merger with the Secretary of State of the State of
Delaware in the event that such Agreement is abandoned by action of the Board of
Directors of each corporation party hereto, whether before or after approval by
the stockholders of any or all of such corporations.
<PAGE>
IN WITNESS WHEREOF, this Agreement of Merger is hereby
executed and acknowledged on behalf of each of the corporations party hereto.
Dated: as of March 18, 1998.
DUNN MERGER CORP.
By: /s/ JOHN D. VAZZANA
---------------------------------
John D. Vazzana
Executive Vice President and
Chief Financial Officer
DUNN COMPUTER CORPORATION
(Delaware)
By: /s/ JOHN D. VAZZANA
---------------------------------
John D. Vazzana
Executive Vice President and
Chief Financial Officer
DUNN COMPUTER CORPORATION
(Virginia)
By: /s/ JOHN D. VAZZANA
---------------------------------
John D. Vazzana
Executive Vice President and
Chief Financial Officer
<PAGE>
EXHIBIT 3.4
BYLAWS
OF
DUNN COMPUTER CORPORATION
* * *
ARTICLE I
Offices
The principal office and place of business of this corporation will be
11307 Sunset Hills Road, Suite B7, Reston, Virginia 22090. Permission and
authority is hereby given the Board of Directors to change the location of
said principal office and of said principal place of business, or either,
from time to time as it may deem advisable, and also to establish such
offices or places of business elsewhere, either within or without the State
of Virginia, as in the opinion of the Board may be advisable.
ARTICLE II
Stockholders Annual Meetings
SECTION 1. The annual meetings of the stockholders of this corporation
shall be held on the second Tuesday of April of each year either at the
principal office of the corporation or at such other place either in or out
of the State of Virginia as the Board of Directors may authorize and fix by
resolution or order. No prior Notice of said annual meeting shall be required.
Special Meetings
SECTION 2. Special meetings of the stockholders may be called at any time
by the Board of Directors, the President, or any number of stockholders
holding in the aggregate at least twenty-five percent (25%) of the number of
shares outstanding. Such meetings shall be held at the principal office of
the corporation unless called by the Board of Directors to be held at some
other place, in which event it shall be held at such other place.
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Notice of Special Meetings
SECTION 3. Notice of any special meeting of the stockholders shall be
given by written notice of the time and place thereof mailed to each of the
stockholders at least ten (10) days prior to such meeting, such notice to be
addressed to the stockholder at his last post office address appearing on the
books of the corporation.
The notice of special meetings shall state the business to be transacted,
and no business other than that included in the notice of incidental thereto
shall be transacted at such meeting.
Waiver of Notice
SECTION 4. Any meeting of the stockholders may be held by agreement in
writing of all the stockholders, and where notice or publication of any
notice is required, the same may be waived in writing by all of the
stockholders. Any meeting of the stockholders at which all the outstanding
stock of the corporation is present or represented shall be valid and
binding, notwithstanding lack or insufficiency of notice.
Quorum--Adjustments
SECTION 5. At all meetings of the stockholders, a quorum shall consist of
at least a majority of all of the shares of stock issued and outstanding,
exclusive of that held by the corporation, either in person or by proxy.
If a sufficient number of shares is not present at the time and place
appointed, any number of shares present or represented, less than a quorum,
may adjourn any stockholders' meeting from time to time until the meeting is
regularly constituted and the business to come before the meeting is
completed.
Voting
SECTION 6. Upon any question to be determined at a stockholders' meeting
other than the election of directors, which is otherwise provided for by
statute or by Section 3 of Article III of these Bylaws, if a vote by stock be
demanded upon such question by any stockholder, each stockholder shall be
entitled to one vote for each share of stock owned by him and entitled to a
vote, and he may exercise this right in person or by proxy.
2
<PAGE>
The concurrence by the vote of not less than a majority of the capital
stock present or represented at any meeting and entitled to vote shall be
necessary and prerequisite to any corporate action to be taken at any
stockholders' meeting.
Record of Meetings
SECTION 7. A record shall be kept of the meeting of the stockholders and
the action taken at the same, which shall be verified by the person acting as
Secretary thereof.
ARTICLE III
Directors
Number, Qualification and Term of Office
SECTION 1. The business, property and affairs of the corporation shall be
managed and controlled by its Board of Directors. The Board of Directors
shall consist of not less than three nor more than seven persons, as may be
determined by the stockholders from time to time, to be elected at the first
meeting of the stockholders and at every annual meeting thereafter. Such
directors need not be stockholders of the corporation nor residents of the
State of Virginia. They shall hold office for one year and until their
successors are elected and qualified.
Executive Committee
SECTION 2. The Board of Directors may by resolution or resolutions passed
by majority of the whole Board, designate and elect an Executive Committee of
not less than three members of the Board of whom one shall be the President
of the corporation. The Executive Committee shall have and may exercise all
the powers of the Board of Directors in the management of the business
affairs of the corporation when the Board is not in session, and shall have
power to authorize the seal of the corporation to be affixed to all papers
which may require it. The Executive Committee shall meet upon the call of the
President and shall keep a full record of its proceedings which may be
reviewed by the Board of Directors at any time. The Executive Committee shall
serve at the will and pleasure of the Board of Directors and the Board of
Directors may change the membership of the Executive Committee at any time,
provided, however, that the President of the corporation shall always be a
member of the Executive Committee.
3
<PAGE>
Elections
SECTION 3. In all elections of directors each stockholder shall have the
right to cast one vote for each share of stock owned by him and entitled to
vote, and he may cast the same in person or by proxy.
Vacancies
SECTION 4. The stockholders at any meeting may remove any director and
fill the vacancy until the next annual meeting. A vacancy in the Board
occurring from any other cause may be filled by the Board until the next
annual meeting of the stockholders.
Meetings
SECTION 5. Regular meetings of the Board of Directors may be held at such
time and place as may be hereafter prescribed by these Bylaws, or as the
Board may from time to time designate by resolution. No notice shall be
required as to regular meetings of the Board if the Board by resolution
determines a precise time and place for such meetings.
Special meetings of the Board may be called by the President, or any two
directors.
Notice of any meeting of the Board may be given, until otherwise ordered
by the Board of Directors, by the Secretary of the corporation or by the
person or persons calling such meeting, at least five days before the time of
such meeting, either by written notice thereof mailed to each director, or by
telegram or telephone.
Meetings of the Board may be held at any time and place without notice
upon the written consent of all the directors.
The action of a majority of the Board, although not at a regularly called
meeting, and the record thereof, if assented to in writing by all the members
of the Board, shall be as valid and effective in all respects as if such
action were taken by the Board in regular meeting assembled.
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<PAGE>
Quorum
SECTION 6. Until otherwise prescribed by these Bylaws, a majority of the
Board shall constitute a quorum for the transaction of business; but if at
any meeting of the Board there be less than a quorum present, a majority of
those persons present may adjourn the meeting from time to time until a
quorum is present.
Authority of Board to Encumber
Property of Corporation
SECTION 7. In addition to the power and authority vested in the Board of
Directors of this corporation by the statutes and laws of the State of
Virginia and under the Bylaws of the corporation, the Board of Directors
shall have, and it is hereby expressly given and granted, the power, right
and authority to encumber and mortgage the real estate and other property of
this corporation or any part or parts thereof, and to convey the same in
trust to secure the payment of corporate obligations.
When Interest of Director Does Not Disqualify Him
SECTION 8. No person duly elected a director of this corporation shall be
disqualified to take office as such director, or to serve as such, or to vote
upon any matter coming before the Board of Directors of this corporation, or
to do any other act or thing otherwise proper to be done as such director, by
reason of the fact that such person is a stockholder, director, officer or
employee of any other corporation; or is a partner, or proprietor of another
business, the Board of Directors of this corporation being expressly
authorized to make, approve or ratify contracts, leases, agreements and other
transactions between this corporation and any other corporation or business
notwithstanding any interest which any member or members of the Board of
Directors of this corporation may have in such corporation or business.
Record of the Board
SECTION 9. The Board of Directors shall cause to be kept a record of its
proceedings which shall be verified by the signature of the person acting as
Secretary of the meeting. On any question as to which there is disagreement
the names of the
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<PAGE>
record, if any member at the time requires it.
Books of Account--Annual Report
SECTION 10. The directors and officers shall keep accurate accounts of the
corporate transactions and to such end shall cause the books of the
corporation to be settled and balanced at least once in every twelve months.
The Board of Directors may from time to time adopt such annual accounting
periods as it shall deem advisable.
ARTICLE IV
Officers and Agents
Election and Appointment
SECTION 1. As soon as may be after their election, the Board of Directors
shall choose a President of the corporation from among the directors, who
shall hold office until his successor is elected and qualified.
At the same time the Board of Directors shall choose a Vice President, a
Secretary and a Treasurer, none of whom need be members of the Board. The
directors may at any time elect from among the directors a Chairman of the
Board of Directors, and may also elect an Executive Vice President, an
Assistant Secretary and an Assistant Treasurer, who need not be members of
the Board. All of the officers in this paragraph mentioned shall hold office
during the pleasure of the Board.
The Board of Directors may employ such other employees, agents, attorneys
and representatives as the Board may deem advisable to perform such duties as
the Board may prescribe, and fix their compensation.
If required by the Board, the President, Vice President, Executive Vice
President, Treasurer, Secretary or any officer, agent or employee appointed
by the Board shall give bond payable to the corporation in such penalty and
with such conditions and security as the Board may approve.
Compensation
SECTION 2. The Board of Directors of this corporation shall have, and it
is hereby given, the authority and right to fix the compensation of all
officers (including members of the Board of Directors and the officers
mentioned in Section 1
6
<PAGE>
immediately above), agents, and employees of the corporation, who shall
receive such compensation as the Board may from time to time prescribe.
President
SECTION 3. The President shall be the chief executive officer of the
corporation. Unless some other officer or agent is specially appointed and
authorized for the purpose, the President shall sign the corporate name of
the corporation to all deeds, mortgages, writings and other contracts made by
the corporation, except such as are necessary or incidental to the exercise
of the powers vested in other officers or agents by the Board of Directors;
and generally, the President shall have the exercise supervision and control
over all the business, affairs and property of the corporation, except as may
be vested in other officers or agents by action of the Board of Directors,
and shall perform such duties as are incident to the conduct of its business
not otherwise provided for in its Bylaws or by action of the Board of
Directors or vested in other officers or agents by action of the Board of
Directors.
Vice President
SECTION 4. The Vice President shall in the absence or incapacity of the
President perform the duties of the President and shall have such other
powers and authority as may be assigned to him by the Board of Directors,
either generally or specifically.
Executive Vice President
SECTION 5. The Executive Vice President shall have supervision and control
over so much of the business affairs and property of the corporation as may
be delegated to him from time to time by the Board of Directors, either
generally or specifically.
Secretary
SECTION 6. The Secretary, or an Assistant Secretary, shall have the
custody of the minute book, stock book, corporate seal and all records and
papers of the corporation, subject to the supervision and control of the
President, except such as the Board may put in the custody of other officers,
agents or employees.
7
<PAGE>
The Secretary, or an Assistant Secretary, shall attend all meetings of the
stockholders and of the Board of Directors and act as Secretary thereof,
keeping a record of the proceedings of such meetings in a book to be
maintained for the purpose. The Secretary shall give or cause to be given,
unless otherwise specially provided, notice to all meetings of the
stockholders, directors, committees and other meetings of the officers or
representatives of the corporation, and shall perform such other duties as
may be prescribed by the Board of Directors or the President.
Treasurer
SECTION 7. The Treasurer or Assistant Treasurer shall have custody of the
corporate funds and securities, subject to the supervision and control of the
President, shall keep full and accurate accounts of receipts and
disbursements of the corporation; and shall deposit all moneys and other
valuable effects, in the name and to the credit of the corporation, in such
depositories as may be designated by the Board of Directors.
The Treasurer shall disburse the funds of the corporation subject to such
regulations as may be prescribed by the Board of Directors, taking proper
vouchers for such disbursements, and shall render to the President and to the
directors at regular meetings of the Board whenever they, or any of them, may
request it, an account of transactions as Treasurer and of the financial
condition of the corporation, and such other reports as may from time to time
be required of him by the President.
Signature of Orders for the
Payment of Money
SECTION 8. The funds of the corporation shall be disbursed in such manner
as may be prescribed by the Board of Directors. All checks, notes, drafts and
other orders of the corporation for the payment of money shall be drawn,
signed or countersigned as the Board of Directors may from time to time
prescribe.
8
<PAGE>
ARTICLE V
Capital Stock
Certificate of Stock
SECTION 1. The Board of Directors shall cause to be issued to any
association or its legal receiver appearing on the books of the corporation
to be the owner of any shares of its stock, a certificate or certificates
therefor, under the corporate seal of the corporation, to be signed by the
President, or a Vice President, and the Secretary, or an Assistant Secretary,
of the corporation, which certificate shall be in such form as the Board of
Directors may adopt. Such certificates shall be issued in order from a stock
certificate book to be kept by the Secretary under the supervision of the
Board.
Unless otherwise specially ordered by the Board, no such certificate shall
be issued or delivered until the stock represented thereby has been fully
paid for or security satisfactory to the Board given for the residue
remaining unpaid; but such payment may be made in property, property rights
services or otherwise when authorized and approved by the Board of Directors.
Transfer of Stock
SECTION 2. Shares of the capital stock of the corporation shall be
transferable by it only upon the books of the corporation by the holder
thereof in person or by attorney upon surrender and cancellation of the
certificate for the same.
Closing of Transfer Books and Fixing Record Date
SECTION 3. For the purpose of determining shareholders entitled to notice
of or to vote at any meeting of shareholders, or shareholders entitled to
receive payment of any dividend, or in order to make a determination of
shareholders for any proper purpose, the Board of Directors may provide that
the stock transfer books shall be closed for a stated period, but not to
exceed, in any case, fifty (50) days. If the stock transfer books shall be
closed for the purpose of determining shareholders entitled to notice of or
to vote at a meeting of shareholders, such books shall be closed for at least
ten (10) days immediately preceding such meeting. In lieu of closing the
stock transfer books, the Board of Directors may fix, in advance, a date as
the record date for any determination of shareholders, such date, in any
case, to be not more than fifty (50) days and, in case of a
9
<PAGE>
meeting of shareholders, not less than ten (10) days prior to the date on
which the particular action requiring such determination of shareholders is
to be taken. If the stock transfer books are not closed and no record date is
fixed for the determination of shareholders entitled to notice of or to vote
at a meeting of shareholders, or shareholders entitled to receive payment of
a dividend, the date on which notice of the meeting is mailed, or the date on
which the resolution of the Board of Directors declaring such dividend is
adopted, as the case may be, shall be the record date for such determination
of shareholders.
ARTICLE VI
General Provisions
Dividends
SECTION 1. The Board of Directors may declare, and the corporation may
pay, dividends on its outstanding shares in cash, property, or its own
shares, pursuant to law and subject to the provisions of its Articles of
Incorporation.
SECTION 2. Before payment of any dividend, there may be set aside out of
any funds of the corporation available for dividends, such sum or sums as the
directors, from time to time, in their absolute discretion, think proper as a
reserve or reserves to meet contingencies, or equalizing dividends, or for
such other purpose as the directors shall think conducive to the interest of
the Corporation, and the directors may modify or abolish any such reserve in
the manner in which it was created.
Checks
SECTION 3. All checks or demands for money and notes of the corporation
shall be signed by such officer or officers, or such other person or persons
as the Board of Directors may, from time to time, designate.
Fiscal Year
SECTION 4. The fiscal year of the corporation shall be fixed by resolution
of the Board of Directors.
Seal
SECTION 5. The corporate seal of the corporation shall
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<PAGE>
have inscribed thereon the name of the corporation, the year of its
organization, and the state of incorporation. The seal may be used by causing
it, or a facsimile thereof, to be impressed or affixed or reproduced or
otherwise.
ARTICLE VII
Amendments
SECTION 1. These Bylaws may be altered, amended or repealed, or new bylaws
adopted, at any regular meeting of the Board of Directors, or at any special
meeting of the Board of Directors, if notice of such proposed action be
contained in the notice of such special meeting.
11
<PAGE>
[FRONT OF CERTIFICATE]
[NUMBER] [SHARES]
DUNN COMPUTER CORPORATION
INCORPORATED UNDER THE LAWS OF THE COMMONWEALTH OF VIRGINIA
COMMON STOCK COMMON STOCK
CUSIP 265771 10 5
THIS IS TO CERTIFY THAT
IS THE OWNER OF
FULLY PAID AND NON-ASSESSABLE SHARES OF THE COMMON STOCK, 1.001 PAR VALUE PER
SHARE OF
- ----------------------------DUNN COMPUTER CORPORATION---------------------------
(hereinafter called the "Corporation") transferable on the books of the
Corporation by the registered holder hereof in person or by duly authorized
attorney, upon surrender of this certificate properly endorsed.
This certificate and the shares represented hereby are issued and shall be
held subject to all of the provisions of the Articles of Incorporation, as
amended, of the Corporation (a copy of which is on file with the Transfer
Agent) to all of which the holder of this certificate, by acceptance hereof,
assents.
This certificate is not valid until countersigned and registered by the
Transfer Agent and Registrar.
Witness the facsimile seal of the Corporation and the facsimile signatures
of its duly authorized officers.
Dated
/s/ Claudia N. Dunne /s/ Thomas P. Dunne
[SEAL]
SECRETARY PRESIDENT
COUNTERSIGNED AND REGISTERED
CONTINENTAL STOCK TRANSFER & TRUST COMPANY
(JERSEY CITY, N.J.)
TRANSFER AGENT
AND REGISTRAR
BY
AUTHORIZED OFFICER
<PAGE>
[BACK OF CERTIFICATE]
DUNN COMPUTER CORPORATION
THE CORPORATION WILL FURNISH WITHOUT CHARGE TO EACH STOCKHOLDER WHO SO
REQUESTS IN WRITING A COPY OF THE POWERS, DESIGNATIONS, PREFERENCES AND
RELATIVE, PARTICIPATING, OPTIONAL OR OTHER SPECIAL RIGHTS OF EACH CLASS OF
STOCK OR SERIES THEREOF, WHICH THE CORPORATION IS AUTHORIZED TO ISSUE, AND
THE QUALIFICATIONS, LIMITATIONS OR RESTRICTIONS OF SUCH PREFERENCES AND/OR
RIGHTS. ANY SUCH REQUEST MAY BE MADE TO THE CORPORATION OR THE TRANSFER AGENT.
KEEP THIS CERTIFICATE IN A SAFE PLACE. IF IT IS LOST, STOLEN OR DESTROYED THE
COMPANY WILL REQUIRE A BOND OF INDEMNITY AS A CONDITION TO THE ISSUANCE OF A
REPLACEMENT CERTIFICATE.
The following abbreviations, when used in the inscription on the face of this
certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM -- as tenants in common
TEN ENT -- as tenants by the entireties
JTTEN -- as joint tenants with right
of survivorship and not as
tenants in common
UNIF GIFT MIN ACT -- ______Custodian______
(City) (Minor)
under Uniform Gifts to Minors
Act____________________
(State)
Additional abbreviations may also be used though not in the above list.
For value received,____________________________hereby sell, assign and
transfer unto
PLEASE INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER OF ASSIGNEE
- ---------------------------------------------------------------------
- ---------------------------------------------------------------------
Please print or typewrite name and address including postal zip code of
assignee
- ---------------------------------------------------------------------
- ---------------------------------------------------------------------
_______________________________________________________________Shares
represented by the within Certificate, and do hereby irrevocably constitute
and appoint
_____________________________________________________________Attorney
to transfer the said shares on the books of the within-named Corporation with
full power of substitution in the premises.
Dated_______________________________
- ------------------------------------------------------------------------------
NOTICE: THE SIGNATURE TO THIS ASSIGNMENT MUST CORRESPOND WITH THE NAME AS
WRITTEN UPON THE FACE OF THE CERTIFICATE IN EVERY PARTICULAR, WITHOUT
ALTERATION OR ENLARGEMENT OR ANY CHANGE WHATEVER
Signature(s) Guaranteed_______________________________________________________:
- ------------------------------------------------------------------------------
THE SIGNATURE(S) SHOULD BE GUARANTEED BY AN ELIGIBLE GUARANTOR INSTITUTION
BANKS, STOCKBROKERS, SAVINGS AND LOAN ASSOCIATIONS AND CREDIT UNIONS WITH
MEMBERSHIP IN AN APPROVED SIGNATURE GUARANTEE MEDALLION PROGRAM, PURSUANT TO
S.E.C. RULE 17Ad-15.
- ----------------------------------------
AMERICAN BANKNOTE COMPANY
893 BLAIR MILL ROAD
HORSHAM, IA 19044
218-857-7480
- ----------------------------------------
[ILLEGIBLE]
- ----------------------------------------
/Net/Banknote/Home11/Dunn58389
- ----------------------------------------
- ----------------------------------------
PRODUCTION COORDINATOR- MIKE ZEGUNSKI
DUNN COMPUTER
H 583890K
- ----------------------------------------
[ILLEGIBLE] NEW
- ----------------------------------------
/net/banknote/home11/d-4
<PAGE>
EXHIBIT 5.1
[Letterhead of Jones, Day, Reavis & Pogue]
April 23, 1998
Dunn Computer Corporation
1306 Squire Court
Sterling, Virginia 20166
Ladies and Gentlemen:
We are acting as special counsel for Dunn Computer Corporation, a
Virginia corporation (the "Company"), in connection with the preparation and
filing by the Company of a Registration Statement on Form S-1, Registration
No. 333-47631 (the "Registration Statement"), under the Securities Act of
1933, as amended, with respect to the registration of (i) 3,250,000 shares
of Common Stock, par value $0.001 per share, of the Company (the "Offering
Shares") and (ii) up to 487,500 shares of Common Stock, par value $0.001 per
share, of the Company (the "Over-Allotment Shares") that may be sold pursuant
to an over-allotment option granted in the Underwriting Agreement (defined
below) (of which Over-Allotment Shares up to 243,750 shares may be sold by
the Company and up to 243,750 shares may be sold by certain Selling
Stockholders). The Offering Shares and the Over-Allotment Shares, if any,
that will be sold pursuant to the Underwriting Agreement (the "Underwriting
Agreement") between the Company and Ferris, Baker Watts, Incorporated and
Gerard Klauer Mattison & Co., Inc. are herein collectively referred to as the
"Shares".
We have examined such documents, records, and matters of law as we
have deemed necessary for purposes of this opinion. Based upon and subject to
the foregoing, we are of the opinion that the Shares are duly authorized and,
when issued and delivered by the Company or sold by the Selling Stockholders
to the Underwriters pursuant to the Underwriting Agreement against payment of
the consideration therefor as provided therein, will be validly issued, fully
paid, and nonassessable.
We hereby consent to the filing of this opinion as Exhibit 5.1 to
Registration Statement and to the reference to us under the caption "Legal
Matters" in the Prospectus constituting a part of such Registration Statement.
Very truly yours,
/s/ Jones, Day, Reavis & Pogue
<PAGE>
EXHIBIT 10.11
DUNN COMPUTER CORPORATION
1997 STOCK OPTION PLAN
1. PURPOSE OF PLAN: ADMINISTRATION
1.1 PURPOSE.
The Dunn Computer Corporation 1997 Stock Option Plan (hereinafter, the
"Plan") is hereby established to grant to officers and other employees of Dunn
Computer Corporation (the "Company") or of its parents or subsidiaries (as
defined in Sections 424(e) and (f), respectively, of the Internal Revenue Code
of 1986, as amended (the "Code")), if any, and to non-employee directors,
consultants and advisors and other persons who may perform significant services
for or on behalf of the Company, a favorable opportunity to acquire common
stock, $.001 par value ("Common Stock"), of the Company and, thereby, to create
an incentive for such persons to remain in the employ of or provide services to
the Company and to contribute to its success.
The Company may grant under the Plan both incentive stock options within the
meaning of Section 422 of the Code ("Incentive Stock Options") and stock options
that do not qualify for treatment as Incentive Stock Options ("Nonstatutory
Options"). Unless expressly provided to the contrary herein, all references
herein to "options," shall include both incentive Stock Options and Nonstatutory
Options.
1.2 ADMINISTRATION.
The Plan shall be administered by the Board of Directors of the Company (the
"Board") if each member is a "Non-Employee Director" within the meaning of Rule
16b-3 under the Securities Exchange Act of 1934, as amended ("Rule 16b-3"), or a
committee (the "Committee") of two or more directors, each of whom is a
Non-Employee Director. Appointment of Committee members shall be effective upon
acceptance of appointment. Committee members may resign at any time by
delivering written notice to the Board. Vacancies in the Committee may be filled
by the Board.
A majority of the members of the Committee shall constitute a quorum for the
purposes of the Plan. Provided a quorum is present, the Committee may take
action by affirmative vote or consent of a majority of its members present at a
meeting. Meetings may be held telephonically as long as all members are able to
hear one another, and a member of the Committee shall be deemed to be present
for this purpose if he or she is in simultaneous communication by telephone with
the other members who are able to hear one another. In lieu of action at a
meeting, the Committee may by written consent of a majority of its members.
Subject to the express provisions of the Plan, the Committee shall have the
authority to construe and interpret the Plan and all Stock Option Agreements (as
defined in Section 3.4) entered into pursuant hereto and to define the terms
used therein, to prescribe, adopt, amend and rescind rules and regulations
relating to the administration of the Plan and to make all other determinations
necessary or advisable for the administration of the Plan; provided, however,
that the Committee may delegate nondiscretionary administrative duties to such
employees of the Company as it deems proper; and, provided, further, in its
absolute discretion, the Board may at any time and from time to time exercise
any and all rights and duties of the Committee under the Plan. Subject to the
express limitations of the Plan, the Committee shall designate the individuals
from among the class of persons eligible to participate as provided in Section
1.3 who shall receive options, whether an optionee will receive Incentive Stock
Options or Nonstatutory Options, or both, and the amount, price, restrictions
and all other terms and provisions of such options (which need not be
identical).
Members of the Committee shall receive such compensation or their services
as members as may be determined by the Board. All expenses and liabilities which
members of the Committee incur in connection with the administration of this
Plan shall be borne by the Company. The Committee may, with
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the approval of the Board, employ attorneys, consultants, accountants,
appraisers, brokers or other persons. The Committee, the Company and the
Company's officers and directors shall be entitled to rely upon the advice,
opinions or valuations of any such persons. No members of the Committee or the
Board shall be personally liable for any action, determination or interpretation
made in good faith with respect to the Plan, and all members of the Committee
shall be fully protected by the Company in respect of any such action,
determination or interpretation.
1.3 PARTICIPATION.
Officers and other employees of the Company, non-employee directors,
consultants and advisors and other persons who may perform significant services
on behalf of the Company shall be eligible for selection to participate in the
Plan upon approval by the Committee; provided, however, that only "employees"
(within the meaning of Section 3401(c) of the Code) of the Company shall be
eligible for the grant of Incentive Stock Options. An individual who has been
granted an option may, if otherwise eligible, be granted additional options if
the committee shall so determine. No person is eligible to participate in the
Plan by matter of right; only those eligible persons who are selected by the
Committee in its discretion shall participate in the Plan.
1.4 STOCK SUBJECT TO THE PLAN.
Subject to adjustment as provided in Section 3.5, the stock to be offered
under the Plan shall be shares of authorized but unissued Common Stock,
including any shares repurchased under the terms of the Plan or any Stock Option
Agreement entered into pursuant hereto. The cumulative aggregate number of
shares of Common Stock to be issued under the Plan shall not exceed 2,200,000*,
subject to adjustment as set forth in Section 3.5.
If any option granted hereunder shall expire or terminate for any reason
without having been fully exercised, the unpurchased shares subject thereto
shall again be available for the purposes of the Plan. For purposes of this
Section 1.4, where the exercise price of options is paid by means of the
grantee's surrender of previously owned shares of Common Stock, only the net
number of additional shares issued and which remain outstanding in connection
with such exercise shall be deemed "issued" for purposes of the Plan.
2. STOCK OPTIONS
2.1 EXERCISE PRICE; PAYMENT.
(a) The exercise price of each Incentive Stock Option granted under the Plan
shall be determined by the Committee, but shall not be less than 100% of the
"Fair Market Value" (as defined below) of Common Stock on the date of grant. If
an Incentive Stock Option is granted to an employee who at the time such option
is granted owns (within the meaning of section 424(d) of the Code) more than 10%
of the total combined voting power of all classes of capital stock of the
Company, the option exercise price shall be at least 110% of the Fair Market
Value of Common Stock on the date of grant. The exercise price of each
Nonstatutory Option also shall be determined by the Committee, but shall not be
less than 85% of the Fair Market of Common Stock on the date of grant. The
status of each option granted under the Plan as either an Incentive Stock Option
or a Nonstatutory Option shall be determined by the Committee at the time the
Committee acts to grant the option, and shall be clearly identified as such in
the Stock Option Agreement relating thereto.
"Fair Market Value" for purposes of the Plan shall mean: (i) the closing
price of a share of Common Stock on the principal exchange on which shares of
Common Stock are then trading, if any, on the day immediately preceding the date
of grant, or, if shares were not traded on the day preceding such date of grant,
then on the next preceding trading day during which a sale occurred; or (ii) if
Common Stock is not
- ------------------------
* Formerly 600,000 shares. The increase in the aggregate number of shares of
Common Stock issuable under the Plan from 600,000 to 2,200,000 shares was
approved by the Board of Directors on September 4, 1997, subject to
stockholder approval within twelve months (see Section 3.8 of the Plan).
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traded on an exchange but is quoted on an exchange but is quoted on Nasdaq or a
successor quotation system, (1) the last sales price (if Common Stock is then
listed on the Nasdaq Stock Market) or (2) the mean between the closing
representative bid and asked price (in all other cases) for Common Stock on the
day prior to the date of grant as reported by Nasdaq or such successor quotation
system; or (iii) if there is no listing or trading of Common Stock either on a
national exchange or over-the-counter, that price determined in good faith by
the Committee to be the fair value per share of Common Stock, based upon such
evidence as it deems necessary or advisable.
(b) In the discretion of the Committee at the time the option is exercised,
the exercise price of any option granted under the Plan shall be paid in full in
cash, b check or by the optionee's interest-bearing promissory note (subject to
any limitations of applicable state corporations law) delivered at the time of
exercise; provided, however, that subject to the timing requirements of Section
2.7, in the discretion of the Committee and upon receipt of all regulatory
approvals, the person exercising the option may deliver as payment in whole or
in part of such exercise price certificates for Common Stock of the Company
(duly endorsed or with duly executed stock powers attached), which shall be
valued at its Fair Market Value on the day of exercise of the option, or other
property deemed appropriate by the Committee; and, provided further, that,
subject to Section 422 of the Code, so-called cashless exercises as permitted
under applicable rules and regulations of the Securities and Exchange Commission
and the Federal Reserve Board shall be permitted in the discretion of the
Committee. Without limiting the Committee's discretion in this regard,
consecutive book entry stock-for-stock exercises of options (or "pyramiding")
also are permitted in the Committee's discretion.
Irrespective of the form of payment, the delivery of shares issuable upon
the exercise of an option shall be conditioned upon payment by the optionee to
the Company of amounts sufficient to enable the Company to pay all federal,
state, and local withholding taxes resulting, in the Company's judgment, from
the exercise. In the discretion of the Committee, such payment to the Company
may be effected through (i) the Company's withholding from the number of shares
of Common Stock that would otherwise be delivered to the optionee by the Company
on exercise of the option a number of shares of Common Stock equal in value (as
determined by the Fair Market Value of Common Stock on the date of the exercise)
to the aggregate withholding taxes, (ii) payment by the optionee to the Company
of the aggregate withholding taxes in cash, (iii) withholding by the Company
from other amounts contemporaneously owed by the Company to the optionee, or
(iv) any combination of these three methods, as determined by the Committee in
its discretion.
2.2 OPTION PERIOD.
(a) The Committee shall provide, in the terms of each Stock Option
Agreement, when the option subject to such agreement expires and becomes
unexercisable, but in no event will an Incentive Stock Option granted under the
Plan be exercisable after the expiration of ten years from the date it is
granted. Without limiting the generality of the foregoing, the Committee may
provide in the Stock Option Agreement that the option subject thereto expires 30
days following a Termination of Employment (as defined in Section 3.2 hereof)
for any reason other than death or disability, or six months following a
Termination of Employment for disability or following an optionee's death.
(b) Outside Date for Exercise. Notwithstanding any provisions of this
Section 2.2. in no event shall any option granted under the Plan be exercised
after the expiration date of such option set forth in the applicable Stock
Option Agreement.
2.3 EXERCISE OF OPTIONS.
Each option granted under the Plan shall become exercisable and the total
number of shares subject thereto shall be purchasable, in a lump sum or in such
installments, which need not be equal, as the Committee shall determine;
provided, however, that each option shall become exercisable as to at least 10%
of the shares of Common Stock covered thereby on each anniversary of the date
such option is granted; and provided, further, that if the holder of an option
shall not in any given installment period purchase all of the shares which such
holder is entitled to purchase in such installment period, such
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holder's right to purchase any shares not purchased in such installment period
shall continue until the expiration or sooner termination of such holder's
option. The Committee may, at any time after grant of the option and from time
to time, increase the number of shares purchasable in any installment, subject
to the total number of shares subject to the option and the limitations set
forth in Section 2.5. At any time and from time to time prior to the time when
any exercisable option or exercisable portion thereof become unexercisable under
the Plan or the applicable Stock Option Agreement, such option, or portion
thereof may be exercised in whole or in part; provided, however, that the
Committee may, by the terms of the option, require any partial exercise to be
with respect to a specified minimum number of shares. No option or installment
thereof shall be exercisable except with respect to whole shares. Fractional
share interests shall be disregarded, except that they may be accumulated as
provided above and except that if such a fractional share interest constitutes
the total shares of Common Stock remaining available for purchase under an
option at the time of exercise, the optionee shall be entitled to receive on
exercise a certified or bank cashier's check in an amount equal to the Fair
Market Value of such fractional share of stock.
2.4 TRANSFERABILITY OF OPTIONS.
Except as the Committee may determine as aforesaid, an option granted under
the Plan shall, by its terms, be nontransferable by the optionee other than by
will or the laws of descent and distribution, or pursuant to a qualified
domestic relations order (as defined by the Code), and shall be exercisable
during the optionee's lifetime only by the optionee or by his or her guardian or
legal representative. More particularly, but without limiting the generality of
the immediately preceding sentence, an option may not be assigned, transferred
(except as provided in the preceding sentence), pledged or hypothecated (whether
by operation of law or otherwise), and shall not be subject to execution,
attachment or similar process. Any attempted assignment, transfer, pledge,
hypothecation or other disposition of any option contrary to the provisions of
the Plan and the applicable Stock Option Agreement, and any levy of any
attachment or similar process upon an option, shall be null and void, and
otherwise without effect, and the Committee may, in its sole discretion, upon
the happening of any such event, terminate such option forthwith.
2.5 LIMITATION ON EXERCISE OF INCENTIVE STOCK OPTIONS.
To the extent that the aggregate Fair Market Value (determined on the date
of grant as provided in Section 2.1 above) of the Common Stock with respect to
which Incentive Stock Options granted hereunder (together with all other
Incentive Stock Option plans of the Company) are exercisable for the first time
by an optionee in any calendar year under the Plan exceeds $100,000, such
options granted hereunder shall be treated as Nonstatutory Options to the extent
required by Section 422 of the Code. The rule set forth in the preceding
sentence shall be applied by taking options into account in the order in which
they were granted.
2.6 DISQUALIFYING DISPOSITIONS OF INCENTIVE STOCK OPTIONS.
If Common Stock acquired upon exercise of any Incentive Stock Option is
disposed of in a disposition that, under Section 422 of the Code, disqualifies
the option holder from the application of
Section 421(a) of the Code, the holder of the Common Stock immediately before
the disposition shall comply with any requirements imposed by the Company in
order to enable the Company to secure the related income tax deduction to which
it is entitled in such event.
2.7 CERTAIN TIMING REQUIREMENTS.
At the discretion of the Committee, shares of Common Stock issuable to the
optionee upon exercise of an option may be used to satisfy the option exercise
price or the tax withholding consequences of such exercise, in the case of
persons subject to Section 16 of the Securities Exchange Act of 1934, as
amended, only (i) during the period beginning on the third business day
following the date of release of the quarterly or annual summary statement of
sales and earnings of the Company and ending on the twelfth business day
following such date or (ii) pursuant to an irrevocable written election by the
optionee to use shares of Common Stock issuable to the optionee upon exercise of
the option to pay all or part of the option price or
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the withholding taxes made at least six months prior to the payment of such
option price or withholding taxes.
2.8 NO EFFECT ON EMPLOYMENT.
Nothing in the Plan or in any Stock Option Agreement hereunder shall confer
upon any optionee any right to continue in the employ of the Company, any Parent
Corporation or any subsidiary or shall interfere with or restrict in any way the
rights of the company, its Parent Corporation and its Subsidiaries, which are
hereby expressly reserved, to discharge any optionee at any time for any reason
whatsoever, with or without cause.
For purposes of the Plan, "Parent Corporation" shall mean any corporation in
an unbroken chain of corporations ending with the Company if each of the
corporations other than the Company then owns stock possessing 50% or more of
the total combined voting power of all classes of stock in one of the other
corporations in such chain. For purposes of the Plan, "Subsidiary" shall mean
any corporation in an unbroken chain of corporations beginning with the Company
if each of the corporations other than the last corporation in the unbroken
chain then owns stock possessing 50% or more of the total combined voting power
of all classes of stock in one of the other corporations in such chain.
3. OTHER PROVISIONS
3.1 SICK LEAVE AND LEAVE OF ABSENCE.
Unless otherwise provided in the Stock Option Agreement, and to the extent
permitted by Section 422 of the Code, an optionee's employment shall not be
deemed to terminate by reason of sick leave, military leave or other leave of
absence approved by the Company if the period of any such leave does not exceed
a period approved by the Company, or, if longer, if the optionee's right to
reemployment by the Company is guaranteed either contractually or by statute. A
Stock Option Agreement may contain such additional or different provisions with
respect to leave of absence as the Committee may approve, either at the time of
grant of an option or at a later time.
3.2 TERMINATION OF EMPLOYMENT.
For purposes of the Plan "Termination of Employment," shall mean the time
when the employee-employer relationship between the optionee and the Company,
any Subsidiary or any Parent Corporation is terminated for any reason,
including, but not by way of limitation, a termination by resignation,
discharge, death, disability or retirement; but excluding (i) terminations where
there is a simultaneous reemployment or continuing employment of an optionee by
the Company, any Subsidiary or any Parent Corporation, (ii) at the discretion of
the Committee, terminations which result in a temporary severance of the
employee-employer relationship, and (iii) at the discretion of the Committee,
terminations which are followed by the simultaneous establishment of a
consulting relationship by the Company, a Subsidiary or any Parent Corporation
with the former employee. Subject to Section 3.1, the Committee, in its absolute
discretion, shall determine the affect of all maters and questions relating to
Termination of Employment; provided, however, that, with respect to Incentive
Stock Options, a leave of absence or other change in the employee-employer
relationship shall constitute a Termination of Employment if, and to the extent
that such leave of absence or other change interrupts employment for the
purposes of Section 422(a)(2) of the Code and the then-applicable regulations
and revenue rulings under said Section.
3.3 ISSUANCE OF STOCK CERTIFICATES.
Upon exercise of an option, the Company shall deliver to the person
exercising such option a stock certificate evidencing the shares of Common Stock
acquired upon exercise. Notwithstanding the foregoing, the Committee in its
discretion may require the Company to retain possession of any certificate
evidencing stock acquired upon exercise of an option which remains subject to
repurchase under the provisions of the Stock Option Agreement or any other
agreement signed by the optionee in order to facilitate such repurchase
provisions.
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3.4 TERMS AND CONDITIONS OF OPTIONS.
Each option granted under the Plan shall be evidenced by a written Stock
Option Agreement ("Stock Option Agreement") between the option holder and the
Company providing that the option is subject to the terms and conditions of the
Plan and to such other terms and conditions not inconsistent therewith as the
Committee may deem appropriate in each case.
3.5 ADJUSTMENTS UPON CHANGES IN CAPITALIZATION; MERGER AND CONSOLIDATION.
If the outstanding shares of Common Stock are changed into, or exchanged for
cash or a different number of kind of shares or securities of the Company or of
another corporation through reorganization, merger, recapitalization,
reclassification, stock split-up, reverse stock split, stock dividend, stock
consolidation, stock combination, stock reclassification or similar transaction,
an appropriate adjustment shall be made by the Committee in the number and kind
of shares as to which options may be granted. In the event of such a change or
exchange, other than for shares or securities of another corporation or by
reason of reorganization, the Committee shall also make a corresponding
adjustment changing the number of kind of shares and the exercise price per
share allocated to unexercised options or portions thereof, which shall have
been granted prior to any such change, shall likewise be made. Any such
adjustment, however, shall be made without change in the total price applicable
to the unexercised portion of the option (except for any change in the aggregate
price resulting from rounding-off of share quantities or prices).
In the event of a "spin-off" or other substantial distribution of assets of
the Company which has a material diminutive effect upon the Fair Market Value of
the Common Stock, the Committee in its discretion shall make an appropriate and
equitable adjustment to the exercise prices of options then outstanding under
the Plan.
Where an adjustment under this Section 3.5 of the type described above is
made to an Incentive Stock Option, the adjustment will be made in a manner which
will not be considered a "modification" under the provisions of subsection
424(b)(3) of the Code.
In connection with the dissolution or liquidation of the Company or a
partial liquidation involving 50% or more of the assets of the Company, a
reorganization of the Company in which another entity is the survivor, a merger
or reorganization of the Company under which more than 50% of the Common Stock
outstanding prior to the merger or reorganization is converted into cash or into
a security of another entity, a sale of more than 50% of the Company's assets,
or a similar event that the Committee determines, in its discretion, would
materially alter the structure of the Company or its ownership, the Committee,
upon 30 days prior written notice to the option holders, may, in its discretion,
do one or more of the following: (i) shorten the period during which options are
exercisable (provided they remain exercisable for at least 30 days after the
date the notice is given); (ii) accelerate any vesting schedule to which an
option is subject; (iii) arrange to have the surviving or successor entity grant
replacement options with appropriate adjustments in the number and kind of
securities and option prices, or (iv) cancel options upon payment to the option
holders in cash, with respect to each option to the extent then exercisable
(including any options as to which the exercise has been accelerated as
contemplated in clause (ii) above), of any amount that is the equivalent of the
Fair Market Value of the Common Stock (at the effective time of the dissolution,
liquidation, merger, reorganization, sale or other event) or the fair market
value of the option. In the case of a change in corporate control, the Committee
may, in considering the advisability or the terms and conditions of any
acceleration of the exercisability of any option pursuant to this Section 3.5,
take into account the penalties that may result directly or indirectly from such
acceleration to either the Company or the option holder, or both, under Section
280G of the Code, and may decide to limit such acceleration to the extent
necessary to avoid or mitigate such penalties or their effects.
No fractional share of Common Stock shall be issued under the Plan on
account of any adjustment under this Section 3.5.
C-6
<PAGE>
3.6 RIGHTS OF PARTICIPANTS AND BENEFICIARIES.
The Company shall pay all amounts payable hereunder only to the option
holder or beneficiaries entitled thereto pursuant to the Plan. The Company shall
not be liable for the debts, contracts or engagements of any optionee or his or
her beneficiaries, and rights to cash payments under the Plan may not be taken
in execution by attachment or garnishment, or by any other legal or equitable
proceeding while in the hands of the Company.
3.7 GOVERNMENT REGULATIONS.
The Plan, and the grant and exercise of options and the issuance and
delivery of shares of Common Stock under options granted hereunder, shall be
subject to compliance with all applicable federal and state laws, rules and
regulations (including but not limited to state and federal securities law) and
federal margin requirements and to such approvals by any listing, regulatory or
governmental authority as may, in the opinion of counsel for the Company, be
necessary or advisable in connection therewith. Any securities delivered under
the Plan shall be subject to such restrictions, and the person acquiring such
securities shall, if requested by the Company, provide such assurances and
representations to the Company as the Company may deem necessary or desirable to
assure compliance with all applicable legal requirements. To the extent
permitted by applicable law, the Plan and options granted hereunder shall be
deemed amended to the extent necessary to conform to such laws, rules and
regulations.
3.8 AMENDMENT AND TERMINATION.
The Board or the Committee may at any time suspend, amend or terminate the
Plan and may, with the consent of the option holder, make such modifications of
the terms and conditions of such option holder's option as it shall deem
advisable, provided, however, that, without approval of the Company's
stockholders given within twelve months before or after the action by the Board
or the Committee, no action of the Board or the Committee may, (A) materially
increase the benefits accruing to participants under the Plan; (B) materially
increase the number of securities which may be issued under the Plan; or (C)
materially modify the requirements as to eligibility for participation in the
Plan. No option may be granted during any suspension of the Plan or after such
termination. The amendment, suspension or termination of the Plan shall not,
without the consent of the option holder affected thereby, alter or impair any
rights or obligations under any option theretofore granted under the Plan. No
option may be granted during any period of suspension nor after termination of
the Plan, and in no event may any option be granted under the Plan after the
expiration of ten years from the date the Plan is adopted by the Board.
3.9 TIME OF GRANT AND EXERCISE OF OPTION.
An option shall be deemed to be exercised when the Secretary of the Company
receives written notice from an option holder of such exercise, payment of the
exercise price determined pursuant to Section 2.1 of the Plan and set forth in
the Stock Option Agreement, and all representations, indemnifications and
documents reasonably requested by the Committee.
3.10 PRIVILEGES OF STOCK OWNERSHIP; NON-DISTRIBUTIVE INTENT; REPORTS TO
OPTION HOLDERS.
A participant in the Plan shall not be entitled to the privilege of stock
ownership as to any shares of Common Stock not actually issued to the optionee.
Upon exercise of an option at a time when there is not in effect under the
Securities Act of 1933, as amended, a Registration Statement relating to the
Common Stock issuable upon exercise or payment therefor and available for
delivery a Prospectus meeting the requirements of Section 10(a)(3) of said Act,
the optionee shall represent and warrant in writing to the Company that the
shares purchased are being acquired for investment and not with a view to the
distribution thereof.
The Company shall furnish to each optionee under the Plan the Company's
annual report and such other periodic reports, if any, as are disseminated by
the Company in the ordinary course to its stockholders.
C-7
<PAGE>
3.11 LEGENDING SHARE CERTIFICATES.
In order to enforce any restrictions imposed upon Common Stock issued upon
exercise of an option granted under the Plan or to which such Common Stock may
be subject, the Committee may cause a legend or legends to be placed on any
share certificates representing such Common Stock, which legend or legends shall
make appropriate reference to such restrictions, including, but not limited to,
a restriction against sale of such Common Stock for any period of time as may be
required by applicable laws or regulations. If any restriction with respect to
which a legend was placed on any certificate ceases to apply to Common Stock
represented by such certificate, the owner of the Common Stock represented by
such certificate may require the Company to cause the issuance of a new
certificate not bearing the legend.
Additionally, and not by way of limitation, the Committee may impose such
restrictions on any Common Stock issued pursuant to the Plan as it may deem
advisable, including, without limitation, restrictions under the requirements of
any stock exchange upon which Common Stock is then traded.
3.12 USE OF PROCEEDS.
Proceeds realized pursuant to the exercise of options under the Plan shall
constitute general funds of the Company.
3.13 CHANGES IN CAPITAL STRUCTURE; NO IMPEDIMENT TO CORPORATE TRANSACTIONS.
The existence of outstanding options under the Plan shall not affect the
Company's right to effect adjustments, recapitalizations, reorganizations or
other changes in its or any other corporation's capital structure or business,
any merger or consolidation, any issuance of bonds, debentures, preferred or
prior preference stock ahead of or affecting Common Stock, the dissolution or
liquidation of the Company's or any other corporation's assets or business, or
any other corporate act, whether similar to the events described above or
otherwise.
3.14 EFFECTIVE DATE OF THE PLAN.
The Plan shall be effective as of the date of its approval by the
stockholders of the Company within twelve months after the date of the Board's
initial adoption of the Plan. Options may be granted but not exercised prior to
stockholder approval of the Plan. If any options are so granted and stockholder
approval shall not have been obtained within twelve months of the date of
adoption of this Plan by the Board of Directors, such options shall terminate
retroactively as of the date they were granted.
3.15 TERMINATION.
The Plan shall terminate automatically as of the close of business on the
day preceding the tenth anniversary date of its adoption by the Board or earlier
as provided in Section 3.8. Unless otherwise provided herein, the termination of
the Plan shall not affect the validity of any option agreement outstanding at
the date of such termination.
3.16 NO EFFECT ON OTHER PLANS.
The adoption of the Plan shall not affect any other compensation or
incentive plans in effect for the Company, any Subsidiary or any Parent
Corporation. Nothing in the Plan shall be construed to limit the right of the
Company (i) to establish any other forms of incentives or compensation for
employees of the Company, any Subsidiary or any Parent Corporation or (ii) to
grant or assume options or other rights otherwise than under the Plan in
connection with any proper corporate purpose including but not by way of
limitation, the grant or assumption of options in connection with the
acquisition by purchase, lease, merger, consolidation or otherwise, of the
business, stock or assets of any corporation, partnership, firm or association.
C-8
<PAGE>
Exhibit 10.12
[Logo of IDP]
Authorized ADP Schedule Pricelist
FSC Group 70, Part I, Sections B & C
GENERAL PURPOSE COMMERCIAL AUTOMATIC DATA PROCESSING EQUIPMENT, END USER
COMPUTERS (NORMALLY MICROCOMPUTERS) AND EQUIPMENT USED PRIMARILY OFF-LINE, AND
SOFTWARE
Applicable special Item Numbers:
- --------------------------------
Special Item Number 132-8 Purchase of Hardware
Special Item Number 132-18 Repair Service
Special Item Number 132-19 Repair Parts
<TABLE>
<CAPTION>
FSC Classes and Category Codes
- ------------------------------
Hardware Category Code
- -------- -------------
<S> <C>
FSC Class 7010-0001 End User Computers ......................... G
FMC Class 7010-0003 Laptop, Portable and Notebook Computers .... H
FSC Class 7025-0004 Printers (ADP) ............................. A
FMC CLASS 7025-0006-Local Area Network Equipment and Accessories J
FMC CLASS 7025-0010 Other ADP Input/Output and Storage Devices . C
FSC CLASS 7025-0011 Modems and Multiplexers .................... D
FSC CLASS 7035-0001 ADP Support Equipment ...................... E
FSC CLASS 7050-0001 ADP Boards ................................. F
Software:
- ---------
FSC Class 7030-0001 Operating System Software .................. O
</TABLE>
International Data Products, Corporation (IDP)
20 Firstfield Road
Gaithersburg, Maryland 20878-1793
Telephone Number 301-590-8100
Contract Number: _________________________________________
Period covered by Contract: __________________________________
General Services Administration
Federal Supply Service
Products and ordering information in this Authorized ADP Schedule Pricelist is
also available on the GSA Advantage system. Agencies can browse GSA andvantage
by accessing GSA's Home Page via Internet at www.gsa.gov.
<PAGE>
TABLE OF CONTENTS
<TABLE>
<S> <C>
Information for Ordering Offices ............................................ 0-3
Terms and Conditions Applicable to (SIN 132-8, 132-18, 132-19) .............. 3-3
Terms and Conditions Applicable to Purchase (SIN 132-8) ..................... 3-4
Terms and Conditions Applicable to Repair (SIN-132-18) and Parts (Sin 132-19) 4-6
Attachment AA: OCONUS On-Site Service Location
Attachment BB: Points of Production
</TABLE>
<PAGE>
Information for Ordering Offices
1. Geographic Scope of Contract: The geographic scope of this contract is the 48
contiguous states, the District of Columbia, Elmendorf AFB and Eileson AFB,
Alaska, and Oahu, Hawaii.
2. Contractor's Ordering Address and Payment Address:
International Data Products, Corporation
20 Firstfield Road
Gaithersburg, Maryland 20878-1793
Government Commercial Credit Cards will be acceptable for payment. In addition,
bank account information for wire transfer payments will be shown on the
invoice.
Below are the telephone numbers that can be used by ordering agencies to obtain
technical and/or ordering assistance.
Technical Support
301-590-8100 Extension 7299
Sales/Orders
301-590-8100 (Receptionist to direct appropriate GSA Account Manager)
3. Reserved
4. Statistical Data for Government Ordering Office Completion of Standard Form
279:
Block 9: G Order/Modification under Federal Schedule
Block 16 Contractor Establishment Code (DUNS) #103934774
Block 30. Type of Contractor- A Small Disadvantaged Business
Block 31. Women Owned Small Business -No.
Block 34 RESERVED
Block 36. Contractor's Taxpayer Identification Number (TIN)-#521328445
4a. Cage Code: 45815
5. FOB Destination for all CONUS locations and OCONUS APO addresses. For all
other OCONUS locations, shipping charges may apply outside the scope of the
contract. Please contact your account manager at (301) 590-8100.
6. COMMERCIAL DELIVERY SCHEDULE (MULTIPLE AWARD SCHEDULES)
(a) TIME OF DELIVERY. The contractor shall deliver to destination within the
number of calendar days after receipt of order (ARO), as set forth below.
Offerors shall insert in the "Time of Delivery" (days ARO)" column in the
Schedule of Items a definite number of calendar days within which delivery will
be made. In no case shall the offered delivery time exceed the contractor's
normal commercial practice.
<TABLE>
<CAPTION>
ITEMS or GROUPS OF ITEMS DELIVERY TIME
(SIN or Nomenclature) (DAYS ARO)
- ----------------------- -------------
<S> <C>
132-8 30 Days ARO
</TABLE>
(b) (EXPEDITED DELIVERY TIMES. For those items that can be delivered quicker
than the delivery times in paragraph (a), the offeror is requested to insert
below, a time (hours/days ARO) that delivery can be made when expedited delivery
is requested.
<TABLE>
<CAPTION>
ITEMS or GROUPS OF ITEMS DELIVERY TIME
(SIN or Nomenclature) (DAYS ARO)
- ----------------------- -------------
<S> <C>
132-8 30 Days ARO
</TABLE>
(c) OVERNIGHT AND 2-DAY DELIVERY TIMES. IDP may be able to deliver product via
overnight/day delivery upon verbal confirmation with an IDP GSA Account Manager.
The charge will be a minimum fee of $20.00 or 1% of the total GSA order for next
day delivery and a fee of $15.00 or 1% of the GSA order for Two Day delivery,
whichever is greater. The minimum dollar value for express delivery of the order
cannot be less than $1500.00 unless mutually agreed upon between the ordering
office and the GSA Account Manager.
(d) URGENT REQUIREMENTS. When the Federal Supply Schedule contract delivery
period does not meet the bona fide urgent delivery requirements of an ordering
agency, agencies are encouraged, if time permits, to contact the contractor for
the purpose of obtaining accelerated delivery. The contractor shall reply to the
inquiry within 3 workdays after receipt. (Telephonic replies shall be confirmed
by the contractor in writing.) If the contractor offers an accelerated delivery
time acceptable to the ordering agency, any order(s) placed pursuant to the
agreed upon accelerated delivery time frame shall be delivered within this
shorter delivery time and in accordance with all other terms and conditions of
the contract.
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<PAGE>
7. Discounts: The prices are net and discounts have been deducted.
a. Prompt Payment: 1/2%-Net 20 days from receipt of invoice or date of
acceptance, whichever is later.
b. Quantity-NO
c. Dollar Value-YES, The following discount structure will be
implemented for all IDP desktops and notebooks:
<TABLE>
<CAPTION>
DISCOUNT OFF OF IDP'S COMMERCIAL
DOLLAR VALUE PRICE LIST
------------ --------------------------------
<S> <C>
$50,000-$149,999 ........... 41%
$150,000-$499,999 .......... 43%
$500,000-$2,999,999 ........ 44%
$3,000,000-AND up .......... 45%
</TABLE>
d. Governmental Educational Institutions- They are offered the same
discount as all other Government customers.
e. Discount for use of Government Commercial Credit Card- NO
f. Other- NONE
8. Production Points and Statements Concerning Foreign Produced Items
More than one production point exists for delivery under this schedule contract.
Please refer to Attachment BB.
9. Export Packaging: All products shipped to OCONUS locations will be packaged
according to Industry Standard's Export Guidelines.
10. Small Requirements. The minimum order dollar value of orders to be issued is
$50.00.
11. Maximum order: (all dollar amounts are exclusive of any discount for prompt
payment)
(b) Special Items Number 132-8- Purchase of Hardware
The maximum dollar value per order will be $500,000 for all
hardware products.
(c) Special Items Number 132-19- Repair Parts
The maximum dollar value per order will be $10,000.
Note: Maximum Order do not apply to Special Items Numbers 132-12
Maintenance of Equipment, 132-18 repair Service, or 132-34 Maintenance
of Software. The contractor shall honor any order exceeding the maximum
order limitations in paragraph (b), unless that order (or orders) is
returned to the ordering office within 5 days after issuance, with
written notice stating the contractors' intent not to ship the item (or
items) called for and the reasons. Upon receiving this notice, the
Government may acquire the supplied or services from another source.
11b. Orders that exceed the Maximum Order (I-FSS-125) (AUG 1995) (a) In
accordance with FAR 8.404 there may be circumstances where an ordering activity
finds it advantageous to request a price reduction such as where quantity of an
individual order clearly indicates the potential for obtaining a reduced price.
To assist the customer agencies to determine when they should seek a price
decrease a level called a maximum order has been established under the contract.
When an agency order exceeds this amount it is recommended that the ordering
activity contact the contractor for a reduced price.
(b) Contractor may:
(1) Offer a new lower price for this requirement (the Price
Reduction Clause is not applicable to orders placed over the
Maximum order in FAR 52.216-19.)
(2) offer the lowest price available under the contract; or
(3) decline the order, orders must be returned in accordance with
FAR 52-216-19.
(c) A delivery order for quantities that exceed the maximum order may be placed
with the contractor selected in accordance with FAR 8.404. The order will be
placed under the current contract.
(d) Sales for orders that exceed the Maximum Order shall be reported in
accordance with GAR 552.238-72.
12. FEDERAL ADP/TELECOMMUNICATION STANDARDS REQUIREMENTS: Federal departments
and agencies acquiring products from this Schedule must comply with the
provisions of the Federal Standards Program, as appropriate (reference: NIST
Federal Standards Index). Inquiries to determine whether or not specific
products listed herein comply with Federal Information Processing Standards
(FIPS) or Federal Telecommunication Standards (FED-STDS), which are cited by
ordering offices, shall be responded to promptly by the Contractor.
12.1 FEDERAL INFORMATION PROCESSING STANDARDS PUBLICATIONS (FIPS PUBS): ADP
products under this Schedule that do not conform to Federal Information
Processing Standards (FIPS) should not be acquired unless a waiver has been
granted in accordance with the applicable "FIPS Publication". Federal
Information Processing Standards Publications (FIPS PUBS) are
1
<PAGE>
issued by the U.S. Department of Commerce, National Institute of Standards
Technology (NIST), pursuant National Security Act. Information concerning their
availability and applicability should be obtained from the National Technical
Information Service (NTIS), 5285 Port royal Road, Springfield, Virginia, 22161.
FIPS PUBS include voluntary standards when these are adopted for Federal use.
Individual orders for FIPS PUBS should be referred to the NTIS Sales Office and
orders for subscription service should be referred to the NTIS Subscription
Officer both at the above address, or telephone number (703) 487-4650.
12.2 FEDERAL TELECOMMUNICATION STANDARDS (FED-STD): Telecommunication products
under this Schedule that do not conform to Federal Telecommunication Standards
(FED-STDS) should not be acquired unless a waiver has been granted in accordance
with the applicable "FED-STD". Federal Telecommunications Standards are issued
by the U.S. Department of Commerce, National Institute of Standards and
Technology (NIST), pursuant to National Security Act. Ordering information and
information concerning the availability of FED-STDS should be obtained from the
GSA Specification Sales Office, Room 6654 7th and D Streets, SW, Washington DC
20407, telephone number (202) 708-9205. Please include a self addressed mailing
label when requesting information by mail. Information concerning their
applicability can be obtained by writing or calling the U.S. Department of
Commerce, National Institute of Standards and Technology, Gaithersburg, MD
20899, telephone number 301/975-2833.
13. SECURITY REQUIREMENTS. In the event security requirements are necessary, the
ordering activities may incorporate, in their delivery order(s) a security
clause in accordance with current laws, regulations and individual agency
policy; however, the burden of administering the security requirements shall be
with the ordering agency. If any costs are incurred as a result of the inclusion
of security requirements, such costs will be negotiated with the Schedule
Contractor on an open market basis outside the scope of the contract.
14. CONTRACT ADMINISTRATION FOR ORDERING OFFICES: Any ordering office, with
respect to any one or more delivery orders placed by it under this contract, may
exercise the same rights of termination as might the GSA Contracting Officer
under provisions of FAR 52.249-1, 52.249-2, and 52.249-8.
15. GSA Advantage! (formerly the SO ITS on-line Schedule System)
The GSA Advantage! is an on-line, interactive electronic information and
ordering system that provides on-line access to vendor's schedule price lists
with ordering information, terms and conditions, and up-to-date pricing that
will aid Schedule users in acquisitions. The GSA Advantage! Will allow the user
to:
a. Search by Vendor's Name or Contract Number to view or download
the vendor's complete GSA-approved pricelist with terms,
conditions, and up-to-date pricing.
b. Perform various searches across all contracts including, but
not limited to:
(1).Manufacturer
(2)Manufacturer's Part Number; and
(3)Product Category (ies).
Agencies can browse GSA Advantage! By accessing the Internet World Wide
Web utilizing a browser (ex. Netscape). The Internet address is
http://www.gsa.gov.
16. Use of Group 70 Schedules Contracts. In accordance with far 8.404:
a. Ordering activities can place orders of $2500 or less with any GSA Federal
Supply Schedule contractor. GSA has already determined the prices of items under
these contracts to be fair and reasonable.
b. To reasonably ensure that a selection represents the best value and meets the
agency's needs at the lowest overall cost, before placing an order of more than
$2500, an ordering activity should--
(1) Consider reasonably available information about products
offered under Multiple Award Schedule (MAS) contracts; this
standards is met if the ordering activity does the following:
(i) Considers products and prices contained in any GSA,
MAS automated information system (e.g. GSA
Advantage!); or
(ii) If automated information is not available, reviews at
least three (3) pricelists.
(2) In selecting the vest value item at the lowest overall cost
(the price of the item plus administrative costs), the
ordering activity may consider such factors as--
(i) Special features on one item not provided by
comparable items which are required in effective
program performance;
(ii) Trade-in considerations;
(iii) Probable life of the item selected as compared with
that of a comparable item;
(iv) Warranty Conditions; and
(v) Maintenance availability.
(3) Give preference to the items of small business concerns when two or more
items at the same delivered price will meet an ordering activity's needs.
c. MAS contractors will not be required to pass on to all schedule users a price
reduction extended only to an individual agency for a specific order. There may
be circumstances where an ordering activity finds it advantageous to request a
price reduction, such as where the ordering activity finds that a schedule
product is available elsewhere at a lower price, or where the quantity of an
individual order clearly indicates the potential for obtaining a reduced price.
d. Ordering activities should document orders of $2500 or less by identifying
the contractor the item was purchased from, the item purchased, and the amount
paid. For orders over $2,500, MAS ordering files should be documented in
accordance with internal
2
<PAGE>
agency practices. Agencies are encouraged to keep documentation to a minimum.
GENERAL TERMS AND CONDITIONS APPLICABLE TO PURCHASE (132-8), REPAIR SERVICE
(132-18) AND REPAIR PARTS (132-19).
GENERAL PURPOSE COMMERCIAL AUTOMATIC DATA PROCESSING EQUIPMENT AND SOFTWARE
The following terms and conditions are applicable to all Special Item Numbers:
1. GEOGRAPHIC SCOPE OF CONTRACT.
The geographic scope of this contract is the 48 contiguous states, the District
of Columbia, Elmendorf AFB, Eileson AFB, Alaska, and Oahu, Hawaii.
2. CONTRACTOR COMMITMENTS, WARRANTIES, AND REPRESENTATION
a. For the purpose of this contract, commitments, warranties, and
representations include, in addition to those agreed to for the entire schedule
contract:
(1) Time of Delivery/Installation quotations for individual orders;
(2) Technical representations and/or warranties of products concerning
performance, total system performance and/or configuration, physical, design,
and/or functional characteristics and capabilities of a
product/equipment/service/software package submitted in response to requirements
which result in orders under this schedule contract.
(3) Any representations and/or warranties concerning the products made in any
literature, description, drawings, and/or specifications furnished by the
contractor.
b. The above is not intended to enlarge the scope of this schedule contract for
individual orders. Prices, options, terms and conditions of any orders are
limited strictly to those specified in the schedule contract and pricelist and
agreed to by GSA.
3. OVERSEAS ACTIVITIES
The terms and conditions of this contract shall apply to all orders for
installation, maintenance and repair of equipment in areas listed in the
pricelist outside the 48 contiguous states and the District of Columbia, except
for the following modifications:
a. In place of an installation date for equipment, a shipping date shall be
specified on the order.
b. The contractor agreed to promptly install all equipment, ready for use.
c. Upon request of the contractor, the Government may provide the contractor
with logistics support, as available, in accordance with all applicable
Government Regulations. Such Government support will only be provided on a
reimbursable basis, and will only be provided to the contractor's technical
personnel whose services are exclusively required for the fulfillment of the
terms and conditions of this contract (Purchase, Maintenance, and Repair
Service). This is subject to the terms and conditions found in section I.15
of this contract.
d. The contractor agrees to accept orders for repair of equipment, except for
the following additions and modifications: NONE.
TERMS AND CONDITIONS APPLICABLE TO PURCHASE OF GENERAL PURPOSE COMMERCIAL
AUTOMATIC DATA PROCESSING EQUIPMENT (SPECIAL ITEM 1328)
1. MATERIAL AND WORKMANSHIP. All equipment furnished thereunder must be new and
satisfactorily perform the function for which it is extended.
2. ORDER. A written order, EDI (GSA Advantage! And FACNET) and credit card
orders shall be the only basis for purchase in accordance with the provisions of
this contract. If time of delivery extends beyond the expiration date of the
contract, the contractor will be obligated to meet the delivery and installation
date specified in the original order. Written orders, EDI orders, credit card
orders or, in the case of BPA's or BOA's, telephone orders are permissible.
3. TRANSPIRATION OF EQUIPMENT.
FOB DESTINATION. Prices cover delivery to destination of equipment to all CONUS
locations and OCONUS APO addresses. For all other OCONUS locations, shipping
charges may apply. Please contact your account manager at (301) 590-8100.
4. INSTALLATION AND TECHNICAL SERVICES
a. INSTALLATION. When the equipment provided under this contract is not
normally self-installable, the contractor's technical personnel shall
be available to the Government at the Government's location to install
the equipment, and train Government personnel in the use and
maintenance of the equipment.
3
<PAGE>
The charges for such services are $175.00 per hour.
b. OPERATING AND MAINTENANCE MANUALS. The contractor shall furnish the
Government with one (1) copy of all operating and maintenance manuals
relating to the equipment being installed/purchased.
5. ACCEPTANCE
Equipment must operate in accordance with manufacturer's published
specifications. The user agency should give the contractor a notice of
acceptance or rejection within 30 days from receipt of the equipment. The
Government is relieved if all risk of loss or damage prior to acceptance.
6. GUARANTEE
a. The contractor will furnish on all IDP Products maintenance, machine
adjustments, repairs, and parts at the Government's location for a
period of one year. In addition, IDP has a 3 year limited warranty on
its computer and notebook configurations. The first year includes
on-site, parts and labor, and 48 hour response time for all CONUS
locations as well as Elmendorf and Eileson AFB, Alaska, Oahu, Hawaii,
and the OCONUS locations in attachment AA. On-site service will be
available Monday through Friday, excluding US Federal Holidays, from
0800-1800 hrs. local time. IDP will provide, through our closest
contracted depot facility, Mail Back/Carry In service for all other
OCONUS locations. Years two and three of IDP's 3 year limited warranty
for IDP systems, are depot and labor only. IDP will return the repaired
or replaced unit within 5 business days. For a complete copy of our
warranty conditions and limitations, please contact your account
manager at (301) 590-8100.
For additional manufacture warranties, see product list.
b. All parts replaced during the guarantee period shall become the
property of the contractor.
c. Prior to the expiration of the gurantee period, whenever equipment
is shipped for repair or mechanical replacement purposes, the
contractor shall bear all costs, including, but not limited to, costs
of packing, transportation, rigging, drayage, and insurance. This
guarantee shall apply to the replacement machine from the date of its
acceptance.
d. When equipment is returned to the contractor's establishment for
repairs, the contractor shall be responsible for any damage or loss
from the time the equipment is removed from the Gvoernment's
installation until equipment is returned to such installation.
e. This guarantee does not apply if damage to the equipment is
occasioned by fault or negligence of the Government.
f. Inspection and repair of defective equipment under this guarantee
will only be performed at the contractor's plant at:
INTERNATIONAL DATA PRODUCTS, CORP.
20 Firstfield Road
Gaithersburg, MD 20878-1793
(301) 590-8100
and defective equipment will be repaired or replaced within 48 hours
after receipt.
7. PURCHASE PRICE FOR ORDERED EQUIPMENT. The purchase price that the Government
will be charged will be the Government price in effect at the time of order
placement or the Government purchase price that is in effect on the installation
date (or delivery date when installation is not applicable), whever is less.
8. TRADE IN OF INFORMATION TECHNOLOGY (FIP) EQUIPMENT
When an agency determines that Informaiton Technology (FIP) equipment will be
replaced, the agency shall follow the contracting policies and procedures in the
Federal Acquisition Regulation (FAR), the policies and procedures regarding
Disposition of Information Technology Excess Personnel Property in the Federal
Property Management Regulations (FPMR) (41 CFR 101-43.6), and the policies and
procedures on exchange/sale contained in FPMR 41 CFR part 101-46.
TERMS AND CONDITIONS APPLICABLE TO REPAIR SERVICE (SPECIAL ITEM 132-18)
AND REPAIR PARTS (SPECIAL ITEM 132-19) FOR GENERAL PURPOSE COMMERCIAL
AUTOMATIC DATA PROCESSING EQUIPMENT, WHEN REQUIRED SERVICE IS NOT
COVERED BY GUARANTEE PROVISIONS
1. SERVICE AREAS
a. The repair service rates listed herein are applicable to all of the
48 contiguous states, the District of Columbia, Elmendorf AFB, Eileson
AFB, Alaska, Oahu, Hawaii, and the overseas locations listed in
attachment AA. If any additional charge is to apply because of greater
distance from the contractor's service locations, the mileage rate or
other distance factor shall be stated in Paragraph 5.c.(3) of this
Special Item 132.18.
b. When repair services cannot be performed at the Government
installation site, they will be performed at the contractor's plant(s)
listed below:
International Data Products, Corp.
20 Firstfield Road
Gaithersburg, Maryland 20878-1793
ATTN: Service Dept.
4
<PAGE>
2. ORDER
a. Agencies may use blanket purchase orders, individual purchase orders, or
small order procedures for ordering repair service under this contract. Blanket
purchase orders shall not exceed beyond the end of the contract period. Written
orders, EDI orders, credit card orders or, in the case of BPA's or BOA's,
telephone orders are permissible.
3. LOSS OR DAMAGES. When the contractor removes equipment to his
establishment for repairs, the contractor shall be responsible for any damage
or loss from the time the equipment is removed from the Government
installation until it is returned to such installation.
4. RESPONSIBILITIES OF THE CONTRACTOR
a. The contractor shall always be responsive to the Government's repair
service needs. The contractor shall perform all repair services which are
ordered by the Government during the contract term.
b. The contractor's repair service personnel shall complete repairs as
soon as possible after notification by the Government that service is
required. Within the service areas, this normally should be done within 2
hours after notification.
c. Only new, standard parts shall be used in effecting repairs. Parts
which have been replaced shall remain the property of the Government
except when the Government concludes that an appropriate allowance is
obtained for such defective parts.
d. GUARANTEE. All repair work will be unconditionally guaranteed for a
period of ninety (90) calendar days.
5. REPAIR RATE PROVISIONS
a. CHARGES. Charges for repair service will include the labor charge
computed at the rates set forth below, for the time during which
repairmen are actually engaged in work; and, when, applicable, the charge
for travel or transportation.
b. MULTIPLE MACHINES. When repairs are ordered by a Government agency on
two or more machines located in one or more buildings within walking
distance of each other, the charges will be computed from the time the
repairman commences work on the first machine until the work is completed
on the last machine. The time required to go from one machine to another,
or one building to another, will consider actual work performance and
chargeable to the Government, provided the time consumed in going between
machines (or buildings) is reasonable.
c. TRAVEL OR TRANSPORTATION
(1) AT THE CONTRACTOR'S SHOP
(a) When equipment is returned to the contractor's shop for adjustment or
repairs which are not covered by the guarantee provision, the cost of
transportation, packing, etc., from the Government location to the
contractor's plant and return to the Government location shall be borne
by the Government.
(b) The Government should not return defective equipment to the
contractor for adjustment and repairs or replacement without his prior
consultation and instruction.
(2) AT THE GOVERNMENT LOCATION. (Within Established Service Areas)
When equipment is repaired at the Government location and repair rates
are established for service areas or zone, the listed rates are
applicable to any Government location within such service areas or zones.
No extra charge, time or expense will be allowed for travel or
transportation of repairmen or machines to or from the Government office
such overhead is included in the repair service rates listed. (3) AT THE
GOVERNMENT LOCATION. (Outside Established Service Areas)
(a) The repair service rates listed for subparagraph (2) above apply
except that a travel charge of $.31 per mile for repairmen will apply to
the round-trip distance between the geographic limits of the the
applicable service area and the Government location. Such charge will
apply as an additional charge, but it will be limited to one round trip
for each request that is made by the ordering activity for repair service
regardless of whether repairs are performed at the Government location or
at the contractor's shop.
(b) When the overall travel charge computed at the above mileage rate is
unreasonable, (considering time required for travel, actual and necessary
TRANSPORTATION cost, and the allowable Government per diem rate for each
night the repairman is required to remain overnight at the Government
location) the Government shall have the option or reimbursing the
contractor for actual cost, provided that the actual costs are reasonable
and allowable. The contractor shall furnish the Government a report of
travel performed and related expense incurred. The report shall include
departure and arrival dates, times and the applicable mode of travel.
d. LABOR RATES
(1) REGULAR HOURS. The Regular Hours repair service rate listed herein
shall entitle the Government to repair service during the period 8:00
a.m. to 5:00 p.m. Monday through Friday, exclusive of holidays observed
at the Government location. There shall be no additional charge for
repair service which was requested during Regular Hours but performed
outside Regular Hours defined above, at the convenience of the
contractor.
(2) AFTER HOURS. When the Government requires that repair service be
performed outside Regular Hours defined above, except Sundays and
Holidays observed at the Government location, the After Hours repair
service rates listed herein shall apply . The Regular Hours rate defined
above shall apply when repair service is requested during Regular Hours
but performed After Hours at the convenience of the contractor.
(3) SUNDAY AND HOLIDAYS. When the Government requires that repair service
be performed on Sundays and Holidays observed at the Government location,
the Sunday and Holiday repair service rates listed herein shall apply.
When repair service is
5
<PAGE>
requested to be performed during Regular Hours and/or After Hours but is
performed at the convenience of the contractor on Sundays or Holidays
observed at the Government location, the Regular Hours and/or After Hour
repair service rates as applicable shall apply.
REPAIR SERVICE RATES
<TABLE>
<CAPTION>
MINIMUM REGULAR HRS. AFTER HRS. SAT/SUN
LOCATION CHARGE* PER HOUR** PER HOUR** HOLIDAYS
- --------------------- --------------------- --------------------- --------------------- ---------------------
<S> <C> <C> <C> <C>
Contractor's......... $180 $90 155.00 $195.00
Shop
Government........... $230.00 $115.00 $215.00 $250.00
Location
(Within established
service areas)
Government........... $330.00 $180.00 $280.00 $380.00
Location
</TABLE>
(Outside established service areas)
*Minimum charges include 2 full hours on the job.
**Fractional Hours, at the end of the job, will be prorated to the
nearest quarter hours.
6. INVOICES AND PAYMENTS
Invoices for repair service shall be submitted by the contractor as soon
as possible after completion of the work. Payment under blanket purchase
orders will be made quarterly or monthly except where cash payment
procedures are used. Invoices shall be submitted separately to each
government office ordering services under the contract. The cost of repair
parts shall be shown as a separate item on the invoice and shall be priced
in accordance with Special Item 132.19. PROMPT PAYMENT DISCOUNTS, IF
APPLICABLE, SHALL BE SHOWN ON THE INVOICE.
REPAIR PARTS SPECIAL ITEM 132-19
1. PRICES. All parts, furnished as spares or as repair parts in connection
with repair of equipment, shall be new standard parts manufactured by the
equipment manufacturer. All parts shall be as spares or as repair
parts in connection with repair of equipment manufacturer. All parts shall be
furnished at prices as indicated in the contractor's commercial pricelist
dated March 10, 1997 at a discount of 38-42% off our Commercial Price List.
2. GUARANTEE. All parts, furnished either as spares or repair parts in
connection with repair of equipment, will be unconditionally guaranteed for a
period of one year.
6
<PAGE>
ATTACHMENT AA
IDP'S OCONUS on-site service is limited to the following locations:
<TABLE>
<S> <C> <C>
Belgium Nurnberg Taegu
Chievres AB Ramstein Tong du Chon
Florennes AB Schwabisch Gemund Uijonbu
Shape HQ, Mons Schweinfurt Netherlands
Germany Spangdahlem Amsterdam
Ansbach Stuttgard Brunssum
Aschaffenburg Vilseck Rotterdam
Augsburg Wertheim Soesterberg
Baumholder Wildflecken The Hague
Bad Kreuznach Wiesbaden Okinawa
Bitburg Worms Camp Butler
Bremerhaven Wurzburg Camp Foster
Darmstadt Zweibrucken Kadena
Frankfurt Italy Panama
Fulda Livomo Corozon
Furth Leghorn Fort Clayton
Karlstadt Naples Howard AFB
Grafenwerth Rome Panama City
Giessen Vicenza United Kingdom
Goeppingen Japan Alconbury
Hanau Atsugi Croughton
Heidelberg Misawa Fairford
Hoenfiels Tokyo Greeham Commons
Illesheim Yokohama High Wycombe
Kaiserslautern Yokosuka London
Karlsruhe Korea Mildenhall
Mannheim Osan Oxford
Munich Pusan Uxbridge
Neu Ulm Seoul
Suwon
</TABLE>
<PAGE>
POINTS OF PRODUCTION
(ATTACHMENT BB)
<TABLE>
<S> <C>
International Products Corporation, 20 Firstfield Road Gaithersburg, MD20878-1793
Corporation Montgomery County (301) 590-8100
Machete Industrial Park Bldg. T-0609-0-63
Road 744, Km 1.1 Guayama, P.R.00785
ALR ALR 9401 Jeronimo Road Irvine, CA92718 Orange
County (714) 581-6770
Lexmark Lexmark International, Inc. 740 New Circle
Road, N.W. Lexington, KY40511 Fayette County
(800) 258-8575
Singpore
Japan
Denmark
South Korea
Microdyne Microdyne 1140 Ringwood Ct. San Jose, CA95131
Santa Clara County (408) 432-1191
Sony Sony Electronics Inc. Display Systems
Manufacturing 16450 West Bernado Drive San
Diego, CA91217-1804 San Diego County (619)
673-2400
Mexico
Japan
STB STB Systems, Inc. 1651 North Glenville Drive
Richardson, TX75081 Dallas County (972)
234-8750
Mexico
</TABLE>
<PAGE>
5/6/97 INTERNATIONAL DATA PRODUCTS CORPORATION
GSA SCHEDULE PRECELIST
CAGE Code: 45815 FCI-96-DL0001B
LR
<TABLE>
<CAPTION>
CLIN # MANUFACTURER'S P/N SERVER-PENTIUM PRO GSA PRICE
- ---------------- --------------------------------- --------------------------------- ---------------------
<S> <C> <C> <C>
9003 74636001 ALR Revolution QUAD6 Server Pent
200 MHz CPU 512k (expandable to 4
CPUs, 64 MB ECC RAM, 15 slots, 13
bays, 2 MB video, 3yr. On-site
warranty $ 7,711
9004 74636601-50 ALR Revolution 6X6 Pent Pro 200
MHz 512k (exp. Up to 6 CPUS), 128
MB RAM, 12 slots, 14 bays, F/W
Ultra SCSI, 6X CD 2MB vid., 3
yr.on-site warranty-NT SERVER $ 14,739
<CAPTION>
CLIN # MANUFACTURER'S P/N SERVER-UPGRADE PACKAGE GS GSA PRICE
- ---------------- --------------------------------- --------------------------------- ---------------------
<S> <C> <C> <C>
9013 11910696 ALR QUAD6 Revpack, additional
Pent Pro 200MHz,64 MB RAM, Ultra
SCSI RAID controller, 6 bay hot
swap cage, 6X CD-RM, redundant
power supply, 10/100 ethernet $ 2,980
IDP CORPORATION
<CAPTION>
CLIN # MANUFACTURER'S P/N CDROM -- INTERNAL GSA PRICE
- --------------------------- --------------------------- --------------------------- ---------------------------
<S> <C> <C> <C>
1035 GSA1035 12X SCSI CD-ROM drive -- $206
internal.
1036 GSA1036 12-20X SCSI CD-ROM drive -- $229
internal.
4820 GSA4820 8XIDE CD-ROM drive -- $86
internal.
4822 GSA4822 16X IDE CD-ROM drive -- $104
internal.
<CAPTION>
CLIN # MANUFACTURER'S P/N HARD DRIVE--IDE GSA PRICE
- --------------------------- --------------------------- --------------------------- ---------------------------
<S> <C> <C> <C>
121 GSA121 1.6GB PC/AT IDE hard disk $209
drive for IDP 500/600
Series Computers.
1020 GSA1020 2.1GB PC/AT IDE hard disk $252
drive for IDP 500/600
Series Computers.
1030 GSA1030 3.2 GB PC/AT IDE hard disk $361
drive for IDP 500/600
Series Computers.
<CAPTION>
CLIN # MANUFACTURER'S P/N HARD DRIVE--SCSI GSA PRICE
- --------------------------- --------------------------- --------------------------- ---------------------------
<S> <C> <C> <C>
1021 GSA1021 2 GB SCSI hard disk drive. $548
Does not include cable.
1022 GSA1022 4 GB SCSI hard disk drive. $950
Does not include cable.
1023 GSA1023 9 GB SCSI hard disk drive. $1,305
Does not include cable.
<CAPTION>
CLIN # MANUFACTURER'S P/N MODEM-- EXTERNAL GSA PRICE
- --------------------------- --------------------------- --------------------------- ---------------------------
<S> <C> <C> <C>
1061 GSA1061 IDP's 33.6Kbps fax/ modem $109
with internet kit --
external.
1063 GSA1063 IDP's 33.6Kbps fax/ modem $161
with paging, voice mail,
and speakerphone
capabilities -- external.
<CAPTION>
CLIN # MANUFACTURER'S P/N MODEM-- INTERNAL GSA PRICE
- --------------------------- --------------------------- --------------------------- ---------------------------
<S> <C> <C> <C>
1060 GSA1060 IDP's 56Kbps fax/ modem $90
with internet kit --
internal.
1062 GSA1062 IDP's 33 Kbps fax/ modem $144
with paging, voice mail,
and speakerphone
capabilities -- internal.
<CAPTION>
CLIN # MANUFACTURER'S P/N MONITOR--COLOR GSA PRICE
- --------------------------- --------------------------- --------------------------- ---------------------------
<S> <C> <C> <C>
6332 GSA6332 IDP 15" High-Res Digital $250
Monitor, .28mm dot pitch,
up to 1280X1064/60Hz NI.
Energy Star, MPR-II.
6333 GSA6333 IDP 17" High-Res Digital $456
Monitor, .28mm dot pitch,
up to 1280X1064/60Hz NI.
Energy Star, MPR-II.
6334 GSA6334 IDP 20" High-Res Digital $1,044
Monitor, .28mm dot pitch,
up to 1600X1280/60Hz NI.
Energy Star, MPR-II.
<CAPTION>
CLIN # MANUFACTURER'S P/N NOTEBOOK-- ACCESSORIES GSA PRICE
- --------------------------- --------------------------- --------------------------- ---------------------------
<S> <C> <C> <C>
271 GSAP271 PC Card Token Ring Adapter. $284
272 GSAP272 PC Card Ethernet 10/100 for $180
10base and 100base-TX PC
Card Adapter (RJ45).
2201 GSAP2201 33.6Kbps PC Card Fax/ Modem $154
with Cellular Capabilities.
2202 GSAP2202 Combo PC Card 10base-T, $299
33.6 modem, Flash ROM Card.
8532 GSAP8532 IDP's Microsoft compatible $8
serial mouse.
8533 GSAP8533 IDP's Microsoft compatible $8
PS2 mouse.
</TABLE>
INT'L DATA PRODUCTS CORP., 20 FIRSTFIELD ROAD, GAITHERSBURG, MD 20878
301-590-8100
1
<PAGE>
5/6/97
INTERNATIONAL DATA PRODUCTS CORPORATION
GSA SCHEDULE PRICELIST
FCI-96-DL0001B
CAGE Code: 45815
<TABLE>
<C> <C> <S> <C>
8602 GSAP8602 IDP's Windows 95 keyboard. $ 14
9132 GSAP9132 Executive soft carrying case for notebook computers. Available at time of
system purchase only. $ 48
9133 GSAP9133 Hard shell carrying case for notebook computers and accessories. Available at
time of system purchase only. $ 97
9134 GSAP9134 Pressurized air NB/printer carrying case, w/shock absorbing air bag around
compartment & air padded shoulder strap. Available at time of system purchase. $ 72
28253 GSAP28253 MPEG-1 PC Card for use with 560 Series Notebooks only. Produces full motion,
30 frames per second (FPS), MPEG video $ 215
28311 GSAP28311 Battery charger for IDP 500CD/530/560/570/515 Series Notebooks. (Comes
complete with power source.) Available at time of system purchase only. $ 80
28315 GSAP28315 Car adapter for IDP 500CD/530/560/570/515 Series Notebooks. Available at time
of system purchase only. $ 42
28320 GSAP28320 NiMH battery for IDP 500CD/530/560 and 515 Series Notebooks. Available at time
of system purchase only. $ 72
28321 GSAP28321 NiMH battery for IDP 570 Series Notebooks. Available at time of system
purchase only. $ 75
51540 GSAP51540 External Floppy Disk Drive Pack for IDP 515 Series Notebooks. $ 31
</TABLE>
<TABLE>
CLIN# Manufacturer's P/N NOTEBOOK -- COMPUTER GSA Price
<C> <C> <S> <C>
3001 GSAP3001 IDP 530XD Notebook, 10.4" DSTN, 8MB, FDD, Sound, Batt., Adapt., Case, $1,286
and operating system included. Add HDD & CPU.
3002 GSAP3002 IDP 530CD Notebook, 10.4" DSTN, 8MB, Fdd, 10X CD-ROM, Sound, Batt., $1,407
Adapt., Case, and operating system included. Add HDD & CPU.
3011 GSAP3011 IDP 530XD Notebook, 11.3" TFT, 8MB, FDD, Sound, Batt., Adapt., Case, $1,745
and operating system included. Add HDD & CPU.
3012 GSAP3012 IDP 530CD Notebook, 11.3" TFT, 8MB, FDD, 10X CD-ROM, Sound, Batt., $1,866
Adapt., Case, Port Rep., and operating system included. Add HDD & CPU.
3150 GSAP3150 IDP 515 Notebook, 12.1'TFT, P133 CPU, 16MB, 256K, FDD, 1.4GB HDD, 6X $2,999
CD-ROM, Batt., Adapt., Case, Port Rep., and operating system included.
3152 GSAP3152 IDP 515 Notebook, 12.1" TFT, P133 CPU, 16MB, 256K, FDD, 2.1GB HDD, $3,120
Batt, Adapt., Case, Port Rep, and operating system included.
3603 GSAP3603 IDP 560CD Notebook, 12.1" DSTN, 8MB, 256K, FDD, 10X CD-ROM, Snd/TV Out, $1,655
Batt, Adapt., Case, and operating system included. Add HDD & CPU.
3612 GSAP3612 IDP 560CD Notebook, 11.3" TFT, 8MB, 256K, FDD, 10X CD-ROM, Snd/TV Out, $1,963
Batt, Adapt., Case, and operating system included. Add HDD & CPU.
3613 GSAP3613 IDP 560CD Notebook, 12.1" TFT, 8MB, 256K, FDD, 10X CD-ROM, Snd/TV Out, $2,241
Batt, Adapt., Case, and operating system included. Add HDD & CPU.
3701 GSAP3701 IDP 570CD Modular Notebook, 12.1" DSTN, 16MB, FDD, 10X CD-ROM, Sound, $1,839
Batt, Adapt., Case, and operating system included. Add HDD & CPU.
3711 GSAP3711 IDP 570CD Modular Notebook, 12.1" TFT, 16MB, FDD, 10X CD-ROM, Sound, $2,493
Batt, Adapt., Case, and operating system included. Add HDD & CPU.
</TABLE>
<TABLE>
<C> <C> <S> <C>
CLIN# Manufacturer's P/N NOTEBOOK -- CPU PENTIUM GSA Price
5241 GSAP5241 Pentium 133MHz CPU for IDP 530/560 Series Notebooks. Must be ordered $162
with notebook.
18551 GSAP18551 Pentium 133MHz Mobile CPU and Daughter Card for IDP 570 Series $306
Notebooks. Must be ordered with notebook.
18552 GSAP18552 Pentium 150MHz Mobile CPU and Daughter Card for IDP 570 Series $362
Notebooks. Must be ordered with notebook.
18553 GSAP18553 Pentium 166MHz Mobile CPU and Daughter Card for IDP 570 Series $513
Notebooks. Must be ordered with notebook.
</TABLE>
<TABLE>
<C> <C> <S> <C>
CLIN# Manufacturer's P/N NOTEBOOK -- DOCKING STATIONS GSA Price
28300 GSAP28300 Docking station to be used with IDP 500CD/530/560 Series Notebooks. $234
28301 GSAP28301 Docking station to be used with IDP 570 Series Notebooks. $345
</TABLE>
INT'T DATA PRODUCTS CORP., 20 FIRSTFIELD ROAD, GAITHERSBURG, MD 20878
301-590-8100
2
<PAGE>
5/6/97
INTERNATIONAL DATA PRODUCTS CORPORATION
GSA SCHEDULE PRICELIST
FCI-96-DL0001B
CAGE Code: 45815
<TABLE>
<C> <C> <S> <C>
CLIN# Manufacturer's P/N NOTEBOOK -- HARD DRIVE GSA Price
28297 GSAP28297 1.4GB HDD for IDP 500CD/560 Series Notebooks. Includes removable $258
adapter, cabling, and screws.
28298 GSAP28298 1.4GB HDD for IDP 530 Series Notebooks. Includes removable adapter, $258
cabling, and screws.
28299 GSAP28299 1.4GB HDD for IDP 570 Series Notebooks. Includes removable adapter, $258
cabling, and screws.
29801 GSAP29801 2.1GB HDD for IDP 500CD/560 Series Notebooks. Includes removable $378
adapter, cabling, and screws.
29802 GSAP29802 2.1GB HDD for IDP 530 Series Notebooks. Includes removable adapter, $378
cabling, and screws.
29803 GSAP29803 2.1GB HDD for IDP 570 Series Notebooks. Includes removable adapter, $378
cabling, and screws.
29804 GSAP29804 2.1GB HDD for IDP 400/500 Series Notebooks. Includes removable adapter, $378
cabling, and screws.
282984 GSAP28298-4 1.4GB HDD for IDP 400/500 Series Notebooks. Includes removable adapter, $258
cabling, and screws.
</TABLE>
<TABLE>
<C> <C> <S> <C>
CLIN# Manufacturer's P/N NOTEBOOK -- MEMORY GSA Price
2100 GSAP2100 4MB RAM to upgrade IDP 500CD/530/560 Series Notebooks, from base of 8MB $25
to 12MB total memory.
2164 GSAP2164 64MB RAM (2x32MB modules) to upgrade IDP 560 Series Notebooks ONLY, $504
from base of 8MB to 72MB total memory.
5160 GSAP5160 8MB 3.3volt 144pin SO DIMM modules to upgrade IDP 515/570 Series $58
Notebooks, from base of 16MB to 24MB total memory.
5161 GSAP5161 16MB 3.3volt 144pin SO DIMM modules to upgrade IDP 515/570 Series $100
Notebooks, from base of 16MB to 32MB total memory.
5162 GSAP5162 32MB 3.3volt 144pin SO DIMM modules to upgrade IDP 515/570 Series $420
Notebooks, from base of 16MB to 48MB total memory.
28280 GSAP28280 8MB RAM to upgrade IDP 500CD/530/560 Series Notebooks, from base of 8MB $49
to 16MB total memory.
28290 GSAP28290 16MB RAM to upgrade IDP 500CD/530/560 Series Notebooks, from base of $91
8MB to 24MB total memory.
28296 GSAP28296 32MB RAM (2x16MB modules) to upgrade IDP 500CD/530/560 Series $182
Notebooks, from base of 8MB to 40MB total memory.
</TABLE>
<TABLE>
<C> <C> <S> <C>
CLIN# Manufacturer's P/N NOTEBOOK -- OPERATING SYSTEM GSA Price
787 GSAP787 DOS/Windows for Workgroups for IDP's notebooks. Must be ordered with $0
system.
788 GSAP788 Windows 95 for IDP's notebooks. Must be ordered with system. $0
789 GSAP789 Windows NT Workstation v4.0 for IDP's notebooks. Must be ordered with $0
system.
</TABLE>
<TABLE>
<C> <C> <S> <C>
CLIN# Manufacturer's P/N PC -- ACCESSORIES GSA Price
371 GSAP371 PCI Ultra SCSI Host Adapter Kit. $263
372 GSAP372 ISA Fast SCSI Plug and Play Adapter Kit. $141
373 GSAP373 PC Card Fast SCSI-2 Host Adapter Kit. $171
1050 GSAP1050 Front Load Type III PC-Card reader for IDP 500/600 Series Computers. $68
1071 GSAP1071 IDP's Multimedia Upgrade with two 8-watt speakers, 16-bit soundcard, $167
and an 8X IDE CD-ROM.
1073 GSAP1073 IDP's Enhanced Multimedia Upgrade with two 8-watt speakers, 16-bit $185
soundcard, and 16X IDE CD-ROM.
1550 GSAP1550 IDP's 6 Outlet Surge Protector. Available at time of system purchase $8
only.
1551 GSAP1551 IDP's 8 Outlet Surge Protector. Available at time of system purchase $54
only.
1552 GSAP1552 IDP's Uninterruptable Power Supply (UPS) -- 400 watts. Available at $254
time of system purchase only.
</TABLE>
INT'T DATA PRODUCTS CORP., 20 FIRSTFIELD ROAD, GAITHERSBURG, MD 20878
301-590-8100
3
<PAGE>
INTERNATIONAL DATA PRODUCTS CORPORATION
GSA SCHEDULE PRICELIST
FCI-96-DL0001B
<TABLE>
<C> <S> <C> <C>
8532 GSA8532 IDP's Microsoft compatible serial mouse. $8
8602 GSA8602 IDP's Windows 95 keyboard $14
CLIN # Manufacturer's P/N PC-- BUNDLE GSA Price
10000 GSA10000 IDP 500 Desktop, P166 CPU, 16MB, 512K, 1.6GB HDD, FDD, 2MB video, $1,189
8X CD-ROM, kybd/ mse ,Win95.
20000 GSA2000 IDP 500 Desktop, P200 CPU, 32MB, 512K, 2.1GB HDD, FD, 2MB $1,397
video, 16X CD-ROM, kbyd/ mse, Win9.
30000 GSA3000 IDP 600 Desktop, PP180 (256K) CPU, 32MB, 2.1GB HDD, FDD, $1,754
2MB video, 16X CD-ROM, kybd/ mse, NT.
CLIN # Manufacturer's P/N PC -- CPU PENTIUM GSA Price
1043 GSA1043 Intel Pentium Pro 180MHz (256K) CPU for IDP 600 $554
Series Computers. Must be ordered with system
1044 GSA1044 Intel Pentium Pro 200MHz (256K) CPU for IDP 600 $687
Series Computers. Must be ordered with system.
1046 GSA1046 Cyrix P150+ CPU for IDP 500 Series Computers. $115
Must be ordered with system
1047 GSA1047 Cyrix P166+ CPU for IDP 500 Series Computers. $127
5201 GSA5201 Intel Pentium 166MHz CPU for IDP 500 Series $268
Computers. Must be ordered with system.
5202 GSA5202 Intel Pentium 200MHz CPU for IDP 500 Series $326
Computers. Must be ordered with system.
5241 GSA5241 Intel Pentium 133MHz CPU for IDP 500 Series $162
Computers. Must be ordered with system.
5291 GSA5291 Intel Pentium 166MHz CPU with MMX for IDP 500 $352
5292 GSA5292 Intel Pentium 200 MHz CPU with MMX for IDP 500 $633
Series Computers. Must be ordered with system.
CLIN # Manufacturer's P/N PC -- MEMORY EXPANSION GSA Price
5991 GSA5991 8MB 32-bit memory upgrade for IDP 500/600 Series $60
Computers. (2X4MB) Must be installed when on GSA order.
5992 GSA5992 16MB 32-bit memory upgrade for IDP 500/600 Series $91
Computers. (2X8MB) Must be installed when on GSA order.
5993 GSA5993 32MB 32-bit memory upgrade for IDP 500/600 Series $180
Computers. (2X16MB) Must be installed when on GSA order.
5994 GSA5994 8MB 36-bit parity memory. (2 X 4MB SIMM) Must be $67
ordered with computer
5995 GSA5995 16MB 36-bit parity memory. (2 X 8MB SIMM) Must be $130
ordered with computer.
5996 GSA5996 32MB 36-bit parity memory.#(2 X 16MB SIMM) Must be $228
ordered with computer.
CLIN # Manufacturer's P/N PC -- OPERATING SYSTEM GSA Price
787 GSA787 DOS/ Windows for Workgroups for IDP 500/600 Series $0
Computers. Must be ordered with system.
788 GSA788 Windows 95 for IDP 500/600 Series Computers. Must be $0
ordered with system.
789 GSA789 Windows NT Workstation v4.0 for IDP 500/600 Series $0
Computers. Must be ordered with system.
CLIN # Manufacturer's P/N PC -- PENTIUM DESKTOP GSA Price
4010 GSA4010 IDP 500 Desktop, 512K, FDD, 2MB video, keyboard, mouse $535
and operating system included. Add HDD & CPU & RAM.
CLIN # Manufacturer's P/N PC -- PENTIUM MINITOWER GSA Price
</TABLE>
INT'L DATA PRODUCTS CORP., 20 FIRSTFIELD ROAD, GAITHERSBURG, MD 20878
301-590-8100
4
<PAGE>
INTERNATIONAL DATA PRODUCTS CORPORATION
GSA SCHEDULE PRICELIST
FCI-96-DL0001B
<TABLE>
<C> <S> <C> <C>
4011 GSA4011 IDP 500 Mini Tower, 512K, FDD 2MB video, keyboard, mouse $537
and operating system included. Add HDD & CPU & RAM.
CLIN # Manufacturer's P/N PC -- PENTIUM PRO DESKTOP GSA Price
4416 GSA4416 IDP 600 Desktop, FDD, 2MB video, keyboard, mouse, and $664
operating system included. Add HDD & CPU & RAM.
CLIN # Manufacturer's P/N PC -- PENTIUM PRO TOWER GSA Price
4415 GSA4415 IDP 600 Tower, FDD, 2MB video, keyboard, mouse, and $700
operating system included. Add HDD & CPU. & RAM
CLIN # Manufacturer's P/N PC -- PENTIUM TOWER GSA Price
4012 GSA4012 IDP 500 Tower, 512K, FDD 2MB video, keyboard, mouse, and $572
operating system included. Add HDD & CPU. & RAM
CLIN # Manufacturer's P/N PC -- UPGRADES GSA Price
1070 GSA1070 16-bit wavetable soundcard for IDP 500/600 Series $35
Computers.
1075 GSA1075 Upgrade to 64-bit bit 3D 4MB video card for IDP 500/600 $95
Series Computers. At time of system purchase only.
CLIN# Manufacturer's P/N PRINTER -- DOT MATRIX GSA Price
807 2391003 2391 Plus, 24 pin Dot Matric Printer, 360x360 dpi, up to 300cps FastDraft $459
mode, 64K print buffer, Energy Star. 2 yr. carry-in express warranty.
804 11A6000 4227, 9 pin Dot Matrix Printer, 240x144 dpi, up to 533 cps FastDraft mode. $1,248
60K print buffer. 1 yr. on-site express warranty.
CLIN# Manufacturer's P/N PRINTER -- INKJET GSA Price
804 4090001 Color JetPrinter 2070 Printer, 600x600 dpi, up to 7ppm black $329
draft, 4ppm color draft, Energy Star. 1 yr carry-in express
warranty.
CLIN# Manufacturer's P/N PRINTER -- LASER GSA Price
800 15A1300 Optra Lxn+ Laser Printer, 8MB memory, 25MHz AMD RISC $2,192
processor, 16ppm at 300x600 dpi, 500-sheet input, Energy
Star. 1 yr on-site express warranty.
801 4049-LM0 Optra Lx+ Laser Printer, 4MB memory, 25MHz AMD RISC $1,818
processor, 16ppm at 300x600 dpi, 500-sheet input, Energy
Star. 1 yr on-site express warranty.
802 15A1000 Optra R+ Laser Printer, 4MB memory, 25MHz AMD RISC processor, $1,230
16ppm at 300x600 dpi, 200-sheet input, Energy Star. 1 yr.
carry-in express warranty.
803 403910P 4039 10plus Laser Printer, 2MB memory, 16MHz AMD RISC $1,016
processor, 10ppm at 300x600 dpi, 200-sheet input, Energy
Star. 1 yr carry-in express warranty
809 11A9000 Optra N Laser Printer (Optra N 240), 4MB memory, 50MHz Intel $2,645
i960 processor, 24ppm at 300x600 dpi, two 500-sheet input,
Energy Star. 1 yr. on-site
MICRODYNE
CLIN# Manufacturer's P/N NETWORK -- ETHERNET GSA Price
192 883-003500-001 NE2500 plus, full-duplex, PNP ISA Ethernet Card. $68
193 883-005700-001 NE5500plus, 32-bit 10baseT/2 Combo PCI Ethernet Card. $76
195 883-105001-001 NE10/100, 32-bit 10/100baseT/2 Combo PCI Ethernet Card $80
CLIN# Manufacturer's P/N NETWORK- HUB GSA Price
1911 9906106-100 EH-106 Eagle Century Hub 100Mbps 6-port. $645
1912 9906112-200 EHS-112 Eagle Stack Century Hub 100Mbps 12-port $1,293
</TABLE>
INT'L DATA PRODUCTS CORP., 20 FIRSTFIELD ROAD, GAITHERSBURG, MD 20878
301-590-8100
5
<PAGE>
INTERNATIONAL DATA PRODUCTS CORPORATION
GSA SCHEDULE PRICELIST
FCI-96-DL0001B
<TABLE>
<C> <S> <C> <C>
1913 9906115-200 EHS-115 Eagle Stack 100Mbps SNMP Management Module $912
CLIN# Manufacturer's P/N NETWORK -- MICROHUB GSA Price
1914 9906008-10 EH-8, 8-port 10Base-T Eagle MicroHub (BNC, RJ-45) $98
1915 9906012-10 EH-12, 12-port 10Base-T Eagle MicroHub (BNC, RJ-45) $144
1916 9906024-10 EH-24, 24-port 10Base-T Eagle MicroHub (BNC, RJ-45) $266
1917 9906008-12 EH-8, 8-port 10Base-T Eagle MicroHub (BNC, RJ-45) Euro. $106
1918 9906012-12 EH-12, 12-port 10 Base-T Eagle MicroHub (CBNC, RJ-45) Euro $152
1919 9906024-12 EH-24, 24-port 10Base-T Eagle MicroHub (BNC, RJ-45) Euro. $274
CLIN# Manufacturer's P/N NETWORK -- SWITCH GSA Price
1921 9907041-001 ES 4+100 Eagle Switch. $1,293
1922 9907044-001 ES 4X4 Eagle Switch. $1.980
CLIN# Manufacturer's P/N NETWORK -- TOKEN RING GSA Price
197 032001 Token Ring IRMAtrac 4/16 PCI Twisted Pair Adapter $213
198 009163-1 Token Ring IRMAtrac 4/16 Fiber Optic ISA/ MCAAdapter $597
CLIN# Manufacturer's P/N PCMCIA -- NETWORK GSA Price
199 883-002967-001 NE4200 -- Ethernet PCMCIA Adapter (BNC and RJ45). $106
SONY
CLIN# Manufacturer's P/N DIGITAL CAMERA GSA Price
533 4DSC-F1 Digital Still Camera, Color 1.8 LCD Screen, 4MB int. $776
flash RAM (stores 180 images), 640x480 pixels, wireless (infrared)
& serial PC/ MAC connectivity.
CLIN# Manufacturer's P/N MONITOR -- COLOR GSA Price
533 GDM-17SE2T High-End 17 Trinitron CRT (16 viewable) 1600X1200 @ $839
60Hz PC and 1280X1024 @ 75Hz MAC resolution -- Energy Star.
536 GDM-20SE2T High-End 20 Trinitron CRT (19 viewable) Multiscan $1,828
Graphic Display with 1600X1200 @ 75Hz PC and 1280x1024 @ 75Hz MAC
resolution -- Energy Star
539 CPD-200SF 17 Trinitron CRT (15.9 viewable) Multiscan Graphic $746
Display with 1280x1024 @ 75Hz PC and 1152x870 @ 75Hz MAC resolution
-- Energy Star.
5331 CPD-100SF 15 Trinitron CRT (13.9 viewable) Multiscan Graphic $393
Display with 1280x1024 @ 60Hz PC and 1024x768 @ 75Hz MAC resolution
-- Energy Star.
5332 CPD-300SFT 20 Trinitron CRT (19 viewable) Multiscan $1,572
Graphic Display with 1280x1024 @ 80Hz PC and 1280x1024 @ 75Hz MAC resolution
-- Energy Star.
5333 GDM-W900 24 Trinitron CRT (22.5 viewable) Multiscan Graphic $4,289
Display supports resolutions up to 1920x1200 @ 76Hz.
CLIN# Manufacturer's P/N PHOTO PRINTER GSA Price
5335 DPP-M55 Digital Color Photo Printer for high quality $456
pictures, uses VP standard 5.5x3.9 paper, 70pps, wireless connectivity to
Sony's Digital Camera.
STB
CLIN# Manufacturer's P/N GRAPHIC ACCELERATOR GSA Price
547 LTS32 STB LTS32 Lightspeed 128 2.25MB, 128-bit Graphic $88
Accelerator
549 V3C38 STB V3C38 Velocity 3D, 64-bit 8MB Graphic $264
Accelerator.
550 V3X34 STB V3X34 Velocity 3D, 64-bit 4MB Graphic Accelerator $176
551 N3R34 STB V3R34 Nitro 3D, 64-bit 4MB Multimedia $132
Accelerator.
</TABLE>
INT'L DATA PRODUCTS CORP., 20 FIRSTFIELD ROAD, GAITHERSBURG, MD 20878
301-590-8100
6
<PAGE>
INTERNATIONAL DATA PRODUCTS CORPORATION
COMMERCIAL PRICELIST
<TABLE>
<CAPTION>
MANUFACTURER
CLIN# CDROM -- INTERNAL LIST PRICE
<S> <C> <C>
1035 12X SCSI CD-ROM drive -- internal $ 358
1036 12-20X-SCSI CD-ROM drive -- internal. $ 398
4820 8X IDE CD-ROM drive -- internal $ 150
4822 16X IDE CD-ROM drive -- internal. $ 180
</TABLE>
<TABLE>
<CAPTION>
MANUFACTURER
CLIN# HARD DRIVE -- IDE LIST PRICE
<S> <C> <C>
121 1.6GB PC/AT IDE hard disk drive for IDP 500/600 Series Computers. $ 360
1020 2.1GB PC/AT IDE hard disk drive for IDP 500/600 Series Computers. $ 435
1030 3.2 GB PC/AT IDE hard disk drive for IDP 500/600 Series Computers. $ 622
</TABLE>
<TABLE>
<CAPTION>
MANUFACTURER
CLIN# HARD DRIVE -- SCSI LIST PRICE
<S> <C> <C>
1021 2 GB SCSI hard disk drive. Does not include cable. $ 944
1022 4 GB SCSI hard disk drive. Does not include cable. $ 1,638
1023 9 GB SCSI hard disk drive. Does not include cable. $ 2,250
</TABLE>
<TABLE>
<CAPTION>
MANUFACTURER
CLIN# MODEM -- EXTERNAL LIST PRICE
<S> <C> <C>
1061 IDP's 33.6Kbps fax/modem with internet kit -- external. $ 190
1063 IDP's 33.6Kbps fax/modem with paging, voice mail, and speakerphone capabilities -- $ 280
external.
</TABLE>
<TABLE>
<CAPTION>
MANUFACTURER
CLIN# MODEM -- INTERNAL LIST PRICE
<S> <C> <C>
1060 IDP's 56Kbps fax/modem with internet kit -- internal. $ 156
1062 IDP's 33.6Kbps fax/modem with paging, voice mail, and speakerphone capabilities -- $ 250
external.
</TABLE>
<TABLE>
<CAPTION>
MANUFACTURER
CLIN# MONITOR -- COLOR LIST PRICE
<S> <C> <C>
6332 IDP 15 High-Res Digital Monitor, .28mm dot pitch, up to 1280x1064/60Hz NI. Energy Star, $ 416
MPR-II.
6333 IDP 17 High-Res Digital Monitor .28mm dot pitch, up to 1280x1064/60Hz NI. Energy Star, $ 760
MPR-II.
6334 IDP 20 High-Res Digital Monitor .28mm dot pitch, up to 1600x1280/60 Hz NI. Energy Star, $ 1,740
MPR-II.
</TABLE>
<TABLE>
<CAPTION>
MANUFACTURER
CLIN# NOTEBOOK -- ACCESSORIES LIST PRICE
<S> <C> <C>
271 PC Card Token Ring Adapter $ 474
272 PC Card Ethernet 10/100 for 10base-T and 100base-TX PC Card Adapter (RJ45) $ 300
2201 33.6Kbps PC Card Fax/Modem with Cellular Capabilities. $ 256
2202 Combo PC Card 10base-T, 33.6 modem, Flash ROM Card. $ 498
8532 IDP's Microsoft compatible serial mouse. $ 14
8533 IDP's Microsoft compatible PS2 mouse. $ 14
8602 IDP's Windows 95 keyboard. $ 24
9132 Executive soft carrying case for notebook computers. Available at time of system $ 80
purchase only.
9133 Hard shell carrying case for notebook computers and accessories. Available at time of $ 161
system purchase only.
9134 Pressurized air NB/printer carrying case, w/shock absorbing air bag around compartment & $ 120
air padded shoulder strap. Available at time of system purchase.
28253 MPEG-1 PC Card for use with 560 Series Notebooks only. Produces full motion, 30 frames per $ 358
</TABLE>
INT'L DATA PRODUCTS CORP., 20 FIRSTFIELD RAOD, GAITHERSBURG, MD 20878
301-590-8100
1
<PAGE>
INTERNATIONAL DATA PRODUCTS CORPORATION
COMMERCIAL PRICELIST
<TABLE>
<S> <C> <C>
second (FPS), MPEG video
28311 Battery charger for IDP 500CD/530/560/570/515 Series Notebooks. (Comes complete with power $ 133
source.) Available at time of system purchase only.
28315 Car adapter for IDP 500CD/530/560/570/515 Series Notebooks. Available at time of system $ 70
purchase only.
28320 NiMH battery for IDP 500CD/530/560 and 515 Series Notebooks. Available at time of system $ 120
purchase only.
28321 NiMH battery for IDP 570 Series Notebooks. Available at time of system purchase only. $ 126
51540 External Floppy Disk Drive Pack for IDP 515 Series Notebooks. $ 52
</TABLE>
<TABLE>
<CAPTION>
MANUFACTURER
CLIN# NOTEBOOK -- COMPUTER LIST PRICE
<S> <C> <C>
3001 IDP 530XD Notebook, 10.4 DSTN, 8MB, FDD, Sound, Batt., Adapt., Case, and operating system $ 2,125
included. Add HDD & CPU.
3002 IDP 530CD Notebook, 10.4 DSTN, 8MB, Fdd, 10X CD-ROM, Sound, Batt., Adapt., Case, and $ 2,325
operating system included. Add HDD & CPU.
3011 IDP 530XD Notebook, 11.3 TFT, 8MB, FDD, Sound, Batt., Adapt., Case, and operating system $ 2,885
included. Add HDD & CPU.
3012 IDP 530CD Notebook, 11.3 TFT, 8MB, FDD, 10X CD-ROM, Sound, Batt., Adapt., Case, Port Rep., $ 3,085
and operating system included. Add HDD & CPU.
3150 IDP 515 Notebook, 12.1TFT, P133 CPU, 16MB, 256K, FDD, 1.4GB HDD, 6X CD-ROM, Batt., Adapt., $ 4,957
Case, Port Rep., and operating system included.
3152 IDP 515 Notebook, 12.1 TFT, P133 CPU, 16MB, 256K, FDD, 2.1GB HDD, Batt, Adapt., Case, Port $ 5,157
Rep, and operating system included.
3603 IDP 560CD Notebook, 12.1 DSTN, 8MB, 256K, FDD, 10X CD-ROM, Snd/TV Out, Batt, Adapt., Case, $ 2,735
and operating system included. Add HDD & CPU.
3612 IDP 560CD Notebook, 11.3 TFT, 8MB, 256K, FDD, 10X CD-ROM, Snd/TV Out, Batt, Adapt., Case, $ 3,245
and operating system included. Add HDD & CPU.
3613 IDP 560CD Notebook, 12.1 TFT, 8MB, 256K, FDD, 10X CD-ROM, Snd/TV Out, Batt, Adapt., Case, $ 3,705
and operating system included. Add HDD & CPU.
3701 IDP 570CD Modular Notebook, 12.1 DSTN, 16MB, FDD, 10X CD-ROM, Sound, Batt, Adapt., Case, $ 3,040
and operating system included. Add HDD & CPU.
3711 IDP 570CD Modular Notebook, 12.1 TFT, 16MB, FDD, 10X CD-ROM, Sound, Batt, Adapt., Case, $ 4,120
and operating system included. Add HDD & CPU.
</TABLE>
<TABLE>
<CAPTION>
MANUFACTURER
CLIN# NOTEBOOK -- CPU PENTIUM LIST PRICE
<S> <C> <C>
5241 Pentium 133MHz CPU for IDP 530/560 Series Notebooks. Must be ordered with notebook. $ 267
18551 Pentium 133MHz Mobile CPU and Daughter Card for IDP 570 Series Notebooks. Must be ordered $ 506
with notebook.
18552 Pentium 150MHz Mobile CPU and Daughter Card for IDP 570 Series Notebooks. Must be ordered $ 598
with notebook.
18553 Pentium 166MHz Mobile CPU and Daughter Card for IDP 570 Series Notebooks. Must be ordered $ 848
with notebook.
</TABLE>
<TABLE>
<CAPTION>
MANUFACTURER
CLIN# NOTEBOOK -- DOCKING STATIONS LIST PRICE
<S> <C> <C>
28300 Docking station to be used with IDP 500CD/530/560 Series Notebooks. $ 407
28301 Docking station to be used with IDP 570 Series Notebooks. $ 600
</TABLE>
<TABLE>
<CAPTION>
MANUFACTURER
CLIN# NOTEBOOK -- HARD DRIVE LIST PRICE
<S> <C> <C>
28297 1.4GB HDD for IDP 500CD/560 Series Notebooks. Includes removable adapter, cabling, and $ 430
screws.
28298 1.4GB HDD for IDP 530 Series Notebooks. Includes removable adapter, cabling, and screws. $ 430
</TABLE>
INT'L DATA PRODUCTS CORP., 20 FIRSTFIELD RAOD, GAITHERSBURG, MD 20878
301-590-8100
2
<PAGE>
INTERNATIONAL DATA PRODUCTS CORPORATION
COMMERCIAL PRICELIST
<TABLE>
<CAPTION>
MANUFACTURER
CLIN# NOTEBOOK -- HARD DRIVE LIST PRICE
<C> <S> <C>
28299 1.4GB HDD for IDP 570 Series Notebooks. Includes removable adapter, cabling, and screws. $ 430
29801 2.1GB HDD for IDP 500CD/560 Series Notebooks. Includes removable adapter, cabling, and
screws. $ 630
29802 2.1GB HDD for IDP 530 Series Notebooks. Includes removable adapter, cabling, and screws. $ 630
29803 2.1GB HDD for IDP 570 Series Notebooks. Includes removable adapter, cabling, and screws. $ 630
29804 2.1GB HDD for IDP 400/500 Series Notebooks. Includes removable adapter, cabling, and screws. $ 630
282984 1.4GB HDD for IDP 400/500 Series Notebooks. Includes removable adapter, cabling, and screws. $ 430
</TABLE>
<TABLE>
<CAPTION>
MANUFACTURER
CLIN #NOTEBOOK -- MEMORY LIST PRICE
<C> <S> <C>
2100 4MB RAM to upgrade IDP 500CD/530/560 Series Notebooks, from base of 8MB to 12MB total memory. $ 42
2164 64MB RAM (2x32MB modules) to upgrade IDP 560 Series Notebooks ONLY, from base of 8MB to 72MB
total memory. $ 840
5160 8MB 3.3volt 144pin SO DIMM modules to upgrade IDP 515/570 Series Notebooks, from base of 16MB
to 24MB total memory. $ 96
5161 16MB 3.3volt 144pin SO DIMM modules to upgrade IDP 515/570 Series Notebooks, from base of 16MB
to 32MB total memory. $ 166
5162 32MB 3.3volt 144pin SO DIMM modules to upgrade IDP 515/570 Series Notebooks, from base of 16MB
to 48MB total memory. $ 700
28280 8MB RAM to upgrade IDP 500CD/530/560 Series Notebooks, from base of 8MB to 16MB total memory. $ 82
28290 16MB RAM to upgrade IDP 500CD/530/560 Series Notebooks, from base of 8MB to 24MB total memory. $ 152
28296 32MB RAM (2x16MB modules) to upgrade IDP 500CD/530/560 Series Notebooks, from base of 8MB to
40MB total memory. $ 304
</TABLE>
<TABLE>
<CAPTION>
MANUFACTURER
CLIN# NOTEBOOK -- OPERATING SYSTEM LIST PRICE
<C> <S> <C>
787 DOS/Windows for Workgroups for IDP's notebooks. Must be ordered with system. $ 0
788 Windows 95 for IDP's notebooks. Must be ordered with system. $ 0
789 Windows NT Workstation v4.0 for IDP's notebooks. Must be ordered with system. $ 0
</TABLE>
<TABLE>
<CAPTION>
MANUFACTURER
CLIN# PC -- ACCESSORIES LIST PRICE
<C> <S> <C>
371 PCI Ultra SCSI Host Adapter Kit. $ 458
372 ISA Fast SCSI Plug and Play Adapter Kit. $ 245
373 PC Card Fast SCSI-2 Host Adapter Kit. $ 298
1050 Front Load Type III PC-Card reader for IDP 500/600 Series Computers. $ 118
1071 IDP's Multimedia Upgrade with two 8-watt speakers, 16-bit soundcard, and an 8X IDE CD-ROM. $ 291
1073 IDP's Enhanced Multimedia Upgrade with two 8-watt speakers, 16-bit soundcard, and 16X IDE
CD-ROM. $ 321
1550 IDP's 6 Outlet Surge Protector. Available at time of system purchase only. $ 13
1551 IDP's 8 Outlet Surge Protector. Available at time of system purchase only. $ 94
1552 IDP's Uninterruptable Power Supply (UPS) -- 400 watts. Available at time of system purchase
only. $ 442
8532 IDP's Microsoft compatible serial mouse. $ 14
8602 IDP's Windows 95 keyboard. $ 24
</TABLE>
<TABLE>
<CAPTION>
<C> <S> <C>
MANUFACTURER
CLIN# PC -- BUNDLE LIST PRICE
</TABLE>
3
<PAGE>
INTERNATIONAL DATA PRODUCTS CORPORATION
COMMERCIAL PRICELIST
<TABLE>
<C> <S> <C>
10000 IDP 500 Desktop, P166 CPU, 16MB, 512K, 1.6GB HDD, FDD, 2MB video, 8X CD-ROM, Kybd/mse, Win95. $ 1,989
20000 IDP 500 Desktop, P200 CPU, 32MB, 512K, 2.1GB HDD, FDD, 2MB video, 16X CD-ROM, Kybd/mse,
Win95. $ 2,339
30000 IDP 600 Desktop, P180 (256K) CPU, 32MB, 2.1GB HDD, FDD, 2MB video, 16X CD-ROM, Kybd/mse, NT. $ 2,929
</TABLE>
<TABLE>
<CAPTION>
MANUFACTURER
CLIN# PC -- CPU PENTIUM LIST PRICE
<C> <S> <C>
1043 Intel Pentium Pro 180MHz (256K) CPU for IDP 600 Series Computers. Must be ordered with
system. $ 916
1044 Intel Pentium Pro 200MHz (256K) CPU for IDP 600 Series Computers. Must be ordered with
system. $ 1,136
1046 Cyrix P150+ CPU for IDP 500 Series Computers. Must be ordered with system. $ 190
1047 Cyrix P166+ CPU for IDP 500 Series Computers. Must be ordered with system. $ 210
5201 Intel Pentium 166MHz CPU for IDP 500 Series Computers. Must be ordered with system. $ 442
5202 Intel Pentium 200MHz CPU for IDP 500 Series Computers. Must be ordered with system. $ 539
5241 Intel Pentium 133MHz CPU for IDP 500 Series Computers. Must be ordered with system. $ 267
5291 Intel Pentium 166MHz CPU with MMX for IDP 500 Series Computers. Must be ordered with
system. $ 581
5292 Intel Pentium 200MHz CPU with MMX for IDP 500 Series Computers. Must be ordered with
system. $ 1,046
</TABLE>
<TABLE>
<CAPTION>
MANUFACTURER
CLIN# PC -- MEMORY EXPANSION LIST PRICE
<C> <S> <C>
5991 8MB 32-bit memory upgrade for IDP 500/600 Series Computers. (2X4MB) Must be installed when on
GSA order. $ 100
5992 16MB 32-bit memory upgrade for IDP 500/600 Series Computers. (2X8MB) Must be installed when
on GSA order. $ 152
5993 32MB 32-bit memory upgrade for IDP 500/600 Series Computers. (2X16MB) Must be installed when
on GSA order. $ 300
5994 8MB 36-bit parity memory. (2X4MB SIMM) Must be ordered with computer. $ 112
5995 16MB 36-bit parity memory. (2X8MB SIMM) Must be ordered with computer. $ 216
5996 32MB 36-bit parity memory. (2X16MB SIMM) Must be ordered with computer. $ 380
</TABLE>
<TABLE>
<CAPTION>
MANUFACTURER
CLIN# PC -- OPERATING SYSTEM LIST PRICE
<C> <S> <C>
787 DOS/Windows for Workgroups for IDP 500/600 Series Computers. Must be ordered with system. $ 0
788 Windows 95 for 500/600 Series Computers. Must be ordered with system. $ 0
789 Windows NT Workstation v4.0 for IDP 500/600 Series Computers. Must be ordered with system. $ 0
</TABLE>
<TABLE>
<CAPTION>
MANUFACTURER
CLIN# PC -- PENTIUM DESKTOP LIST PRICE
<C> <S> <C>
4010 IDP 500 Desktop, 512K, FDD, 2MB video, keyboard, mouse, and operating system included. Add
HDD, CPU, & RAM. $ 885
</TABLE>
<TABLE>
<CAPTION>
MANUFACTURER
CLIN# PC -- PENTIUM MINITOWER LIST PRICE
<C> <S> <C>
4011 IDP 500 Minitower, 512K, FDD, 2MB video, keyboard, mouse, and operating system included.
Add HDD, CPU, & RAM. $ 888
</TABLE>
<TABLE>
<CAPTION>
<C> <S> <C>
MANUFACTURER
CLIN# PC -- PENTIUM PRO DESKTOP LIST PRICE
</TABLE>
4
<PAGE>
INTERNATIONAL DATA PRODUCTS CORPORATION
COMMERCIAL PRICELIST
<TABLE>
<C> <S> <C>
4416 IDP 600 Desktop, FDD, 2MB video, keyboard, mouse, and operating system included. Add HDD,
CPU, & RAM. $ 1,098
</TABLE>
<TABLE>
<CAPTION>
MANUFACTURER
CLIN# PC -- PRO TOWER LIST PRICE
<C> <S> <C>
4415 IDP 600 Tower, FDD, 2MB video, keyboard, mouse, and operating system included. Add HDD,
CPU, & RAM. $ 1,158
</TABLE>
<TABLE>
<CAPTION>
MANUFACTURER
CLIN# PC -- PENTIUM TOWER LIST PRICE
<C> <S> <C>
4012 IDP 500 Tower, 512K, FDD, 2MB video, keyboard, mouse, and operating system included. Add HDD,
CPU, & RAM. $ 946
</TABLE>
<TABLE>
<CAPTION>
MANUFACTURER
CLIN# PC -- UPGRADES LIST PRICE
<C> <S> <C>
1070 16-bit wavetable soundcard for IDP 500/600 Series Computers. $ 60
1075 Upgrade to 64-bit 3D 4MB video card for IDP 500/600 Series Computers. At time of system
purchase only. $ 165
</TABLE>
5
<PAGE>
Exhibit 10.13
----------------------
AWARD/CONTRACT
----------------------
- -------------------------------------- ---------- --------------
1. THIS CONTRACT IS A RATED ORDER --> RATING PAGE OF PAGES
UNDER DPAS (15 CFR 350) J 1 3
- -------------------------------------- ---------- --------------
- -----------------------------------
2. CONTRACT (True Inst. Ident.) NO
E01620-97-D-0001
- -----------------------------------
- -----------------------------------
3. EFFECTIVE DATE
- -----------------------------------
- -------------------------------------------
4. REQUISITION/PURCHASE REQUEST/PROJECT NO.
- -------------------------------------------
- -------------------------------------------
5. ISSUED BY CODE GK01D
--------------
Headquarters Standard Systems Group (SSG/PKZ)
55 North Ramp Road, BLdg 820
Maxwell AFB-Gunter Annex AL 36114-3331
ATTN: Ms. Yulanda Andrews, (334) 416-3147
- --------------------------------------------
- ------------------------------------------------------
6. ADMINISTERED BY (if other than item 5) CODE S2101A
------
DCMC Baltimore
200 Towsontown Blvd., West
Towson, MD 21204-5299
- ------------------------------------------------------
- --------------------------------------------------------------------------------
7. NAME AND ADRESS OF CONTRACTOR (No., street, city, county, State and Zip Code)
International Data Products, Corp.
20 Firstfield Road
Montgomery County
Gaithersburg, MD 20878
- --------------------------------------------------------------------------------
CODE 45815 FACILITY CODE
- --------------------------------------------------------------------------------
- ----------------------------------------
8. Delivery
IAW SEC D, PARA 1
/ / FOB ORIGIN / /OTHER (see below)
- ----------------------------------------
- ----------------------------------------
9. DISCOUNT FOR PROMPT PAYMENT
1/2% 10 CALENDAR DAYS
- ----------------------------------------
- ------------------------------ ------------------------------
10. SUBMIT INVOICES ITEM
(4 copies unless otherwise IAW Sec G,
specified) TO THE ADDRESS para 5
SHOWN IN -->
- ------------------------------ ------------------------------
- ------------------------------------------------
11. SHIP TO/MARK FOR CODE
IAW Section F, para 2
- ------------------------------------------------
- -----------------------------------------------------
12. PAYMENT WILL BE MADE BY CODE SC1034
DFAS Columbus Center-JSC-Capital
Post Office Box 182263
Columbus, OH 43218-2263
- -----------------------------------------------------
- -------------------------------------------------------------
13. AUTHORITY FOR USING OTHER THAN FULL AND OPEN
COMPETITION:
/ / 10 U.S.C. 2304(c)( ) / / 41 U.S.C. 253(c)( )
- -------------------------------------------------------------
- -------------------------------------------------------------
14. ACCOUNTING AND APPROPRIATION DATA
Minimum Obligated on Delivery Order 0001
- -------------------------------------------------------------
<TABLE>
<CAPTION>
- -------------------------------------------------------------------------------------------------------------------------
15A. ITEM NO. 15B. SUPPLIES/SERVICES 15C. QUANTITY 15D. UNIT 15E. UNIT PRICE 15F. AMOUNT
- -------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
Delivery IAW Section B.,
CLINS 0001-0006
Estimated
- -------------------------------------------------------------------------------------------------------------------------
15G. TOTAL AMOUNT OF CONTRACT $729,010,929.00
- -------------------------------------------------------------------------------------------------------------------------
</TABLE>
<TABLE>
<CAPTION>
- -------------------------------------------------------------------------------------------------------------------------
16. TABLE OF CONTENTS
- -------------------------------------------------------------------------------------------------------------------------
VI SEC DESCRIPTION PAGE(S)
- -------------------------------------------------------------------------------------------------------------------------
PART I--THE SCHEDULE
- -------------------------------------------------------------------------------------------------------------------------
<C> <C> <S> <C>
X A SOLICITATION/CONTRACT FORM 1-2
X B SUPPLIES OR SERVICES AND PRICES/COSTS 1-39
X C DESCRIPTION/SPECS./WORK STATEMENT 1-19
X D PACKAGING AND MARKING 1-3
X E INSPECTION AND ACCEPTANCE 1-3
X F DELIVERIES OR PERFORMANCE 1-6
X G CONTRACT ADMINISTRATION DATA 1-9
X H SPECIAL CONTRACT REQUIREMENTS 1-9
- -------------------------------------------------------------------------------------------------------------------------
PART II--CONTRACT CLAUSES
- -------------------------------------------------------------------------------------------------------------------------
X I CONTRACT CLAUSES 1-18
- -------------------------------------------------------------------------------------------------------------------------
PART III--LIST OF DOCUMENTS, EXHIBITS AND OTHER ATTACH.
- -------------------------------------------------------------------------------------------------------------------------
X J LIST OF ATTACHMENTS 1
- -------------------------------------------------------------------------------------------------------------------------
PART IV--REPRESENTATIONS AND INSTRUCTIONS
- -------------------------------------------------------------------------------------------------------------------------
X K REPRESENTATIONS, CERTIFICATIONS AND OTHER STATEMENTS OF OFFERORS
L INSTHS. CONDS., AND NOTICES TO OFFERORS
M EVALUATION FACTORS FOR AWARD
- -------------------------------------------------------------------------------------------------------------------------
</TABLE>
CONTRACTING OFFICER WILL COMPLETE ITEM 17 OR 18 AS APPLICABLE
- ----------------------------------------------------------------------------
17. / / CONTRACTOR'S NEGOTIATED AGREEMENT (Contractor is required to sign
this document and return ____ copies to issuing office.) Contractor agrees
to furnish and deliver all items or perform all the services set forth or
otherwise identified above and on any continuation sheets for the
consideration stated herein. The rights and obligations of the parties to
this contract shall be subject to and governed by the following documents:
(a) this award/contract, (b) the solicitation, if any, and (c) such
provisions, representations, certifications, and specifications, as are
attached or incorporated by reference herein. (Attachments are listed
herein.)
- ----------------------------------------------------------------------------
- ----------------------------------------------------------------------------
18. /X/ AWARD (Contractor is not required to sign this document.) Your
offer on Solicitation Number F01620-95-R-AO51, including the additions or
changes made by you which additions or changes are set forth in full
above, is hereby accepted as to the items listed above and on any
continuation sheets. This award consummates the contract which consists of
the following documents: (a) the Government's solicitation and your offer,
and (b) this award/contract. No further contractual document is necessary.
- ----------------------------------------------------------------------------
- -------------------------------------------------------------
19A. NAME AND TITLE OF SIGNER (Type or print)
- -------------------------------------------------------------
19B. NAME OF CONTRACTING 19C. DATE SIGNED
BY See Page 2 of 2
---------------------------------
(Signature of person authorized
to sign)
- -------------------------------------------------------------
- -------------------------------------------------------------
20A. NAME OF CONTRACTING OFFICER
- -------------------------------------------------------------
20B. UNITED STATES OF AMERICA 20C. DATE SIGNED
BY See Page 2 of 2
----------------------------------
(Signature of Contracting Officer)
- -------------------------------------------------------------
- -------------------------------------------------------------------------------
NSN 7540-01-152-8069 26-107 STANDARD FORM 26 (REV. 4-85)
PREVIOUS EDITION UNUSABLE Prescribed by GSA
FAR (48 CFR) 53.214(a)
GPO: 1985 O-461-275 (2005)
<PAGE>
-----------------------------
SOLICITATION, OFFER AND AWARD
-----------------------------
- ------------------------------------ -------- ------------
1. THIS CONTRACT IS A RATED ORDER RATING PAGE
UNDER DPAS (15 CFR 350) (See H-5) --> 1 OF 1 PAGES
- --------------------------------------- -------- ------------
- ----------------
2. CONTRACT NO.
- ----------------
- -------------------
3. SOLICITATION NO.
F01620-95-R-A051
- -------------------
- ----------------------
4. TYPE OF SOLICITATION
SEALED BID (IFB)
X NEGOTIATED (RFP)
- ----------------------
- ---------------
5. DATE ISSUED
17 JUL 95
- ---------------
- ---------------------------
6. REQUISITION/PURCHASE NO.
- ---------------------------
- ----------------------------------------------------
7. ISSUED BY
Headquarters Standard Systems Group (HQ SSG)
Directorate of Contracting (HQ SSG/PKN)
55 North Ramp Road (Bldg 820)
Maxwell AFB-Gunter Annex AL 36114-3331
Contracting Officer: Ms Kay P. Walker (334) 416-1781
- ----------------------------------------------------
- -----------------------------------------------------------------
8. ADDRESS OFFER TO (if other than item 7)
NOTE 1: Sequential page numbering is done by section in this RFP.
- -----------------------------------------------------------------
- --------------------------------------------------------------------------------
NOTE: In sealed bid solicitations, "offer" and "offeror" mean "bid" and
"bidder".
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
SOLICITATION
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
9. Sealed offers in original and (See L21) copies for furnishing the supplies
or services in the Schedule will be received at the place specified in item
7, or if handcarried, in the depository located in (See L19) until 3:00 P.M.
CDST time on 6 SEP 95. CAUTION--LATE Submissions, Modifications, and
Withdrawals of Offers-Commercial Items: See Section L, Provision
No. 252.211-7018. All offers are subject to all terms and conditions contained
in this solicitation.
- --------------------------------------------------------------------------------
- ------------------------------
10. FOR INFORMATION
CALL: -->
- ------------------------------
- ------------------------------
A. NAME
Capt. Chad W. Lusher
- ------------------------------
- ------------------------------------------------------
B. TELEPHONE NO (include area code) (NO COLLECT CALLS)
(334) 416-1782
- ------------------------------------------------------
- --------------------------------------------------------------------------------
TABLE OF CONTENTS
- --------------------------------------------------------------------------------
<TABLE>
<CAPTION>
- ---------------------------------------------------------------------------------------------------------------------------------
(3) SEC DESCRIPTION PAGE(S) (3) SEC DESCRIPTION PAGE(S)
- ---------------------------------------------------------------------------------------------------------------------------------
<C> <C> <S> <C> <C> <C> <C> <C>
PART I - THE SCHEDULE PART II - CONTRACT CLAUSES
- ---------------------------------------------------------------------------------------------------------------------------------
X A SOLICITATION/CONTRACT FORM 1 X I CONTRACT CLAUSES 1-16
- ---------------------------------------------------------------------------------------------------------------------------------
X B SUPPLIES OR SERVICES AND PRICES/COSTS 1-31 PART III - LIST OF DOCUMENTS, EXHIBITS, AND OTHER ATTACH.
- ---------------------------------------------------------------------------------------------------------------------------------
X C DESCRIPTION/SPECS./ WORK STATEMENT 1-18 X J LIST OF ATTACHMENTS 1
- ---------------------------------------------------------------------------------------------------------------------------------
X D PACKAGING AND MARKING 1-3 PART IV - REPRESENTATIONS AND INSTRUCTIONS
- ---------------------------------------------------------------------------------------------------------------------------------
X E INSPECTION AND ACCEPTANCE 1-3 X K REPRESENTATIONS, CERTIFICATIONS AND
- --------------------------------------------------------------- OTHER STATEMENTS OF OFFERORS 1-21
X F DELIVERIES OR PERFORMANCE 1-5
- ---------------------------------------------------------------------------------------------------------------------------------
X G CONTRACT ADMINISTRATION DATA 1-8 X L INSTRS., CONDS., AND NOTICES TO OFFERORS 1-112
- ---------------------------------------------------------------------------------------------------------------------------------
X H SPECIAL CONTRACT REQUIREMENTS 1-8 X M EVALUATION FACTORS FOR AWARD 1-11
- ---------------------------------------------------------------------------------------------------------------------------------
</TABLE>
- --------------------------------------------------------------------------------
OFFER (Must be fully completed by offeror)
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
NOTE: Item 12 does not apply if the solicitation includes the provisions at
52.214-16, Minimum Bid Acceptance Period.
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
12. In compliance with the above, the undersigned agrees, if this offer is
accepted within 335 calendar days from the date for receipt of offers
specified above, to furnish any or all items upon which prices are offered at
the price set opposite each item, delivered at the designated point(s),
within the time specified in the schedule.
- --------------------------------------------------------------------------------
- --------------------------------
13. DISCOUNT FOR PROMPT PAYMENT
(See DFARS 252.211-7001)
- --------------------------------
- ------------------
10 CALENDAR DAYS
1/2%
- ------------------
- ------------------
20 CALENDAR DAYS
%
- ------------------
- ------------------
30 CALENDAR DAYS
0%
- ------------------
- ------------------
CALENDAR DAYS
%
- ------------------
- --------------------------------------------------------------------------------
14. ACKNOWLEDGEMENT OF AMENDMENTS
(The offeror acknowledges receipt of amendments to the SOLICITATION for
offerors and related documents numbered and dated:
- --------------------------------------------------------------------------------
<TABLE>
<CAPTION>
- ------------------------------------------------------------------
AMENDMENT NO. DATE AMENDMENT NO. DATE
- ------------------------------------------------------------------
<S> <C> <C> <C>
0001 26 AUG 95 0004 16 JAN 96
- ------------------------------------------------------------------
0002 5 SEP 95 0005 07 JUN 96
- ------------------------------------------------------------------
0003 18 OCT 95
- ------------------------------------------------------------------
</TABLE>
- ------------------------------------------------------------------
15A. NAME AND CAGE CODE 45815 FACILITY
ADDRESS OF International Data Products Corp.
OFFEROR 20 Firstfield Road
Montgomery County
Gaithersburg, MD 20878
- ------------------------------------------------------------------
- --------------------------------------
15B. TELEPHONE NO. (include area code)
301-590-8100
- --------------------------------------
- --------------------------------------------------------------------------------
15C. CHECK IF REMITTANCE ADDRESS IS DIFFERENT FROM ABOVE - ENTER SUCH ADDRESS
IN SCHEDULE
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
16. NAME AND TITLE OF PERSON AUTHORIZED TO SIGN OFFER (Type or print)
George Fuster, President
- --------------------------------------------------------------------------------
- ----------------------------
17. SIGNATURE
(ILLEGIBLE) 10/22/96
- ----------------------------
- --------------------------------------------------------------------------------
AWARD (To be completed by Government)
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
19. ACCEPTED AS TO ITEMS NUMBERED
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
20. AMOUNT
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
21. ACCOUNTING AND APPROPRIATIONS
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
22. AUTHORITY FOR USING OTHER THAN FULL AND OPEN COMPETITION:
10 U.S.C. 2304 (c)( ) 41 U.S.C. 253(c)( )
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
23. SUBMIT INVOICES TO ADDRESS SHOWN IN ITEM
(4 copies unless otherwise specified) --> G-5
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
24. ADMINISTERED BY (if other than item 7)
CODE
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
25. PAYMENT WILL BE MADE BY
CODE
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
26. NAME OF CONTRACTING OFFICER (Type or print)
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
27. UNITED STATES OF AMERICA
(signature of Contracting Officer)
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
28. AWARD DATE
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
IMPORTANT -- Award will be made on this Form, or on Standard Form 26, or by
other authorized official written notice.
- --------------------------------------------------------------------------------
____7540-01-152-8084 33-133 STANDARD FORM 33 (REV. 4-85)
(EF)
PREVIOUS EDITION NOT USABLE Prescribed by GSA
FAR (48 CFR) 53.214(c)
III-6-1 BAFO
Proposal Submittal #1 Date: October 23, 1996
<PAGE>
F01620-97-D-0001
PAGE 2 OF 3
TRIPARTITE AGREEMENT
EFFECTIVE DATE: CONTRACT NUMBER:
8(a)CONTRACTOR: International Data Products
20 Firstfield Road
Gaithersburg MD 20878
BY: /s/ George Fuster
TYPED NAME AND TITLE: George Fuster, President
DATE: October 22, 1996
SMALL BUSINESS ADMINISTRATION:
OFFICE OF MINORITY ENTERPRISE DEVELOPMENT
SBA NUMBER: 0353-97-006069
BY: /s/ Martin Gold, DO(A)/WDO
TYPED NAME AND TITLE:
DATE: 12/27/96
PROCURING ACTIVITY: HQ SSG/PKZ
55 North Ramp Road, Bldg. 820
Maxwell Air Force Base-Gunter Annex AL 36114-3331
BY: /s/ Veronica G. Alexander
TYPED NAME AND TITLE: Contracting Officer
DATE: 5 May 97
<PAGE>
F01620-97-D-0001
PAGE 3 of 3
FAR 52.252-2 CLAUSE INCORPORATED BY REFERENCE (JUNE 1988)
- -------------------------------------------------------------------------------
The following additional clauses are hereby incorporated into the contract.
Where the identically numbered clause appears elsewhere in the contract, the
version listed below along with the applicable completions takes precedence.
FAR REF CLAUSE TITLE
- ---------------- -------------------------------------
52.219-11 Special 8(a) Contract Conditions (FEB 1990)
Name of Agency: USAF (SSG/PKZ)
52.219-12 Special 8(a) Subcontract Conditions (FEB 1990)
Prime Contract Number: F01620-97-D-0001
Name of Agency: USAF (SSG/PKZ)
Name of Subcontractor: International Data Products
52.219-14 Limitations on Subcontracting (Jan 1991)
<PAGE>
F01620-97-D-0001/P00009
Section B, Page 1 of 46
PART I - THE SCHEDULE, SECTION B - SUPPLIES OR SERVICES AND
PRICES/COSTS
B.1 GENERAL DESCRIPTION
a. This is a firm fixed-price (FFP), indefinite delivery, indefinite
quantity (ID/IQ) contract providing commercial computer systems and bundled
support services to support general purpose applications which will satisfy
portable, desktop, and server computer needs common throughout the Air Force,
other Department of Defense (DoD) agencies (excluding Navy & Army), and as
directed by GSA, other Federal civilian agencies. These systems are to be
delivered to Air Force, DoD, and other Federal civilian agencies worldwide.
The applications include office automation functions such as word processing,
data base management, spreadsheet creation/manipulation, and business
graphics. This contract provides the following:
(1) Contract Line Item Number (CLIN) 0001, purchase of portable
computer systems, office automation (OA) software (SW), other software,
peripherals, components, upgrades, and bundled support services as identified
in Section C, the Contractor's Technical and Management proposals, and
Section B, Table B-1.
(2) CLIN 0002, purchase of desktop computer systems, office
automation (OA) software (SW), other software, peripherals, components,
upgrades, and bundled support services as identified in Section C, the
Contractor's Technical and Management proposals, and Section B, Table B-2.
(3) CLIN 0003, purchase of advanced desktop computer systems,
office automation (OA) software (SW), other software, peripherals,
components, upgrades, and bundled support services as identified in Section
C, the Contractor's technical and Management proposals, and Section B, Table
B-3.
(4) CLIN 0004, purchase of advanced computer based servers,
network operating system (NOS) software (SW), other software, peripherals,
components, upgrades, and bundled support services as identified in Section
C, the Contractor's Technical and Management proposals, and Section B, Table
B-4.
(5) CLIN 0005, purchase of portable printers; impact printers;
entry level color printers; laser-quality printers; and laser-quality network
printers, to include upgrades, components, and bundled support services as
identified in Section C, the Contractor's Technical and Management proposals,
and Section B, Table B-5.
(6) CLIN 0006, data as identified in Section C, Sec/Para J.10,
Exhibit A, Contract Data Requirements List (CDRL), and the Contractor's
Technical and Management proposals.
(7) CLIN 0007, purchase of portable computer systems, desktop
computer systems, advanced desktop computer systems, advanced computer based
servers, network operating system software, office automation (OA) software
(SW), other software, peripherals,
<PAGE>
F01620-97-D-0001/P00009
Section B, Page 2 of 46
PART I - THE SCHEDULE, SECTION B - SUPPLIES OR SERVICES AND
PRICES/COSTS
components, upgrades, and bundled support services as identified in Section C
and Section B, Table B-6.
b. This contract will avoid product obsolescence and take
advantage of emerging technology to satisfy user requirements through
changes, additions, substitutions, upgrades, and updates as technology,
standards, and procedures evolve.
B.2 CONTRACT MINIMUM/MAXIMUM
a. In the base year of the contract, the minimum amount for award
will be $100,000.00. Orders beyond the minimum will be determined by user
needs.
b. The specific services, products, and quantities will be
identified on each delivery order. The exercise of an option does not
re-establish the contract minimum.
c. In accordance with the terms and conditions of the Settlement
Agreement dated 8 September 1997, the total estimated quantities are hereby
modified to reflect a value of $100M. The Contractor shall immediately
notify the Air Force, in writing, when 80% of this estimate is reached. The
Contractor shall not accept any order which would exceed the estimated
quantities valued at $100M unless authorized by the Contracting Officer to do
so.
d. A maximum of $729,010,929 is established for this contract
including option amounts, broken out as follows:
1. A maximum of $729,010,929 is established for this contract
for ordering by the Department of the Air Force and other Department of
Defense components.
2. A maximum of 20% is estimated for this contract for ordering
by other Federal Civilian Agencies.
d. Proposals for a single CLIN/Sub-Line Item Number (SLIN), or
group thereof, and for quantities for less than those in the Price Evaluation
Model (PEM) will not be accepted and will be ineligible for award. Offerors
must propose on all CLINs/SLINs in Section B.
<PAGE>
F01620-97-D-0001/P00009
Section B, Page 3 of 46
PART I - THE SCHEDULE, SECTION B - SUPPLIES OR SERVICES AND
PRICES/COSTS
B.3 THE SCHEDULE
<TABLE>
<CAPTION>
CLIN
NO. Supplies/Services
- --- -----------------
<S> <C>
0001 INFO CLIN
PORTABLE SYSTEMS:
The Contractor shall provide portable computer systems, office
automation (OA) software (SW), other software, peripherals,
components, upgrades, and bundled support services as
identified in Section C, the Contractor's Technical and
Management proposals, and Section B, Table B-1.
0002 INFO CLIN
DESKTOP OA SYSTEM:
The Contractor shall provide desktop computer systems, office
automation (OA) software (SW), other software, peripherals,
components, upgrades, and bundled support services as
identified in Section C, the Contractor's Technical and
Management proposals, and Section B, Table B-2.
0003 INFO CLIN
ADVANCED DESKTOP SYSTEM:
The Contractor shall provide advanced desktop computer
systems, office automation (OA) software (SW), other software,
peripherals, components, upgrades, and bundled support
services as identified in Section C, the Contractor's
Technical and Management proposals, and Section B, Table B-3
0004 INFO CLIN
SERVER:
The Contractor shall provide advanced computer based servers,
network operating system (NOS) software (SW), other software,
peripherals, compo-nents, upgrades, and bundled support
services as identified in Section C, the Contractor's
Technical and Management proposals, and Section B, Table B-4.
0005 INFO CLIN
PRINTERS:
The Contractor shall provide portable printers; impact
printers; entry level color printers; laser-quality printers;
and laser-quality network printers, components, upgrades, and
bundled support services as identified in Section C, the
Contractor's Technical and Management proposals, and Section
B, Table B-5.
</TABLE>
<PAGE>
F01620-97-D-0001/P00009
Section B, Page 4 of 46
PART I - THE SCHEDULE, SECTION B - SUPPLIES OR SERVICES AND
PRICES/COSTS
<TABLE>
<CAPTION>
CLIN
NO. Supplies/Services
- --- -----------------
<S> <C>
0006 INFO CLIN
DATA:
The Contractor shall provide data as required in
Section C, Sec/Para J.10, Exhibit A, Contract Data
Requirements List (CDRL), and the Contractor's Technical and
Management proposals.
0007 INFO CLIN
PORTABLE, DESKTOP OA, ADVANCED DESKTOP SYSTEMS,
SERVER:
The Contractor shall provide portable computer systems,
desktop computer systems, advanced desktop computer systems,
advanced computer based servers, network operating system
software, office automation (OA) software (SW), other
software, peripherals, components, upgrades, and bundled
support services as identified in Section C and Section B,
Table B-6.
</TABLE>
<TABLE>
<CAPTION>
Quantity Unit Price
CLIN Purchase Total Item
NO. Supplies/Services Unit Amount
- --- ----------------- -------- ----------
<S> <C> <C> <C>
1001 PORTABLE SYSTEMS: As Req. See Table B-1
The Contractor shall provide EA
CLIN 0001 products and services
in accordance with (IAW) delivery
orders issued during the basic
contract period. Ordering period
is for 12 months beginning from
the date of contract award.
1002 DESKTOP OA SYSTEM: As Req. See Table B-2
The Contractor shall provide EA
CLIN 0002 products and services
IAW delivery orders issued during
the basic contract period. Ordering
period is for 12 months beginning
from the date of contract award.
1003 ADVANCED DESKTOP SYSTEM: As Req. See Table B-3
The Contractor shall provide EA
CLIN 0003 products and services
IAW delivery orders issued during
the basic contract period. Ordering
period is for 12 months beginning
from the date of contract award.
1004 SERVER: As Req. See Table B-4
The Contractor shall provide EA
CLIN 0004 products and services IAW
delivery orders issued during the
basic contract period. Ordering
period is for 12 months beginning
</TABLE>
<PAGE>
F01620-97-D-0001/P00009
Section B, Page 5 of 46
PART I - THE SCHEDULE, SECTION B - SUPPLIES OR SERVICES AND
PRICES/COSTS
<TABLE>
<CAPTION>
Quantity Unit Price
CLIN Purchase Total Item
NO. Supplies/Services Unit Amount
- --- ----------------- -------- ----------
<S> <C> <C> <C>
from the date of contract award.
1005 PRINTERS:
The Contractor shall provide As Req. See Table B-5
CLIN 0005 products and services EA
IAW delivery orders issued during
the basic contract period. Ordering
period is for 12 months beginning
from the date of contract award.
1006 DATA:
The Contractor shall provide As Req. NSP
CLIN 0006 data as required during See Exhibit A
the basic contract period. Ordering
is for 12 months beginning from the
date of contract award.
1007 PORTABLE, DESKTOP OA, As Req. See Table B-6
ADVANCED DESKTOP SYSTEMS, SERVER: EA
The Contractor shall provide
CLIN 0007 products and services
IAW delivery orders issued during
the basic contract period. Ordering
period is for 12 months beginning
from the date of contract award.
</TABLE>
<TABLE>
<CAPTION>
Quantity Unit Price
CLIN Purchase Total Item
NO. Supplies/Services Unit Amount
- --- ----------------- -------- ----------
<S> <C> <C> <C>
2001 Option 1 CLIN PORTABLE SYSTEMS: As Req. See Table B-1
If option is exercised to extend EA
ordering, the Contractor shall
provide CLIN 0001 products and
services IAW delivery orders issued
during Option Period 1. Ordering
period is for 12 months.
2002 Option 1 CLIN DESKTOP OA SYSTEM: As Req. See Table B-2
If option is exercised to extend EA
ordering, the Contractor shall
provide CLIN 0002 products and
services IAW delivery orders
issued during Option Period 1.
Ordering period is for 12 months.
2003 Option 1 CLIN ADVANCED DESKTOP As Req. See Table B-3
SYSTEM: EA
If option is exercised to extend
ordering,
</TABLE>
<PAGE>
F01620-97-D-0001/P00009
Section B, Page 6 of 46
PART I - THE SCHEDULE, SECTION B - SUPPLIES OR SERVICES AND
PRICES/COSTS
<TABLE>
<CAPTION>
Quantity Unit Price
CLIN Purchase Total Item
NO. Supplies/Services Unit Amount
- --- ----------------- -------- ----------
<S> <C> <C> <C>
the Contractor shall
provide CLIN 0003 products and
services IAW delivery orders
issued during Option Period 1.
Ordering period is for 12 months.
2004 Option 1 CLIN SERVER: As Req. See Table B-4
If option is exercised to extend EA
ordering, the Contractor shall
provide CLIN 0004 products and
services IAW delivery orders
issued during Option Period I.
Ordering period is for 12 months.
2005 Option 1 CLIN PRINTERS: As Req. See Table B-5
If option is exercised to extend EA
ordering, the Contractor shall
provide CLIN 0005 products and
services IAW delivery orders issued
during Option Period 1. Ordering
period is for 12 months.
2006 Option 1 CLIN DATA: As Req. NSP
If option is exercised to extend See Exhibit A
ordering, the Contractor shall
provide CLIN 0006 data as
required during Option Period 1.
Ordering period is for 12 months.
2007 Option 1 CLIN PORTABLE, DESKTOP As Req. See Table B-6
OA, ADVANCED DESKTOP SYSTEMS, EA
SERVER:
If option is exercised to extend
ordering the Contractor shall
provide CLIN 0007 products and
services IAW delivery orders
issued during Option Period 1.
Ordering period is for 12 months.
</TABLE>
<TABLE>
<CAPTION>
Quantity Unit Price
CLIN Purchase Total Item
NO. Supplies/Services Unit Amount
- --- ----------------- -------- ----------
<S> <C> <C> <C>
3001 Option 2 CLIN PORTABLE SYSTEMS: As Req. See Table B-1
If option is exercised to extend EA
ordering, the Contractor shall
provide CLIN 0001 products and
services IAW delivery orders
issued during Option Period 2.
Ordering period is for 12 months.
</TABLE>
<PAGE>
F01620-97-D-0001/P00009
Section B, Page 7 of 46
PART I - THE SCHEDULE, SECTION B - SUPPLIES OR SERVICES AND
PRICES/COSTS
<TABLE>
<CAPTION>
Quantity Unit Price
CLIN Purchase Total Item
NO. Supplies/Services Unit Amount
- --- ----------------- -------- ----------
<S> <C> <C> <C>
3002 Option 2 CLIN DESKTOP OA SYSTEM: As Req. See Table B-2
If option is exercised to extend EA
ordering, the Contractor shall
provide CLIN 0002 products and
services IAW delivery orders
issued during Option Period 2.
Ordering period is for 12 months.
3003 Option 2 CLIN ADVANCED DESKTOP As Req. See Table B-3
SYSTEM: EA
If Option is exercised to
extend ordering, the Contractor
shall provide CLIN 0003 products
and services IAW delivery orders
issued during Option Period 2.
Ordering period is for 12 months.
3004 Option 2 CLIN SERVER: As Req. See Table B-4
If option is exercised to extend EA
ordering, the Contractor shall
provide CLIN 0004 products and
services IAW delivery orders
issued during Option Period 2.
Ordering period is for 12 months.
3005 Option 2 CLIN PRINTERS: As Req. NSP
If option is exercised to extend See Exhibit A
ordering, the Contractor shall
provide CLIN 0005 products and
services IAW delivery orders issued
during Option Period 2. Ordering
period is for 12 months
3006 Option 2 CLIN DATA: As Req. NSP
If option is exercised to extend See Exhibit A
ordering, the Contractor shall
provide CLIN 0006 data as required
during Option Period 2. Ordering
period is for 12 months.
3007 Option 2 CLIN PORTABLE, DESKTOP OA, As Req. See Table B-6
ADVANCED DESKTOP SYSTEMS, SERVER: EA
If option is exercised to extend
ordering the Contractor shall
provide CLIN 0007 products and
services IAW delivery orders
issued during Option Period 2.
Ordering period is for 12 months.
</TABLE>
<PAGE>
F01620-97-D-0001/P00009
Section B, Page 8 of 46
PART I - THE SCHEDULE, SECTION B - SUPPLIES OR SERVICES AND
PRICES/COSTS
<TABLE>
<CAPTION>
Quantity Unit Price
CLIN Purchase Total Item
NO. Supplies/Services Unit Amount
- --- ----------------- -------- ----------
<S> <C> <C> <C>
4001 Option 3 CLIN PORTABLE SYSTEMS: As Req. See Table B-1
If option is exercised to extend EA
ordering, the Contractor shall
provide CLIN 0001 products and
services IAW delivery orders issued
during Sustainment Option Period 3.
Ordering period is for 12 months.
4002 Option 3 CLIN DESKTOP OA SYSTEM: As Req. See Table B-2
If option is exercised to extend EA
ordering, the Contractor shall
provide CLIN 0002 products and
services IAW delivery orders issued
during Sustainment Option Period 3.
Ordering period is for 12 months.
4003 Option 3 CLIN ADVANCED DESKTOP As Req. See Table B-3
SYSTEM: EA
If option is exercised to extend
ordering, the Contractor shall
provide CLIN 0003 products and
services IAW delivery orders
issued during Sustainment Option
Period 3. Ordering period is for
12 months.
4004 Option 3 CLIN SERVER: As Req. See Table B-4
If option is exercised to extend EA
ordering, the Contractor shall
provide CLIN 0004 products and
services IAW delivery orders
issued during Sustainment Option
Period 3. Ordering period is for
12 months.
4005 Option 3 CLIN PRINTERS: As Req. See Table B-5
If Option is exercised to extend EA
ordering, the Contractor shall
provide CLIN 0005 products and
services IAW delivery order
issued during Option Period 3.
Ordering period is for 12 months.
4006 Option 3 CLIN DATA: As Req. NSP
If option is exercised to extend See Exhibit A
ordering, the Contractor shall
provide CLIN 0006 data as required
during Sustainment Option
</TABLE>
<PAGE>
F01620-97-D-0001/P00009
Section B, Page 9 of 46
PART I - THE SCHEDULE, SECTION B - SUPPLIES OR SERVICES AND
PRICES/COSTS
<TABLE>
<CAPTION>
Quantity Unit Price
CLIN Purchase Total Item
NO. Supplies/Services Unit Amount
- --- ----------------- -------- ----------
<S> <C> <C> <C>
Period 3. Ordering period is
for 12 months.
4007 Option 3 CLIN PORTABLE, DESKTOP As Req. See Table B-6
OA, ADVANCED DESKTOP SYSTEMS, EA
SERVER:
If option is exercised to extend
ordering the Contractor shall
provide CLIN 0007 products and
services IAW delivery orders issued
during Option Period 3. Ordering
period is for 12 months.
</TABLE>
<TABLE>
<CAPTION>
Quantity Unit Price
CLIN Purchase Total Item
NO. Supplies/Services Unit Amount
- --- ----------------- -------- ----------
<S> <C> <C> <C>
5001 Option 4 CLIN PORTABLE SYSTEMS: As Req. See Table B-1
If option is exercised to extend EA
ordering, the Contractor shall
provide CLIN 0001 products and
services IAW delivery orders
issued during Sustainment Option
Period 4. Ordering period is for
12 months.
5002 Option 4 CLIN DESKTOP OA SYSTEM: As Req. See Table B-2
If option is exercised to extend EA
ordering, the Contractor shall
provide CLIN 0002 products and
services IAW delivery orders issued
during Sustainment Option Period 4.
Ordering period is for 12 months.
5003 Option 4 CLIN ADVANCED DESKTOP As Req. See Table B-3
SYSTEM: EA
If option is exercised to extend
ordering, the Contractor shall
provide CLIN 0003 products and
services IAW delivery orders issued
during Sustainment Option Period 4.
Ordering period is for 12 months.
5004 Option 4 CLIN SERVER: As Req. See Table B-4
If option is exercised to extend EA
ordering, the Contractor shall
provide CLIN 0004 products and
services IAW delivery orders
issued during Sustainment Option
Period 4. Ordering period is for
12 months.
5005 Option 4 CLIN PRINTERS: As Req. See Table B-5
</TABLE>
<PAGE>
F01620-97-D-0001/P00009
Section B, Page 10 of 46
PART I - THE SCHEDULE, SECTION B - SUPPLIES OR SERVICES AND
PRICES/COSTS
<TABLE>
<CAPTION>
Quantity Unit Price
CLIN Purchase Total Item
NO. Supplies/Services Unit Amount
- --- ----------------- -------- ----------
<S> <C> <C> <C>
If option is exercised to EA
extend ordering, the Contractor
shall provide CLIN 0005 products
and services IAW delivery orders
issued during Option Period 4.
Ordering Period is for 12 months.
5006 Option 4 CLIN DATA: As Req. NSP
If option is exercised to extend See Exhibit A
ordering, the Contractor shall
provide CLIN 0006 data as
required during Sustainment Option
Period 4. Ordering period is for
12 months.
5007 Option 4 CLIN PORTABLE, DESKTOP As Req. See Table B-6
OA, ADVANCED DESKTOP SYSTEMS, EA
SERVER:
If option is exercised to extend
ordering the Contractor shall
provide CLIN 0007 products and
services IAW delivery orders issued
during Option Period 4. Ordering period
is for 12 months.
</TABLE>
B.4 THE TABLES
<TABLE>
<CAPTION>
CLIN DESCRIPTION TABLE PAGE
- --------------------------------------------------------------------
<S> <C> <C> <C>
0001 Portable Systems B-1 11 of 46
0002 Desktop OA System B-2 18 of 46
0003 Advanced Desktop System B-3 28 of 46
0004 Server B-4 34 of 46
0005 Printers B-5 41 of 46
0006 Data NSP*
0007 Portable Systems, B-6 42 of 46
Desktop OA System
Advanced Desktop System,
Server
</TABLE>
- -----------
*Since data is not separately priced, table is not required.
<PAGE>
<TABLE>
<CAPTION>
97-D-0001
Section B Page 11 of 46
TABLE
PART I - THE SCHEDULE, SECTION B-SUPPLIED OR SERVICES AND PRICES/COSTS
DESKTOP V
CLIN 0001 PORTABLE SYSTEM
International Data Products
BASE YEAR
SLIN OFFEROR DESCRIPTION OEM # OEM # UNIT PRICE
- ------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Two versions of the IDP 530DC Series Multiple OEM entries for item
Notebook, are available for order as means contractor may supply
follows: using any of OEM sources/OEM
part #'s listed
PORTABLES
Features common to all IDP 530CD
Series Notebooks are:
Motherboard 530, 32-bit PCI Local Bus
Graphics w/1MB video display DRAM,
aMB RAM (on motherboard), PC Card
Type IV slots, 256k sync burst cache
Floppy Drive, 3.5"
CD ROM Drive 10X
Pointing Device, Touchpad
NiMH Rachargeable Battery
A/C Adapter, IDP 530
Carrying Case, Soft
Adapter Plug, Europe and Italy
Adapter Plug, Great Britain
1001AA Windows 95/Office 97 Portable, IDP IDP 530 $2,391
530CD Series Notebook
SLIN 1001AA consists of the above
IDP 530CD common features and the
following:
Intel Pantium CPU 1) Intel Pentium 150MHz PGA 1)AB0502CSLM60150
Mobile CPU, 2.9v 2)AB0503166SL239
2) Intel Pentium 166MHz CPU
Display, 12.1* DSTIN IDP NOT0190
Additional SMB RAM (uses two memory Smart Modular
slots-leaves no DIMM slots available
for additional RAM).16MB total system
memory
Hard Drive 1.44GB EIDE 1)Hitachi 1)DK224A-14
2)Toshiba 2)MK-1403MAV
3)IBM 3)DMCA-21440
Microsoft Client License for NT NOS Microsoft 2272075V40VL
Host
Microsoft Exchange Client (Email) Microsoft 381-00465
License
<CAPTION> OY2 OY2 UNIT OY3 OY3 UNIT OY4 OYA4 UNIT
SLIN OY1 PRICE SLIN PRICE SLIN PRICE SLIN PRICE
- -------- ------------ ------------ ------------ ---------- ------------ -------- ----------
<S> <C> <C> <C> <C> <C> <C> <C>
2001AA $2,271 3001AA $2,158 4001AA $2,050 5001AA $1,947
</TABLE>
<PAGE>
97-D-0001
Section B Page 12 of 46
TABLE
PART 1 - THE SCHEDULE, SECTION B - SUPPLIES OR SERVICES AND PRICES/COSTS
DESKTOP V
CLIN 0002, PORTABLE SYSTEM
International Data Products
<TABLE>
<CAPTION>
BASE YEAR
SLIN OFFEROR DESCRIPTION OEM OEM # UNIT PRICE
- ---------------- ----------------------------------------- ---------------------------- ----------------- ---------------
<S> <C> <C> <C> <C>
Windows 95 Operating System S/W, CD
ROM-based Media and Documentation Microsoft SOF0342
InterDrive Client for Windows 95,
Network File Sharing for Windows 95 FTP Software ON-440-SITE-920
Office Professional 97, CD ROM-based
Media & Online Documentation Microsoft 353-00220
Windows NT/Office 97 Portable, IDP
1001AB 530CD Series Notebook IDP 530 $2,391
SLIN 1001AB consists of the above
IDP 530CD common features and the
following:
1) Intel Pentium 150MHz PGA
Mobile CPU, 2.9v 1) AB0502CSLM60150
Intel Pentium CPU 2) Intel Pentium 166MHz CPU 2) AB0503166SL239
Display, 12.1" DSTN IDP NOTO190
Additional 8MB RAM (uses two memory
slots - leaves no DIMM slots available
for additional RAM) 16MB total system
memory Smart Modular SM532013101XSG7
1) Hitachi 1) DK224A-14
2) Toshiba 2) MK-1403MAV
Hard Drive, 1.44GB EIDE 3) IBM 3) DMCA-21440
Microsoft Client License for NT NOS
Host Microsoft 2272075V40VL
Microsoft Exchange Client (E-mail)
License Microsoft 381-00465
Windows NT Workstation 4.0 Operating
System S/W, CD ROM-based Media &
Documentation Microsoft SOF0718
InterDrive NT Client 2.1,
Network File Sharing for
Windows NT FTP Software NT-440-SITE-920
Office Professional 97 S/W, CD ROM-
based Media & On-Line Documentation Microsoft 353-00220
Multiple OEM entries for item
Two versions of the IDP 573 Series means contractor may supply
Modular Notebook, are available for using any of OEM sources/OEM
order as follows: part is listed
<CAPTION>
SLIN OY1 UNIT OY2 OY2 UNIT OY3 OY3 UNIT OY4 OY4 UNIT
OY1 SLIM PRICE SLIM Price SLIM PRICE SLIM PRICE
- ------ -------- -------- ----- -------- ----- --------- ----- ---------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
1001AB 2001AB $2,271 3001AB $2,158 4001AB $2,050 5001AB $1,947
</TABLE>
<PAGE>
97-D-0001
Section B Page 13 of 46
TABLE
PART 1 - THE SCHEDULE, SECTION B - SUPPLIES OR SERVICES AND PRICES/COSTS
DESKTOP V
CLIN 0001 PORTABLE SYSTEM
International Data Products
<TABLE>
<CAPTION>
BASE YEAR
SLIN OFFEROR DESCRIPTION OEM OEM # UNIT PRICE
- ---------------- ----------------------------------------- ---------------------------- ----------------- ---------------
<S> <C> <C> <C> <C>
Features common to all IDP 573
Series Modular Notebooks are:
Motherboard 573, 64-bit PCI Local Bus
Graphics w/2MB video display DRAM,
16MB EDO RAM (on motherboard), PC
Card Type IV slots, 256K sync burst
cache
Floppy Drive, 3.5", Removable
CD ROM Drive, 20X, Removable
Pointing Device, Touchpad
NMH Rechargeable Battery
A/C Adapter, IDP 573
Carrying Case, Soft
Adapter Plug, Europe and Italy
Adapter Plug, Great Britain
1001AH Windows 95/Office 97 Traveler's IDP IDP 573 $3,048
573 Series Modular Notebook
SLIN 1001AH consists of the above
IDP 573 common features and the
following:
Intel Pentium 166MMX CPU Intel A80503166SL239
Display, 12.1" Active Matrix TFT IDP NOT0181
Additional 16MB DIMM Module (uses 1) Smart Modular 1) SM564021319ANWG6
one memory slot - leaves one DIMM slot 2) Advantage 2) 1D16/N573
available for additional RAM). 32MB
total system memory
Hard Drive, 2 1GB EIDE 1) Hitachi 1) DK225A-21
2) Toshiba 2) MK-2103MAV
3) IBM 3) DTNA-22160
Microsoft Client License for NT NOS Microsoft 2272075V40VL
Host
Microsoft Exchange Client (Email) Microsoft 381-00465
License
Windows 95 Operating System S/W, CD Microsoft SOF0342
ROM-based Media and Documentation
InterDrive Client for Windows 95, FTP Software ON-440-SITE-920
Network File Sharing for Windows 95
<CAPTION>
OY1 UNIT OY2 OY2 UNIT OY3 OY3 UNIT OY4 OY4 UNIT
SLIN OY1 SLIN PRICE SLIN PRICE SLIN PRICE SLIN PRICE
- ---------------- ------------ --------------- ------------ ------------- -------------- ------------- ------------ --------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
1001AH 2001AH $2,895 3001AH $2,750 4001AH $2,613 5001AH $2,482
</TABLE>
<PAGE>
-97-D-0001
Section B Page 14 of 46
TABLE
PART 1 - THE SCHEDULE, SECTION B - SUPPLIES OR SERVICES AND PRICES/COSTS
DESKTOP V
CLIN 0001 PORTABLE SYSTEM
International Data Products
<TABLE>
<CAPTION>
BASE YEAR
SLIN OFFEROR DESCRIPTION OEM OEM # UNIT PRICE
- ---------------- ----------------------------------------- ---------------------------- ----------------- ---------------
<S> <C> <C> <C> <C>
Office Professional 97 S/W, CD Romm- Microsoft 353-00220
based Modle & On-Line Documentation
1001AJ Windows 95 Traveler's, NDP 573 Series IDP 573 $2,812
Modular Notebook
Same as SLIN 1001AH but without
Microsoft Office Professional 97
TRAVELER The upgrades below are for SLINs IDP 573
UPGRADES-HARD 1001AH-1001AJ
DRIVES
1001BA Removable Hard Drive Upgrade, FIC 1) Toshiba 1) MK-3003MAN $138
(Factory installed Component), 3.08GB 2) IBM 2) DLGA-23080
(replace base 2.1GB drive with 3.08GB 3) Hitachi 3) DK226A-32
drive)
PORTABLE The upgrades below are for SLINs
UPGRADES-HARD 1001AA-1001AB
DRIVE
1001BB Removable Hard Drive Upgrade, FIC 1) Hitachi 1) DK225A-21 $145
(Factory installed Component), 2.1GB 2) Toshiba 2) MK-2103MAV
(replaces base 1.44GB drive with 2.1GB 3) IBM 3) DTNA-22160
drive)
1001BC Removable Hard Drive Upgrade, FIC 1) Toshiba 1) MK-3003MAN $284
(Factory Installed Component), 3.08GB 2) IBM 2) DLGA-23080
(replaces base 1.44GB drive with 3) Hitachi 3) DK226A-32
3.08GB drive)
TRAVELER The upgrades below are for SLINs
UPGRADES- 1001AH-1001AJ
MEMORY
1001BD Memory,16MB DIMM RAM Add-On 1) Smart Modular 1) SM564021319ANWG6 $150
FIC (Factory Installed Component); 2) Advantage 2) ID16/N573
Adds 16MB to base unit at factory for a
total of 48MB. Uses one DIMM slot
1001BE Memory, 16MB DIMM RAM Add-On, 1) Smart Modular 1) SM564021319ANWG6 $150
UIC (User Installed Component); 2) Advantage
Adds 16MB to base unit.
Uses one DIMM slot
<CAPTION>
OY1 UNIT OY2 OY2 UNIT OY3 OY3 UNIT OY4 OY4 UNIT
SLIN OY1 SLIN PRICE SLIN PRICE SLIN PRICE SLIN PRICE
- ---------------- ------------ --------------- ------------ ------------- -------------- ------------- ------------ --------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
1001AJ 2001AJ $2,672 3001AJ $2,538 4001AJ $2,411 5001AJ $2,291
TRAVELER
UPGRADES-HARD
DRIVES
10018A 2001BA $131 3001BA $125 4001BA $119 5001BA $113
PARTABLE
UPGRADES-HARD
DRIVE
1001BB 2001BB $138 3001BB $131 4001BB $125 5001BB $118
1001BC 2001BC $269 3001BC $256 4001BC $243 5001BC $231
TRAVELER
UPGRADES-
MEMORY
1001BD 2001BD $143 3001BD $135 4001BD $129 5001BD $122
1001BE 2001BE $143 3001BE $135 4001BE $129 5001BE $122
</TABLE>
MODIFICATION Page 12
<PAGE>
P 97-D-0001
TABLE Section B Page 15 of 46
PART I - THE SCHEDULE, SECTION B - SUPPLIES OR SERVICES AND PRICES/COSTS
DESKTOP V
CLIN 0001 PORTABLE SYSTEM
International Data Products
<TABLE>
<CAPTION>
BASE YEAR
SLIN OFFEROR DESCRIPTION OEM OEM # UNIT PRICE
- ---------------- ----------------------------------------- ---------------------------- ----------------- ---------------
<S> <C> <C> <C> <C>
PORTABLE The upgrades below are for SLINs
UPGRADES - 1001AA - 1001AB
MEMORY
1001BF Memory, Additional SMB RAM for a Smart Modular SM564021319ANWG6 $91
total of 24MB, FI (Factory Installed
Component); One (1) 16MB DIMM
module replaces two (2) 4MB DIMMs in
SLINs 1001AA - 1001AB
1001BG Memory, Additional 24M RAM for a Smart Modular SM564021319ANWG6 $274
total of 40MB, FI (Factory Installed
Component); Two (2) 16MB DIMM
modules replace two (2) 4MB DIMMs in
SLINs 1001AA - 1001AB
PORTABLE The upgrade below is for SLINs
UPGRADES - 1001AA - 1001AB
DISPLAY
1001BH Upgrade Screen to 12.1 Active Metrix IDP NOT0172 $497
Screen from 12.1 Dual Scan FIC
ACCESSORIES
1001CA Hard Carrying Case (for notebook only) IDP NP-3000AF $68
1001CB Battery, NIMH Rechargeable for IDP IDP DR36AZS35 $85
573 Series Notebook (for SLINs 1001AH
- 1001AJ)
1001CC Battery, NIMH Rechargeable for ID IDP PWR0079 $66
530 Series Notebook (for SLINs 1001AA
- 1001AB)
PERIPHERALS The peripherals below are for all IDs
CLIN 0001 systems. (Note SLIN
1001DA and 1001DB are for purchase of
additional primary hard drives. Only one
primary drive may be installed in the
notebook at a time.
1001DA Additional 2.1GB Primary Removable 1) Hitachi 1)DK225A-21
HDD (interchangeable with base drive ) - 2) Toshiba 2)MK-2103MAV
FIC (Factory Installed Component) 3) IBM 3)DTNA-22160 $423
<CAPTION>
OY1 UNIT OY2 OY2 UNIT OY3 OY3 UNIT OY4 OY4 UNIT
SLIN OY1 SLIN PRICE SLIN PRICE SLIN PRICE SLIN PRICE
- ---------------- ------------ --------------- ------------ ------------- -------------- ------------- ------------ --------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
PORTABLE
UPGRADES -
MEMORY
1001BF 2001BF $87 3001BF $83 4001BF $78 5001BF $75
1001BG 2001BG $261 3001BG $248 4001BG $235 5001BG $224
PORTABLE
UPGRADES -
DISPLAY
1001BH 2001BH $472 3001BH $449 4001BH $426 5001BH $405
ACCESSORIES
1001CA 2001CA $65 3001CA $61 4001CA $58 5001CA $55
1001CB 2001CB $81 3001CB $77 4001CB $73 5001CB $70
1001CC 2001CC $63 3001CC $60 4001CC $57 5001CC $54
PERIPHERALS
1001DA 2001DA $402 3001DA $382 4001DA $363 5001DA $344
</TABLE>
MODIFICATION P00012
<PAGE>
-97-0001
Section B Page 16 of 46
TABLE
PART 1 - THE SCHEDULE, SECTION B - SUPPLIES OR SERVICES AND PRICES/COSTS
DESKTOP V
CLIN 0001 PORTABLE SYSTEM
International Data Products
<TABLE>
<CAPTION>
BASE YEAR
SLIN OFFEROR DESCRIPTION OEM OEM # UNIT PRICE
- ---------------- ----------------------------------------- ---------------------------- ----------------- ---------------
<S> <C> <C> <C> <C>
1001DB Additional 3.08GB Primary Removable HDD 1) Toshiba 1) MK-3003MAN $615
(interchangeable with base drive) - FIC 2) IBM 2) DLGA-23080
(Factory Installed Component) 3) Hitachi 3) DK226A-32
1001DE Monitor, 15" Color - up to 1280x 1024 1) IDP 56w $270
2) Goldstar 56i
1001DF Win95 Enhanced Keyboard IDP E06101D-C $11
1001DG Serial Mouse, 2 button IDP S7F-24-9B1 $6
1001DK RESERVED RESERVED RESERVED
1001DM (2) Speakers, 8 Watts 1) JBL 1) MEDIA2V2 $48
2) JBL 2) Media 100
1001DN Backup Storage Device, Seagate 3.2GB Seagate STT63200P-R $223
External TapeStor Travan with 2
cartridges - FIC (Factory Installed
Component
PCMCIA CARDS
The PCMCIA cards below are for all
IDP's CLIN 0001 systems.
1001DP PCMCIA Hard Drive, 260MB Type III Calluna CT260MC $271
1001DQ PCMCIA, Fax/Modem 33.6Kbps Smart Modular 011-20843 $128
1001DR PCMCIA, Ethernet Combo - 10Mbps SMC 8020BT $91
1001DS PCMCIA, SCSI Adapter - NewMedia New Media NMC00505 $108
BusToester with SCSI - 2 cables
1001DT PCMCIA, Network Adapter 3COM 3C589D-COMBO $184
1001DU Docking Station with Network IDP NOT0118 $317
Interface Card, For use with SLINs
1001AA - 1001AB ONLY
1001DV External Hard Drive for Docking Seagate ST52160N $405
Station, 2.1GB SCSI Hard Drive
Includes New Media PCMCIA SCSI II
Host Adapter, and External Case, for
use with SLIN 1001DU
1001DW PCMCIA FLASH MEMORY IDP APATAFLS04 $87
SOFTWARE
<CAPTION>
OY1 OY1 OY2 OY2 UNIT OY3 OY3 UNIT OY4 OY4 UNIT
SLIN SLIN PRICE SLIN PRICE SLIN PRICE SLIN PRICE
- ---------------- ------------ --------------- ------------ ------------- -------------- ------------- ------------ --------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
1001DB 2001DB $584 3001DB $555 4001DB $527 5001DB $501
1001DE 2001DE $257 3001DE $244 4001DE $232 5001DE $220
1001DF 2001DF $11 3001DF $10 4001DF $10 5001DF $9
1001DG 2001DG $6 3001DG $6 4001DG $5 5001DG $5
1001DK 2001DK 3001DK 4001DK 5001DK
1001DM 2001DM $45 3001DM $43 4001DM $41 5001DM $39
1001DN 2001DN $212 3001DN $201 4001DN $191 5001DN $182
PCMCIA CARDS
1001DP 2001DP $258 3001DP $245 4001DP $233 5001DP $221
1001DQ 2001DQ $122 3001DQ $116 4001DQ $110 5001DQ $104
1001DR 2001DR $87 3001DR $83 4001DR $78 5001DR $75
1001DS 2001DS $102 3001DS $97 4001DS $92 5001DS $88
1001DT 2001DT $175 3001DT $166 4001DT $158 5001DT $150
1001DU 2001DU $301 3001DU $286 4001DU $272 5001DU $258
1001DV 2001DV $384 3001DV $365 4001DV $347 5001DV $330
1001DW 2001DW $83 3001DW $79 4001DW $75 5001DW $71
</TABLE>
<PAGE>
97-D-0001
Section B Page 17 of 46
TABLE
PART 1 - THE SCHEDULE, SECTION B - SUPPLIES OR SERVICES AND PRICES/COSTS
DESKTOP V
CLIN 0001 PORTABLE SYSTEM
International Data Products
<TABLE>
<CAPTION>
BASE YEAR
SLIN OFFEROR DESCRIPTION OEM OEM # UNIT PRICE
- ------------------ ------------------------------------ ------------------------ --------------------- -------------------
<S> <C> <C> <C> <C>
1001FA Office Professional 97, License Only Microsoft 353-00220 $210
1001FB Office Professional 97, License and CD Microsoft 353-00220 $217
ROM-based Media & On-Line
Documentation
1001FG Windows NT Workstation v4.0, Microsoft (Select SOF0718, NT-440-SITE- $206
InterdriveNT Operating System S/W; Distribution), 920
License Only FTP Software
1001FH Windows NT Workstation v4.0, Microsoft (Select SOF0718, NT-440-SHR $230
Interdrive NT Operating System S/W; Distribution)
License with CD ROM-based Media & FTP Software
Documentation
1001FK Windows 95, Interdrive 95 Operating Microsoft (Select SOF0342, ON-440-SITE- $168
System License Only Distribution) 920
FTP Software
1001FL Windows 95, Interdrive 95 Operating Microsoft (Select SOF0342, ON-440-SHR $187
System; License and CD ROM-based Distribution),
Media & Documentation FTP Software
1001FP X-Terminal 95 Emulation S/W License FTP Software EX32-SITE-920; EX32- $17
with Documentation 700
1001FQ X-Terminal 95 Emulation S/W License FTP Software EX32-SITE-920 $4
Only
1001FR X-Terminal 95 Emulation S/W License, FTP Software EX32-SITE-920; EX32- $19
Media and Documentation 210; EX32-700
1001FS X-Terminal 95 Emulation S/W License, FTP Software EX32-SITE-920; EX32- $10
Media without Documentation 210
1001FT NOS Applications Client S/W; Tally Systems CYUS-PX $17
Conergy (Client) License with
Documentation
1001FU NOS Applications Client S/W; Tally Systems CYUS-PX $17
Conergy (Client) License without
Documentation
1001FV NOS Applications Client S/W; Tally Systems CYUS-PX $17
Conergy (Client) License, Media &
Documentation
1001FW NOS Applications Client S/W; Tally Systems CYUS-PX $17
Conergy (Client) License and Media
without Documentation
<CAPTION>
OY1 OY1 UNIT OY2 OY2 UNIT OY3 OY3 UNIT OY4 OY4 UNIT
SLIN SLIN PRICE SLIN PRICE SLIN PRICE SLIN PRICE
- --------------- ------------ ------------- ---------- ------------- ---------- -------------- ---------- ---------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
1001FA 2001FA $200 3001FA $190 4001FA $180 5001FA $171
1001FB 2001FB $206 3001FB $195 4001FB $186 5001FB $176
1001FG 2001FG $196 3001FG $186 4001FG $177 5001FG $168
1001FH 2001FH $218 3001FH $207 4001FH $197 5001FH $187
1001FK 2001FK $159 3001FK $151 4001FK $144 5001FK $137
1001FL 2001FL $178 3001FL $169 4001FL $160 5001FL $152
1001FP 2001FP $16 3001FP $16 4001FP $15 5001FP $14
1001FQ 2001FQ $4 3001FQ $4 4001FQ $3 5001FQ $3
1001FR 2001FR $18 3001FR $17 4001FR $17 5001FR $16
1001FS 2001FS $10 3001FS $9 4001FS $9 5001FS $8
1001FT 2001FT $16 3001FT $16 4001FT $15 5001FT $14
1001FU 2001FU $16 3001FU $16 4001FU $15 5001FU $14
1001FV 2001FV $16 3001FV $16 4001FV $15 5001FV $14
1001FW 2001FW $16 3001FW $16 4001FW $15 5001FW $14
</TABLE>
<PAGE>
97-D-0001
Section B Page 18 of 46
TABLE
PART 1 - THE SCHEDULE, SECTION B - SUPPLIES OR SERVICES AND PRICES/COSTS
DESKTOP V
CLIN 0002 DESKTOP SYSTEM
International Data Products
<TABLE>
<CAPTION>
BASE YEAR
SLIN OFFEROR DESCRIPTION OEM OEM # UNIT PRICE
- ---------------- ----------------------------------------- ---------------------------- ----------------- ---------------
<S> <C> <C> <C> <C>
DESKTOP OA Seven upgradeable Mid-Tower system Multiple OEM entries for
COMPUTERS SLINs available summarized as follows: item means contractor may
supply using any of OEM
Sources OEM part #s listed
Features common to all above IDP 500
Series are as follows:
Motherboard, Intel TC430vx Chipsel
512K piplined burst cache, 2 serial
ports, 1 parallel port, 2 USB
connectors, up to 4 EIDE devices,
4PCI/31SA bus slots (1 shared leaving
six usable slots), 4 memory SIMM slots ECS P5VS-Be
Floppy Drive (3.5"), 1.44MB 1) Sony 1) MPF-920
2) Alps 2) DF334H911A
3) Teac 3) FD-235HF
PCI Network Adapter 10 Base T/10 Base 2, SMC 8432BTA
w/RJ45, BNC AUI connectors
PC Card Reader (PCMCIA) Front 1) SCM 1) SBI-D2P
Accessible 2) Greystone 2) GS-320
Windows 95 Keyboard IDP E06101D-C
Serial Mouse, 2 button IDP S7F-24-9B1
32 bit PCI Wavetable Sound Card Ensoniq S-5016
Microphone QuickShot W5838
(2) Speakers, 8 watts 1) JBL 1) Media 2V2
2) JBL 2) Media 100
CD ROM, 24x IDE 1) Goldstar 1) CRD-8240B
2) Toshiba 2) XM-6102B
Microsoft Client License for NT NOS Host Microsoft 2272075V40VL
Microsoft Exchange Client (Email) S/W Microsoft 381-00465
& License
Adapter Plug, Europe and Italy IDP NW-1WPHS
Adapter Plug, Great Britain IDP NW-5WPHS
The following resources remain
available in all above IDP systems: 2
memory SIMM slots, 2 EIDE ports, 2
PCMCIA slots, 1 serial port, 1
parallel port, UDB port
<CAPTION>
OY1 UNIT OY2 OY2 UNIT OY3 OY3 UNIT OY4 OY4 UNIT
SLIN OY1 SLIN PRICE SLIN PRICE SLIN PRICE SLIN PRICE
- ---------------- ------------ --------------- ------------ ------------- -------------- ------------- ------------ --------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
DESKTOP OA
COMPUTERS
</TABLE>
<PAGE>
TABLE
PART 1 - THE SCHEDULE, SECTION B - SUPPLIES OR SERVICES AND PRICES/COSTS
DESKTOP V
CLIN 0002 DESKTOP SYSTEM 97-D-0001
International Date Products Section B Page 19 of 46
<TABLE>
<CAPTION>
BASE YEAR
SLIN OFFEROR DESCRIPTION OEM OEM # UNIT PRICE
- ---------------- ----------------------------------------- ---------------------------- ----------------- ---------------
<S> <C> <C> <C> <C>
1002AA IDP 500 Series System - Windows IDP 500 $2,142
95/Office 97
Intel Pentium 200MMX Processor, 16MB
RAM, 2 5GB EIDE Hard Drive
SLIN 1002AA consists of the above IDP
500 Series common features and
available resources plus following:
CPU, Intel Pentium 200MMX Processor Intel FV8050366200
Memory, 2x 8MB EDO DRAM SIMMs (total 1) Smart Modular 1)SM532023081X4S6
16MB RAM) 2) Advantage 2)E232-1X16-60T
Hard Drive, 3 1GB EIDE 1) Western Digital 1) WDC-AC33100
2) Seagate 2) ST33240A
3) IBM 3) DAQA-33240
Monitor, 15" Color - up to 1280x1024 1) IDP 1) 56w
2) Goldstar 2) 56i
Video Adapter, 64-bit with 2MB DRAM 1) Diamond 1) STV2520P-OEM
2) ATI 2) VideoBoost
Windows 95 Operating System S/W, CD Microsoft SOF0342
ROM-based Media & Documentation
InterDrive 95, Network FTP Software ON-440-SITE-920
File Sharing for Windows 95
Office Professional 97 S/W, CD Microsoft 353-00220
ROM-based Media & On-Line Documentation
1002AB IDP 500 Series System - Windows 95 IDP 500 $1,885
Intel Pentium 200MMX Processor, 16 MB
RAM, 2.5GB EIDE Hard Drive
CPU, Intel Pentium 200MMX Processor Intel FV8050366200
Memory, 2x 8MB EDO DRAM SIMMs (total 1) Smart Modular 1)SM532023081X4S6
16MB RAM) 2) Advantage 2)E232-1X16-60T
Hard Drive, 3.1GB EIDE 1) Western Digital 1) WDC-AC33100
2) Seagate 2) ST33240A
3) IBM 3) DAQA-33240
Monitor, 15" Color - up to 1280x1024 1) IDP 1) 56w
2) Goldstar 2) 56i
Video Adapter, 64-bit with 2 MB DRAM 1) Diamond 1)STV2520P-OEM
2) ATI 2) VideoBoost
Windows 95 Operating System S/W, CD
ROM-based Media & Documentation Microsoft SOF0342
InterDrive Client for Windows 95, FTP Software ON-440-SITE-920
Network File Sharing for Windows 95
<CAPTION>
OY1 UNIT OY2 OY2 UNIT OY3 OY3 UNIT OY4 OY4 UNIT
SLIN OY1 SLIN PRICE SLIN PRICE SLIN PRICE SLIN PRICE
- ---------------- ------------ --------------- ------------ ------------- ------- -------- ------ ------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
1002AA 2002AA $2,035 3002AA $1,933 4002AA $1,836 5002AA $1,744
1002AB 2002AB $1790 3002AB $1701 4002AB $1616 5002AB $1535
</TABLE>
<PAGE>
-97-D-0001
Section B Page 20 of 46
TABLE
PART I - THE SCHEDULE, SECTION B - SUPPLIES OR SERVICES AND PRICES/COSTS
DESKTOP V
CLIN 0002 DESKTOP SYSTEM
International Data Products
<TABLE>
<CAPTION>
BASE YEAR
SLIN OFFEROR DESCRIPTION OEM OEM # UNIT PRICE
- ---------------- ----------------------------------------- ---------------------------- ----------------- ---------------
<S> <C> <C> <C> <C>
1002AC IDP 500 Series System - Windows
95/Office 97
Intel Pentium 200MMX Processor, 32MB
RAM, 3.1GB Hard Drive IDP 500 $1,999
SLIN 1002AC consists of the above IDP
500 Series common features and
available resources plus following:
CPU, Intel Pentium 200MMX Processor Intel FV8050366200
Memory, 2x 16MB EDO DRAM SIMMs 1) Smart Modular 1) SM53204482X3S7
(total 32MB RAM) 2) Advantage 2) E432-4X4-60T
Hard Drive, 3.1GB EIDE 1) Western Digital 1) WDC-AC33100
2) Seagate 2) ST33240A
3) IBM 3) DAQA-33240
Monitor, 17" Color, up to 1280x1024 1) IDP 1) 76w
2) Goldstar 2) 76i
3) Goldstar 3) 77i
Video Adapter, 64-bit with 2 MB DRAM 1) Diamond 1) STV2520P-OEM
2) ATI 2) VideoBoost
Windows 95 Operating System S/W, CD Microsoft SOF0342
ROM-based Media & Documentation
InterDrive Client for Windows 95, FTP Software ON-440-SITE-920
Network File Sharing for Windows 95
Office Professional 97 S/W, CD ROM- Microsoft 353-00220
based Media & On-Line Documentation
1002AD IDP 500 Series System - Windows IDP 500 $1,999
NT/Office 97
Intel Pentium 200MMX Processor, 32MB
RAM, 3.1GB Hard Drive
SLIN 1002AD consists of the above IDP
500 Series common features and
available resources plus following:
CPU, Intel Pentium 200MMX Processor Intel FV8050366200
Memory, 2x 16MB EDO DRAM SIMMs 1) Smart Modular 1)SM53204482X3S7
(total 32MB RAM) 2) Advantage 2) E432-4X4-60T
Hard Drive, 3.1GB EIDE 1) Western Digital 1) WDC-AC33100
2) Seagate 2) ST33240A
3) IBM 3) DAQA-33240
Monitor, 17" Color - up to 1280x1024 1) IDP 1) 76w
2) Goldstar 2) 76i
3) Goldstar 3) 77i
<CAPTION>
OY1 UNIT OY2 OY2 UNIT OY3 OY3 UNIT OY4 OY4 UNIT
SLIN OY1 SLIN PRICE SLIN PRICE SLIN PRICE SLIN PRICE
- ---------------- ------------ --------------- ------------ ------------- -------------- ------------- ------------ --------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
1002AC 2002AC $1,899 3002AC $1,804 4002AC $1,714 5002AC $1,628
1002AD 2002AD $1,899 3002AD $1,804 4002AD $1,714 5002AD $1,628
</TABLE>
<PAGE>
97-D-0001
Section B Page 21 of 46
TABLE
PART 1 - THE SCHEDULE, SECTION B - SUPPLIES OR SERVICES AND PRICES/COSTS
DESKTOP V
CLIN 0002 DESKTOP SYSTEM
International Data Products
<TABLE>
<CAPTION>
BASE YEAR
SLIN OFFEROR DESCRIPTION OEM OEM # UNIT PRICE
- ------------------ ------------------------------------ ------------------------ --------------------- -------------------
<S> <C> <C> <C> <C>
Video Adapter, 64-bit with 2 MB DRAM 1) Diamond 1) STV2520P-OEM
2) ATI 2) VideoBoost
Windows NT Workstation 4.0 Operating Microsoft SOF0718
System S/W, CD ROM-based Media &
Documentation
InterDrive NT Client 2.1, Network File FTP Software NT-440-SITE-920
Sharing for Windows NT
Office Professional 97 S/W, CD ROM- Microsoft 353-00220
based Media & On-Line Documentation
1002AE IDP 500 Series System - Windows IDP 500 $2,945
95/Office 97 Intel
Pentium 233MMX Processor, 32 MB
Ram, 3.1GB Hard Drive
SLIN 1002AE consists of the above IDP
500 Series common features and
available resources plus following:
CPU, Intel Pentium 233MMX Processor Intel FV8050366233
Memory, 2x 16MB EDO DRAM SIMMs 1) Smart Modular 1)SM53204482X3S7
(total 32MB RAM) 2) Advantage 2) E432-4X4-60T
Hard Drive, 3.1GB EIDE 1) Western Digital 1) WDC-AC33100
2) Seagate 2) ST33240A
3) IBM 3) DAQA-33240
Monitor, 17" Color - up to 1280x1024 1) IDP 1) 76w
2) Goldstar 2) 76i
3) Goldstar 3) 77i
64-bit PCI Video Adapter w/4MB DRAM DIAMOND ST3D-P2400OEM
Windows 95 Operating System S/W, CD Microsoft SOF0342
ROM-based Media & Documentation
InterDrive Client for Windows 95,
Network File Sharing for Windows 95 FTP Software ON-440-SITE-920
Office Professional 97 S/W, CD ROM-
based Media & On-Line Documentation Microsoft 353-00220
IDP 500 Series System - Windows IDP 500 $2,945
NT/Office 97 Intel
Pentium 233MMX Processor, 32 MB
1002AF Ram, 3.1GB Hard Drive
SLIN 1002AF consists of the above IDP
500 Series common features and
available resources plus following:
CPU, Intel Pentium 233MMX Processor Intel FV8050366233
<CAPTION>
OY1 OY1 UNIT OY2 OY2 UNIT OY3 OY3 UNIT OY4 OY4 UNIT
SLIN SLIN PRICE SLIN PRICE SLIN PRICE SLIN PRICE
- --------------- ------------ ------------- ---------- ------------- ---------- -------------- ---------- ---------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
1002AE 2002AE $2,798 3002AE $2,658 4002AE $2,525 5002AE $2,399
1002AF 2002AF $2,798 3002AF $2,658 4002AF $2,525 5002AF $2,399
</TABLE>
<PAGE>
TABLE
PART I - THE SCHEDULE, SECTION B - SUPPLIES OR SERVICES AND PRICES/COSTS
DESKTOP V
CLIN 0002 DESKTOP SYSTEM 97-D-0001
International Data Products Section B Page 22 of 46
<TABLE>
<CAPTION>
BASE YEAR
SLIN OFFEROR DESCRIPTION OEM OEM # UNIT PRICE
- ---------------- -------------------------------------- -------------------------- ----------------- ---------------
<S> <C> <C> <C> <C>
Memory, 2x 16MB EDO DRAM SIMMs 1) Smart Modular 1) SM53204482X3S7
(total 32MB RAM) 2) Advantage 2) E432-4X4-60T
Hard Drive, 3.1GB EIDE 1) Western Digital 1) WDC-AC33100
2) Seagate 2) ST33240A
3) IBM 3) DAQA-33240
Monitor, 17" Color, up to 1280x1024 1) IDP 1) 76w
2) Goldstar 2) 76I
3) Goldstar 3) 77I
64-bit PCI Video Adapter w/4MB DRAM DIAMOND ST3D-P2400OEM
Windows NT Workstation 4.0 Operating Microsoft SOF0718
System S/W, CD ROM-based Media &
Documentation
InterDrive NT Client 2.1, Network File FTP Software NT-440-SITE-920
Sharing for Windows NT
Office Professional 97 S/W, CD ROM- Microsoft 353-00220
based Microsoft Media & On-Line
Documentation
1002AG IDP 500 Series System - Windows IDP 500 $3,156
95/Office 97 with Scanner & Imaging
Software,
Intel Pentium 233MMX Processor, 32 MB
Ram, 3.1GB Hard Drive
SLIN 1002AG consists of the above IDP
500 Series common features and
available resources plus following:
CPU, Intel Pentium 233MMX Processor Intel FV8050366233
Memory, 2x 16MB EDO DRAM SIMMs 1) Smart Modular 1) SM53204482X3S7
(total 32MB RAM) 2) Advantage 2) E432-4X4-60T
Hard Drive, 3.1GB EIDE 1) Western Digital 1) WDC-AC33100
2) Seagate 2) ST33240A
3) IBM 3) DAQA-33240
Monitor, 17" Color - up to 1280 x 1024 1) IDP 1) 76w
2) Goldstar 2) 76i
3) Goldstar 3) 77i
64-bit PCI Video Adapter w/4MB DRAM DIAMOND ST3D-P2400OEM
Windows 95 Operating System S/W, CD Microsoft SOF0342
ROM-based Media & Documentation
InterDrive Client for Windows 95, FTP Software ON-440-SITE-920
Network File Sharing for Windows 95
Office Professional 97 S/W, CD ROM- Microsoft 353-00220
based Media & On-Line Documentation
Personal Color Scanner Kodak 1003912
Imaging Software for Scanner Eastman IMAGINGPRO-GM
<CAPTION>
OY1 UNIT OY2 OY2 UNIT OY3 OY3 UNIT OY4 OY4 UNIT
SLIN OY1 SLIN PRICE SLIN PRICE SLIN PRICE SLIN PRICE
- ---------------- ------------ --------------- ------------ ------------- -------------- ------------- ------------ --------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
1002AG 2002AG $2,998 3002AG $2,848 4002AG $2,706 5002AG $2,571
</TABLE>
<PAGE>
0-97-D-0001
Section B Page 23 of 46
TABLE
PART 1 - THE SCHEDULE, SECTION B - SUPPLIES OR SERVICES AND PRICES/COSTS
DESKTOP V
CLIN 0002 DESKTOP SYSTEM
International Data Products
<TABLE>
<CAPTION>
BASE YEAR
SLIN OFFEROR DESCRIPTION OEM OEM # UNIT PRICE
- ---------------- ----------------------------------------- ---------------------------- ----------------- ---------------
<S> <C> <C> <C> <C>
UPGRADES-
MEMORY
1002BA Memory, 16MB RAM Add-On (2x16MB EDO Smart Modular SM53204482X3S7 $82
DRAM SIMMs replaces 2 8MB SIMMs): FIC
(Factory Installed Component) for
SLINs 1002AA - 1002AB; Adds 16MB of
memory to system at factory
1002BB Memory, 16MB RAM Add-On (2x8MB EDO 1) Smart Modular 1) SM532023081X4S6 $83
DRAM SIMMs): UIC (User Installed 2) Advantage 2) E232-1X16-60T
Component) for SLINs 1002AA - 1002AG
1002BC Memory, 16MB RAM Add-On (2x8MB EDO 1) Smart Modular 1) SM532023081X4S6 $83
DRAM SIMMs): FIC (Factory Installed 2) Advantage 2) E232-1X16-60T
Component) for SLINs 1002AC - 1002AG:
Adds 16MB of memory to system at
factory
1002BD Memory, 16MB RAM Add-On (2x8MB EDO 1) Smart Modular 1) SM532023081X4S6 $83
DRAM SIMMs): UIC (User Installed 2) Advantage 2) E232-1X16-60T
Component) for SLINs 1002AC - 1002AG
1002BE Memory, 32MB RAM Add-On (2x16MB EDO 1) Smart Modular 1) SM53204482X3S7 $136
DRAM SIMMs): FIC (Factory Installed 2) Advantage 2) E432-4X4-60T
Component) for SLINs 1002AA - 1002AG;
Adds 32MB of memory to system at
factory
1002BF Memory, 32MB RAM Add-On (2x16MB EDO 1) Smart Modular 1) SM53204482X3S7 $136
DRAM SIMMs): UIC (User Installed 2) Advantage 2) E432-4X4-60T
Component) for all SLINs 1002AA -
1002AG
1002BG Memory, 64MB RAM Add-On (2x32MB EDO 1) Smart Modular 1) SM532084082X3S6 $295
DRAM SIMMs): FIC (Factory Installed 2) Advantage 2) E832-4X4-60T
Component) for SLINs 1002AA - 1002AG:
Adds 64MB of memory to system at
factory
1002BH Memory, 64MB RAM Add-On (2x32MB EDO 1) Smart Modular 1) SM532084082X3S6 $295
DRAM SIMMs): UIC (User Installed 2) Advantage 2) E832-4X4-60T
Component) for all SLINs 1002AA -
1002AG
<CAPTION>
OY1 UNIT OY2 OY2 UNIT OY3 OY3 UNIT OY4 OY4 UNIT
SLIN OY1 SLIN PRICE SLIN PRICE SLIN PRICE SLIN PRICE
- ---------------- ------------ --------------- ------------ ------------- -------------- ------------- ------------ --------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
UPGRADES-
MEMORY
1002BA 2002BA $78 3002BA $74 4002BA $70 5002BA $67
1002BB 2002BB $79 3002BB $75 4002BB $71 5002BB $68
1002BC 2002BC $79 3002BC $75 4002BC $71 5002BC $68
1002BD 2002BD $79 3002BD $75 4002BD $71 5002BD $68
1002BE 2002BE $129 3002BE $123 4002BE $117 5002BE $111
1002BF 2002BF $129 3002BF $123 4002BF $117 5002BF $111
1002BG 2002BG $280 3002BG $266 4002BG $253 5002BG $240
1002BH 2002BH $280 3002BH $266 4002BH $253 5002BH $240
</TABLE>
<PAGE>
97-D-0001
Section B Page 24 of 46
TABLE
PART 1 - THE SCHEDULE, SECTION B - SUPPLIES OR SERVICES AND PRICES/COSTS
DESKTOP V
CLIN 0002 DESKTOP SYSTEM
International Data Products
<TABLE>
<CAPTION>
BASE YEAR
SLIN OFFEROR DESCRIPTION OEM OEM # UNIT PRICE
- ---------------- ----------------------------------------- ---------------------------- -------------------- ---------------
<S> <C> <C> <C> <C>
1002BJ Memory, 96MB RAM Add-On (4x32MB EDO 1) Smart Modular 1) SM532084082X3S6 $550
DRAM SIMMs exchange for 2x16MB Base 2) Advantage 2) E832-4X4-60T
Memory; total memory with FIC (Factory
Installed Component) = 128MB): FIC
(Factory Installed Components) for all
SLINs 1002AC - 1002AG
1002BK Memory, 112MB RAM Add-On (4x32MB EDO 1) Smart Modular 1) SM532084082X3S6 $600
DRAM SIMMs exchange for 2x 8MB Base 2) Advantage 2) E832-4X4-605
Memory; total memory with FIC (Factory
Installed Component) = 128MB): FIC
(Factory Installed Components) for all
SLINs 1002AA - 1002AB
UPGRADES-
PROCESSOR
1002BL Procesor, Pentium 233MMX, UIC (User Intel FV8050366233 $398
Installed Component); User Upgrade for
SLINs 1002AA - 1002AD to Pentium 233MMX
1002BM Processor, Pentium 233MMX, FIC Intel FV8050366233 $159
(Factory Installed Component): Factory
Upgrade for SLINs 1002AA - 1002AD to
Pentium 233MMX
1002BN RESERVED
UPGRADES-HARD
DRIVES
1002BQ Base Hard Drive Upgrade to 4.0GB EIDE; 1) Western Digital 1) WDC-AC34000 $90
FIC (Factory Installed Component) for 2) Seagate 2) ST34342A
SLINS 1002AA - 1002AG (replaces base
3.1GB HDD with 4.0GB HDD)
1002BR 2nd Hard Drive, 4.0GB EIDE; FIC 1) Western Digital 1) WDC-AC34000 $356
(Factory Installed Component) - Adds 2) Seagate 2) ST34342A
4.0GB EIDE Hard Drive at factory as
2nd Hard Drive for SLINs 1002AA -
1002AG
1002BS 2nd Hard Drive, 4.0GB EIDE; UIC (User 1) Western Digital 1) WDC-AC34000 $356
Installed Component) - Adds 4.0GB EIDE 2) Seagate 2) ST34342A
Hard Drive as 2nd Hard Drive for SLINs
1002AA - 1002AG
<CAPTION>
OY1 UNIT OY2 OY2 UNIT OY3 OY3 UNIT OY4 OY4 UNIT
SLIN OY1 SLIN PRICE SLIN PRICE SLIN PRICE SLIN PRICE
- ---------------- ------------ --------------- ------------ ------------- -------------- ------------- ------------ --------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
1002BJ 2002BJ $523 3002BJ $496 4002BJ $472 5002BJ $448
1002BK 2002BI $570 3002BI $542 4002BI $514 5002BI $489
UPGRADES-
PROCESSOR
1002BL 2002BO $378 3002BO $359 4002BO $341 5002BO $324
1002BM 2002BM $151 3002BM $144 4002BM $137 5002BM $130
1002BN
UPGRADES-HARD
DRIVES
1002BQ 2002BQ $85 3002BQ $81 4002BQ $77 5002BQ $73
1002BR 2002BR $338 3002BR $321 4002BR $305 5002BR $290
1002BS 2002BS $338 3002BS $321 4002BS $305 5002BS $290
</TABLE>
<PAGE>
97-D-0001
TABLE Section B Page 25 of 46
PART 1 - THE SCHEDULE, SECTION B - SUPPLIES OR SERVICES AND PRICES/COSTS
DESKTOP V
CLIN 0002 DESKTOP SYSTEM
International Data Products
<TABLE>
<CAPTION>
BASE YEAR
SLIN OFFEROR DESCRIPTION OEM OEM # UNIT PRICE
- ---------------- ----------------------------------------- ---------------------------- ----------------- ---------------
<S> <C> <C> <C> <C>
1002BT 2nd Hard Drive, 3.1GB EIDE; FIC 1) Western Digital 1) WDC-AC33100 $259
(Factory Installed Lcomponent) - Adds 2) Seagate 2) ST33240A
3.1GB EIDE hard Drive as 2nd Hard Drive 3) IBM 3) DAQA-33240
for SLINs 1002AA - 1002AG at factory
1002BU 2nd Hard Drive, 3.1GB EIDE; UIC (User 1) Western Digital 1) WDC-AC33100 $259
Installed Component) - Adds 3.1GB EIDE 2) Seagate 2) ST33240A
Hard Drive as 2nd Hard Drive for SLINs 3) IBM 3) DAQA-33240
1002AA - 1002AG
1002BV Removable Carrier for EIDE HDD: Mobile Rack RH-10C $52
consumes 5.25" bay; ordered with CLIN 2
IDP systems results in base hard drive
being installed at factory as removable
drive. If ordered with SLINs 1002BQ -
1002BT, second drive will be installed at
factory as removable HDD.
ACCESSORIES
1002BW Monitor 17" UIC (User Installed 1) IDP 1) 76w $456
Component) 2) Goldstar 2) 76i
3) Goldstar 3) 77i
1002BX Monitor 17" FIC (Factory Installed 1) IDP 1) 76w $211
Component) - Replaces 15" Monitor for 2) Goldstar 2) 76i
SLINs 1002AA - 1002AB 3) Goldstar 3) 77i
1002BY RESERVED
1002BZ RESERVED
UPGRADES-
VIDEO
1002CA Interface Video - FIC (Factory Installed Diamond ST11S220-BLK $77
Component); Diamond Stealth II S220
4MB SGRAM PCI Video Adapter.
Replaces Diamond 2MB DRAM at factory
for SLINs 1002AA - 1002AD
1002CB Interface Video - FIC (Factory Installed Diamond ST11S220-BLK $36
Component); Diamond Stealth II S220
4MB SGRAM PCI Video Adapter.
Replaces Diamond 3D 4MB DRAM at factory
for SLINs 1002AE - 1002AG
1002CC Interface Video - UIC (User Installed Diamond ST11S220-BLK $115
Component); Diamond SteaLth II S220
4MB SGRAM PCI Video Adapter
PERIPHERALS
<CAPTION>
OY1 UNIT OY2 OY2 UNIT OY3 OY3 UNIT OY4 OY4 UNIT
SLIN OY1 SLIN PRICE SLIN PRICE SLIN PRICE SLIN PRICE
- ---------------- ------------ --------------- ------------ ------------- -------------- ------------- ------------ --------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
1002BT 2002BT $246 3002BT $234 4002BT $222 5002BT $211
1002BU 2002BU $246 3002BU $234 4002BU $222 5002BU $211
1002BV 2002BV $ 49 3002BV $ 47 4002BV $ 44 5002BV $ 42
1002BW 2002BW $434 3002BW $412 4002BW $391 5002BW $372
1002BX 2002BX $201 3002BX $191 4002BX $181 5002BX $172
1002CA 2002CA $ 73 3002CA $ 69 4002CA $ 66 5002CA $ 63
1002CB 2002CB $ 34 3002CB $ 32 4002CB $ 31 5002CB $ 29
1002CC 2002CC $109 3002CC $104 4002CC $ 99 5002CC $ 94
</TABLE>
<PAGE>
TABLE 97-D-0001
PART I - THE SCHEDULE, SECTION B - Section B Page 26 of 46
SUPPLIES OR SERVICES AND PRICE/COSTS
DESKTOP V
CLIN 0002 DESKTOP SYSTEM
International Data Products
<TABLE>
<CAPTION>
BASE YEAR
SLIN OFFEROR DESCRIPTION OEM OEM # UNIT PRICE
- ---------------- ----------------------------------------- ---------------------------- ----------------- ---------------
<S> <C> <C> <C> <C>
1002DA CD ROM, 24X Internal IDE CD ROM 1) Goldstar 1)CRD-8240B $93
2) Toshiba 2) XM-6102B
1002DB Backup Storage Device, Seagate 3.2GB
Internal TapeStor Travan, with 2 Seagate STT23200F-R $186
cartridges FIC (Factory Installed
Component)
1002DC Fax/Modem; 56Kbps internal Smart Modular ST5614-DNAMBK $85
1002DD SCSI HOST ADAPER - FIC (Factory Advansys ABP-930U $66
Installed Component)
1002DH PCI 10/100 Mbps network adapter w/RJ45 SMC 9432TX $62
connector (UIC)
SOFTWARE GENERAL OPERATING SYSTEM ENVIORNMENT
1002FA Office Professional 97, License only Microsoft 353-00220 $210
1002FB Office Professional 97, License and CD Microsoft 353-00220 $217
ROM-based Media & On-Line Documentation
1002FG Windows NT Workstation v4.0, Microsoft (Select SOF0718, $206
Interdrive NT Operating System S/W; Distribution), FTP NT-440-SITE-920
License Only Software
1002FH Windows NT wWorkstation v4.0, Microsoft (Select SOF0718, $230
Interdrive NT Operating System S/W; Distribution), FTP NT-440-SHR
License and CD ROM-based Media & Software
Documentation
1002FK Windows 95, Interdrive 95 Operating Microsoft (Select SOF0342, $168
System; License Only Distribution), FTP ON-440-SITE-920
Software
1002FL Windows 95, Interdrive 95 Operating Microsoft (Select SOF0342, $187
System; License and CD ROM-based Media Distribution), FTP ON-440-SHR
& Documentation Software
1002FP X-Terminal 95 Emulation S/W License FTP Software EX32-SITE- $17
with Documentation 920; EX32
700
1002FQ X-Terminal 95 Emulation S/W License FTP Software EX32-SITE- $4
without Documentation 920
1002FR X-Terminal 95 Emulation S/W License FTP Software EX32-SITE- $19
Media and Documentation 920; EX32
210; EX32-700
1002FS X-Terminal 95 Emulation S/W License FTP Software EX32-SITE- $10
and Media without Documentation 920; EX32
210
<CAPTION>
OY1 OY1 UNIT OY2 OY2 UNIT OY3 OY3 UNIT OY4 OY4 UNIT
SLIN PRICE SLIN PRICE SLIN PRICE SLIN PRICE
- ---------------- ------------ --------------- ------------ ------------ -------------- ------------- ----------
<S> <C> <C> <C> <C> <C> <C> <C>
2002DA $88 3002DA $84 4002DA $80 5002DA $76
2002DB $177 3002DB $168 4002DB $159 5002DB $151
2002DC $81 3002DC $77 4002DC $73 5002DC $70
2002DD $63 3002DD $60 4002DD $57 5002DD $54
2002DH $59 3002DH $56 4002DH $53 5002DH $50
2002FA $200 3002FA $190 4002FA $180 5002FA $171
2002FB $206 3002FB $195 4002FB $186 5002FB $176
2002FG $196 3002FG $186 4002FG $177 5002FG $168
2002FH $218 3002FH $207 4002FH $197 5002FH $187
2002FK $159 3002FK $151 4002FK $144 5002FK $137
2002FL $178 3002FL $169 4002FL $160 5002FL $152
2002FP $16 3002FP $16 4002FP $15 5002FP $14
2002FQ $4 3002FQ $4 4002FQ $4 5002FQ $3
2002FR $18 3002FR $17 4002FR $17 5002FR $16
2002FS $10 3002FS $9 4002FS $9 5002FS $8
</TABLE>
<PAGE>
TABLE
PART 1 - THE SCHEDULE, SECTION B - SUPPLIES OR SERVICES AND PRICES/COSTS
DESKTOP V
CLIN 0002 DESKTOP SYSTEM 97-D-0001
International Data Products Section B Page 27 of 46
<TABLE>
<CAPTION>
BASE YEAR
SLIN OFFEROR DESCRIPTION OEM OEM # UNIT PRICE
- ---------------- ----------------------------------------- ---------------------------- ----------------- ---------------
<S> <C> <C> <C> <C>
1002FT NOS Applications Client S/W: Cenergy Talley Systems CYUS-PX $17
(Client) License with Documentation
1002FU NOS Applications Client S/W: Cenergy Talley Systems CYUS-PX $17
(Client) License without Documentation
1002FV NOS Applications Client S/W: Cenergy Talley Systems CYUS-PX $17
(Client) License, Media & Documentation
1002FW NOS Applications Client S/W: Cenergy Talley Systems CYUS-PX $17
(Client) License and Media without
Documentation
<CAPTION>
OY1 UNIT OY2 OY2 UNIT OY3 OY3 UNIT OY4 OY4 UNIT
SLIN OY1 SLIN PRICE SLIN PRICE SLIN PRICE SLIN PRICE
- ---------------- ------------ --------------- ------------ ------------- -------------- ------------- ------------ --------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
1002FT 2002FT $16 3002FT $16 4002FT $15 5002FT $14
1002FU 2002FU $16 3002FU $16 4002FU $15 5002FU $14
1002FV 2002FV $16 3002FV $16 4002FV $15 5002FV $14
1002FW 2002FW $16 3002FW $16 4002FW $15 5002FW $14
</TABLE>
<PAGE>
97-D-0001
Section B Page 28 of 46
TABLE
PART 1 - THE SCHEDULE, SECTION B - SUPPLIES OR SERVICES AND PRICES/COSTS
DESKTOP V
CLIN 0003 ADVANCED DESKTOP SYSTEM
International Data Products
<TABLE>
<CAPTION>
BASE YEAR
SLIN OFFEROR DESCRIPTION OEM OEM # UNIT PRICE
- ---------------- ----------------------------------------- ---------------------------- ----------------- ---------------
<S> <C> <C> <C> <C>
Advanced Desktop Two upgradeable Dual Pentium II 233 or Multiple OEM entries
Computers 266 MHz Mid-Tower systems SLINs for item means
available summarized as follows: contractor may supply
using any of OEM
sources/OEM part #s listed
DUAL PENTIUM II Features common to Dual Pentium II 233
COMPUTERS or 266 MHz Mid-tower system, IDP 700
Series Advanced Systems are as follows:
(1) CPU, Pentium II 1) Intel Pentium II 1) BX80522P233512
233 MHz, w/512K cache 2) 8055P288512
2) Intel Pentium II
266 MHz, w/512K cache
Dual Pentium II Motherboard, Intel 440FX Tyan S1682D
Chipsel, 2 serial ports, 1 parallel port,
Dual Channel PCI IDE, 2 USB connectors,
up to 4EIDE devices, 5PCI/3ISA slots (7
usable slots) PS/2 connector. Supports up
to two Pentium II processors.
Memory, 2x 16MB EDO DRAM SIMMs (total 1) Smart Modular 1) SM53204482X3S7
32MB RAM) 2) Advantage 2) E432-4X4-60T
Hard Drive, 3.1GB EIDE 1) Western Digital 1) WDC-AC33100
2) Seagate 2) ST33240A
3) IBM 3) DAQA-33240
Floppy Drive (3.5"), 1.44MB 1) Sony 1) MPF-920
2) Alps 2) DF334H911A
3) Teac 3) FD-235HF
64-bit PCI Video Adapter w/4MB DRAM Diamond ST3D-P2400OEM
PCI Network Adapter 10 Base T/10 Base 2, SMC 8432BTA
w/RJ45, BNC and AUI connectors
Monitor, 17" Color - up to 1280x1024 1) IDP 1) 76w
2) Goldstar 2) 76i
3) Goldstar 3) 77i
CD ROM, 24x IDE 1) Goldstar 1) CRD-8240B
2) Toshiba 2) XM -6102B
32 bit PCI Wavetable Sound Card Ensoniq S-5016
<CAPTION>
OY1 UNIT OY2 OY2 UNIT OY3 OY3 UNIT OY4 OY4 UNIT
SLIN OY1 SLIN PRICE SLIN PRICE SLIN PRICE SLIN PRICE
- ---------------- ------------ --------------- ------------ ------------- -------------- ------------- ------------ --------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
</TABLE>
<PAGE>
F6 97-D-0001
Section B Page 29 of 46
TABLE
PART I - THE SCHEDULE, SECTION B - SUPPLIES OR SERVICES AND PRICES/COSTS
DESKTOP V
CLIN 0002 DESKTOP SYSTEM
International Data Products
<TABLE>
<CAPTION>
BASE YEAR
SLIN OFFEROR DESCRIPTION OEM OEM # UNIT PRICE
- ---------------- -------------------------------------- -------------------------- ----------------- ---------------
<S> <C> <C> <C> <C>
(2) Speakers 8 watts 1) JBL 1) MEDIA2V2
2) JBL 2) Media 100
Microphone Quick Shot W5838-B
PC Card Reader (PCMCIA) Front Accessible 1) SCM 1) SBI-D2P
2) Greystone 2) GS-320
Windows 95 Keyboard IDP SKR-1104IPS
Serial Mouse, 2 button IDP S7F-24-9B1
Microsoft Client License for NT NOS Host Microsoft 2272075V40VL
Microsoft Exchange Client (Email) S/W & License Microsoft 381-00465
Office Professional 97 License, CD ROM Based Microsoft 353-00220
Media and On-Line Documentation
Adapter Plug, Europe and Italy IDP NW-1WPHS
Adapter Plug, Great Britain IDP NW-5WPHS
1003AA IDP 700 Series Advanced System - Windows IDP 700 $3,697
NT/Office 97 Intel Pentium II 233 or 266
Processor, 32MB RAM, 3.1GB Hard Drive
SLIN 1003AA consists of the above IDP
Advanced Pentium II System common features
and available resources plus the following:
Windows NT 4.0 Operating System and CD ROM Microsoft SOF0718
based media and documentation
InterDrive NT Client 2.1 License, Media and FTP Software NT-440-SITE-920
Documentation
1003AB IDP 700 Series Advanced System - Windows IDP 700 $3,697
95/Office 97 Intel Pentium II 233 or 266
Processor, 32MB RAM, 3.1GB Hard Drive
SLIN 1003AB consists of the above IDP
Advanced Pentium II System common features
and available resources plus the following:
Windows 95 Operating System and CD ROM Microsoft SOF0342
based media and documentation
InterDrive Client for Windows 95 License, Media FTP Software ON-440-SITE-920
and Documentation
UPGRADES -
PROCESSOR
<CAPTION>
OY1 UNIT OY2 OY2 UNIT OY3 OY3 UNIT OY4 OY4 UNIT
SLIN OY1 SLIN PRICE SLIN PRICE SLIN PRICE SLIN PRICE
- ---------------- ------------ --------------- ------------ ------------- -------------- ------------- ------------ --------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
1003AA 2003AA $3,512 3003AA $3,337 4003AA $3,170 5003AA $3,011
1003AB 2003AB $3,512 3003AB $3,337 4003AB $3,170 5003AB $3,011
</TABLE>
<PAGE>
97-D-0001
Section B Page 30 of 46
TABLE
PART 1 - THE SCHEDULE, SECTION B - SUPPLIES OR SERVICES AND PRICES/COSTS
DESKTOP V
CLIN 0003 ADVANCED DESKTOP SYSTEM
International Data Products
<TABLE>
<CAPTION>
BASE YEAR
SLIN OFFEROR DESCRIPTION OEM OEM # UNIT PRICE
- ------------------ ------------------------------------ ------------------------ --------------------- -------------------
<S> <C> <C> <C> <C>
1003AV Intel Pentium II 300MHz CPU - FIC Intel 8055P300512 $997
(Factory Installed Component) Add-On;
For SLINS 1003AA and 1003AB, Adds
2nd CPU at factory for dual processing
at factory
1003AW Intel Pentium II 300MHz CPU - ULC (User Intel 8055P300512 $997
Installed Component) Add-On; For SLINS
1003AA and 1003AB, Adds 2nd CPU for
dual processing
1003AX Intel Pentium II 300MHz CPU - FIC Intel 8055P300512 $229
(Factory Installed Component); for SLINS
1003AA and 1003AB, Replaces 233MHz base
CPU at factory
1003AY Intel Pentium II 266MHz CPU - FIC Intel BX80522P266512 $957
(Factory Installed Component) Add-On;
For SLINS 1003AA and 1003AB, Adds 2nd
CPU for dual processing
1003AZ Intel Pentium II 266MHz CPU - UIC (User Intel BX80522P266512 $957
Installed Component) Add-On; For SLINS
1003AA and 1003AB, Adds 2nd CPU for
dual processing
UPGRADES -
MEMORY
1003BA Memory, 16MB RAM ADD ON (2x 8MB EDO 1)
DRAM SIMMs); FIC (Factory Installed 1) Smart Modular SM532023081X4S6
Component) for SLINs 1003AA - 1003AB, 2) Advantage 2) E232-1X16-60T $83
Adds 16MB of RAM to system at factory
1003BB Memory, 16MB RAM ADD ON (2x 8MB EDO 1)
DRAM SIMMs); UIC (User Installed 1) Smart Modular SM532023081X4S6
Component) for SLINs 1003AA - 1003AB 2) Advantage 2) E232-1X16-60T $83
1003BC Memory, 32MB RAM ADD ON (2x 16MB EDO 1) Smart Modular 1) SM53204482X3S7
DRAM SIMMs); FIC (Factory Installed 2) Advantage 2) E432-4X4-60T $136
Component) for SLINs 1003AA - 1003AB.
Adds 32MB of RAM to system at factory
1003BD Memory, 32MB RAM ADD ON (2x 16MB EDO 1) Smart Modular 1) SM53204482X3S7
DRAM SIMMs); UIC (User Installed 2) Advantage 2) E432-4X4-60T $136
Component) for SLINs 1003AA - 1003AB
<CAPTION>
OY1 OY1 UNIT OY2 OY2 UNIT OY3 OY3 UNIT OY4 OY4 UNIT
SLIN SLIN PRICE SLIN PRICE SLIN PRICE SLIN PRICE
- --------------- ------------ ------------- ---------- ------------- ---------- -------------- ---------- ---------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
1003AV 2003AV $947 3003AV $899 4003AV $854 5003AV $812
1003AW 2003AW $947 3003AW $899 4003AW $854 5003AW $812
1003AX 2003AX $217 3003AX $206 4003AX $196 5003AX $186
1003AY 2003AY $909 3003AY $863 4003AY $820 5003AY $779
1003AZ 2003AZ $909 3003AZ $863 4003AZ $820 5003AZ $779
UPGRADES -
MEMORY
1003BA 2003BA $79 3003BA $75 4003BA $71 5003BA $68
1003BB 2003BB $79 3003BB $75 4003BB $71 5003BB $68
1003BC 2003BC $129 3003BC $123 4003BC $117 5003BC $111
1003BD 2003BD $129 3003BD $123 4003BD $117 5003BD $111
</TABLE>
<PAGE>
-97-D-0001
Section B Page 31 of 46
TABLE
PART 1 - THE SCHEDULE, SECTION B - SUPPLIES OR SERVICES AND PRICES/COSTS
DESKTOP V
CLIN 0002 ADVANCED DESKTOP SYSTEM
International Data Products
<TABLE>
<CAPTION>
BASE YEAR
SLIN OFFEROR DESCRIPTION OEM OEM # UNIT PRICE
- ---------------- ----------------------------------------- ---------------------------- ----------------- ---------------
<S> <C> <C> <C> <C>
1003BE Memory, 64MB RAM ADD ON (2x 32MB EDO 1) Smart Modular 1) $295
DRAM SIMMs); FIC (Factory Installed 2) Advantage SM532064082x3S6
Component) for SLINs 1003AA - 1003AB. 2) E832-4x4-60T
Adds 32MB of RAM to system at factory
1003BF Memory, 64MB RAM ADD ON (2x 32MB EDO 1) Smart Modular 1) $295
DRAM SIMMs); UIC (User Installed 2) Advantage SM532064082x3S8
Component) for SLINs 1003AA - 1003AB 2) E832-4x4-60T
1003BG Memory, 96MB RAM Add-On (4x 32MB EDO 1) Smart Modular 1) $550
DRAM SIMMs exchange for 2x 16MB Base 2) Advantage SM532084082x3S6
Memory; total memory with FIC (Factory 2) E832-4x4-60T
Installed Component)= 128MB):FIC
(Factory Installed Component) for all
SLINs 1003AA - 1003AB
UPGRADES-HARD
DRIVES
1003BH Base Hard Drive Upgrade to 4.0GB E-IDE; 1) Western Digital 1) WDC-AC34000 $89
FIC (Factory Installed Component) for 2) Seagate 2) ST34342a
SLINs 1003AA AB (replaces base 3.1GB
HDD with 4.0GB HDD)
1003BJ 2nd HDD 4.0GB E-IDE; FIC (Factory 1) Western Digital 1) WDC-AC34000 $356
Installed Component) - Adds 4.0 GB E-IDE 2) Seagate 2) ST34342A
HDD as 2nd HDD fo SLINs 1003AA - 1003AB
at factory
1003BK 2nd HDD 4.0GB E-IDE; UIC (User Installed 1) Western Digital 1) WDC-AC34000 $356
Component) - Adds 4.0 GB E-IDE HDD as 2) Seagate 2) ST34342A
2nd HDD for SLINs 1003AA - 1003AB
1003BL 2nd Hard Drive, 3.1GB E-IDE FIC (Factory 1) Western Digital 1) WDC-AC33100 $259
Installed Component) - Adds 3.1 GB E-IDE 2) Seagate 2) ST33240A
Hard Drive as 2nd Hard Drive for SLINs 3) IBM 3) DAQA-33240
1003AA - 1003AB at factory
1003BM Reserved
1003BN Removable Carrier for EIDE HDD; consumes Mobile Rack RH-10C $52
5.25" bay; ordered with CLIN 3 IDP
system results in base hard drive being
installed at factory as removable drive.
If ordered with SLINs 1003BJ-1003BM,
second drive will be installed at factory
as removable HDD.
UPGRADES-
VIDEO
<CAPTION>
OY1 UNIT OY2 OY2 UNIT OY3 OY3 UNIT OY4 OY4 UNIT
SLIN OY1 SLIN PRICE SLIN PRICE SLIN PRICE SLIN PRICE
- ---------------- ------------ --------------- ------------ ------------- -------------- ------------- ------------ --------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
1003BE 2003BE $280 3003BE $266 4003BE $253 5003BE $240
1003BF 2003BF $280 3003BF $266 4003BF $253 5003BF $240
1003BG 2003BG $523 3003BG $496 4003BG $472 5003BG $448
1003BH 2003BH $85 3003BH $81 4003BH $77 5003BH $73
1003BJ 2003BJ $338 3003BJ $321 4003BJ $305 5003BJ $290
1003BK 2003BK $338 3003BK $321 4003BK $305 5003BK $290
1003BL 2003BL $246 3003BL $234 4003BL $222 5003BL $211
1003BN 2003BN $49 3003BN $47 4003BN $44 5003BN $42
</TABLE>
<PAGE>
FB, 97-D-4461
Section B Page 32 of 46
TABLE
PART I - THE SCHEDULE, SECTION B - SUPPLIES OR SERVICES AND PRICES/COSTS
DESKTOP V
CLIN (03 ADVANCED DESKTOP SYSTEM
International Data Products
<TABLE>
<CAPTION>
BASE YEAR
SLIN OFFEROR DESCRIPTION OEM OEM # UNIT PRICE
- ---------------- ----------------------------------------- ---------------------------- ----------------- ---------------
<S> <C> <C> <C> <C>
1003BV Interface Video - FIC (Factory Installed Diamond ST11S220-BLK $36
Component); Diamond Stealth N S220 4MB
SGRAM PCI Video Adapter. Replaces Diamond
3D 4MB DRAM at factory
1003BW Interface Video - UIC (User Installed Diamond ST11S220-BLK $115
Component); Diamond Stealth II S220 4MB
SGRAM PCI Video Adaptor
UPGRADES -
MONITOR
1003BX Monitor 20" Color; FIC (Factory 1) IDP 1) 20w
Installed Component); Replaces 17" 2) Goldstar 2) 20i $511
Monitor in SLINs 1003AA, 1003AB
1003BY Monitor 20" Color; UIC (User 1) IDP 1) 20w
Installed Component) 2) Goldstar 2) 20i $944
PERIPHERALS
1003DA Backup Storage Device, Seagate 3.2GB Seagate STT23200F-R $186
Internal TapeStor Traven, with 2
cartridges - FIC (Factory Installed
Component)
1003DB CD ROM, 24X Internal IDE 1) Goldstar 1) CRD-8240B
2) Toshiba 2) XM-6102B $104
1003DE Fax/Modem; 56Kbps Internal Smart Modular ST5614-DNAMBK $85
1003DF SCSI Host Adapter - FIC (Factory Advansys ABP-930U $66
Installed Component)
1003DG PCI 10/100bps network adapter w/RJ45 SMC 9432TX $62
connector (UIC)
SOFTWARE GENERAL OPERATING SYSTEM
ENVIRONMENT
1003FA Office Professional 97, License only Microsoft 353-00220 $210
1003FB Office Professional 97, License, Microsoft 353-00220 $217
CD ROM-based Media & On-Line
Documentation
1003FG Windows NT Workstation v4.0 Microsoft (Select SOF0716, NT-440-
InterdriveNT Operating System Distribution), FTP Site-920 $206
S/W; License Only Software
1003FH Windows NT Workstation v4.0, Microsoft (Select SOF0718, NT-440- $230
Interdrive NT Operating System S/W; Distribution), FTP SHR
License, CD ROM-based Media & Software
Documentation
<CAPTION>
OY1 UNIT OY2 OY2 UNIT OY3 OY3 UNIT OY4 OY4 UNIT
SLIN OY1 SLIN PRICE SLIN PRICE SLIN PRICE SLIN PRICE
- ---------------- ------------ --------------- ------------ ------------- -------------- ------------- ------------ --------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
1003BV 2003BV $34 3003BV $32 4003BV $31 5003BV $29
1003BW 2003BW $109 3003BW $104 4003BW $99 5003BW $94
UPGRADES -
MONITOR
1003BX 2003BX $456 3003BX $461 40003BX $436 5003BX $416
1003BY 2003BY $944 3003BY $697 4003BY $852 5003BY $810
PERIPHERALS
1003DA 2003DA $177 3003DA $168 4003DA $159 5003DA $152
1003DB 2003DB $99 3003DB $94 4003DB $89 5003DB $84
1003DE 2003DE $81 3003DE $77 4003DE $73 5003DE $70
1003DF 2003DF $63 3003DF $60 4003DF $57 5003DF $54
1003DG 2003DG $59 3003DG $56 4003DG $53 5003DG $50
SOFTWARE
1003FA 2003FA $200 3003FA $190 4003FA $180 5003FA $171
1003FB 2003FB $206 3003FB $195 4003FB $186 5003FB $176
1003FG 2003FG $196 3003FG $186 4003FG $177 5003FG $168
1003FH 2003FH $218 3003FH $207 4003FH $197 5003FH $187
</TABLE>
<PAGE>
97-D-0001
Section B Page 33 of 46
TABLE
PART 1 - THE SCHEDULE, SECTION B - SUPPLIES OR SERVICES AND PRICES/COSTS
DESKTOP V
CLIN 0003 ADVANCED DESKTOP SYSTEM
International Data Products
<TABLE>
<CAPTION>
BASE YEAR
SLIN OFFEROR DESCRIPTION OEM OEM # UNIT PRICE
- ------------------ ------------------------------------ ------------------------ --------------------- -------------------
<S> <C> <C> <C> <C>
1003FK Windows 95, Interdrive 96 Operating Microsoft (Select SOF0342, ON-440- $168
System; License Only Distribution), FTP SITE-920
Software
1003FL Windows 95, Interdrive 96 Operating Microsoft (Select SOF0342, ON-440- $187
System; License, CD ROM-based Media & Distribution), FTP SHR
Documentation Software
1003FM X-Terminal 95 Emulation S/W License with FTP Software EX32-SITE-920; EX32 $17
Documentation 700
1003FN X-Terminal 95 Emulation S/W License FTP Software EX32-SITE-920 $4
without Documentation
1003FP X-Terminal 95 Emulation S/W License, FTP Software EX32-SITE-920; EX32 $19
Media, and Documentation 210; EX32-700
1003FQ X-Terminal 95 Emulation S/W License FTP Software EX32-SITE-920; EX32 $10
and Media without Documentation 210
1003FT NOS Applications Client S/W; Conergy Tally Systems CYUS-PX $17
(Client) License with Documentation
1003FU NOS Applications Client S/W; Conergy Tally Systems CYUS-PX $17
(Client) License without Documentation
1003FV NOS Applications Client S/W; Conergy Tally Systems CYUS-PX $17
(Client) License, Media & Documentation
1003FW NOS Applications Client S/W; Conergy Tally Systems CYUS-PX $17
(Client) License and Media without
Documentation
<CAPTION>
OY1 OY1 UNIT OY2 OY2 UNIT OY3 OY3 UNIT OY4 OY4 UNIT
SLIN SLIN PRICE SLIN PRICE SLIN PRICE SLIN PRICE
- --------------- ------------ ------------- ---------- ------------- ---------- -------------- ---------- ---------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
1003FK 2003FK $159 3003FK $151 4003FK $144 5003FK $137
1003FL 2003FL $178 3003FL $169 4003FL $160 5003FL $152
1003FM 2003FM $16 3003FM $16 4003FM $15 5003FM $14
1003FN 2003FN $4 3003FN $4 4003FN $3 5003FN $3
1003FP 2003FP $18 3003FP $17 4003FP $17 5003FP $16
1003FQ 2003FQ $10 3003FQ $9 4003FQ $9 5003FQ $8
1003FT 2003FT $16 3003FT $16 4003FT $15 5003FT $14
1003FU 2003FU $16 3003FU $16 4003FU $15 5003FU $14
1003FV 2003FV $16 3003FV $16 4003FV $15 5003FV $14
1003FW 2003FW $16 3003FW $16 4003FW $15 5003FW $14
</TABLE>
<PAGE>
F6 97-D-0001
Section B Page 34 of 46
TABLE
PART I - THE SCHEDULE, SECTION B - SUPPLIES OR SERVICES AND PRICES/COSTS
DESKTOP V
CLIN 0002 SERVER SYSTEM
International Data Products
<TABLE>
<CAPTION>
BASE YEAR
SLIN OFFEROR DESCRIPTION OEM OEM # UNIT PRICE
- ---------------- -------------------------------------- -------------------------- ----------------- ---------------
<S> <C> <C> <C> <C>
Multiple OEM entries for
item means contractor may
supply using any of OEM
SERVERS sources/OEM part as listed
ALR Quads SMP Server by IDP configured as
follows: (supports up to Quad Pentium PRO
processors) Operating System sold separately,
1004AA configured as follows: IDP 74626011 $6,649
(1) Intel Pentium PRO 200MHz 256k cache Intel PPRO200256
2.1GB Ultra SCSI HDD Seagale ST31255W
Memory, 32MB ECC RAM (2 x 16MB DIMMS) 1) Smart Modular 1) SMS72028062E4G6
expandable to 2GB 2) Advantage 2) ADC272-2X8-66VB2
PC1 Local Bus Architecture, 15 expansion
slots(7PCI, 7EISA, 1 shared), 13 storage bays ALR 12209726-20
Redudent power supply (total two 575 watts power
supplies) ALR 13000366-01
Adaptec 2940UW Ultra SCSI Controller Adaptec 2940UW
1) Diamond 1) STV2520P-OEM
2MB DRAM PCI Video Adapter 2) STB 2) 110-0415-109
1) Goldstar 1) CRD-8240B
CD ROM, 24X Internal IDE 2) Toshiba 2) XM-6102B
PCI Network Adapter 10 Base T/10 Base 2
w/RJ45, BNC and ALH connectors SMC 6432BTA
ALR 6-Bay RAID Cage ALR 11902013
ALR Rail Kit (6) ALR 82295005
Serial Mouse ALR 11600203
101-key Keyboard ALR 11113112
Adapter Plug, Europe and Italy IDP NW-1WPHS
Adapter Plug, Great Britain IDP NW-5WPHS
inforMANAGER Software ALR 69000484
Floppy Drive (3.5"), 1.44MB ALR 11402537
UGPRADES - PROCESSOR
<CAPTION>
OY1 UNIT OY2 OY2 UNIT OY3 OY3 UNIT OY4 OY4 UNIT
SLIN OY1 SLIN PRICE SLIN PRICE SLIN PRICE SLIN PRICE
- ---------------- ------------ --------------- ------------ ------------- -------------- ------------- ------------ --------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
1004AA 2004AA $6,317 3004AA $6,001 4004AA $5,701 5004AA $5,416
</TABLE>
<PAGE>
FD 97-D-0001
Section B Page 35 of 46
TABLE
PART 1 - THE SCHEDULE, SECTION B - SUPPLIES OR SERVICES AND PRICES/COSTS
DESKTOP V
CLIN 0004 SERVER SYSTEM
International Data Products
<TABLE>
<CAPTION>
BASE YEAR
SLIN OFFEROR DESCRIPTION OEM OEM # UNIT PRICE
- ---------------- ----------------------------------------- ---------------------------- ----------------- ---------------
<S> <C> <C> <C> <C>
1004BA Intel Pentium PRO 200Mhz (256k)CPU ADD ON Intel PPRO200256 $738
FIC and UIC - SLIN 1004AA Server supports
up to 4 CPUs on a single motherboard
Voltage Regulator Kit ALR
1004BB Intel Pentium PRO 200Mhz(512k); FIC Intel PPRO200512 $1,016
Factory Installed Component); Replaces
Pentium PRO 256k CPU with 512k version
at factory. Server supports up to 4 CPUs.
Voltage Regulator Kit ALR
1004BC Intel Pentium PRO 200Mhz (512k) CPU ADD Intel PPRO200512 $1,387
ON FIC and UIC - SLIN 1004AA (Server
supports up to 4 CPUs)
Voltage Regulator Kit ALR
UPGRADES-
MEMORY
ECC MEMORY (Each consumes 1 DIMM slot.
Must be ordered in pairs. SLIN 1004AA
has 16 memory sockets, 14 remain
available
1004BD 32MB DIMM FIC (Factory Installed 1) Smart Modular 1) SM572044012D3G6 $306
Component) 32MB Add-on at factory 2) Advantage 2) ADC472-4X4-66V62
1004BE 32MB DIMM UIC (User Installed 1) Smart Modular 1) SM572044012D3G6 $306
Component) 32MB Add-on 2) Advantage 2) ADC472-4x4-66VB2
1004BF 64MB DIMM FIC (Factory Installed 1) Smart Modular 1) SM572064012D3G6
Component 64MB Add-on factory 2) Advantage 2) ADC872-4x4-66VB2 $591
1004BG 64MB DIMM UIC (User Installed 1) Smart Modular 1) SM572064012D3G6 $591
Component) 64MB Add-on 2) Advantage 2) ADC872-4x4-66VB2
1004BH 126MB DIMM FIC (Factory Installed 1) Smart Modular 1) SM572164014D4G6 $1,598
Component) - 126MB Add-on at factory 2) Advantage 2) ADC1672-16x4-
66VB4
1004BJ 126MB DIMM UIC (User Installed 1) Smart Modlar 1) SM572164014D4G6 $1,598
Component) - 126MB Add-on 2) Advantage 2) ADC1672-16x4-
66VB4
1004BK 254MB DIMM FIC (Factory Installed 1) Smart Modular 1) SM572324014D4G6 $4,959
Component) - 256M Add-on at factory 2) Advantage 2) ADC3272-16x4-
66VB4
<CAPTION>
OY1 UNIT OY2 OY2 UNIT OY3 OY3 UNIT OY4 OY4 UNIT
SLIN OY1 SLIN PRICE SLIN PRICE SLIN PRICE SLIN PRICE
- ---------------- ------------ --------------- ------------ ------------- -------------- ------------- ------------ --------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
1004BA 2004BA $701 3004BA $666 4004BA $633 5004BA $601
1004BB 2004BB $965 3004BB $917 4044BB $871 5004BB $827
1004BC 2004BC $1,317 3004BC $1,251 4004BC $1,189 5004BC $1,129
1004BD 2004BD $293 3004BD $278 4004BD $264 5004BD $251
1004BE 2004BE $293 3004BE $278 4004BE $264 5004BE $251
1004BF 2004BF $561 3004BF $533 4004BF $507 5004BF $481
1004BG 2004BG $561 3004BG $533 4004BG $507 5004BG $481
1004BH 2004BH $1,518 3004BH $1,442 4004BH $1,370 5004BH $1,302
1004BJ 2004BI $1,518 3004BI $1,442 4004BI $1,370 5004BI $1,302
1004BK 2004BJ $4,711 3004BJ $4,475 4004BJ $4,252 5004BJ $4,039
</TABLE>
MODIFICATION page 12
<PAGE>
97-D-0001
Section B Page 36 of 46
TABLE
PART 1 - THE SCHEDULE, SECTION B - SUPPLIES OR SERVICES AND PRICES/COSTS
DESKTOP V
CLIN 0004 SERVER SYSTEM
International Data Products
<TABLE>
<CAPTION>
BASE YEAR
SLIN OFFEROR DESCRIPTION OEM OEM # UNIT PRICE
- ---------------- ----------------------------------------- ---------------------------- ----------------- ---------------
<S> <C> <C> <C> <C>
1004BL 254MB DIMM UIC (User Installed Component) 1) Smart Modular 1)SM572324014D4G5 $4,959
256MB Add-on 2) Advantage 2)ADC3272-16X4-
66VB4
UPGRADES -
HARD DRIVES
1004BM 4.5GB SC81 Hard Drive Upgrade; FIC Seagate ST34572WC $239
(Factory Installed Component) Replaces
2.1GB on SLIN 1004AA - must be
installed in 6 Bay Raid Cage
1004BN 4.5GB SC81 Hard Drive Add-on (adds 4.5GB Seagate ST34572WC $594
Hard Drive as additional drive, must be
used in 6 Bay Raid Cage in SLIN 1004AA)
1004BP 9GB SC81 Hard Drive Add-on; (adds 9GB Seagate ST19171WC $835
Hard Drive as additional drive, must be
used in 6 Bay Raid Cage in SLIN 1004AA)
ACCESSORIES
1004BQ Three (3) channel FW RAID Controller ALR 11900963-01 $1,366
with 4MB Cache
1004BR 1400 VA Smart UPS with PowerChute Plus APC SU1400NET $711
Software
1004BS Reserved
1004BT 8-port Video Switch Box ALR 11603007-08 $1,316
1004BU 7" Cable Kit (Video, Keyboard, Mouse ALR 10116030-07 $55
Cable)
1004BV 12" Cable Kit (Video, Keyboard, Mouse ALR 10116030-12 $64
Cable)
PERIPHERALS
1004DA 4GB SC31 Tape Backup with Seagate w/ Seagate STD24000N $806
Backup Exec for NT Server software
1004DB CD Tower SMS Data Products 1070TOWER7/0 $319
1004DC 8X SC31 CD ROM for CD Tower Sony CDU-41S $143
1004DD CD JUKEBOX - Three (3) NEC MultiSpin NEC CDR-C302 $978
4xc drives
1004DE Fax Modem Bank w/SW - Hayes enhanced Hayes 08-01356; $1,162
8-port serial board, Hayes Accura 336 LAN Source 08-02760;08-2760;
External Fax Modem, LANSource WINport/ WPFPUNL
FAXport NT Combo
1004DF External 33.6Kbps Fax Modem V.34 Hayes 08-02760 $102
1004DG PCI Network Adapter 10/100 Mbps SMC 9432TX $69
1004DH PC Card Reader - (PCMCIA) Front 1) SCM 1) SBI-02P $69
Accessible 2) Greystone 2) QS-320
<CAPTION>
OY1 UNIT OY2 OY2 UNIT OY3 OY3 UNIT OY4 OY4 UNIT
SLIN OY1 SLIN PRICE SLIN PRICE SLIN PRICE SLIN PRICE
- ---------------- ------------ --------------- ------------ ------------- -------------- ------------- ------------ --------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
1004 BL 2004BK $4,711 30004BK $4,475 4004BK $4,252 5004BK $4,039
UPGRADES -
HARD DRIVES
1004BM 2004BL $227 3004BL $216 4004BL $205 5004BL $195
1004BN 2004BM $564 3004BM $536 4004BM $509 5004BM $484
1004BP 2004BN $793 3004BN $754 4004BN $716 5004BN $680
ACCESSORIES
1004BQ 2004BO $1,316 3004BO $1,250 4004BO $1,188 5004BO $1,129
1004BR 2004BP $675 3004BP $642 4004BP $610 5004BP $579
1004BS
1004BT 2004BR $1,251 3004BR $1,188 4004BR $1,129 5004BR $1,072
1004BU 2004BS $52 3004BS $50 4004BS $47 5004BS $45
1004BV 2004BT $61 3004BT $58 4004BT $55 5004BT $52
PERIPHERALS
1004DA 2004DA $766 3004DA $728 4004DA $691 5004DA $657
1004DB 2004DB $303 3004DB $288 4004DB $274 5004DB $260
1004DC 2004DC $136 3004DC $129 4004DC $123 5004DC $117
1004DD 2004DD $929 3004DD $883 4004DD $838 5004DD $797
1004DE 2004DE $1,104 3004DE $1,049 4004DE $996 5004DE $946
1004DF 2004DF $97 3004DF $92 4004DF $87 5004DF $83
1004DG 2004DG $66 3004DG $62 4004DG $59 5004DG $56
1004DH 2004DH $66 3004DH $62 4004DH $59 5004DH $56
</TABLE>
<PAGE>
97-D-0001
Section B Page 37 of 46
TABLE
PART 1 - THE SCHEDULE, SECTION B - SUPPLIES OR SERVICES AND PRICES/COSTS
DESKTOP V
CLIN 0004 SERVER SYSTEM
International Data Products
<TABLE>
<CAPTION>
BASE YEAR
SLIN OFFEROR DESCRIPTION OEM OEM # UNIT PRICE
- ------------------ ------------------------------------ ------------------------ --------------------- -------------------
<S> <C> <C> <C> <C>
1) IDP 1) 56w
1004DJ Monitor, 15" Color - up to 1280x 1024 2) Goldstar 2) 56i $270
CD ROM, 24X Internet IDE - UIC (User 1) Goldstar 1) CRD-8240B
1004DK Installed Component) 2) Toshiba 2) XM-6102B $93
SOFTWARE -
SERVER
Microsoft (Select
1004FB Windows NT Server V4.0 License Only Distribution) 2273275V40VL $499
Windows NT Server V4.0 License Media Microsoft (Select
1004FC and documentation Distribution) 2273275V40VL $505
Exchange Enterprise Server V1.x License
1004FF Only Microsoft 395-00595 $557
Exchange Enterprise Server V1.x License,
1004FG Media and Documentation Microsoft 395-00595 $564
SOFTWARE - NETWORK ADMINISTRATION SW (Elements
NETWORK ADMIN not included in Windows NT Server v4.0
Network Administration Software
1004FJ Utilities; License Only $151
Antivirus SW - Eliashim VirusSafe NT Eliashim VirusSafeNT
Inventory SW - Conergy v1.0 Tally Systems CYUS-PX
SOFTWARE - DA
1004FK MS Professional 97 License Only Microsoft 353-00220 $210
MS Professional 97 License, Media and
1004FL Documentation Microsoft 353-00220 $217
SOFTWARE - Microsoft Windows NT Server NOS Client
LICENSES Access Licenses
1004FM Windows NT Client Access License Only Microsoft 2272075V40VL $19
Windows NT Client Access License, Media
1004FN and Documentation Microsoft 2272075V40VL $24
Microsoft Exchange Server Client Access
Licenses
1004FP Exchange Client Access License Only Microsoft 381-00465 $50
Exchange Client Access License, Media
1004FQ and Documentation Microsoft 381-00465 $57
<CAPTION>
OY1 OY1 UNIT OY2 OY2 UNIT OY3 OY3 UNIT OY4 OY4 UNIT
SLIN SLIN PRICE SLIN PRICE SLIN PRICE SLIN PRICE
- --------------- ------------ ------------- ---------- ------------- ---------- -------------- ---------- ---------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
1004DJ 2004DI $257 3004DI $244 4004DI $232 5004DI $220
1004DK 2004DJ $88 3004DJ $84 4004DJ $80 5004DJ $76
1004FB 2004FB $474 3004FB $450 4004FB $428 5004FB $407
1004FC 2004FC $480 3004FC $456 4004FC $433 5004FC $412
1004FF 2004FF $529 3004FF $503 4004FF $478 5004FF $454
1004FG 2004FG $536 3004FG $509 4004FG $484 5004FG $460
1004FJ 2004FJ $144 3004FJ $137 4004FJ $130 5004FJ $123
1004FK 2004FK $200 3004FK $190 4004FK $180 5004FK $171
1004FL 2004FL $206 3004FL $195 4004FL $186 5004FL $176
1004FM 2004FM $18 3004FM $17 4004FM $17 5004FM $16
1004FN 2004FN $23 3004FN $22 4004FN $21 5004FN $20
1004FP 2004FP $47 3004FP $45 4004FP $43 5004FP $41
1004FQ 2004FQ $54 3004FQ $51 4004FQ $49 5004FQ $46
</TABLE>
<PAGE>
97-D-0001
Section B Page 38 of 46
TABLE
PART 1 - THE SCHEDULE, SECTION B - SUPPLIES OR SERVICES AND PRICES/COSTS
DESKTOP V
CLIN 0004 SERVER SYSTEM
International Data Products
<TABLE>
<CAPTION>
BASE YEAR
SLIN OFFEROR DESCRIPTION OEM OEM # UNIT PRICE
- ---------------- ----------------------------------------- ---------------------------- ----------------- ---------------
<S> <C> <C> <C> <C>
Upgrade of MS NT Server NOS with fixed
node licensee
1004GA NT Server v4.0 + 5 clients License, Microsoft 2273275V40VL-5 $532
Media and documentation
1004GB NT Server v4.0 + 10 clients License, Microsoft 2273275V40VL-10 $638
Media and documentation
1004GC NT Server v4.0 + 25 clients License, Microsoft 2273275V40VL-25 $867
Media and documentation
1004GD NT Server v4.0 + 50 clients License, Microsoft 2273275V40VL-50 $1,249
Media and documentation
1004GE NT Server v4.0 + 100 clients License, Microsoft 2273275V40VL-100 $2,014
Media and documentation
1004GF NT Server v4.0 + 250 clients License, Microsoft 2273275V40VL-250 $4,307
Media and documentation
1004GG NT Server v4.0 + 500 clients License, Microsoft 2273275V40VL-500 $8,129
Media and documentation
1004GH NT Server v4.0 + 1000 clients License, Microsoft 2273275V40VL-1000 $15,775
Media and documentation
1004GK Competitive Trade in of 5 user NOS for Microsoft 2273275V40VL-5 $514
5 per-node + 1 server software
1004GL Competitive Trade in of 10 user NOS for Microsoft 2273275V40VL-10 $576
5 per-node + 1 server software
1004GM Competitive Trade in of 25 user NOS for Microsoft 2273275V40VL-25 $758
5 per-node + 1 server software
1004GN Competitive Trade in of 50 user NOS for Microsoft 2273275V40VL-50 $1,062
5 per-node + 1 server software
1004GP Competitive Trade in of 100 user NOS for Microsoft 2273275V40VL-100 $1,671
5 per-node + 1 server software
<CAPTION>
OY1 UNIT OY2 OY2 UNIT OY3 OY3 UNIT OY4 OY4 UNIT
SLIN OY1 SLIN PRICE SLIN PRICE SLIN PRICE SLIN PRICE
- ---------------- ------------ --------------- ------------ ------------- -------------- ------------- ------------ --------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
1004GA 2004GA $505 3004GA $480 4004GA $456 5004GA $433
1004GB 2004GB $606 3004GB $576 4004GB $547 5004GB $520
1004GC 2004GC $824 3004GC $783 4004GC $743 5004GC $706
1004GD 2004GD $1,187 3004GD $1,128 4004GD $1,071 5004GD $1,018
1004GE 2004GE $1,913 3004GE $1,817 4004GE $1,727 5004GE $1,640
1004GF 2004GF $4,092 3004GF $3,887 4004GF $3,693 5004GF $3,508
1004GG 2004GG $7,723 3004GG $7,337 4004GG $6,970 5004GG $6,621
1004GH 2004GH $14,986 3000GH $14,237 4004GH $13,525 5004GH $12,848
1004GK 2004GK $469 3004GK $464 4004GK $441 5004GK $419
1004GL 2004GL $548 3004GL $520 4004GL $494 5004GL $469
1004GM 2004GM $720 3004GM $684 4004GM $650 5004GM $618
1004GN 2004GN $1,009 3004GN $959 4004GN $911 5004GN $865
1004GP 2004GP $1,588 3004GP $1,508 4004GP $1,433 5004GP $1,361
</TABLE>
<PAGE>
97-D-0001
Section B Page 39 of 46
TABLE
PART 1-THE SCHEDULE, SECTION B-SUPPLIES OR SERVICES AND PRICES/COSTS
DESKTOP V
CLIN 0094 SERVER SYSTEM
International Data Products
<TABLE>
<CAPTION>
BASE YEAR
SLIN OFFEROR DESCRIPTION OEM OEM # UNIT PRICE
- ---------------- ----------------------------------------- ---------------------------- ----------------- ---------------
<S> <C> <C> <C> <C>
1004GQ Competitive Trade in of 250 user NOS Microsoft 2273275V40VL-250 $3,498
for 5 per-node+1 server software
1004GR Competitive Trade in of 500 user NOS Microsoft 2273275V40VL-500 $6,542
for 5 per-node+1 server software
1004GS Competitive Trade in of 1000 user NOS Microsoft 2273275V40VL-1000 $12,631
for 5 per-node+1 server software
SOFTWARE-OPEN Software Open Systems Environment
SYSTEMS software (UNIX)
ENVIRONMENT
1004HA MS Office Professional v4.3 License Microsoft 269-055V43VL $124
and Documentation
1004HB MS Office Professional v4.3 License Only Microsoft 269-055V43VL $122
1004HC MS Office Professional v4.3 License with Microsoft
269-055V43VL $126
CD media and on-line documentation
1004HD MS Office Professional v4.3 License and Microsoft 269-055V43VL $125
Media
UNIX Operating
System
1004HE Open Server Release 5 Enterprise System SCO; Lynnsoft, Microsoft SOF0824,SOF0461, $1,003
Lynnsoft PC Card software v1.0; SCO 050-050V31VL
Merge; Microsoft Windows 3.11; Licenses
and Documentation
1004HF Open Server Release 5 Enterprise System; SCO; Lynnsoft, Microsoft SOF0824,SOF0461, $995
Lynnsoft PC Card software v1.0; SCO Merge; 050-050V31VL
Microsoft Windows 3.11; Licenses Only
1004HG Open Server Release 5 Enterprise System; SCO; Lynnsoft, Microsoft SOF0824,SOF0461, $1,040
Lynnsoft PC Card software v1.0; SCO Merge; 050-050V31VL
Microsoft Windows 3.11; Licenses with
Documentation and Media
1004HH Open Server Release 5 Enterprise System; SCO; Lynnsoft, Microsoft SOF0824,SOF0461, $1,031
Lynnsoft PC Card software v1.0; SCO Merge; 050-050V31VL
Microsoft Windows 3.11; Licenses and Media
1004HJ SCO Retix 2.1 Lan Transport License and SCO SOF0692 $168
online documentation
1004HK SCO Retix 2.1 Lan Transport License Only SCO SOF0692 $168
1004HL SCO Retix 2.1 Lan Transport, License, SCO SOF0693 $184
Duel Media and online documentation
<CAPTION>
OY1 UNIT OY2 OY2 UNIT OY3 OY3 UNIT OY4 OY4 UNIT
SLIN OY1 SLIN PRICE SLIN PRICE SLIN PRICE SLIN PRICE
- ---------------- ------------ --------------- ------------ ------------- -------------- ------------- ------------ --------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
1004GQ 2004GQ $3,323 3004GQ $3,157 4004GQ $2,999 5004GQ $2,849
1004GR 2004GR $6,215 3004GR $5,905 4004GR $5,609 5004GR $5,329
1004GS 2004GS $12,000 3004GS $11,400 4004GS $10,830 5004GS $10,288
1004HA 2004HA $118 3004HA $112 4004HA $106 5004HA $101
1004HB 2004HB $116 3004HB $110 4004HB $105 5004HB $99
1004HC 2004HC $120 3004HC $114 4004HC $108 5004HC $103
1004HD 2004HD $119 3004HD $113 4004HD $107 5004HD $102
1004HE 2004HE $953 3004HE $905 4004HE $860 5004HE $817
1004HF 2004HF $945 3004HF $898 4004HF $853 5004HF $811
1004HG 2004HG $988 3004HG $939 4004HG $892 5004HG $847
1004HH 2004HH $979 3004HH $930 4004HH $884 5004HH $840
1004HJ 2004HJ $159 3004HJ $151 4004HJ $144 5004HJ $137
1004HK 2004HK $159 3004HK $151 4004HK $144 5004HK $137
1004HL 2004HL $175 3004HL $166 4004HL $158 5004HL $150
</TABLE>
<PAGE>
97-D-0001
Section B Page 40 of 46
TABLE
PART 1 - THE SCHEDULE, SECTION B - SUPPLIES OR SERVICES AND PRICES/COSTS
DESKTOP V
CLIN 0004 SERVER SYSTEM
International Data Products
<TABLE>
<CAPTION>
BASE YEAR
SLIN OFFEROR DESCRIPTION OEM OEM # UNIT PRICE
- ------------------ ------------------------------------ ------------------------ --------------------- -------------------
<S> <C> <C> <C> <C>
SCO Relix 2.1 LAN Transport Licenses
1004HM and Dual Media SCO SOF0893 $184
Sybase SQL RDBMS SW License and
1004HN documentation (client version) Sybase 14660 $70
Sybase SQL RDBMS SW License Only
1004HP (client version) Sybase 14660 $68
Sybase SQL RDBMS SW License, media
1004HQ and documentation (client version) Sybase 14660 $77
Sybase SQL RDBMS SW License and media
1004HR (client version) Sybase 14660 $74
Sybase SQL RDBMS SW License and
1004HS documentation (server version) Sybase 91070 $107
Sybase SQL RDMS SW License Only (server
1004HT version) Sybase 91070 $105
Sybase SQL RDBMS SW License, media and
1004HU documentation (server version) Sybase 91070 $107
Sybase SQL RDBMS SW License and media
1004HV (server version) Sybase 91070 $105
<CAPTION>
OY1 OY1 UNIT OY2 OY2 UNIT OY3 OY3 UNIT OY4 OY4 UNIT
SLIN SLIN PRICE SLIN PRICE SLIN PRICE SLIN PRICE
- --------------- ------------ ------------- ---------- ------------- ---------- -------------- ---------- ---------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
1004HM 2004HM $175 3004HM $166 4004HM $158 5004HM $150
1004HN 2004HN $67 3004HN $63 4004HN $60 5004HN $57
1004HP 2004HP $65 3004HP $61 4004HP $58 5004HP $55
1004HQ 2004HQ $73 3004HQ $70 4004HQ $66 5004HQ $63
1004HR 2004HR $70 3004HR $67 4004HR $64 5004HR $60
1004HS 2004HS $101 3004HS $96 4004HS $92 5004HS $87
1004HT 2004HT $99 3004HT $94 4004HT $90 5004HT $85
1004HU 32004HU $101 3004HU $96 4004HR $92 5004HU $87
1004HV 2004HV $99 3003HV $94 4004HV $90 5004HV $85
</TABLE>
<PAGE>
97-D-0001
Section B Page 41 of 46
TABLE
PART 1 - THE SCHEDULE, SECTION B - SUPPLIES OR SERVICES AND PRICES/COSTS
DESKTOP V
CLIN 0005 SERVER SYSTEM
International Data Products
<TABLE>
<CAPTION>
BASE YEAR
SLIN OFFEROR DESCRIPTION OEM OEM # UNIT PRICE
- ---------------- ----------------------------------------- ---------------------------- ----------------- ---------------
<S> <C> <C> <C> <C>
PRINTER
1005AA Printer, Impact, Accel 344, 24-pin Advanced Metrix Technology ATM340-344 $372
1005AB RESERVED RESERVED RESERVED
1005AC Adapter Plug, Europe and Italy IDP NW-1WPHS $2
1005AD Adapter Plug, Great Britain IDP NW-5WPHS $2
1005AE Printer, Portable, HP DeskJet 340 Hewlett Packard C2655A $348
Included with Portable Printer:
Rechargeable Battery IDP PTA0076
Battery Recharger Hewlett Packard C3004A
Carrying Case for Portable Printer IDP PTA0097
1005AF Color Option Kit, for HP DeskJet 340 Hewlett Packard C3280A $29
1005AG Battery, Portable Printer IDP PTA0076 $21
1005AH Printer, Color, HP DeskJet 692C Hewlett Packard C4582A $290
1005AJ Lexmark Optra S 1250 Laser Printer, Lexmark 43J1000 $972
12ppm w/4MB RAM
1005AK 4MB Memory Upgrade for Lexmark Printers, Smart Modular SM532013001X4G7 $64
SLINS 1005AJ amd 1005AL
1005AL Lexmark Optra S 1650N Network Laser Lexmark 43J2038 $1,486
Printer, 16 ppm w/8MB RAM and Ethernet
10BaseT Network Adapter
1005AM 8MB Memory Upgrade for Lexmark Printers, Smart Modular SM532923001X4S6 $110
SLINS 1005AJ and 1005AL
1005AN Lexmark Optra SC 1275N Color Laser Lexmark 11C0201 $4,211
Printer, 12 ppm w/32MB RAM and Ethernet
100 Base TX/10 Base T Network Adapter
</TABLE>
<PAGE>
97-D-0001
Section B Page 42 of 46
<TABLE>
<CAPTION>
OY1 UNIT OY2 OY2 UNIT OY3 OY3 UNIT OY4 OY4 UNIT
SLIN OY1 SLIN PRICE SLIN PRICE SLIN PRICE SLIN PRICE
- ---------------- ------------ --------------- ------------ ------------- -------------- ------------- ------------ --------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
PRINTER
1005AA 2005AA $353 3005AA $336 4005AA $319 5005AA $303
1005AB 2005AB 3005AB 4005AB 5005AB
1005AC 2005AC $2 3005AC $2 4005AC $2 5005AC $2
1005AD 2005AD $2 3005AD $2 4005AD $2 5005AD $2
1005AE 2005AE $330 3005AE $314 4005AE $298 5005AE $283
1005AF 2005AF $28 3005AF $27 4005AF $25 5005AF $24
1005AG 2005AG $20 3005AG $19 4005AG $18 5005AG $17
1005AH 2005AH $275 3005AH $261 4005AH $248 5005AH $236
1005AJ 2005AJ $923 3005AJ $877 4005AJ $833 5005AJ $792
1005AK 2005AK $61 3005AK $58 4005AK $55 5005AK $52
1005AL 2005AL $1,412 3005AL $1,341 4005AL $1,274 5005AL $1,210
1005AM 2005AM $104 3005AM $99 4005AM $94 5005AM $89
1005AN 2005AN $4,000 3005AN $3,800 4005AN $3,610 5005AN $3,430
</TABLE>
<PAGE>
97-D-0001
Section B Page 42 of 46
TABLE D
PART 1 - THE SCHEDULE, SECTION B - SUPPLIES OR SERVICES AND PRICES/COSTS
DESKTOP V
CLIN 0007
International Data Products
<TABLE>
<CAPTION>
BASE YEAR
SLIN OFFEROR DESCRIPTION OEM OEM # UNIT PRICE
- ------------------ ------------------------------------ ------------------------ --------------------- -------------------
<S> <C> <C> <C> <C>
"Peripherals for these CLIN 7 systems
may be found in CLINS 1-4 of this
contract. Please contact your IDP sales
representative for configuration
suggestions.
ADVANCED
TRAVELER'S One version of the IDP 575 Series
NOTEBOOK Modular Notebook is available for order
as follows:
IDP 575 Series Notebook, 13.3" Active
Matrix TFT Screen, Intel Pentium 233
MMX mobile PU, 64MB of SO DIMM EDO
Memory, 3GB Hard Drive, Windows NT and
1007AA Office 97 $3,510
Motherboard 575, 64-bit PCI Local Bus
Graphics w/2MB video display DRAM, and
Xing MPEG-1, PC Card Type IV slots, 512K
sync burst cache
One ECP/EPP 25-pin parallel port. One
UART 16C550 9-pin serial port. One
universal serial bus (USB) port. NTSC/PAL
TV out jack, HP SIR, wDA and ASKIR
inframed port, 16-bit audio FM synthesizer/
Wave table support with built-in
speaker/headphone, microphone, and line-in
jacks. Windows sound system and SoundBlaster
compatible.
Floppy Drive, 3.5", Removable
CD ROM Drive, 20X, Removable
Pointing Device, Touchpad
Lithium Ion Battery
S6.6 Kbps Modem Smart Modular ST5614DFNAMSR
A/C Adaptor, IDP 575
Carrying Case, Soft
Adaptor Plug, Europe and Italy
Adaptor Plug, Great Britain
Intel Pentium 233 MHz MMX Processor
(Mobile Version) Intel TT8050366233
Display, 3.3" TFT XGA LCD screen
64MB total EDO RAM (16MB on board, SM564028098NWG6
and one 32MB DMM) Smart Modular SM564043094NWG6
1) Toshiba 1) MK-3003MANN
1) IBM 2) DLGA-23080
Hard drive, 3GB (with free upgrade to 3) Hitachi 3) DK226A-32
5.1GB when available)
Ethemet Combo Network Card - 10Mbps SMC 80208T
Xing MPEG 1 Software Xing LB8021
Microsoft Client License for NT NOS Host Microsoft 2272675V40VL
Microsoft Exchange Client (Email) S/W Microsoft 381-00465
& License
Office Professional 97 License, CD ROM
Based Media and On-Line Documentation Microsoft 353-00220
64MB SO DIMM EDO Memory Upgrade - FIC
Replaces 32MB DIMM module for a total
1007BA of 96MB total RAM Smart Modular SMC564088574N6AA $493
32MB SO DIMM EDO Memory Upgrade -
1007BB UIC. One 32MB DIMM. Smart Modular SMC564088574N6AA $295
64MB SO DIMM EDO Memory Upgrade -
107BC UIC. One 64MB DIMM. Smart Modular SM564088094NWG6 $788
<CAPTION>
OY1 OY1 UNIT OY2 OY2 UNIT OY3 OY3 UNIT OY4 OY4 UNIT
SLIN SLIN PRICE SLIN PRICE SLIN PRICE SLIN PRICE
- --------------- ------------ ------------- ---------- ------------- ---------- -------------- ---------- ---------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
1007AA 2007AA $3,335 3007AA $3,168 4007AA $3,009 5007AA $2,859
1007BA 2007BA $468 3007BA $445 4007BA $423 5007BA $402
1007BB 2007BB $280 3007BB $266 4007BB $253 5007BB $240
1007BC 2007BC $749 3007BC $711 4007BC $676 5007BC $642
</TABLE>
<PAGE>
97-D-0001
Section B Page 43 of 46
TABLE
PART 1 - THE SCHEDULE, SECTION B - SUPPLIES OR SERVICES AND PRICES/COSTS
DESKTOP V
CLIN 0007
International Data Products
<TABLE>
<CAPTION>
BASE YEAR
SLIN OFFEROR DESCRIPTION OEM OEM # UNIT PRICE
- ---------------- ----------------------------------------- ---------------------------- ----------------- ---------------
<S> <C> <C> <C> <C>
1007BD SMC 10/100Mbs Card Bus Network Card SMC 8032DT $0
(FIC) (10/100 network card is a
substitution for the 10/10 Mbps card
in the notebook)
SINGLE
PENTIUM II
COMPUTERS
1007AB IDP 750 Series Desktop, Intel Pentium II $3,010
300, with Diamond AGP video card, 64MB
of SDRAM DIMM Modules, 8GB EIDE Hard
Drive, Windows NT
Single Pentium II Motherboard, Intel
440LX Chipsel, 2 serial ports, 2
parallel ports, Ultra DMA/33 EIDE
controller, 2 USB connectors, up to
4EIDE devices, 3PCI/1ISA/1 Shared slots
(5 usable slots) PS/2 connector. Supports
one Pentium II processor. 3 memory total
memory slots with one remaining. Maximum
memory expandable to 384MB. Intel BEAL3UM
On-board SoundBlaster compatible 16-bit
audio system featuring Yamaha OPL3-SA
audio chipsel
Intel AL440LX Motherboard Intel BEAL3UM
Total 64MB SDRAM (2) 32MB SDRAM DIMM Smart Modular SM564044074N6AA
Modules (1) CPU, Pentium II 300 Mhz, Intel 1) 8055P300512
with 512K cache
6.4GB EIDE Hard Drive 1) Western Digital 1) AC36400
2) Seagate 2) ST36451A
Floppy Drive (3.5") 1.44MB 1) Sony 1) MPF-920
2) Alps 2) OF334H911A
3) Teac 3) FD-235HF
4MB SGRAM AGP Video Card Diamond Fire 1400 Pro/A-OEM
PC Card Reader (PCMCIA) Front Accessible 1) SCM 1) SBI-D2P
2) Greystone 2)GS-320
PCI Network Adapter 10 Base T/10 Base 2, SMC 8432BTA
w/RJ45, BNC and AUI connectors
Monitor, 17" 0.26mm Color - up to 1) Goldstar 1) 7B
1280x1024
CD ROM, 24x IDE 1) Goldstar 1) CRD-8240B
2) Toshiba 2) XM-6102B
(2) Speakers 12 watts 1) JAZZ 1) J-340
2) JBL 2) Media 100
3) JBL 3) Media 2V2
Microphone Quickshot W5838-B
Windows 95 Keyboard IDP SKR-1104ICPS
PS/2/Serial Mouse IDP SMF-24981
Microsoft Client License for NT NOS Host Microsoft 2272075V40VL
Microsoft Exchange Client (Email) S/W Microsoft 381-00465
& License
Office Professional 97 License, CD ROM Microsoft 353-00220
Based Media and On-Line Documentation
Adapter Plug, Europe and Italy IDP NW-1WPHS
Adapter Plug, Great Britain IDP NW-5WPHS
1007BE 32MB Memory Upgrade SDRAM DIMM Module- Smart Modular SMC564048074N6AA $203
FIC For SLIN 1007AB
1007BF 32MB Memory Upgrade SDRAM DIMM Module- Smart Modular SMC564044074N6AA $203
UIC For SLIN 1007AB
1007BG 64MB Memory Upgrade SDRAM DIMM Module- Smart Modular SMC564088574N6AA $464
FIC For SLIN 1007AB
<CAPTION>
OY1 UNIT OY2 OY2 UNIT OY3 OY3 UNIT OY4 OY4 UNIT
SLIN OY1 SLIN PRICE SLIN PRICE SLIN PRICE SLIN PRICE
- ---------------- ------------ --------------- ------------ ------------- -------------- ------------- ------------ --------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
1007BD 2007BD $0 3007BD $0 4007BD $0 5007BD $0
SINGLE
PENTIUM II
COMPUTERS
1007AB 2007AB $2,860 3007AB $2,717 4007AB $2,581 5007AB $2,452
1007BE 2007BE $193 3007BE $183 4007BE $174 5007BE $165
1007BF 2007BF $193 3007BF $183 4007BF $174 5007BF $165
1007BG 2007BG $441 3007BG $419 4007BG $398 5007BG $378
</TABLE>
<PAGE>
97-D-0001
Section B Page 44 of 46
TABLE
PART 1 - THE SCHEDULE, SECTION B - SUPPLIES OR SERVICES AND PRICES/COSTS
DESKTOP V
CLIN 0007
International Data Products
<TABLE>
<CAPTION>
BASE YEAR
SLIN OFFEROR DESCRIPTION OEM OEM # UNIT PRICE
- ---------------- ----------------------------------------- ---------------------------- ----------------- ---------------
<S> <C> <C> <C> <C>
1007BH 64MB Memory Upgrade SDRAM DIMM Module - Smart Modular SMC5640088574N6AA $464
UIC. For SLIN 1007AB
1007BJ Video Upgrade - FIC (Factory Installed Diamond FIRE1800PRO/A-OEM $67
Component) For SLIN 1907AB; Diamond 8MB
SGRAM AGP Video card - replaces Diamond
4MB SGRAM AGP Video Card at factory
1007BK Video Upgrade - UIC (User Installed Diamond FIRE1800PRO/A-OEM $227
Component); Diamond 8MB SGRAM AGP Video
Card
1007BL PCI 10/100Mbps network adapter w/RJ45 SMC 9432TX $0
connector (FIC) (10/100 network card is
a substitution for the 10/10 Mbps card
in the workstation)
ADVANCED IDP Four IDP NT Qued Capable Servers with
SERVER Dual Pentium Pro 200 MHz, 512K Cache
available summarized as follows:
Features common to all four IDP Quad
Pentium Pro Servers as follows:
(2) Intel Pentium PRO 200MHz 512k cache Intal PPRO200512
Quad Pentium Pro Motherboard, 2 serial Seagate ST34572WC
ports, 2 parallel port, Dual Channel PCI
IDE, 2 USB connections, up to 4EIDE
devices, 6 PCI/4 EISA slots (9 usable slots)
PS/2 connector. Two on-board Fast Wide
(20MB/sec) Fast-20 (40MB/sec) SCSI
Controllers (Adaptec 7860). Supports
up to four Pentium Pro processors. Memory
expandable to 2GB and 16 memory slots.
(5) 4.55GB Ultra SCSI Wide (SCA) Hard
Drive
PCI 10/100Mbps network adapter SMC 9432TX
w/RJ45 connector
PCI Network Adapter 10 Base T/10 SMC 8432BTA
Base 2, w/RJ45, BNC and AUI connectors
PS/2 Win95 104-key Keyboard IDP
PS/2/Serial Mouse IDP SMF-24981
CD ROM 24x Internal IDE 1) Goldstar 1)CRD-82480
2) Toshiba 2) XM-61028
Monitor, 15" Color - up to 1280x1024 1) Goldstar 1) 56w
2) IDP 2) 56i
Adapter Plug, Europe and Italy IDP NW-1WPHS
Adapter Plug, Great Britain IDP NW-5WPHS
HP Openview Professional Suite V 1.02 Hewlett Packard D4939A#ABA
1007AC INTEL AP 450GX Small Server by IDP IDP ALPCD200512C $16,561
configured as follows:
(supports up to Quad Pentium PRO
processors) NT Server v4.0
1) Smart Modular SM532324004X6S6 $16,561
Memory, 512MB EDO RAM ((4) 128 MB 2) Advantage A3236-16X4-56T
SIMMs)
BGB, DAT Tape Back Up Unit Seagate STD28000N
Windows NT Server 4.0 License Microsoft (Select 2273275V40VL
Distribution)
Windows NT Server 4.0 CD-ROM Media Microsoft (Select
with Online Documentation Distribution)
Client Access License for Windows Microsoft (Select
NT Server is included in IDP Workstation. Distribution)
Client AccessLicense for Windows NT Microsoft (Select
Server is included in IDP Workstation. Distribution)
Arcserve 6.5 for Windows NT Server Cheyenne NTFFAR650SEW
(S/S Edition)
<CAPTION>
OY1 UNIT OY2 OY2 UNIT OY3 OY3 UNIT OY4 OY4 UNIT
SLIN OY1 SLIN PRICE SLIN PRICE SLIN PRICE SLIN PRICE
- ---------------- ------------ --------------- ------------ ------------- -------------- ------------- ------------ --------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
1007BH 2007BH $441 3007BH $419 4007BH $398 5007BH $378
1007BJ 2007BJ $64 3007BJ $60 4007BJ $57 5007BJ $55
1007BK 2007BK $216 3007BK $205 4007BK $195 5007BK $185
1007BL 2007BL $0 3007BL $0 4007BL $0 5007BL $0
1007AC 2007AC $16,230 3007AC $15,743 4007AC $14,956 5007AC $14,208
</TABLE>
<PAGE>
97-D-0001
Section B Page 45 of 46
TABLE B
PART SCHEDULE, SECTION B - SUPPLIES OR SERVICES AND PRICES/COSTS
DESKTOP
CLIN0007
INTERNATIONAL DATA PRODUCTS
<TABLE>
<CAPTION>
BASE YEAR
SLIN OFFEROR DESCRIPTION OEM OEM # UNIT PRICE
- ---------------- ----------------------------------------- ---------------------------- ----------------- ---------------
<S> <C> <C> <C> <C>
1007AD INTEL AP450GX Medium Server by IDP IDP ALPCD200512C $21,404
configured as follows:
(supports up to Quad Pentium PRO
processors) NT Server v4.0
1) Smart Modular SM532324004X656
Memory, 512MB EDO RAM ((4) 126 MB SIMMs) 2) Advantage A3236-16X4-66T
HP Surestore 144GB DAT, 6 TAPE Juke Hewlett Packard 24X6E
Box Autoloader
RAID Controller IDP CRX-CTR2AU
Windows NT Server 4.0 License Microsoft (Select 2273275V40VL
Distribution
Windows NT Server 4.0 CD-ROM Media with Microsoft (Select
Online Documentation Distribution)
Client AccessLicense for Windows NT Microsoft (Select
Server is included in IDP Workstation Distribution
Arcserve 6.5 for Windows NT Server Cheyenne NTFAR650SEW
(S/S Edition)
1007AE INTEL AP450GX Large Server by IDP ALPCD200512C $34,900
configured as follows:
(supports up to Quad Pentium PRO
processors) NT Server v4.0
1) Smart Modular SM532324004X6S6
Memory, 1GB EDO ((8) 128MB SIMMs) 2) Advantage A3236-16X4-66T
8MM 220/440GB Tape Library Exabyte 935404-255
RAID Controller IDP CRX-CTR2AU
Windows NT Server 4.0 License Microsoft (Select 2273275V40VL
Distribution)
Windows NT Server 4.0 CD-ROM Media with Microsoft (Select
Online Documentation Distribution
Client AccessLicense for Windows NT Microsoft (Select
Server is included in IDP Workstation. Distribution
Arcserve 6.5 for Windows NT Server Cheyenne NTFFAR650SEW
(S/S Edition)
1007AF INTEL AP450GX Large Server by IDP IDP ALPCD200512C $27,350
configured as follows:
(supports up to Quad Pentium PRO
processors) SCO OpenServer Enterprise
with 512-use client license
1) Smart Modular SM532324004X6S6
Memory, 1GB EDO expandable to 2GB 2) Advantage A3236-16X4-66T
((8) 128MB SIMMs)
8MM 220/440GB Tape Library Exabyte 935404-255
RAID Controller IDP CRX-CTR2AU
SCO Openserver Enterprise Server SCO SA261-UX74-50
R5.04 5-user CD
SCO Openserver Enterprise 512-User SCO UX261-0512-5.0
License Pack
1007BM Reserved
1007BN Reserved
1007BP Reserved
1007BQ Reserved
1007BR Processor Upgrade - Intel Dual Processor Intel PALCPA2X200512 $3,473
Module with 2 Pentium Pro 200Mhz 512K
Cache Processors - FIC (Factory Installed
Component) For SLINS 1007AC - 1007AF
1007BS Reserved
1007BT 1400 VA Smart UPS with PowerChute Plus APC SU1400NET $616
Software
1007BU 2200 Smart UPS with Powerchute Plus APC SU2200NET $884
software
<CAPTION>
OY1 UNIT OY2 OY2 UNIT OY3 OY3 UNIT OY4 OY4 UNIT
SLIN OY1 SLIN PRICE SLIN PRICE SLIN PRICE SLIN PRICE
- ---------------- ------------ --------------- ------------ ------------- -------------- ------------- ------------ --------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
1007AD 2007AD $20,976 3007AD $20,347 4007AD $19,329 5007AD $18,363
1007AE 2007AE $34,202 3007AE $33,176 4007AE $31,517 5007AE $29,941
1007AF 2007AF $26,803 3007AF $25,999 4007AF $24,699 5007AF $23,464
1007BR 2007BR $3,299 3007BR $3,134 4007BR $2,978 5007BR $2,829
1007BT 2007BT $585 3007BT $556 4007BT $528 5007BT $502
1007BU 2007BU $840 3007BU $798 4007BU $758 5007BU $720
</TABLE>
<PAGE>
97-D-0001
Section B Page 46 of 46
<TABLE>
<CAPTION>
BASE YEAR
SLIN OFFEROR DESCRIPTION OEM OEM # UNIT PRICE
- ---------------- ----------------------------------------- ---------------------------- ----------------- ---------------
<S> <C> <C> <C> <C>
1) Seagate 1) ST19171WC
1007BV 9.0GB SCSI SCA Hard drive (FIC) 2) Seagate 2) ST39173WC $735
1) Seagate 1) ST1182731WC
1007BW 19.0GB SCSI SCA Hard drive (FIC) 2) IBM 2) 59H6595 $1,874
</TABLE>
<TABLE>
<CAPTION>
OY1 UNIT OY2 OY2 UNIT OY3 OY3 UNIT OY4 OY4 UNIT
SLIN OY1 SLIN PRICE SLIN PRICE SLIN PRICE SLIN PRICE
- ---------------- ------------ --------------- ------------ ------------- -------------- ------------- ------------ --------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
1007BV 2007BV $696 3007BV $663 4007BV $630 5007BV $599
1007BW 2007BW $1,780 3007BW $1,691 4007BW $1,607 5007BW $1,526
</TABLE>
<PAGE>
Exhibit 10.14
PAGE 2
SOL#N00140-98-C-H189
This award document constitutes acceptance of your offer dated 18 Sep 97, as
supplemented by your letters of 1 Dec 97 and 30 Dec 97, submitted in response to
Solicitation N00140-97-R-3135 dated 10 Jul 97 for IT-21 Program at the
CINCLANTFLT Norfolk, VA as amended by Amendments 0001 dated 6 Aug 97, 0002 dated
22 Aug 97, 0003 dated 5 Sep 97, 0004 dated 8 Sep 97, 0005 dated 12 Sep 97 and
0006 dated 12 Sep 97.
Representations, Certifications, Other Statements, Instructions, Conditions and
Notices to Offerors Sections on pages 30 through 43 of the solicitation are
incorporated by reference.
<PAGE>
Page 3
SOL# N00140-98-C-H189
SCHEDULE OF SUPPLIES/SERVICES AND PRICES (continuation of Block 20, Page 1,
hereto)
<TABLE>
<CAPTION>
CLIN DESCRIPTION QTY U/I UNIT PRICE TOTAL AMT
- ---- ---------------- ---- --- ----------- ---------
<S> <C> <C> <C> <C> <C>
0001 Lease of Desktops I/A/W IT-21 Specification
and SOW contained in Section C, for the period
from the date of shipment I/A/W delivery
schedule through 30 Sep 1998
0001AA I/A/W Delivery Schedule 170 EA 7.86 MO $20,910.00 $164,352.60
of CLIN 0001 by 5 Feb 1998
0001AB I/A/W Delivery Schedule 170 EA 7.61 MO $20,910.00 $159,125.10
of CLIN 0001 by 12 Feb 1998
0001AC I/A/W Delivery Schedule 170 EA 7.36 MO $20,910.00 $153,897.60
of CLIN 0001 by 19 Feb 1998
0001AD I/A/W Delivery Schedule 170 EA 7.11 MO $20,910.00 $148,670.10
of CLIN 0001 by 26 Feb 1998
0001AE I/A/W Delivery Schedule 170 EA 6.87 MO $20,910.00 $143,651.70
of CLIN 0001 by 5 Mar 1998
TOTAL CLIN 0001 $769,697.10
0002 Lease of Servers 7.86 MO $28,675.00 $225,385.50
I/A/W IT-21 Specification and
SOW contained in Section C
for the period from the date of
shipment (5 Feb 1998) I/A/W delivery schedule
through 30 Sep 1998
0003 Lease of Switching & Hubbing 7.86 MO $63,021.00 $495,345.06
Modules I/A/W IT-21
Specification and SOW
contained in Section C,
for the period from the date of
shipment (5 Feb 1998) I/A/W delivery schedule
through 30 Sep 1998
0004 Lease of Black & White
Laser Printers
I/A/W IT-21
Specification and SOW
contained in Section C,
for the period from the date of
shipment I/A/W delivery schedule
through 30 Sep 1998
0004AA I/A/W Delivery Schedule 200 EA 7.86 MO $4,880.00 $38,356.80
of CLIN 0004 by 5 Feb 1998
0004AB I/A/W Delivery Schedule 200 EA 7.61 MO $4,880.00 $37,136.80
of CLIN 0004 by 12 Feb 1998
0004AC I/A/W Delivery Schedule 200 EA 7.36 MO $4,880.00 $35,916.80
<PAGE>
Page 4
SOL# N00140-98-C-H189
of CLIN 0004 by 19 Feb 1998
0004AD I/A/W Delivery Schedule 200 EA 7.11 MO $4,880.00 $34,696.80
of CLIN 0004 by 26 Feb 1998
0004AE I/A/W Delivery Schedule 200 EA 6.87 MO $4,880.00 $33,525.60
of CLIN 0004 by 5 Mar 1998
TOTAL CLIN 0004 $179,632.80
0005 Lease of Entry-Level Thermal Inkjet
Color Printers, I/A/W IT-21
Specification and SOW contained in Section C,
for the period from the date of shipment
I/A/W delivery schedule through 30 Sep 1998
0005AA I/A/W Delivery Schedule 200 EA 7.86 MO $2,520.00 $19,807.20
of CLIN 0005 by 5 Feb 1998
0005AB I/A/W Delivery Schedule 200 EA 7.61 MO $2,520.00 $19,177.20
of CLIN 0005 by 12 Feb 1998
0005AC I/A/W Delivery Schedule 200 EA 7.36 MO $2,520.00 $18,547.20
of CLIN 0005 by 19 Feb 1998
0005AD I/A/W Delivery Schedule 200 EA 7.11 MO $2,520.00 $17,917.20
of CLIN 0005 by 26 Feb 1998
0005AE I/A/W Delivery Schedule 200 EA 6.87 MO $2,520.00 $17,312.40
of CLIN 0005 by 5 Mar 1998
TOTAL CLIN 0005 $92,761.20
0006 Lease of High-End Color Laser
Printers, I/A/W IT-21
Specification and SOW
contained in Section C,
for the period from the date of
shipment I/A/W delivery schedule
through 30 Sep 1998
0006AA I/A/W Delivery Schedule 200 EA 7.86 MO $895.00 $7,034.70
of CLIN 0006 by 5 Feb 1998
0006AB I/A/W Delivery Schedule 200 EA 7.61 MO $895.00 $6,810.95
of CLIN 0006 by 12 Feb 1998
006AC I/A/W Delivery Schedule 200 EA 7.36 MO $895.00 $6,587.20
of CLIN 0006 by 19 Feb 1998
0006AD I/A/W Delivery Schedule 200 EA 7.11 MO $895.00 $6,363.45
of CLIN 0006 by 26 Feb 1998
0006AE I/A/W Delivery Schedule 200 EA 6.87 MO $895.00 $6,148.65
of CLIN 0006 by 5 Mar 1998
TOTAL CLIN 0006 $32,944.95
OPTION 1:
- ---------
0007 Lease of Laptops 7.86 MO $29,4000.00 $231,084.00
I/A/W IT-21
Specification and SOW
<PAGE>
Page 5
SOL #N00140-98-C-H189
contained in Section C,
for the period from the date of
shipment (5 Feb 1998) I/A/W delivery schedule
through 30 Sep 1998
0008 Lease of Docking Stations 7.86 MO $2,300.00 $18,078.00
I/A/W IT-21
Specification and SOW
contained in Section C,
for the period from the date of
shipment (5 Feb 1998) I/A/W delivery schedule
through 30 Sep 1998
Total CLINs 0001 through 0006 $1,795,766.61
Total CLINs 0001 through 0008 $2,044,928.61
FIRST OPTION YEAR
OPTION 2:
0009 Lease of Desktops 12 MO $84,150.00 $1,0009,800.00
I/A/W IT-21 Specification and
SOW contained in Section C,
for the period from 1 Oct 1998
through 20 Sep 1999
0010 Lease of Severs 12 MO $28,675.00 $344,100.10
I/A/W IT-21 Specification and
SOW contained in Section C,
for the period from Oct 1998
though 30 Sep 1999
0011 Lease of Switching & Hubbing 12 MO $63,021.00 $756,252.00
Modules I/A/W IT-21
Specification and SOW contained
in Section C, for the period
from 1 Oct 1998 through 30
Sep 1999
0012 Lease of Black & White 12 MO $24,400.00 $292,800.00
Laser Printers
I/A/W IT-21 Specification and
SOW contained in Section C for
the period from 1 Oct 1998
through 30 Sep 1999
0013 Lease of Entry-Level Thermal Inkjet 12 MO $12,600.00 $151,200.00
Color Printers, I/A/W IT-21
Specification and SOW
<PAGE>
Page 6
SOL# NOO140-98-C-H189
contained in Section C,
for the period from 1 Oct 1998
through 30 Sep 1999
0014 Lease of High-End Color Laser 12 MO $4,475.00 $53,700.00
Printers, I/A/W IT-21
Specification and SOW contained
in Section C, for the period
from 1 Oct 1998 through 30 Sep 1999
OPTION 3
0015 Lease of Laptops 12 MO $24,00.00 $288,000.00
I/A/W IT-21
Specification and SOW
contained in Section C,
for the period from 1 Oct
1998 through 30 Sep 1999
0016 Lease of Docking Stations 12 MO $2,300.00 $27,600.00
I/A/W IT-21 Specification and
SOW contained in Section C,
for the period from 1 Oct 1998
through 30 Sep 1999
Total CLINs 0009 through 0014 $2,607,852.00
Total CLINs 0009 through 0016 $2,923,452.00
SECTION OPTION YEAR
OPTION 4
0017 Lease of Desktops 12 MO $73,100.00 $877,200.00
I/A/W IT-21 Specification and
SOW contained in Section C,
for the period from 1 Oct 1999
through 30 Sep 2000
0018 Lease of Servers 12 MO $28,675.00 $344,100.00
I/A/W IT-21 Specification and
SOW contained in Section C,
for the period from 1 Oct 1999
through 30 Sep 2000
0019 Lease of Switching & Hubbing 12 MO $63,021.00 $756,252.00
Modules I/A/W IT-21
Specification and SOW contained
in Section C, for the period
from 1 Oct 1999 through
30 Sep 2000
<PAGE>
Page 7
SOL# N00140-98-C-H189
0020 Lease of Black & White 12 MO $24,400.00 $292,800.00
Laser Printers
I/A/W IT-21 Specification and
SOW contained in Section C, for
the period from 1 Oct 1999 through
30 Sep 2000
0021 Lease of Entry-Level Thermal 12 MO $12,600.00 $151,200.00
Inkjet Color Printers, I/A/W
IT-21 Specification and SOW
contained in Section C, for the
period from 1 Oct 1999 through
30 Sep 2000
0022 Lease of High-End Color Laser 12 MO $4,475.00 $53,700.00
Printers, I/A/W IT-21
Specification and SOW contained
in Section C, for the period
from 1 Oct 1999 through
30 Sep 2000
OPTION 5:
0023 Lease of Laptops 12 MO $21,800.00 $261,600.00
I/A/W IT-21
Specification and SOW contained
in Section C, for the period
from 1 Oct 1999 through 30
Sep 2000
0024 Lease of Docking Stations 12 MO $2,300.00 $27,600.00
I/A/W IT-21
Specification and SOW contained
in Section C, for the period
from 1 Oct 1999 through 30
Sep 2000
Total CLINs 0015 through 0022 $2,475,252.00
Total CLINs 0015 through 0024 $2,764,452.00
THIRD OPTION YEAR
OPTION 6:
0025 Lease of Desktops 12 MO $73,100.00 $877,200.00
I/A/W IT-21 Specification and
SOW contained in Section C, for
the period from 1 Oct 2000 through 30
Sep 2001
<PAGE>
Page 8
SOL# N00140-98-C-H189
0026 Lease of Servers 12 MO $28,675.00 $344,100.00
I/A/W IT-21 Specification and
SOW contained in Section C, for
the period from 1 Oct 2000
through 30 Sep 2001
0027 Lease of Switching & Hubbing 12 MO $63,021.00 $756,252.00
Modules I/A/W IT-21
Specification and SOW contained
in Section C, for the period from
1 Oct 2000 through 30 Sep 2001
0028 Lease of Black & White 12 MO $24,400.00 $292,800.00
Laser Printers
I/A/W IT-21 Specification and
SOW contained in Section C, for
the period from 1 Oct 2000 through
30 Sep 2001
0029 Lease of Entry-Level Thermal 12 MO $12,600.00 $151,200.00
Inkjet Color Printers,
I/A/W IT-21 Specification and
SOW contained in Section C,
for the period from 1 Oct
2000 through 30 Sep 2001
0030 Lease of High-End Color Laser 12 MO $4,475.00 $53,700.00
Printers, I/A/W It-21
Specification and SOW contained
in Section C, for the period
from 1 Oct 2000 through
30 Sep 2001
OPTION 7
- --------
0031 Lease of Laptops 12 MO $21,800.00 $261,600.00
I/A/W IT-21
Specification and SOW
contained in Section C, for
the period from 1 Oct
2000 through 30 Sep 2001
0032 Lease of Docking Stations 12 MO $2,300.00 $27,600.00
I/A/W IT-21
Specification and SOW contained
in Section C, for the period
from 1 Oct 2000 through 30
Sep 2001
<PAGE>
Page 9
SOL# N00140-98-C-H189
Total CLINs 0025 through 0030 $2,475,252.00
Total CLINs 0025 through 0032 $2,764,452.00
FOURTH OPTION YEAR
OPTION 6:
0033 Lease of Desktops 12 MO $73,100.00 $877,200.00
I/A/W IT-21 Specification
and SOW contained in
Section C, for the period
from 1 Oct 2001 through 30
Sep 2002
0034 Lease of Servers 12 MO $28,675.00 $344,100.00
I/A/W IT-21 Specification and
SOW contained in Section C,
for the period from 1 Oct 2001
through 30 Sep 2002
0035 Lease of Switching & Hubbing 12 MO $63,021.00 $756,252.00
Modules I/A/W IT-21
Specification and SOW
contained in Section C,
for the period from 1 Oct 2001
through 30 Sep 2002
0036 Lease of Black & White 12 MO $24,400.00 $292,800.00
Laser Printers
I/A/W IT-21 Specification and
SOW contained in Section C,
for the period from 1 Oct 2001
through 30 Sep 2002
0037 Lease of Entry-Level Thermal 12 MO $12,600.00 $151,200.00
Inkjet Color Printers,
I/A/W IT-21 Specification and
SOW contained in Section C,
for the period from 1 Oct
2001 through 30 Sep 2002
00038 Lease of High-End Color Laser 12 MO $4,475.00 $53,700.00
Printers, I/A/W IT-21
Specification and SOW contained
in Section C, for the period
from 1 Oct 2001 through 30
Sep 2002
<PAGE>
Page 10
SOL# N00140-98-CH189
OPTION 9:
0039 Lease of Laptops 12 MO $21,800.00 $261,600.00
I/A/W IT-21
Specification and SOW
contained in Section C,
for the period from 1 Oct
2001 through 30 Sep 2002
0040 Lease of Docking Stations 12 MO $2,300.00 $27,600.00
I/A/W IT-21
Specification and SOW
contained in Section C,
for the period from 1 Oct
2001 through 30 Sep 2002
Total CLINs 0033 through 0038 $2,475,252.00
Total CLINs 0033 through 0040 $2,764,452.00
</TABLE>
<PAGE>
Page 11
SOL# N00140-98-C-H189
COMPONENT MONTHLY UNIT LEASE PRICE
<TABLE>
<CAPTION>
Monthly U/P Total
CLIN Description Quantity Each Monthly U/P
<S> <C> <C> <C> <C>
0001 Desktops 850 $123.00 $104,550.00
0002 Servers 25 $1,147.00 $28,675.00
0003 Switching/Hubbing (to include the following):
-ATM Uplink Module w/APIM to FNB and INB 9 $2,326.00 $20,934.00
-Fast Ethernet Switch Module w/11 RJ45 ports
and 1 FEPIM 9 $723.00 $6,507.00
-ATM Port Interface Modules 18 $39.00 $702.00
-Multimode fiber User Configurable Fast
Ethernet Port Interface Module 9 $14.00 $126.00
-MMAC Plus Smart Switch 10/100 Module
24 Port RJ71; two RJ45 ports; one SC
Multimode port; one EPIM 48 $724.00 $34,752.00
0004 Black and White Laser Printers 400 $61.00 $24,400.00
0005 Entry-Level Thermal Inkjet Color Printers 200 $63.00 $12,600.00
0006 High-End Color Laser Printers 25 $179.00 $4,475.00
OPTION 1:
007 Laptops 200 $147.00 $29,400.00
008 Docking Stations 100 $23.00 $2,300.00
OPTION 2
0009 Desktops 850 $99.00 $84,150.00
0010 Servers 25 $1,147.00 $28,675.00
0011 Switching/Hubbing (to include the following):
-ATM Uplink Module w/ APDM to FNB 9 $2,326.00 $20,934.00
-Fast Ethernet Switch Module w/11 RJ45 porte
and 1 FE PIM 9 $723.00 $6,507.00
-ATM Port Module 18 $39.00 $702.00
-Multimode User Configurable Fast
Ethernet Port Interface Module 9 $14.00 $126.00
-MMAC Plus Smart Switch 10/100 Module
24 Port RJ71; two RJ45 ports; one SC
Multimode port; one EPIM 48 $724.00 $34,752.00
0012 Black and White Laser Printers 400 $61.00 $24,400.00
0013 Entry-Level Thermal Inkjet Color Printers 200 $63.00 $12,600.00
0014 High-End Color Laser Printers 25 $179.00 $4,475.00
OPTION 3:
0015 Laptops 200 $120.00 $24,000.00
0016 Decking Stations 100 $23.00 $2,300.00
</TABLE>
<PAGE>
Page 12
SOL#N00140-98-C-H189
COMPONENT MONTHLY UNIT LEASE PRICE
<TABLE>
<CAPTION>
Monthly U/P Total
CLIN Description Quantity Each Monthly U/P
OPTION 4:
<S> <C> <C> <C> <C>
0017 Desktops 850 $ 86.00 $ 73,100.00
0018 Servers 25 $1,147.00 $ 28,675.00
0019 Switching/Hubbing (to include the following):
-ATM Uplink Module w/ APDM to FNB 9 $2,326.00 $ 20,934.00
-Fast Ethernet Switch Module w/11 RJ45 porte
and 1 FE PIM 9 $ 723.00 $ 6,507.00
-ATM Port Module 18 $ 39.00 $ 702.00
-Multimode User Configurable Fast
Ethernet Port Interface Module 9 $ 14.00 $ 126.00
-MMAC Plus Smart Switch 10/100 Module
24 Port RJ71; two RJ45 ports; one SC
Multimode port; one EPIM 48 $ 724.00 $ 34,752.00
0020 Black and White Laser Printers 400 $ 61.00 $ 24,400.00
0021 Entry-Level Thermal Inkjet Color Printers 200 $ 63.00 $ 12,600.00
0022 High-End Color Laser Printers 25 $ 179.00 $ 4,475.00
OPTION 5:
0023 Laptops 200 $ 109.00 $ 21,800.00
0024 Docking Stations 100 $ 23.00 $ 2,300.00
OPTION 6
0025 Desktops 850 $ 86.00 $ 73,100.00
0026 Servers 25 $1,147.00 $ 28,675.00
0027 Switching/Hubbing (to include the following):
-ATM Uplink Module w/ APDM to FNB 9 $2,326.00 $ 20,934.00
-Fast Ethernet Switch Module w/11 RJ45 porte
and 1 FE PIM 9 $ 723.00 $ 6,507.00
-ATM Port Module 18 $ 39.00 $ 702.00
-Multimode User Configurable Fast
Ethernet Port Interface Module 9 $ 14.00 $ 126.00
-MMAC Plus Smart Switch 10/100 Module
24 Port RJ71; two RJ45 ports; one SC
Multimode port; one EPIM 48 $ 724.00 $ 34,752.00
0028 Black and White Laser Printers 400 $ 61.00 $ 24,400.00
0029 Entry-Level Thermal Inkjet Color Printers 200 $ 63.00 $ 12,600.00
0030 High-End Color Laser Printers 25 $ 179.00 $ 4,475.00
OPTION7:
0031 Laptops 200 $ 109.00 $ 21,800.00
0032 Docking Stations 100 $ 23.00 $ 2,300.00
</TABLE>
<PAGE>
Page 13
SOL#N00140-98-C-H189
<TABLE>
<CAPTION>
Monthly U/P Total
CLIN Description Quantity Each Monthly U/P
OPTION 8
<S> <C> <C> <C> <C>
0033 Desktops 850 $ 86.00 $ 73,100.00
0034 Servers 25 $1,147.00 $ 28,675.00
0035 Switching/Hubbing (to include the following):
-ATM Uplink Module w/APTM to FNB and INB 9 $2,326.00 $ 20,934.00
-Fast Ethernet Switch Module W/11 R45 ports 9 $ 723.00 $ 6,507.00
- and 1 FEPIM
-ATM Port Interface Modules 18 $ 39.00 $ 702.00
-Multimode fiber User Configurable
Fast Ethernet 9 $ 14.00 $ 126.00
Port Interface Module MMAC Plus Smart Switch;
- 10/100 Module, 24 Port RJ71; two RJ45 ports; one
- SC Multimode port; one EPIM 48 $ 724.00 $ 34,752.00
0036 Black and White Laser Printers 400 $ 61.00 $ 24,400.00
0037 Entry-Level Thermal Inkjet Color Printers 200 $ 63.00 $ 12,600.00
0038 High-End Color Laser Printers 25 $ 179.00 $ 4,475.00
OPTION 9
0039 Laptops 200 $ 109.00 $ 21,800.00
0040 Docking Stations 100 $ 23.00 $ 2,300.00
</TABLE>
<PAGE>
Page 14
SOL # N00140-98-C-H189
DELIVERIES AND PERFORMANCE
PERIODS OF PERFORMANCE
<TABLE>
<S> <C>
Base Period: 6 Jan 1998 through 30 Sep 1998
Option 1: 6 Jan 1998 through 30 Sep 1998
Option 2: 1 Oct 1998 through 30 Sep 1999
Option 3: 1 Oct 1998 through 30 Sep 1999
Option 4: 1 Oct 1999 through 30 Sep 2000
Option 5: 1 Oct 1999 through 30 Sep 2000
Option 6: 1 Oct 2000 through 30 Sep 2001
Option 7: 1 Oct 2000 through 30 Sep 2001
Option 8: 1 Oct 2001 through 30 Sep 2002
Option 9: 1 Oct 2001 through 30 Sep 2002
</TABLE>
APPOINTMENT OF CONTRACTING OFFICER'S TECHNICAL REPRESENTATIVE (FISC DET PHILA)
(OCT 1992)
(a) The Contracting Officer hereby designates the following individual
as Contracting Officer's Technical Representative(s) (COTR) for this contract:
NAME: Ms. Dorothy Hennigan
CODE: N62
MAIL ADDRESS: Chief, U.S. Atlantic Fleet (N6)
(CINCLANTFLT)
1562 Mitscher Ave; Suite 250
Norfolk, VA 23551-2487
TELEPHONE NUMBER: (757) 322-3998
(b) In the absence of the COTR named above, responsibilities and
functions assigned to the COTR shall be the responsibility of the alternate
COTR acting on behalf of COTR. The Contracting Officer hereby appoints the
following individual as the alter COTR:
N/A
(c) The COTR will act as the Contracting Officer's representative for
technical matters, providing technical direction and discussion as necessary
with respect to the specification or statement of work, and monitoring the
progress and quality of contractor performance. The COTR is not an
Administrative Contracting Officer and does not have authority to take any
action, either directly or indirectly, that would change the pricing,
quantity, quality, place of performance, delivery schedule, or any other
terms and conditions of the contract (or delivery order), or to direct the
accomplishment of effort which goes beyond the scope of the statement of work
in the contract (or delivery order).
<PAGE>
AMENDMENT OF SOLICITATION/MODIFICATION OF CONTRACT PAGES
2. Amendment/Modification no. P0003
3. Effective Date 20 Jan 98
4. Requisition/Purchase Req. No. N00060-97RC-OIT21
5. Project No N/A
(if applicable)
6. Issued By FISC Norfolk Detachment Philadelphia
700 Robinns Avenue; Bldg. 2B
Philadelphia, PA 19111-5083
02P22A KKB POC Ms. K Brown
(215)697-9635
7. Administered by (if other than Item 6 CODE S2101A
DCMC BALTIMORE
200 TOWSONTOWN BLVD., WEST
TOWSON, MD 21204-5299
8. NAME AND ADDRESS OF CONTRACTOR (No., street, county, State and ZIP Code)
IDP
20 Firstfield Road
Gathersburg, MD 20878
CODE 45815 FACILITY CODE
9A AMENDMENT OF SOLICITIATION
9B DATED (SEE ITEM 11)
10A MODIFICATION OF NOO140-98-C-11189
10B DATED (SEE ITEM 13) 6 JAN 96
11. THIS ITEM ONLY APPLIES TO AMENDMENTS OF SOLICITATIONS
/ / The above numbered solicitation is amended as set forth in item 14. The
hour and date specified for receipt of Offers is extended is not extended
Offers must acknowledge receipt of this amendment prior to the hour and date
specified in the solicitation or as amended, by one of the following methods:
(a) By completing items *8 and 15, and returning 3 copies of the amendment; (b)
By acknowledging receipt of this amendment on each copy of the offer submitted;
or (c) By separate letter or telegram which includes a reference to the
solicitation and amendment numbers. FAILURE OF YOUR ACKNOWLEDGEMENT OT BE
RECEIVED AT THE PLACE DESIGNATED FOR THE RECEIPT OF OFFERS PRIOR TO THE HOUR AND
DATE SPECIFIED MAY RESULT IN REJECTION OF YOUR OFFER. If by birture of this
amendment you desire to change an offer already submitted, such change may be
made by telegram or letter, provided each telegram or letter makes reference to
the solicitation and this amendment, and is received prior to the opening hour
and date specified.
12. ACCOUNTING AND APPROPRIATION DATA (If required)
N/A
13. THIS ITEM APPLIES ONLY TO MODIFICATIONS OF CONTRACTS/ORDERS. IT MODIFIES THE
CONTRACT/ORDER NO. AS DESCRIBED IN ITEM 14.
/ / A. THIS CHANGE ORDER IS ISSUED PURSUANT TO: (Specify Authority) THE
CHANGES SET FORTH IN ITEM 14 ARE MADE IN THE CONTRACT ORDER NO.
IN THE ITEN 10A
/X/ B. THE ABOVE NUMBER CONTRACT/ORDER IS MODIFIED TO REFLECT THE
ADMINISTRATIVE CHANGES (such as changes in payment office,
appropriation data, etc.) SET FORTH IN ITEM 14, PURSUANT TO THE
AUTHORITY OF FAR 43.103(s)
/ / C. THIS SUPPLEMENTAL AGREEMENT IS ENTERED IN TO PURSUAN TO AUTHORITY
OF:
/ / D. OTHER(Specify type of modification and authority)
E. IMPORTANT: Contractor /X/ is not / / is required to sign this
document and return one
copy to the issuing
office.
14. DESCRIPTION OF AMENDMENT/MODIFICATION (Organized by UCF headings,
including solicitation/contract subject matter where feasible.)
1. The Contract Administration Plan for the contract is hereby
incorporated and provided as Attachment 1
Except as provided herein, all terms and conditions of the document referenced
in item 9A or 10A, as heretofore changed, remains unchanged and in full force
and effect.
15A NAME AND TITLE OF THE SIGNER (Type of Print)
15B CONTRACTOR/OFFEROR
15C DATE SIGNED
16A NAME AND TITLE OF CONTRACING OFFICER (Type or Print)
J. J. SWIZEWSKI, CONTRACTING OFFICER
16B UNITED STATES OF AMERICA
By:/s/------------------
(Signature of person authorized to sign)
16C DATE SIGNED 1/20/98
STANDARD FORM 30 (REV 10-83)
Prescribed by GSA
FAR (48CFR)52.243
<PAGE>
N00140-98-C-H189/P00003
NAVREGCONTCENINST 4330.1B
CONTRACT ADMINISTRATION PLAN (CAP)
FOR FIXED PRICE CONTRACTS
In order to expedite the administration of this contract, the following
delineation of duties is provided. The names, addresses and phone numbers for
these officers or individuals are included elsewhere in the contract award
document. The office or individual designated as having responsibility should be
contacted for any questions, clarifications, or information regarding the
administration function assigned.
1. The Procuring Contract Office (PCO) is responsible for:
a. All pre-award duties such as solicitation, negotiation and award of
contracts
b. Any information or questions during the pre-award stage of the
procurement
c. Freedom of Information inquires.
d. Changes in contract terms and/or conditions
e. Post award conference
2. The Contract Administration Office (CAO) is responsible for matters
specified in the FAR 42.302 and DFARS 42.302 except those areas otherwise
designated as the responsibility of the Contracting Officer's Representative
(COR) or someone else herein.
3. The paying office is responsible for making payment of proper invoices
after acceptance is documented.
4. The Contracting Officer's Representative (COR) is responsible for the
interface with the contractor and performance of duties such as those set
forth below. it is emphasized that only the PCO/CAO has the authority to
modify the terms of the contract. In no event will any understanding,
agreement, modification, change order, or other matter deviating from the
terms of the basic contract between the contractor and any other person be
effective or binding on the Government. If in the opinion of the contractor
an effort outside the scope of the contract is requested, the contractor
shall promptly notify the PCO in writing. The contractor may take no action
unless the PCO or CAO has issued a contractual change. The COR duties are as
follows:
Attachment I
<PAGE>
NAVREGCONTCENINST 4330.13 NOO140-98-C-H189/P00003
a. Technical Interface
(1) The Cor is responsible for all Government technical interface
concerning the contractor and furnishing technical instructions to the
contractor. These instructions may include: technical
advice/recommendations/clarifications or specific details relating to
technical aspects of contract requirement; milestones to be met within the
general terms of the contract or specific subtasks of the contract; or, any
other interface of a technical nature necessary for the contractor to perform
the work specified in the contract or order. The COR is the point of contact
through whom the contractor can relay questions and problems or a technical
nature to the PCO.
(2) The COR is prohibited from issuing any instruction which would
constitute a contractual change. The COR shall not instruct the contractor
how to perform. If there is any doubt whether technical instructions
contemplated fall within the scope of work, contact the PCO for guidance
before transmitting the instructions to the contractor.
b. Contract Surveillance
(1) The COR shall monitor the contractor's performance and progress
under the contract. in performing contract surveillance duties, the COR should
exercise extreme care to ensure that he/she does not cross the line of personal
services. The COR must be able to distinguish between surveillance (which is
proper and necessary) and supervision (which is not permitted). Surveillance
becomes supervision when you go beyond enforcing the terms of the contract. If
the contractor is directed to perform the contract services in the specific
manner, the line is being crossed. In such a situation, the COR's actions would
be equivalent to using the contractor's personnel as if they were government
employees and would constitute transforming the contract in to one for personal
services
(2) The COR shall monitor contractor performance to see that
inefficient or wasteful methods are not being used. If such practices are
observed, the COR is responsible for taking reasonable and timely action to
alert the contractor and the PCO to the situation.
(3) The COR will take timely action to alert the PCO to any potential
performance problems. If performance schedule slippage is detected, the COR
should determine the factors causing the delay and report them to the PCO, along
with the contractor's proposed actions to eliminate or overcome these factors
and recover the slippage. Once a recover plan has been put in place, the COR is
responsible for monitoring the recovery and keeping the PCO advised of progress.
2
<PAGE>
NAVREGIOTCENTINST 4330.13 NOO140-98-C-H189-P00003
c. Invoice Review and Approval/Inspection and Acceptance
(1) The COR is responsible for quality assurance of services performed
and acceptance of the services or deliverables. The COR shall expeditiously
review copies of the contractor's invoices or vouchers, certified of performance
and all other supporting documentation to determine the reasonableness of the
billing. In making this determination, the COR must take into consideration all
documentary information available and any information developed from personal
observations.
(2) The COR must indicate either complete or partial concurrence with
the contractor's invoice/voucher by executing the applicable certificate of
performance furnished by the contractor. The COR must be cognizant of the
invoicing procedures and prompt payment due dates detailed elsewhere in the
contract.
(3) The COR will provide the PCO and the CAO with copies of acceptance
documents such as Certificates of Performance.
d. Contract Modifications. The COR is responsible for developing the
statement of work for change orders or modifications and for preparing an
independent government cost estimate of the effort described in the proposed
statement of work.
e. Administrative Duties
(1) The COR shall take appropriate action on technical correspondence
pertaining to the contract and for maintaining files on each contract. This
includes all modifications, government cost estimates, contractor
involves/vouchers, certificates of performance, DD 250 forms and contractor's
status repots.
(2) The COR shall maintain files on all correspondence relation to
contractor performance, whether satisfactory or unsatisfactory, and on trip
reports for all government personnel visiting the contractors place of business
for the purpose of discussing the contract.
(3) The COR must take prompt action to provide the PCO with any
contract or technical code request for change, deviation or waiver, along with
the supporting analysis or other required documentation.
3
<PAGE>
NAVREGCONTCENINST 4330.13 NOO140-98-C H189-P00003
f. Government Furnished Property When government property is to be furnished
to the contractor, the COR will take the necessary steps to insure that it is
furnished in a timely fashion and in proper condition for use. The COR will
maintain adequate records to ensure that property furnished is returned
and/or that material has been consumed in the performance or work.
g. Security. The COR is responsible for ensuring that any applicable security
requirements are strictly adhered to.
h. Standards of Conduct. The COR is responsible for reading and complying
with all applicable agency standards of conduct and conflict of interest
instructions.
i. Written Report/Contract Completion Statement.
(1) The COR is responsible for the timely preparation and submission to
the PCO, of a written, annual evaluation of the contractors performance. The
report shall be submitted with 30 days prior to the exercise of any contract
option and 60 days after contract completion. The report shall include a written
statement as to the use made of any deliverables furnished by the contractor.
(2) For contracts where delivery orders are issued, one consolidated
report which addresses all actions under the contract may be submitted.
5. The Technical Assistant (TA), if appointed, is responsible for
providing routine administration and monitoring assistance to the COR. The TA
does not have the authority to provide any technical direction or clarification
to the contract. Duties that may be performed by the TA are as follows:
a. Identify contractor deficiencies to the COR.
b. Review contract/deliver order deliverables, recommend
acceptance/rejection, and provide the COR with documentation to support the
recommendation.
c. Assist in preparing the final report on contractor performance for
the applicable contract/delivery order in accordance with the format and
procedures prescribed by the COR.
d. Identify contract noncompliance with reporting requirements to the
COR
e. Evaluate the contractor's proposals for the specific delivery orders
and identify, for the COR, any potential problems, areas of concern, or issues
to be discussed during negotiations.
4
<PAGE>
N00140-98-C=H189/P00003 NAVAREGCONTCENINST 4330.13
f. Review contractor status and progress reports, identify deficiencies
to the COR, and provide the COR with recommendations regarding acceptance,
rejection, and/or Government technical clarification requests.
g. Review invoices for the appropriate mix of types and quantities of
labor, materials, and other direct costs, and provide the COR with
recommendations to facilitate COR certification of the invoice.
h. Provide the COR with timely input regarding technical clarifications
for the statement of work, possible technical direction to provide the
contractor, and recommend corrective actions.
i. Provide detailed written reports of any trip, meeting, or
conversation to the COR subsequent to any interface between the TA and
contractor
5
<PAGE>
CONTRACTOR INVOICE REVIEW FORM
From: (Applicable COR)
To: (Applicable PCO/ACO and DCAA)
Subj: INVOICE REVIEW OF CONTRACT NO. ____________
(also identify delivery order number(s) as applicable)
Encl: (1) Invoice No.___________
Check Appropriate Statement:
1. _______ Enclosure (1) submitted under the subject contract
(deliver order has been reviewed and the labor hours, labor
mix, material (if any), travel, and other direct costs
identified therein appear consistent and reasonable for the
effort performed during the period covered by the invoice.
2. _____ Enclosure (1) submitted under the subject contract (delivery order)
has been reviewed and the following discrepancies/deficiencies are noted:
-----------------------------
Contracting Officer's Representative
(signature and date)
6
<PAGE>
N00140-98-C-H189/P00003
SAMPLE REPORT OF CONTRACTOR'S PERFORMANCE
MEMORANDUM
From: (Applicable COR)
To: (Applicable PCO or Ordering Officer)
Subj: CONTRACTING OFFICER'S REPRESENTATIVE (COR) REPORT OF CONTRACTOR'S
PERFORMANCE ON CONTRACT NUMBER _______ (OR DELIVERY ORDER
_________ ISSUED UNDER CONTRACT NUMBER ________________)
Ref: (a) navregcontcen 4205.1A
1. A performance report on (Name of Contractor) for subject contract for the
period ______________ to _________ is provided per reference (a).
2. Type of contract: _________________ (COST REMIBURSTMENT, INDEFINITE
DELIVERY/INDEFINITE QUANTITY, ETC.)
3. Were all deliverable reports received in a timely manner?
Yes _____ No______ Were they acceptable? Yes _____ No _____.
If no, to either question, explain.
4. Were all the proposed Key Personnel used? Yes _____ No______
If no, explain.
5. Were all tasks completed in a timely manner? Yes _____ No ______
If no, explain.
6. Comment on the quality of the contractor's performance (be specific).
For Cost Reimbursement, Firm Fixed-Price Level of Effort, or Indefinite
Delivery/Indefinite Quantity type contracts, address the following questions:
7. For each contract line item, list the hours proposed and the hours used in
each labor category as follows;
CLIN _________
Labor Category Hours Proposed Hours Actually Used
7
<PAGE>
NOO140-98C-H189/P00003
Subj: CONTRACTING OFFICER'S REPRESENTATIVE (COR) REPORT OF CONTRACTOR'S
PERFORMANCE ON CONTRACT NUMBER ______________ (OR DELIVERY ORDER
____________ISSUED UNDER CONTRACT NUMBER ______________)
8. Were the hours and mix of labor categories actually used consistent with
efficient and cost effective performance? Yes ___________ No____________ If
no, explain.
9. Were travel, material and other direct charges required for performance?
Yes _______ No ________ Were the costs reasonable for the effort received?
Yes ________ No _________ If no, explain.
---------------------------------
Signature of COR
8
<PAGE>
Exhibit 10.15
NORTHTECH
BUSINESS PARK
<PAGE>
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Article Page
- ------- ----
<S> <C>
1. LEASE OF PREMISES ................................................ 1
2. DEFINITIONS ...................................................... 1
3. EXHIBITS AND ADDENDA ............................................. 2
4. DELIVERY OF POSSESSION ........................................... 3
5. RENT ............................................................. 3
6. INTERST AND LATE CHARGES ......................................... 4
7. SECURITY DEPOSIT ................................................. 4
8. TENANT'S USE OF THE PREMISES ..................................... 4
9. SERVICES AND UTILITIES ........................................... 5
10. CONDITION OF THE PREMISES ........................................ 5
11. CONSTRIOTION, REPAIRS AND MAINTENANCE ............................ 5
12. ALTERATIONS AND ADDITIONS ........................................ 6
13. LEASEHOLD IMPROVEMENTS; TENANT'S PROPERTY ........................ 6
14. RULES AND REGULATIONS ............................................ 6
15. CERTAIN RIGHTS RESERVED BY LANDLORD .............................. 7
16. ASSIGNMENT AND SUBLETTING ........................................ 7
17. HOLDING OVER ..................................................... 8
18. SURRENDER OF PREMISES ............................................ 8
19. DESTRUCTION OR DAMAGE ............................................ 8
20. EMINENT DOMAIN ................................................... 8
21. INDEMNIFICATION .................................................. 9
22. TENANT'S INSURANCE ............................................... 9
23. WAIVER OF SUBROGATION ............................................ 9
24. SUBORDINATION AND ATTORNMENT ..................................... 9
25. TENANT ESTOPPEL CERTIFICATES ..................................... 10
26. TRANSFER OF LANDLORD'S INTEREST .................................. 10
27. DEFAULT .......................................................... 10
28. BROKERAGE FEES ................................................... 12
29. NOTICES .......................................................... 12
30. GOVERNMENT ENERGY OR UTILITY CONTROLS ............................ 12
32. QUIET ENJOYMENT .................................................. 12
33. OBSERVANCE OF LAW ................................................ 12
34. FORCE MAJEURE .................................................... 12
35. CURING TENANT'S DEFAULTS ......................................... 12
36. SIGN CONTROL ..................................................... 12
37. HAZARDOUS SUBSTANCES ............................................. 13
38. PARKING .......................................................... 14
39. MISCELLANEOUS ................................................... 14
40. WAIVER OF JURY TRIAL ............................................. 15
EXHIBIT "A" ........................................................... 17
EXHIBIT "B" ........................................................... 18
EXHIBIT "C" ........................................................... 19
EXHIBIT "D" ........................................................... 26
</TABLE>
<PAGE>
NORTHTECH BUSINESS PARK
This lease between Real Estate Income Partners III, Limited Partnership,
("Landlord"), and International Data Products, Corp. ("Tenant"), is dated, for
reference purposes only, January 6, 1995.
1. LEASE OF PREMISES
In consideration of the Rent (as defined at Article 5) and the provisions of
this Landlord leases to Tenant and Tenant leases from Landlord the Premises
shown on the floor plan attached hereto as Exhibit "A", and further described
at section 2h. The Premises are located within the Building and Project
described in Section 2i. Tenant shall have the non-exclusive right (unless
otherwise provided herein) in common with Landlord, other tenants, subtenants
and invitees, to use of the Common Areas (as defined at Section 2f).
2. DEFINITIONS
As used in this Lease, the following terms shall have the following meanings:
a. Commencement date: January 6, 1995.
b. Expiration Date; February 29, 2000, unless otherwise sooner terminated in
accordance with the provisions of this Lease.
c. Term: The period commencing on the Commencement Date and expiring at
midnight on the Expiration Date.
d. Total Base Rent: $2,224,179.12
e. Monthly Installments of Base Rent:
Period Monthly Base Rent
January 6, 1995 through & including February 28, 1995 $0.00
March 1, 1995 through & including February 29, 1996 $25,170.75
March 1, 1996 through & including February 28, 1997 $32,035.50
March 1, 1997 through & including February 28, 1998 $38,900.25
March 1, 1998 through & including February 28, 1999 $42,332.63
March 1, 1999 through & including February 29, 2000 $46,909.13
f. Common Areas: The Building lobbies, common corridors and hallways,
restrooms, parking areas, stairways, and other generally understood public
or common areas to the extent the same are not a part of the Premises.
Landlord shall have the right to regulate or restrict the use of the
Common Areas.
g. Parking: Tenant shall be permitted to park 219 cars on a non-exclusive
basis in the areas(s) designated by Landlord from time to time for
parking.
h. Premises: That portion of the Building containing approximately 54,918
square feet of Rentable Area, shown on Exhibit "A", located in and known
as NorthTech Business Park, Suite 100-200.
i. Project: The building of which the Premises are a part (the "Building")
located at 20 Firstfield Road, Gaithersburg, Maryland 20878 and any other
buildings or improvements on the real property (the "Property"), further
depicted on Exhibit "B", and known as NorthTech Business Park.
j. Rentable area: As to both the Premises and the Project, the respective
measurements of floor area as may from time to time be subject to lease by
Tenant and all tenants of the Project, respectively, as determined by
Landlord and applied on a consistent basis throughout the Project.
k. Security Deposit: $46,909.13
<PAGE>
l. Landlord's Mailing Address: Real Estate Income Partners III, 27611 La Paz
Road, P.O. Box 30009, Laguna Niguel, California 92607-0009, Attn: Asset
Manager.
With a copy to the Building Manager:
Birtcher Property Services, 8605 Westwood Center Drive, Suite 206, Vienna,
Virginia 22182.
Tenant's Mailing Address: 20 Firstfield Road, Gaithersburg, Maryland
20878.
m. State: The State of Maryland.
n. Tenant's Proportionate Share: The parties agree that Tenant's initial pro
rata share as described in Section 5.2b (1)(a) is 100%. Such share is a
fraction, the numerator of which is the Rentable Area of the Premises, and
the denominator or which is the Rentable Area of the Building, as
determined by Landlord from time to time. The parties further agree that
Tenant's initial pro rata share of the operating cost component of Project
Operating Costs as described in Section 5.2b(1)(b) is 33.6%. Such share is
a fraction, the numerator of which is the Rentable Area of the Premises,
and the denominator of which is the Rentable Area of the Project, as
determined by Landlord form time to time. If the area of the Premises, of
the Building or of the Project change, Tenant's appropriate pro rata share
shall be adjusted accordingly.
o. Tenant's Use Clause: Assembly of notebook personal computers and computer
hardware and related office use.
o. Broker(s)
Landlord's: Carey Winston Company
Tenant's: Manekin Corporation
In the event that Carey Winston Company represents both Landlord and Tenant,
Landlord and Tenant hereby confirm that they were timely advised of the dual
representation and that they consent to the same, and that they do not expect
said broker to disclose to either of them the confidential information of the
other party.
3. EXHIBITS AND ADDENDA
The exhibits and addenda listed below (unless lined out) are incorporated by
reference in this Lease:
a. Exhibit "A" - Floor Plan showing the Premises.
b. Exhibit "B" - Site Plan of the Project
c. Exhibit "C" - Landlord's Work.
d. Exhibit "D" - Rules and Regulations.
e. Addenda:
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4. DELIVERY OF POSSESSION
"Delivery of possession" shall be deemed to occur on the Commencement Date.
5. RENT
5.1 Payment of Base Rent. Tenant agrees to pay the Base Rent for the
Premises. The monthly installments of Base Rent set forth at section
2e shall be payable in advance on or before the first day of each
calendar month of the Term. If the Term begins (or ends) on other
than the first (or last) day of a calendar month, the Base Rent for
the partial month shall be prorated on a per diem basis. Tenant shall
pay Landlord the first Monthly Installment of Base Rent when Tenant
executes the Lease.
5.2 Project Operating Costs.
a. Effective as of March 1, 1995, Tenant agrees to pay to Landlord as
Rent, Tenant's Proportionate Share of all costs, expenses and
obligations attributable to the Project and its operating, all as
provided below.
b. During each calendar year during the Term, Tenant shall pay to
landlord, in addition to the Base Rent and all other payments due
under this Lease, an amount equal to Tenant's Proportionate Share
of Project Operating Costs in accordance with the provisions of
this Section 5.2b.
(1) The term "Project Operating Costs" shall include all those
items described in the following subparagraphs (a) and (b).
(a) All taxes, assessments, water and sewer charges and other
similar governmental charges levied on or attributable to the
Building or Project or their operation, including without
limitation, (i) real property taxes or assessments due and
payable against the Building or Project, (ii) assessments or
charges due and payable against the Building or Project by
any redevelopment agency or any front foot benefit charges,
(iii) any tax measured by gross rental received from the
leasing of the Premises, Building or Project, excluding any
net income, franchise, capital stock, estate or inheritance
taxes imposed by the State or federal government or their
agencies, branches, branches or departments; provided that if
at any time during the Term any governmental agency entity
levies, assesses or imposes on Landlord any (1) general or
special, ad valorem or specific excise, capital levy or other
tax, assessment, levy or charge directly on the Rent received
under this Lease or on the rent received under any other
leases of space in the Building or Project, (2) any license
fee, excise or franchise tax, assessment, levy or charge
measured by or based, in whole or in part, upon such rent, or
(3) any transfer, transaction, or similar tax, assessment,
levy or charge based directly or indirectly upon the
transaction represented by this Lease or such other lease, or
(4) any occupancy, use per capita or other tax, assessment,
levy or charge based directly or indirectly upon use or
occupancy of Premises or other premises within the building
or Project, then any such taxes, assessments, levies and
charges shall be deemed to be included in the term Project
Operating Costs. Project Operating Costs shall also include
all costs incurred by Landlord in protesting the amount or
real property taxes or assessments levied against the
Building or Project, including without limitation, reasonable
attorney's fees.
(b) Operating costs incurred by Landlord in maintaining and
operating the Building and Project, including without
limitation the following: costs of (1) utilities; (2)
supplies; (3) insurance (including public liability, property
damage, earthquake, and fire and extended coverage insurance)
for the full replacement cost of the Building and Project as
required by Landlord or ites lenders for the Project; (4)
services of independent contractors; (5) compensation
(including employment taxes and fringe benefits) of all
persons who perform duties connected with the operation,
maintenance, repair or overhaul of the Building or Project ,
and equipment, improvements and facilities located within the
Project, including, without limitation engineers, janitors,
painters, floor waxers, window washers, security and parking
personnel and gardeners (but excluding persons performing
services not uniformly available to or performed for
substantially all Building or Project tenants); (6) operation
and maintenance of room for delivery and distribution of mail
to tenants of the Building or Project as required by the U.S.
Postal Service (including, without limitation, an amount
equal to the fair market rental value of the mail room
premises); (7) management of the Building or Project ,
whether managed by Landlord or an independent contractor
(including, without limitation, an amount equal to the fair
market rental value of any on-site manager's office); (8)
rental expenses for (or a reasonable depreciation allowance
on) personal property used in the maintenance, operation or
repair of the Building or Project; (9) costs, expenditures or
charges (whether capitalized or not) required by any
governmental or quasi-governmental authority; (10)
amortization of capital expenses (including financing costs)
(i) required by a governmental entity for energy conservation
or life safety purposes, or (ii) made by Landlord which are
reasonably intended to reduce Project Operating Costs; and
(11) any other costs or expenses incurred by Landlord under
this Lease and not otherwise reimbursed by tenants of the
Project.
(2) Tenant's Proportionate Share or Project Operating Costs shall
be payable by Tenant to Landlord as follows:
(a) Each calendar year, Tenant shall pay Landlord an amount
equal to Tenant's Proportionate Share of the Project
Operating Costs incurred by Landlord in maintaining and
operating the Building and Project.
(b) To provide for current payments of Tenant's Proportionate
Share of the Project Operating Costs payable during each
calendar year, as estimate by Landlord from time to time.
Such payments shall be made in monthly installments,
commending on the first day of the month following the month
in which Landlord notifies Tenant of the amount it is to pay
hereunder and continuing until the first day of the month
following the month in which Landlord gives Tenant a new
notice of estimated Project Operating Costs. It is the
intention hereunder to estimate from time to time the amount
of the Project Operating Costs for each calendar year and
Tenant's Proportionate Share thereof, and then to make an
adjustment in the following year based on the actual Project
Operating Costs incurred for the preceding calendar year.
(c) On or before April 1 of each calendar year (or as soon
thereafter as is practical), Landlord shall deliver to Tenant
a statement setting forth Tenant's proportionate share of
Project Operating Costs for the preceding calendar year. If
Tenant's Proportionate Share of the actual Project Operating
Costs for the previous calendar year exceed the total of the
estimate monthly payments made by Tenant for such year,
Tenant shall pay Landlord the amount of the deficiency within
ten (10) days of the receipt of the statement. If such total
exceeds Tenant's Proportionate Share of the actual Project
Operating Costs for such calendar
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year, then Landlord shall credit against Tenant's next
ensuing monthly installment(s) of additional rent an amount
equal to the difference until the credit is exhausted. If a
credit is due from Landlord on the Expiration Date, Landlord
shall pay Tenant the amount of the credit. The obligations of
Tenant and Landlord to make payments required under this
Section 5.2 shall survive the Expiration Date.
(d) Tenant's Proportionate Share of Project Operating Costs
in any lease year having less than 365 days shall be prorated
on a per diem basis.
(e) If any dispute arises as to the amount of additional rent
due hereunder, Tenant shall have the right after reasonable
notice and at reasonable times to inspect Landlord's
accounting records at Landlord's accounting office and, if
after such inspection Tenant still disputes the amount of
additional rent owed, a certification as to the proper amount
shall be made by Landlord's certified public accountant,
which certification shall be final and conclusive. Tenant
agrees to pay the cost of such certification unless it is
determined that Landlord's original statement overstated
Project Operating Costs by more than 5%.
5.3 Definition of Rent. All costs and expenses which Tenant assumes or
agrees to pay to Landlord under this Lease shall be deemed additional
rent (which, together with the Base Rent is sometimes referred to as
the "Rent"). The Rent shall be paid to the Building manager (or other
person) as set forth in Section 2), or at such place, as Landlord may
from time to time designate in writing without any prior demand
therefor and without deduction or offset, in lawful money of the
United States of America.
5.4 Rent Control. If the amount of Rent or any other payment due under
this Lease violates the terms of any governmental restrictions on
such Rent or payment, then the Rent or payment due during the period
of such restrictions shall be the maximum amount allowable under
those restrictions. Upon termination of the restrictions, Landlord
shall, to the extent it is legally permitted, recover from Tenant the
difference between the amounts received during the period of the
restrictions and the amounts Landlord would have received had there
been no restrictions.
5.5 Taxes Payable by Tenant. In addition to the Rent and any other
charges to be paid by Tenant hereunder, Tenant shall reimburse
Landlord upon demand for any and all taxes payable by Landlord (other
than net income taxes) which are not otherwise reimbursable under
this Lease, whether or not now customary or within the contemplation
of the parties, where such taxes are upon, measured by or reasonably
attributable to (a) the cost or value of Tenant's equipment,
furniture, fixtures and other personal property located in the
Premises, or the cost or value of any leasehold improvements made in
the or to the Premises by or for Tenant, regardless of whether title
to such improvements is held by Tenant or Landlord; (b) the gross or
net Rent payable under this Lease, including, without limitation, any
rental or gross receipts tax levied by any taxing authority with
respect to the receipt of the Rent hereunder; (c) the possession,
leasing, operation, management, maintenance, alteration, repair, use
or occupancy by Tenant of the Premises or any portion thereof; or (d)
this transaction or any document to which Tenant is a party creating
or transferring an interest or an estate in the Premises. If it
becomes unlawful for Tenant to reimburse Landlord for any costs as
required under this Lease, the Base Rent shall be revised to net
Landlord the same net rent after imposition of any tax or other
charge upon Landlord as would have been payable to Landlord but for
the reimbursement being unlawful.
6. INTEREST AND LATE CHARGES
If Tenant fails to pay when due any Rent or other amounts or charges which
Tenant is obligated to pay under the terms of this Lease, the unpaid
amounts shall bear the interest at the lesser of fifteen percent (15% )
per annum or the maximum rate then allowed by law. Tenant acknowledges
that the late payment of Rent will cause Landlord to lose the use of that
money and incur costs and expenses not contemplated under this Lease,
including, without limitation, administrative and collection costs and
processing and accounting expenses, within ten (10) days from the date it
is due, Tenant shall pay Landlord's late charge equal to five percent (5%)
of such compensation to Landlord for the loss suffered from such
nonpayment by Tenant. Acceptance of any interest or late charge shall not
constitute a waiver of Tenant's default with respect to such nonpayment by
Tenant nor prevent Landlord from exercising any other rights or remedies
available to Landlord under this Lease.
7. SECURITY DEPOSIT
Tenant agrees to deposit with Landlord the Security Deposit set forth at
Section 2K upon the execution of this Lease, as security for Tenant's
faithful performance of its obligations under this Lease. Landlord and
Tenant agree that the Security Deposit may be commingled with funds of
Landlord and Landlord shall have no obligation or liability for payment of
interest on such deposit. Tenant shall not mortgage, assign, transfer or
encumber the Security Deposit without the prior written consent of
Landlord and any attempt by Tenant to do so shall be void, without force
or effect and shall not be binding upon Landlord.
If Tenant fails to pay any Rent or other amount when due and payable under
this Lease, or fails to perform any of the terms hereof, Landlord may
appropriate and apply or use all or any portion of the Security Deposit
for Rent payment or any other amount then due and unpaid, for payment of
any amount for which Landlord has become obligated as a result of Tenant"
default or breach, and for any loss or damage sustained by Landlord as a
result of Tenant's default or breach, and Landlord may so apply or use
this deposit without prejudice to any other remedy Landlord may have by
reason of Tenant's default or breach. If Landlord so uses any of the
Security Deposit, Tenant shall, within ten (10) days after written demand
therefor, restore the Security Deposit to the full amount originally
deposited; Tenant's failure to do so shall constitute an act of default
hereunder and Landlord shall have the right to exercise any remedy
provided for at Article 27 hereof. Within fifteen (15) days after the term
(or any extension thereof) has expired or Tenant has vacated the Premises,
whichever shall last occur, and provided Tenant is not then in default on
any of its obligations hereunder, Landlord shall return the Security
Deposit to Tenant, or if Tenant has assigned its interest under this
Lease, to the last assignee of Tenant. If Landlord sells its interest in
the Premises, Landlord may deliver this deposit to the purchaser of
Landlord's interest and thereupon be relieved of any further liability or
obligation with respect to the Security Deposit.
8. TENANT'S USE OF THE PREMISES
Tenant shall use the Premises solely for the purposes set forth in
Tenant's Use Clause. Tenant shall not use or occupy the Premises in
violation of law or any covenant, condition or restriction affecting the
Building or Project or the certificate of occupancy issued for the
Building or Project, and shall, upon notice from Landlord, immediately
discontinue any use of the Premises which is declared by an governmental
authority having jurisdiction to be a violation of law or the certificate
of occupancy issued for the governmental authority having jurisdiction to
be a violation of law or the certificate of occupancy issued for the
Building or Project, and shall, upon notice from Landlord, immediately
discontinue any use of the Premises which is declared by an governmental
authority having jurisdiction to be a violation of law or the certificate
of occupancy. Tenant, at Tenant's own cost and expense shall comply with
all laws, ordinances, regulations, rules and/or any directions of any
governmental agencies or authorities having jurisdiction which shall, by
reason of the nature of Tenant's use or occupancy of the Premises, impose
any duty upon Tenant or Landlord with respect to the Premises or its use
or occupation. A judgment of any court of competent jurisdiction or the
admission by Tenant in any action or proceeding against Tenant that Tenant
has violated any such laws, ordinances, regulations, rules and/or
directions in the use of the Premises shall be deemed to be a conclusive
determination of that fact as between Landlord and Tenant. Tenant shall
not do or permit to be done anything which will invalidate or increase the
cost of any fire, extended coverage or other insurance policy covering the
Building or Project and/or property located therein, and shall comply with
all rules, orders, regulations, requirements and recommendations of the
Insurance Services Office or any other organization performing a similar
function. Tenant shall promptly upon demand reimburse Landlord for any
additional premium charged for such policy by reason of Tenant's failure
to comply with the provisions
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of this Article. Tenants shall not do or permit anything to be done in
or about the Premises which will in any way obstruct or interfere with the
rights of other tenants or occupants of the Building or Project, or
injure or annoy them, or use or allow the Premises to be used for any
improper, immoral, unlawful or objectionable purpose, nor shall Tenant
cause, maintain or permit any nuisance in, on or about the Premises.
Tenant shall not commit or suffer to be committed any waste in or upon the
Premises.
9. SERVICES AND UTILITIES
Tenant shall make arrangements directly with the telephone company,
electrical company and other public utilities servicing the Premises for
telephone service, electrical current and power and other utilities in the
Premises desired by Tenant. Tenant shall pay the entire cost of all
telephone service, electricity consumed within the Premises, maintenance
of light fixtures and replacement of lights, bulbs, tubes , ballasts and
starters. Tenant acknowledges that the cost of providing hot water to and
heating and air conditioning the Premises is included in Tenant's utility
charges and Tenant shall have full responsibility for the payment thereof.
Landlord shall in no event be liable or responsible to Tenant for any
loss, damage or expense which Tenant may sustain or incur if either the
quality or character of telephone service, electrical service or other
utilities serving the Premises is changed or is no longer suitable for
Tenant's requirements. Tenant's use of electric current shall never exceed
the capacity of existing wiring, insulation or feeders to the Building or
the Premises, and Tenant shall make no alterations or additions to the
electrical equipment and/or appliances without the prior written consent
of Landlord in each instance. Tenant shall not connect any apparatus with
electric current, except through existing electrical outlets in the
Premises.
Landlord agrees to furnish water to the Premises (if applicable), and to
provide water, electricity and heating, ventilation and air conditioning
("HVAC") to the Common Areas during generally recognized business days,
and during hours determined by Landlord in its sole discretion. Landlord
shall also maintain and keep lighted the Common Areas, common entries and
restrooms in the Building. Landlord shall not be in default hereunder or
be liable for any damages directly or indirectly resulting from, nor shall
the Rent be abated by reason of (i) the installation, use or interruption
of use of any equipment in connection with the furnishing of any of the
foregoing services, (ii) failure to furnish or delay in furnishing such
services any such services where such failure or delay is caused by
accident or any condition or event beyond the reasonable control of
Landlord, or by the making of necessary repairs or improvements to the
Premises, Building or Project, or (iii) the limitation, curtailment or or
rationing of, or restrictions on, use of water, electricity, gas or any
other form of energy serving the Premises, Building or Project. Landlord
shall not be liable under any circumstances for a loss of or injury to
property or business, however occurring , through or in connection with or
incidental to failure to furnish any such services.
Tenant shall not consume water in excess of that usually furnished or
supplied for the use of premises as general office space (as determined by
Landlord) without first procuring the written consent of Landlord, which
Landlord may refuse, and in the event of consent, Landlord may have
installed a water meter in the Premises to measure the amount of water
consumed. The cost of any such meter and of its installation, maintenance
and repair shall be paid for by the Tenant and Tenant agrees to pay to
Landlord promptly upon demand for all such water consumed as shown by said
meter, at the rates charged for such services by the local public utility
plus any additional expense incurred in keeping account of the water so
consumed. If a separate meter is not installed, the excess cost for such
water shall be established by an estimate made by a utility company hired
by Landlord at Tenant's expense.
Nothing contained in this Article shall restrict Landlord's right to
require at any time separate metering of utilities furnished to the
Premises. In the event utilities are separately metered, Tenant shall say
promptly upon demand for all utilities consumed at utility rates charged
by the local public utility plus any additional expense incurred by by
Landlord in keeping account of the utilities so consumed. Tenant shall be
responsible for the maintenance and repair of any such meters at its sole
cost.
10.CONDITION OF THE PREMISES
Tenant's taking possession of the Premises shall be deemed conclusive
evidence that as of the date of taking possession the Premises are in good
order and satisfactory condition, except for such matters as to which
Tenant gave Landlord notice on or before the Commencement Date. No promise
of Landlord to alter, remodel, repair or improve the Premises, the
Building, Project or this Lease (including, without limitation, the
condition of the Premises, the Building or the project) have been made to
Tenant by Landlord or its Broker or Sales Agent. TENANT AGREES THAT IT
ACCEPTS THE PREMISES IN ITS "AS IS" CONDITION. Tenant shall perform
certain tenant improvements in accordance with the Work Letter attached as
Exhibit "C".
11.CONSTRUCTION, REPAIRS AND MAINTENANCE
a. Landlord's Obligations. Landlord shall maintain in good order, condition
and repair the Building, Common Areas and all other portions of the
Premises not the obligation of Tenant or of any other tenant in the
Project. Landlord shall furnish solely the following, the cost and expense
of all which shall be included within the term Project Operating Costs as
defined in Section 5.2:
(1) Landlord shall cause cold water to be piped to the Project and to
the Premises (if applicable);
(2) Landlord shall cause removal of snow accumulations from the parking
lot and sidewalks and cutting of the grass in the Common Areas
designated pursuant to Section 11b hereof;
(3) Landlord shall cause to be provided lighting for the exterior of
the Project and of the Common Areas in the Project; and
(4) Landlord shall cause to be maintained, repaired and replaced, when
necessary, the heating and air conditioning, water and all other
mechanical equipment, systems and fixtures applicable to the
Common Areas whether located on the roof to the Premises or in the
Premises. Landlord shall not be liable for damages, by abatement
of rent or otherwise, for failure to furnish, or delay in
furnishing, any one or more of the above, which failure or delay
is caused, in whole or in part, by war, insurrection, civil
disturbance, riots, acts of God, governmental action, repairs,
improvements, alterations, strikes, lockouts or picketing (whether
legal or illegal), inability to obtain electricity, fuel or
supplies, accidents, casualties, acts caused directly or
indirectly by Tenant (or Tenant's agents, representatives,
employees, licensees or invitees) any other act or cause beyond
the reasonable control of Landlord. Any such failure or delay in
furnishing the above shall be without any liability of Landlord to
Tenant and shall not be deemed to be an eviction or disturbance in
any manner of Tenant's use and possession of the Premises or
relieve Tenant from its obligation to pay all Rent when due, or
from any other obligation hereunder.
b. Common Areas. Tenant, its employees, agents and invitees, shall have the
nonexclusive right in common with Landlord and other tenants of the
Building or Project, and their respective employees, agents and invitees,
to the use of any and all driveways, common parking areas and other common
areas that may be designated by Landlord. Such use shall be subject to the
rules and regulations of the Landlord, and Tenant shall not obstruct or
store anything in any Common Area or allow any objectionable noises or
odors to emit from the Premises, or create or maintain a nuisance in any
Common Area, or shall not distribute, solicit or canvass any occupants of
the Building or Project.
c. Tenant's Obligations.
(1) Except for services frunished by Landlord pursuant to Article 9
hereof, Tenant at Tenant's sole expense shall maintain the
Premises in good order, condition and repair, including the
interior surfaces of the ceilings, walls and floors, all doors,
all interior windows, all plumbing, pipes and fixtures,
eelectrical wiring, switches and fixtures, building standard
furnishings and special items and equipment installed by or at the
expense of Tenant.
(2) Tenant shal be responsible for all repairs and alterations in and
to the Premises, Building and Project and the facilities and
systems thereof, the need for which arises out of (i) Tenant's use
or occupancy of the Premises, (ii) the installation,
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removal, use or operation of Tenant's Property (as defined in
Article 13) in the Premises, (iii) the moving of Tenant's Property
into or out of the building, or (iv) the act, omission, misuse or
negligence of Tenant, its agents, contractors, employees or
invitees.
(3) If Tenant fails to maintain the Premises in good order, condition
and repair, Landlord shall give Tenant notice to do such acts as
are reasonably required to so maintain the Premises. If Tenant
fails to promplty commence wuch work and diligently prosecute it
to completion, then Landlord shall have the right to do such acts
and expand such funds at the expense of Tenant as are reasonably
required to perform such work. Any amount so expended by Landlord
shall be paid by Tenant promptly after demand with interest, from
the date of such work, at the lesser of fifteen percent (15%) per
annum or the maximum rate than allowed by law. Landlord shall have
no liability to Tenant for any damage, inconvenience, or
interference with the use of the Premises by Tenant as a result of
performing any such work.
d. Compliance with Law. Landlord and Tenant shall each do all acts required
to comply with all applicable laws, ordinances, and rules of any public
authority relating to their respective maintenance obligations as set
forht herein. Landlord shall be responsible for compliance with the
requirements of Title III of the Americans with Disabilities Act of 1990
with respect to physical accessibiility to, within and about the Building
an dProject of which the Premises are apart. Tenant shall be responsible
for said compliance within the Premises, after the Commencemtn Date.
e. Waiver by Tenant. Tenant expressly waives the benefits of any statute now
or hareafter in effect which would otherwise afford the Tenant the right
to make repaiurs at Landlord's expense or to terminate this Lease because
of Landlord's failure to keep the Premises in good order, condition and
repair.
f. Load and Equipment Limits. Tenants shall not place a load upon any floor
of the Premises which exceeds the load per square foot which such floor
was designed to carry, as determined by Landlord or Landlor's structural
engineer. The cost of any such determination made by Landlord's structural
engineer shall be paid for b Tenant upon demand. Tenant shall not install
business machines or mechanical equipment which cause noise or vibration
to such a degree as to be objectionable to landlord or other Building
tenants.
g. Except as otherwise expressly provided in this Lease, Landlord shall have
no liablility to Tenant nor shall Tenant's obligations under this Lease be
reduced or abated in any manner whatsoever by reason of any inconvenience,
annoyance, interruption or injury to business arising from Landlord's
making any repairs or changes which Landlord is required or permitted by
this Lease or by any other tenant's lease or required by law to make in or
to any portion of the Project, Building or the Premises. Landlord shall
nevertheless use reasonable efforts to minimize any interference with
Tenant's business in the Premises.
h. Tenant shall give Landlord prompt notice of any damage to or defective
condition in any part of appurtenance of the Building's mechanical,
electrial, plumbing, HVAC or other systems serving, located in, or passing
through the Premises.
12.ALTERATIONS AND ADDITIONS
a. Tenant shall not make any additions, alterations, or improvements to the
Premises other than those described in the Work Letter attached hereto as
Exhibit "C" without obtaining the prior written consent of Landlord.
Landlord's consent may be withheld in Landlord's sole discretion or may be
conditioned on Tenant's removing any such additions, alterations or
improvements upon Landlord's election at or before the expiration of the
Term and restoring the Premises to the same condition as on the date
Tenant took possession. All work with respect to any addition, alteration
or improvement shall be done in a good ant workmanlike manner by properly
qualified and licensed personnel approved by Landlord, and such work shall
be diligently prosecuted to completion. Landlord may, at Landlord's
option, require that any such work will be performed by Landlord's
contractor, in which case the cost of such work shall be paid for before
commencement of the work. Tenant shall pay to Landlord upon completion of
any such work by Landlord's contractor, an administrative fee of fifteen
percent (15%) of the cost of the work. Landlord's review or any plans in
specification or consent to additions, alterations or improvements shall
not be construed as a warranty or certification that such plans and
specification or such additions, alterations or improvements are adequate
for any purpose or comply with applicable laws, ordinances, or
regulations, nor shall Landlor's approval or consent relieve Tenant from
the obligation of complying with such applicable laws, ordinances and
regulations.
b. Tenant shall pay the costs of any work done on the Premisies pursuant
to Section 12a, and shall keep the Premisies, Building and Project free
and clear of liens of any kind. Tenant shall indemnify, defend against
and keep Landlord free and harmless from all liability, loss, damage,
costs, attorneys' fees and any other expense incurred on account of
claims by any person performing work or furnishing materials or
supplies for Tenant or any person claiming under Tenant.
Tenant shall keep the Tenant's leasehold interest, and any additions or
improvements which are or become the property of Landlord under this
Lease, free and clear of all attachment or judgment liens. Befor ethe
actual commencement of any work for which a claim or lien may be filed,
Tenant shall give the Landlord notice of the intended commencement date a
sufficient time before that dat to enable Landlord to post notices of
non-responsibility or any other notices which Landlord shall have the
right to enter the Premises and post such notices at any reasonable time.
c. Landlord may require, at Landlord's sole option, that Tenant provide to
Landlord, at Tenant's expense, a lien and completion bond in amount equal
to at least one and one-half (1 1/2) times the total estimated cost of any
additions, alterations or improvements to be made in or to the Premises,
to protect Landlord against any liability for mechanic's and materialmen's
liens and to insure timely completion of the work. Nothing contained in
this Section 12c shall relieve Tenant of its obligation under Section 12b
to keep the Premises, Building and Project free of all liens.
d. Unless their removal is required by Landlord as provided in Section 12a,
all additions, alterations and improvements made to the Premises shall
become the property of Landlord and be surrendered with the Premises upon
the expiration of the Term; provided, however, Tenant's equipment,
machinery and trade fixtures which can be removed without damage to the
Premises shall remain the property of Tenant and may be removed, subject
to the provisions of Section 13b.
13.LEASEHOLD IMPROVEMENTS: TENANT'S PROPERTY
a. All fixtures, equipment, improvements and appurtenances attached to or
built into the Premises at the commencement of or during the Term, whether
or not by or at the expense of Tenant ("Leasehold Improvements"), shall be
and remain a part of the Premises, shall be the property of Landlord and
shall not be removed by Tenant, except as expressly provided in Sections
12a, 12d or 13b.
b. All moveable partitions, business and trade fixtures, machinery and
equipment, communications equipment and office equipment located in the
Premises and acquired by or for the account of Tenant, without expense to
Landlord, which can be removed without damage to the Building, and all
furniture, furnishings and other articles of moveable personal property
owned by tenant and located in the Premises (collectively "Tenant's
Property") shall be and shall remain the property of Tenant and may be
removed by Tenant at any time during the Term; provided that if any of
Tenant's Property is removed, Tenant shall proptly repair any damage to
the Premises or to the Building resulting from such removal.
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14.RULES AND REGULATIONS
Tenant agrees to comply with (and cause its agents, contractors, employees
and invitees to comply with) the rules and regulations attached hereto as
Exhibit "D" and with such reasonable modifications thereof and additions
thereto as Landlord may from time to time make. Landlord shall not be
responsible for any violation of said rules and regulations by other
tenants or occupants of the Building or Project.
15.CERTAIN RIGHTS RESERVED BY LANDLORD
Landlord reserves the following rights, exercisable without liability to
Tenantfor (a) damage or injury to property, person or business, (b)
causing an actual or constructive eviction from the Premises, or
(c)disturbing Tenant's use or possession of the Premises:
a. To name the Building and Project and to change the name or street
address of the Building or Project;
b. To install and maintain all signs on the exterior and interior of the
Building and Project;
c. To have pass keys to the Premises and all doors within the Premises,
excluding Tenant's vaults and safes;
d. At any time during the Term, and on reasonable prior notice to Tenant,
to inspect the Premises, and to show the Premises to any prospective
purchaser or morgagee of the Project, or to any assignee of any
mortgage on the Project, to prospective tenants, or to others having an
Interest in the Project or Landlord; and
e. To enter the Premises for the purpose of making inspections, repairs,
alterations, additions or improvements to the Premises or the Building
(including, without limitation, checking, calibrating, adjusting or
blancing controls and other parts of the HVAC system), and to take all
steps as may be necessaryor desirable for the safety, protection,
maintenance or preservation of the Premises or the Building or
Landlord's interest therein, or as may be necessary or desirable for
the operation or improvement of the Building or in order to comply with
laws, orders or requirements of governmental or other authority.
Landlord agrees to use its good faith reasonable efforts (except in an
emergency) to minimize interference with Tenant's business in the
Premises in the course of any such entry.
16.ASSIGNMENT AND SUBLETTING
No assignment of this Lease or sublease of all or any part of the Premises
shall be permitted, except as provided in this Article 16.
a. Tenant shall not, without the prior written consent of Landlord, assign
or hypothecate this Lease or any interest herein or sublet the Premises
or any part thereof, or permit the use of the Premises by any party
other than Tenant. Any of the foregoing acts without such consent shall
be void and shall, at the option of Landlord, terminate this Lease.
This Lease shall not, nor shall any interest of Tenant herein, be
assignable by operation of law without the written consent of Landlord.
b. If at any time or from time to time during the Term Tenant desires to
assign this Lease or sublet all or any part of the Premises, Tenant
shall give notice to Landlord setting forth the terms and provisions of
the proposed assignment or sublease, and the identity of the proposed
assignee or subtenant. Tenant shall promptly supply Landlord with such
information concerning the business background and financial condition
of such proposed assignee or subtenant as Landlord may reasonably
request. Landlord shall have the option, exercisable by notice given to
Tenant within ten (10) business days after Tenant's notice is given,
either to sublet such space from Tenant at the rental and on the other
terms set forth in this Lease for the term set forth in Tenant's
notice, or, in the case of an assignment, to terminate this Lease.
Subject to the other provision in the Article 15, if Landlord does not
exercise such option, Tenant may assign the Lease or sublet such space
to such proposed assignee or subtenant on the following further
conditions:
(1) Landlord shall have the right to approve such proposed assignee or
subtenant, which approveal shall not be unreasonably withheld;
(2) The assignment or sublease shall be on the same terms set forth in
the notice given to landlord;
(3) No assignment or sublease shall be valid and no assignee or
sublessee shall take possession of the Premises until an executed
counterpart of such assignment or sublease has been delivered to
Landlord;
(4) No assignee or sublessee shall have a further right to assign or
sublet except on the terms herein contained: and
(5) Fifty percent (50%) of any sums or other economic consideration
received by Tenant as a result of such assignment or subetting,
however denominated under the assignment or sublease, shich exceed,
in the agregate, (i) the total sums which Tenant is obligated to pay
Landlord under this Lease (prorated to reflect obligations alocable
to any portion of the Premises subleased), plus (ii) any real estate
brokerage commissions or fees payable in connection with such
assignment or subletting, shall be paid to Landlord as additional
rent under this Lease without affecting or reducing any other
obligations Tenant hereunder;
(6) Tenant shall not then be in default beyond the time herein
provided, if any, to cure such default; and
(7) Tenant shall be prohibited from negotiating with a person or
entity whith whom Landlord is then negoatiating to lease space in
the Building or Project, including any existing tenant in the
Building or Project with whom Landlord is then negotiating to
lease additional or expansion space in the Building or Project.
c. Notwithstanding the provisions of paragraphs a and b above, Tenant may
assign this Lease or sublet the Premises or any portion thereof, without
Landlord's consent and without extending any recapture or termination
option to Landlord, to any corporation which contraols, is contraolled by
or is under common control with Tenant, or to any corporation resulting
form a merger or consolidation with Tenant, or to any person or entity
which acquires all the assets of Tenant's business as a going concern,
provided that (i) the assignee or sublessee assumes, in full, the
obligations of Tenant under this Lease, (ii) Tenant remains fully liable
under this Lease, and (iii) the use of the Premises under Article 8
remains unchanged.
d. No subletting or assignment shall release Tenant of Tenant's obligation
under this Lease or alter the primary liability of Tenant to pay the
Rent and to perform all other obligation to be performed by Tenant
hereunder. The acceptance or Rent by Landlord from any other person
shall not be deemed to be a waiver by Landlord of any provision hereof.
Consent to one assignment or subletting shall not be deemed consent to
any subsequent assignment or subletting. In the event of default by an
assignee or subtenant of Tenant or any successor of Tenant in the
performance of any of the terms hereof, Landlord may proceed directly
against Tenant without the necessity of exhausting rememdies against
such assignee, subtenant or successor. Landlord may consent to
subsequent assignments of the Lease or subletting or amendments or
madifications to the Lease with assignees of Tenant, without notifying
Tenant, or any successor of Tenant, and without obtaining its or their
consent thereto and any such actions shall not relieve Tenant of
liability under this Lease.
e. If Tenant assigns the Lease or sublets the Premises or requests the
consent of Landlord to any assignment or subletting or if Tenant
requests the consent of Landlord for any act that Tenant proposes to
do, then Tenant shall, upon demand, pay Landlord
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an administrative fee of One Hundred Fifty and 00/100 Dollars ($150.00)
plus any attorney's fees reasonably incurred by Landlord in connection
with such act or request.
f. Any transfer, by operation of law or otherwise, of Tenant's interest in
the Lease (in whole or in part) or of a fifty percent (50%) or greater
interest in Tenant (whether stock, partnership interest or otherwise)
shall be deemed an assignment of this lease within the meaning of this
Section 16. The issuance of shares of stock to other than the existing
shareholders is ddemed to be a transfer of that stock for the purposes of
this Section 16. If, during the Term of this Lease, there is a transfer of
less than a fifty percent (50%) interest in Tenant, then any other
transfer of an interest in Renant which, when added to the total
percentage interest previously transferred, totals a transfer of greater
than fifty percent (50%) interest in Tenant shall be deemed an assignment
of Tenant's interest in this Lease within the meaning of this Section 16.
17.HOLDING OVER
If after expiration of the Term, Tenant remains in possession of the
Premises with Landlord's permission (express or implied), Tenant shall
become a tenant from month to month only, upon all the provisions of this
Lease (except as to Term and Base Rent), but the Tenant shall pay for each
month of such hold-over period a fair rental value equal to one hundred
fifty percent (150%) of the Monthly Installments of Base Rent payable by
Tenant at the expiration of the Rem, which amount shall be payable on a
quantum merit basis and not a rent. Such monthly rent shall be payable in
advance on or before the first day of each month. If either party desires
to terminate such month to month tenancy, it shall give the other party
not less than thirty (30) days advance written notice of the date of
termination. TENANT HEREBY WAIVES ANY NOTICE OT QUIT OR VACATE THE
PREMISES.
18.SURRENDER OF PREMISES
a. Tenant shall peaceably surrender the Premises to Landlord on the
Expiration Date, or upon earlier termination of this Lease, in
broom-clean condition an in as good condition as when Tenant took
possession, except for (i) reasonable wear and tear, (ii) loss by fire
or other casualty, and (iii) loss by condemnation. Tenant shall remove
Tenant's Property on or before the Expiration Date and promptly repair
all damage to the Premises or Building caused by such removal.
b. If Tenant abandons or surrenders the Premises, or is dispossessed by
process of law or otherwise, any of Tenant's Property left on the
Premises shall be deemed to be abandoned, and, at Landlord's option,
title shall pass to Landlord under this Lease as by a bill of sale. If
Landlord elects to remove all or any part of such Tenant's Property,
the cost of removal, including repairing any damage done to the
Premises or Building caused by such removal, shall be paid by Tenant.
On the Expiration Date Tenant shall surrender all keys to the Premises.
19.DESTRUCTION OR DAMAGE
a. If the Premises or the portion of the Building necessary for Tenant's
occupancy is damaged by fire, earthquake, act of God, the elements of
other casualty, Landlord shall, subject to the provisions of this
Article, promptly repair the damage, if such repairs can, in Landlord's
option, be completed within ninety (90) days. If Landlord determines
that repairs can be completed within ninety (90) days, this Lease shall
remain in full force and effect, except that if such damage is not the
result of the negligence or willful misconduct of Tenant is Tenants
agents, employees, contractors, licensees or invitees, the Base Rent
shall be abated to the extent Tenant's use of the Premises is impaired,
commencing with the date of damage and continuing until completion of
the repairs required of Landlord under Section 19d.
b. If in Landlord's opinion, such repairs to the Premises or portion of
the Building necessary for Tenant's occupancy cannot be completed
within ninety (90) days, Landlord may elect, upon notice to Tenant
given within thirty (30) days after the date of such fire or other
casualty, to repair such damage, in which event this Lease shall
continue in full force and effect but the Base Rent shall be partially
abated as provided in Section 19a. If Landlord does not so elect to
make such repairs, this Lease shall terminate as of the date of such
fire or other casualty.
c. If any other portion of the Building or Project is totally destroyed or
damaged to the extent that in Landlord's opinion repair thereof cannot
be completed within ninety (90) days, Landlord may elect, upon notice
to Tenant given within thirty (30) days after the date of such fire or
other casualty, to repair such damage, in which event this Lease shall
continue in full force and effect but the Base Rent shall be partially
abated as provided in Section 19a. If Landlord does not so elect to
make such repairs, this Lease shall terminate as of the date of such
fire or other casualty.
d. If the Premises are to be repaired under this Article, Landlord shall
repair at its cost any injury or damage to the Building and building
standard work in the Premises. Tenant shall be responsible at its sole
cost and expense for the repair, restoration and replacement of any
other Leasehold Improvements and Tenant's Property. Landlord shall not
be liable for any loss of business, inconvenience or annoyance arising
from any repair or restoration of any portion of the Premises, building
or Project as a result of any damage from fire or other casualty.
e. Landlord and Tenant hereby acknowledge that the provisions of this
Article 19 are interested to be the sole and exclusive provisions
applicable in the event of any fire, casualty or unavoidable accident
to the Premises or the Building, and that the same are provided in lieu
of the operation of Md. Real Prop. Code Ann. 8-112 (as the same may be
amended and any successor provision thereto).
20.EMINENT DOMAIN
a. If the whole of the building or Premises is lawfully taken by
condemnation or in any other manner for any public or ???-public
purpose this Lease shall terminate as of the date of such taking, and
Rent shall be prorated to such date. If less than the whole of the
building or Premises is so taken, this Lease shall be unaffected by
such taking provided that (i) tenant shall have the right to terminate
this Lease by notice to Landlord given within ninety (90) days after
the date of such taking if twenty percent (20%) or more of the Premises
is taken and the remaining area of the Premises is not reasonably
sufficient for Tenant to continue operation of its business, and (ii)
Landlord shall have the right to terminate this Lease by notice to
Tenant given within ninety (90) days after the date of such taking. If
either Landlord or Tenant so elects to terminate this Lease, the Lease
shall terminate on the thirtieth (30th) day after either such notice.
The Rent shall be prorated to the date of termination. If this Lease
continues in force upon such partial taking, the Base Rent and Tenant's
Proportionate Share shall be equitably adjusted according to the
remaining Rentable Area of the Premises and Project.
b. In the event of any taking, partial or whole, all of the proceeds of
any award, judgment or settlement payable by the condemning authority
shall be the exclusive property of Landlord, and Tenant hereby assignee
to Landlord all of its right, title and interest in any award, judgment
or settlement from the condemning authority. Tenant, however, shall
have the right, to the extent that Landlord's award is not reduced or
prejudiced, to claim from the condemning authority (but net from
Landlord) such compensation as may be reservable by Tenant in its own
right for relocation expenses and damage personal property.
c. In the event of a partial taking of the Premises which does not result
in a termination of this Lease, Landlord shall restore the remaining
portion of the Premises as nearly as practicable to its condition prior
to the condemnation or taking, but only is the extent of building
standard work. Tenant shall be responsible at its sale cost and
expenses for the repair, restoration and replacement of any other
Leasehold improvements and Tenant's Property.
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21.INDEMNIFICATION
a. To the extent permitted by applicable law, Tenant shall indemnify and
hold Landlord harmless against and from liability and claims of any
kind for loss or damage to property of Tenant or any other person, or
for any injury to or death of any person, arising out of: (1) Tenant's
use and occupancy of the Premises, or any work, activity or other
things allowed or suffered by Tenant to be done in, on or about the
Premises; (2) any breach or default by Tenant of any of Tenant's
obligations under this Lease; or (3) any negligent or tortious act or
omission of Tenant, its agents, employees, invitees or contractors.
Tenant shall at Tenant's expense, and by counsel satisfactory to
Landlord, defend Landlord in any action or proceeding arising from any
such claim and shall indemnify Landlord against all costs, attorneys'
fees, expert witness fees and any other expenses incurred in such
action or proceeding. As a material part of the consideration for
Landlord's execution of this Lease, Tenant hereby assumes all risk of
damage or injury to any person or property in the Premises from any
cause other than Landlord's gross negligence or willful misconduct to
the extent permitted by law. The provisions of this Section 21a shall
survive the expiration or sooner termination of this Lease.
b. Landlord shall not be liable for injury or damage which may be
sustained by the person or property of Tenant, its employees, invitees
or customers, or any other person in the Premises, caused by or
resulting from fire, steam, electricity, gas, water or rain which may
leak or flow from or into any part of the Premises, or from the
breakage, leakage, obstruction or other defects of pipes, sprinklers,
wires, appliances, plumbing, air conditioning or lighting fixtures, and
the like whether such damage or injury results from conditions arising
upon the Premises or upon other portions of the Building or Project or
from other sources. Landlord shall not be liable for any damages
arising from any act or omission of any other tenant of the Building or
Project.
22.TENANT'S INSURANCE
a. All insurance required to be carried by Tenant hereunder shall be
issued by responsible insurance companies acceptable to Landlord and
Landlord's lender and qualified to do business in the State. Each
policy shall name Landlord, and at Landlord's request any mortgages of
Landlord, as an additional insured, as their respective interests may
appear. Each policy shall contain (i) a cross-liability endorsement,
(ii) a provision that such policy and the coverage evidenced thereby
shall be primary and non-contributing with respect to any policies
carried by Landlord and that any coverage carried by Landlord shall be
excess insurance, and (iii) a waiver by the insurer of any right of
subrogation against Landlord, its agents, employees and
representatives, which arises or might arise by reason of any payment
under such policy or by reason of any act or omission of Landlord, its
agents, employees or representatives. A copy of each paid up policy
(authenticated by the insurer) or certificate of the insurer evidencing
the existence and amount of each insurance policy required hereunder
shall be delivered to Landlord before the date Tenant is first given
the right of possession of the Premises, and thereafter within thirty
(30) days after any demand by Landlord therefor. Landlord may, at any
time and from time to time, inspect and/or copy any insurance policies
required to be maintained by Tenant hereunder. No such policy shall be
cancelable, except after twenty (20) days written notice to Landlord
and Landlord's lender. Tenant shall furnish Landlord with renewals or
"binders" of any such policy at least ten (10) days prior to the
expiration thereof. Tenant agrees that if Tenant does not take out and
maintain such insurance, Landlord may (but shall not be required to)
procure said insurance on Tenant's behalf and charge the Tenant the
premiums together with twenty-five percent (25%) handling charge,
payable upon demand. Tenant shall have the right to provide such
insurance coverage pursuant to blanket policies obtained by the Tenant,
provided such blanket policies expressly afford coverage to the
Premises, Landlord, Landlord's mortgages and Tenant as required by this
Lease.
b. Beginning on the date Tenant is given access to the Premises for any
purpose and continuing until expiration of the Term, Tenant shall
procure, pay for and maintain in effect policies of casualty insurance
covering (i) all Leasehold improvements (including any alterations,
additions or improvements as may be made by Tenant pursuant to the
provisions of Article 12 hereof), and (ii) trade fixtures, merchandise
and other personal property from time to time, providing protection
against any peril included within the classification "Fire and Extended
Coverage" together with insurance against sprinkler damage, vandalism
and malicious mischief. The proceeds of such insurance shall be used
for the repair or replacement of the property so insured. Upon
termination of this Lease following a casualty as set forth herein, the
proceeds under (i) shall be paid to Landlord, and the proceeds under
(ii) above shall be paid to Tenant.
c. Beginning on the date Tenant is given access to the Premises for any
purpose and continuing until expiration of the Term, Tenant shall
procure, pay for and maintain in effect workers' compensation insurance
as required by law and comprehensive public liability and property
damage insurance with respect to the construction of improvements on
the Premises, the use, operation or condition of the Premises and the
operations of Tenant in, on or about the Premises, providing personal
injury and broad form coverage for not less than Two Million Dollars
($2,000,000.00) combined single limit for bodily injury, death and
property damage liability..
23.WAIVER OF SUBROGATION
Landlord and Tenant each hereby waive all rights of recovery against the
other and against the officers, employees, agents and representatives of
the other, on account of loss by or damage to any person or the waiving
party's property or the property of others under its control, to the
extent that such loss or damage is insured against under any fire and
extended coverage insurance policy which either may have or is required to
have in force at the time of the loss or damage. Landlord and Tenant shall
each obtain from their respective insurers under all policies of fire,
theft, public liability, worker's compensation, and other insurance
maintained during the Term of this Lease covering the Building, or any
portion of it, or operations in it, a waiver of all rights of subrogation
that the insurer of one party might have against the other party. Landlord
and Tenant shall each indemnify the other against any loss or expense,
including reasonable attorney's fees, resulting from the failure to obtain
this waiver.
24.SUBORDINATION AND ATTORNMENT
This Lease is and shall be subject and subordinate to the lien of any
mortgage (which term "mortgage" shall include both construction and
permanent financing and shall include deeds of trust, ground leases and
similar security agreements) which may now or hereafter encumber or
otherwise affect the land and Building of which the Premises form a part,
or Landlord's leasehold interest therein), and to all and any renewals,
extensions, modifications, recastings or refinancing thereof; provided,
however that Landlord's mortgagee may elect, at its sole election, that
any mortgage held by such mortgagee shall be subordinate, in whole or in
part, to this Lease.
Within ten (10) days after written request of Landlord, or any mortgagee
or deed of trust beneficiary of Landlord, or ground lessor of Landlord,
Tenant shall, in writing, subordinate its rights under this Lease to the
lien of any mortgage or deed of trust, or to the interest of any lease in
which Landlord is leasee, and to all advances made or hereafter to be made
thereunder. However, before signing any subordination agreement , Tenant
shall have the right to obtain from any lender or lessor or Landlord
requesting such subordination, on a non-disturbance agreement in writing
providing that, as long as Tenant is not in default hereunder, this Lease
shall remain in effect for the full Term. The holder of any security
interest may, upon written notice to Tenant, elect to have this Lease
prior to its security interest regardless of the time of the granting or
recording of such security interest.
In the event of any foreclosure sale, transfer in lieu of foreclosure or
termination of a lease in which Landlord is lessee, Tenant shall attorn to
the purchaser, transferee or lessor as the case may be, and recognize that
party as Landlord under this Lease, provided such party acquires and
accepts the Premises subject to this Lease.
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Within ten (10) days after written request from Landlord, Tenant shall
execute and deliver to Landlord or Landlord's designee a written statement
certifying (a) that this Lease is unmodified and, if true, in full force
and effect, or is in full force and effect as modified, and stating the
modifications; (b) the amount of Base Rent and the date to which Base Rent
and additional rent have been paid in advance; (c) the amount of any
security deposited with Landlord; (d) that Landlord is not in default
hereunder or, if Landlord is claimed to be in default, stating the nature
of any claimed default, and (e) such other matters relating to this Lease
as Landlord shall request. Any such statement may be relied upon by a
purchaser, assignee or lender. Tenant's failure to execute and deliver
such statement within the time required shall at Landlord's election be a
default under this Lease and shall also be conclusive upon Tenant that:
(1) this Lease is in full force and effect and has not been modified
except as represented by Landlord; (2) there are no uncured defaults in
Landlord's performance and that Tenant has no right of offset,
counter-claim or deduction against Rent; and (3) not more than one month's
Rent has been paid in advance.
26.TRANSFER OF LANDLORD'S INTEREST
In the event of any sale or transfer by Landlord of the Premises, Building
or Project, and assignment of this Lease by Landlord, Landlord shall be
and is hereby entirely freed and relieved of any and all liability and
obligations contained in or derived from this Lease arising out of any
act, occurrence or omission relating to the Premises, Building, Project or
Lease occurring after the consummation of such sale or transfer, providing
the purchaser shall expressly assume all of the covenants and obligations
of Landlord under this lease. If any security deposit or prepaid Rent has
been paid by Tenant, Landlord may transfer the security deposit or prepaid
Rent to Landlord's successor and upon such transfer, Landlord shall be
relieved of any and all further liability with respect thereto.
27.DEFAULT
27.1 Events of Defaults The occurrence of any one or more of the following
matters constitutes a Default by Tenant under this Lease:
a. Failure by Tenant to pay any Rent or any other moneys required to
be paid Tenant under this Lease within three (3) days after such
payment is due and payable;
b. Failure by Tenant to observe or perform any of the covenants with
respect to assignment and subletting set forth in Article 16;
c. Faire by Tenant to comply with Tenant's obligations set forth in
Article 37;
d. Failure by Tenant to cure, immediately after receipt of notice
Landlord, any hazardous condition which Tenant has created in
violation of law or this Lease;
e. Failure by Tenant to observe or perform any other covenant,
agreement, condition or provision of this Lease, if such failure
continues for thirty (30) days after notice thereof from Landlord
to Tenant;
f. The levy upon, under writ of execution or the attachment by legal
process of, the leasehold interest of Tenant, or the filing or
creation of a lien with respect to such leasehold interest, which
lien shall not be released or discharged within ten (10) days from
the date of such filing.
g. Tenant vacates or abandons the Premises or fails to take
possession of the Premises when available for occupancy (the
transfer of a substantial part of the operations, business and
personnel of Tenant to some other location being deemed, without
limiting the meaning of the term "vacates or abandons," to be a
vacation or abandonment within the meaning of this clause),
whether or not Tenant thereafter continues to pay Rent due under
this Lease;
h. Tenant becomes insolvent or bankrupt or admits in writing its
inability to pay its debts as they mature, or makes an assignment
for the benefit of creditors, or applies for or consents to the
appointment of a trustee or receiver for Tenant or for the
substantial part of its property;
i. A trustee or receiver is appointed for Tenant or for the major
part of its property and is not discharged within sixty (60) days
after such appointment; or
j. Any bankruptcy, reorganization, arrangement, insolvency or
liquidation proceeding, or other proceeding for relief under any
bankruptcy law, or similar law for the relief of debtors, is
instituted (j) by Tenant or (ii) against Tenant and is allowed
against it or is consented to buy it or is not dismissed within
sixty (60) days after such institution.
27.2 Rights and Remedies of Landlord If a Default occurs, Landlord shall have
the rights and remedies hereinafter set forth, which shall be distinct,
separate and cumulative and shall not operate to exclude or deprive
Landlord of any other right or remedy allowed it by law:
a. Landlord may terminate this Lease by giving to Tenant notice of
Landlord's election to do so, in which event the Term of this
Lease shall end, and all right, title and Interest of Tenant
hereunder shall expire, on the date stated in such notice;
b. Landlord may terminate the right of Tenant to possession of the
Premises without terminating this Lease by giving notice to Tenant
that Tenant's right to possession shall end on the date in such
notice, whereupon the right of Tenant to possession of the
Premises or any part thereof shall cease on the date stated in
such notice; and
c. Landlord may enforce the provisions of the Lease and may enforce
and protest the rights of Landlord hereunder by a suit or suits in
equity or at law for the specific performance of any sevenant or
agreement contained herein, or for the enforcement of any other
appropriate legal or equitable remedy, including recovery of all
moneys due or to become due from Tenant under any of the
provisions of the Lease.
d. Landlord's rights and remedies hereunder are cumulative. In the
event of a breach by Tenant, Landlord shall have all rights and
remedies provided by law.
27.3 Rights to Re-Enter. If Landlord exercises either of the remedies
provided in Sections 27.2a or b. Tenant shall surrender possession
and vacate the Premises and immediately deliver possession thereof to
Landlord, and Landlord may re-enter and take complete and peaceful
possession of the Premises, with due process of law, full and
complete license to do so being hereby granted to Landlord, and
Landlord may remove all occupants and property therefrom, using such
force as may be necessary, without being deemed guilty in any manner
of trespass, eviction or forcible entry and detainer and without
relinguishing Landlord's right to Rent or any other right given to
Landlord hereunder or by operation of law.
27.4 Current Damages. If Landlord terminates the right of Tenant to
possession of the Premises without terminating the Lease, Landlord
shall have the right to immediate recovery of all amounts then due
hereunder. Such termination of possession shall not release Tenant,
in whole or in part, from Tenant's obligation to pay Rent hereunder
for the full Term, and Landlord shall have the right, from time to
time, to recover from Tenant, and Tenant shall remain liable for, all
Base Rent and any other sums accruing
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as they become due under the lease during the period from the date
of such notice of termination of possession to the stated end of
the term. In any case, Landlord may relet the Premises or any part
thereof for the account of Tenant for such rent, for such time
(which may be for a term extending beyond the Term of this Lease)
and upon such terms as Landlord shall determine and may collect the
rents from such reletting. Landlord shall not be required to
accept any tenant offered by Tenant or to observe any instructions
given by Tenant relative to such reletting. Also, in any such
case, Landlord may make repairs, alterations and additions in or to
the Premises and redecorate the same to the extent deemed by
Landlord necessary or desirable and in connection therewith change
the locks to the Premises, and Tenant upon demand shall pay the
cost of all of the foregoing together with Landlord's expenses of
reletting. The rents from any such reletting shall be applied
first to the payment of the expenses of re-entry, redecoration,
repair and alterations and the expenses of reletting and second to
the payment of Rent herein provided to be paid by Tenant. Any
excess or residue shall operate only as an offsetting credit
against the amount of Rent due and owing as the same thereafter
becomes due and payable hereunder, and the use of such offsetting
credit to reduce the amount of Rent due Landlord, if any, shall not
be deemed to give Tenant any right, title or interest in or to such
excess or residue and any such excess or residue shall belong to
Landlord solely, and in no event shall Tenant be entitled to a
credit on its indebtedness to Landlord in excess of the aggregate
sum (including Base Rent and any other changes) which would have
been paid by Tenant for the period for which the credit to Tenant
is being determined, and no Default occurred. No such re-entry or
repossession, repairs, alterations and additions, or reletting
shall be construed as an eviction or ouster of Tenant or as an
election on Landlord's part to terminate this Lease, unless a
written notice of such intention is given to Tenant, or shall
operate to release Tenant in whole or in part from any of Tenant's
obligations hereunder, and Landlord, at any time and from time to
time, may sue and recover judgment for any deficiencies remaining
after the application of the proceeds of any such reletting.
27.5 Final Damages. If this Lease is terminated by Landlord pursuant to
Section 27.2a, Landlord shall be entitled to recover form Tenant all
Rent accrued and unpaid for the period up to and including such
termination date, as well as all other additional sums payable by
Tenant, or for which Tenant is liable or for which Tenant has agreed
to indemnify Landlord under any of the provisions of this Lease, which
may be then owing and unpaid, and all costs and expenses, including
court costs and attorneys' fees incurred by Landlord in the
enforcement of its rights and remedies hereunder, and, in addition,
Landlord shall be entitled to recover as damages for loss of the
bargain and not as a penalty (a) the unamortized portion of Landlord's
contribution to the cost of tenant improvements and alterations, if
any, installed by either Landlord or Tenant pursuant to this Lease or
any Workletter, (b) the aggregate sum which at the time of such
termination represents the excess, if any of the present value of the
aggregate rents which would have been payable after the termination
date had this Lease not been terminated, including, without
limitation, Base Rent at the annual rate or respective annual rates
for the remainder of the term provided for in Section 2e of this Lease
or elsewhere herein and the amount projected by Landlord to represent
any other charges for the remainder of the Term pursuant to Article 5
of this Lease, over the then present value of the then aggregate fair
rental value of the Premises for the balance of the Term, such present
worth to be computed in each case, on the basis of a five percent (5%)
per annum discount from the respective dates upon which such rentals
would have been payable hereunder had this Lease not been terminated,
and (c) any damages in addition thereto, including reasonable
attorneys' fees and court costs, which Landlord sustains as a result
of the breach of any of the covenants of this Lease other than for the
payment of Rent.
27.6 Anticipatory Breach. Nothing contained herein shall prevent the
enforcement of any claim Landlord may have against Tenant for
anticipatory breach of the unexpired Term of this Lease. In the event
of a breach or anticipatory breach by Tenant of any of the covenants
or provisions hereof, Landlord shall have the right of injunction and
the right to invoke any remedy allowed at law or in equity as if
re-entry, summary proceedings and other remedies were not provided for
herein.
27.7 Removal of Personal Property. All property of Tenant removed from the
Premises by Landlord pursuant to any provision of this Lease or
applicable law may be handled, removed or stored by Landlord at the
cost and expense of Tenant, and Landlord shall not be responsible in
any event for the value, preservation or safekeeping thereof. Tenant
shall pay Landlord for all expenses incurred by Landlord with respect
to such removal and storage so long as the same is in Landlord's
possession or under Landlord's control. All such property not removed
from the Premises or retaken from storage by Tenant within thirty (30)
days after the end of the term, however terminated, at Landlord's
option , shall be conclusively deemed to have been conveyed by Tenant
to Landlord as by bill of sale without further payment or credit by
Landlord to Tenant.
27.8 Attorneys' Fees. Tenant shall pay all of Landlord's costs, charges
and expenses, including court costs and attorneys' fees, incurred in
enforcing Tenant's obligations under this Lease, incurred by Landlord
in any action brought by Tenant in which Landlord is the prevailing
party, or incurred by Landlord in any litigation, negotiation or
transaction in which Tenant causes Landlord, without Landlord's fault,
to become involved or concerned.
27.9 Assumption or Rejection in Bankruptcy. If Tenant is adjudged
bankrupt, or a trustee in bankruptcy is appointed for Tenant, Landlord
and Tenant, to the extent permitted by law, agree to request that the
trustee in bankruptcy determine within sixty (60) days thereafter
whether to assume or to reject this Lease.
27.10 Default Under Other Leases. If the term of any lease, other than this
Lease, for any space in the Project under which Tenant is now or
hereafter the tenant, shall be terminated or terminable after the
making of this Lease because of any default by Tenant under such other
lease, such fact shall empower Landlord, at Landlord's sole option, to
terminate this Lease by notice to Tenant or to exercise any of the
rights or remedies set forth in Section 27.2
27.11 WAIVER OF TENANT'S RIGHT OF REDEMPTION. TO THE EXTENT PERMITTED BY
APPLICABLE LAW, TENANT HEREBY WAIVES ANY AND ALL RIGHTS OF REDEMPTION
AND RIGHTS TO CURE ANY DEFAULT HEREUNDER (HOWSOEVER DENOMINATED) NOW
OR HEREAFTER GRANTED TO TENANT PURSUANT TO APPLICABLE LAW. NO
ACCEPTANCE BY LANDLORD OF ANY MONIES OWED BY TENANT TO LANDLORD SHALL
CONSTITUTE A WAIVER OF THE PROVISIONS OF THIS ARTICLE 27 NOR SHALL ANY
REFUSAL BY LANDLORD TO ACCEPT ANY TENDER BY TENANT OF ANY SUMS OWED BY
TENANT TO LANDLORD, IN CONNECTION WITH ANY PURPORTED EXERCISE OF ANY
RIGHT OF REDEMPTION OR RIGHT TO CURE TO WHICH TENANT WOULD OTHERWISE
BE ENTITLED, CONSTITUTE A TERMINATION OF THIS LEASE OR A RELEASE OF
TENANT FROM ANY LIABILITY HEREUNDER.
27.12 CERTAIN WAIVERS. EXCEPT AS SPECIFICALLY PROVIDED IN THIS LEASE AND
EXCEPT AS SPECIFICALLY PROVIDED TO THE CONTRARY PURSUANT TO APPLICABLE
LAW, TENANT HEREBY EXPRESSLY WAIVES THE SERVICE OF ANY NOTICE TO CURE
OR VACATE OR TO QUIT THE PREMISES AND WAIVES THE SERVICE OF ANY OTHER
NOTICE OR DEMAND PRESCRIBED BY ANY CURRENT OR FUTURE STATUTE OR OTHER
APPLICABLE LAW.
27.13 Landlord's Default. If Landlord fails to perform any covenant,
condition or agreement contained in this Lease, or if any
representation or warranty is materially false, within thirty (30)
days after receipt of written notice from Tenant specifying such
default, or if such default cannot reasonably be cured within thirty
(30) days, if Landlord fails to commence to cure within that thirty
(30) day period, then Landlord shall be liable to Tenant for any
damages sustained by Tenant by reason of any actual physical damage to
Tenant's personal property at the Premises or injury to persons caused
by Landlord's breach; provided, however, it is expressly understood
and agree that if Tenant obtains a money judgement against Landlord
resulting from any default or other claim arising under this Lease,
that judgement shall be satisfied only out of the rents, issues,
profits and other income actually received on account of Landlord's
right, title and interest in the Premises, Building or Project, and no
other real, personal or mixed property of Landlord (or of any of the
partners which comprise Landlord, if any) wherever situated, shall be
subject to levy to satisfy such judgment. If, after notice to
Landlord of default, Landlord (or any first mortgagee or first deed of
trust beneficiary of Landlord) fails to cure the default as provided
herein, then Tenant shall have the right to cure that default at
Landlord's expense. Tenant shall not have the right to terminate this
Lease or to withhold, reduce or offset any amount against
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any payments of Rent or any other charges due and payable under this
Lease, except as otherwise specifically provided herein.
28. BROKERAGE FEES
Tenant warrants and represents that it has not dealt with any real
estate broker or agent in connection with this Lease or its
negotiation except those noted in Section 2p. Tenant shall indemnify
and hold Landlord harmless from any cost, expense or liability
(including costs of suit and reasonable attorneys' fees) for any
compensation, commission or fees claimed by any other real estate
broker or agent in connection with this Lease or its negotiating by
reason of any alleged act of Tenant.
29. NOTICES
All notices, approvals and demands permitted or required to be given
under this Lease shall be in writing and deemed duly served or given
if personally delivered or sent by certified or registered U.S. mail,
postage prepaid, and addressed as follows: (a) if to Landlord, to
Landlord's Mailing Address and to the Building manager, and (b) if to
Tenant, to Tenant's Mailing Address; provided, however, notices to
Tenant shall be deemed duly served or given if delivered or mailed to
Tenant at the Premises. Landlord and Tenant may from time to time by
notice to the other designate another place for receipt of future
notices.
30. GOVERNMENT ENERGY OR UTILTY CONTROLS
In the event of imposition of federal, state or local government
controls, rules, regulations, or restrictions on the use or
consumption of energy of other utilities during the Term, both
Landlord and Tenant shall be bound thereby. In the event of a
difference in interpretation by Landlord and Tenant of any such
controls, the interpretation of Landlord shall prevail, and Landlord
shall have the right to enforce compliance therewith, including the
right of entry into the Premises to effect compliance.
32. QUIET ENJOYMENT
Tenant, upon paying the Rent and performing all of its obligations
under this Lease, shall peaceably and quietly enjoy the Premises,
subject to the terms of this Lease and to any mortgage, lease, or
other agreement to which this Lease may be subordinate.
33. OBSERVANCE OF LAW
Tenant shall not use the Premises or permit anything to be done in or
about the Premises which will in any way conflict with any law,
statute, ordinance or governmental rule or regulation now in force or
which may hereafter be enacted or promulgated. Tenant shall, at its
sole cost and expense, promptly comply with all laws, statutes,
ordinances and governmental rules, regulations or requirements now in
force or which may herafter be in force, and with the requirements of
any board of fire insurance underwriters or other similar bodies now
or hereafter constituted, relating to, or affecting the condition, use
of occupancy of the Premises, excluding structural changes not related
to or affected by Tenant's improvements or acts. The judgment of any
court or competent jurisdiction or the admission of Tenant in any
action against Tenant, whether Landlord is a party thereto or not,
that Tenant has violated any law, ordinance or governmental rule,
regulation or requirement shall be conclusive of that fact as between
Landlord and Tenant.
34. FORCE MAJEURE
Any prevention, delay or stoppage of work to be performed by Landlord
or Tenant which is due to strikes, labor disputes, inability to obtain
labor, materials, equipment or reasonable substitutes thererfor, acts
of God, governmental restrictions or regulations or controls, judicial
orders, enemy or hostile government actions, civil commotion, fire or
other casualty, or others causes beyond the reasonable control of the
party obligated to perform hereunder, shall excuse performance of the
work by that party for a period equal to the duration of that
prevention, delay of stoppage. Nothing in this Article 34 shall
excuse or delay Tenant's obligation to pay Rent or other charges under
this Lease.
35. CURING TENANT'S DEFAULTS
If tenant defaults in the performance of any of its obligations under
this Lease, Landlord may (but shall not be obligated to) without
waiving such default, perform the same for the account at the expense
of Tenant. Tenant shall pay Landlord all costs of such performance
promptly upon receipt of a bill therefor.
36. SIGN CONTROL
Tenant shall not affix, paint, erect or inscribe any sign, projection,
awning, signal or advertisement of any kind to any part of the
Premises, Building or Project, including without limitation, the
inside or outside of windows or doors, without the written consent of
Landlord. Landlord shall have the right to remove any signs or other
matter, installed without Landlord's permission , without being liable
to Tenant by reason of such removal, and to charge the cost of removal
to Tenant as additional rent hereunder payable within ten (10) days of
written demand by Landlord. Notwithstanding the aforementioned,
Tenant shall be permitted to install building signage of not more than
100 square feet. This right is subject to Landlord's approval of
size, color, location and materials used as well as subject to all
applicable city and country codes and regulations.
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37. HAZARDOUS SUBSTANCES
37.1 Defined Terms
a. "Claim" shall mean and include any demand, cause of action,
proceeding or suit for any one or more of the following: (i)
actual or punitive damages, losses, injuries to person or
property, damages to natural resources, fines penalties,
interest, contribution or settlement, (ii) the costs of site
investigations, feasibility studies, information requests, health
or risk assessments, or Response (as hereinafter defined)
actions, and (iii) enforcing insurance, contribution or
indemnification agreements.
b. "Environmental Laws" shall mean and include all federal, state
and local statutes, ordinances, regulations and rules relation to
environmental quality, health, safety, contamination and
clean-up, including, without limitation, the Clean Air Act, 42
U.S.C. Section 7401 et seq.; the Clean Water Act , 33 U.S.C.
Section 1251 et seq., and the Water Quality Act of 1987; the
Federal Insecticide, Fungicide, and Rodenticide Act ("FIFRA"), 7
U.S.C. Section 136 et seq.; the Marine Protection, Research, and
Sanctuaries Act, 33 U.S.C. Section 1401 et seq.; the National
Environmental Policy Act, 42 U.S.C. Section 4321 et seq.; the
Noise Control Act, 42 U.S.C. Section 4901 et seq; the
Occupational Safety and Health Act, 29 U.S.C. Section 651 et
seq.; the Resource Conservation and Recovery Act ("RCRA"), 42
U.S.C. Section 6901 et seq.; as amended by the Hazardous and
Solid Waste Amendments of 1984; the Safe Drinking Water Act, 42
U.S.C. Section 300f et seq; the Comprehensive Environmental
Response, Compensation and Liability Act ("CERLA"), 42 U.S.C.
Section 9601 et seq., as amended by the Superfund Amendments and
Reauthorization Act, the Emergency Planning and Community
Right-to-Know Act, and Radon Gas and Indoor Air Quality Research
Act; the Toxic Substances Control Act ('TSCA"), 15 U.S.C. Section
2601 et seq.; the Atomic Energy Act, 42 U.S.C. Section 2011 et
seq., and the Nuclear Waste Policy Act of 1982, 42 U.S.C. Section
10101 et. seq.; and state superlien and environmental clean-up
statutes, with implementing regulations and guidelines, as
amended from tome to tome. Environmental Laws shall also include
all state, regional, country, municipal and other local laws,
regulations, and ordinances insofar as they are equivalent or
similar to the federal laws recited above or purport to regulate
Hazardous Materials (as hereinafter defined).
c. "Hazardous Materials" shall mean and include the following,
including mixtures thereof: any hazardous substance, pollutant,
contaminant, waste, by-product or constituent regulated under
CERCLA; oil and petroleum products and natural gas, natural gas
liquids, liquefied natural gas and synthetic gas usable for fuel;
pesticides regulated under the FIFRA; asbestos and
asbestos-containing materials, PCBs, and other substances
regulated under the TSCA; source material, special nuclear
material, by-product material and any other radioactive materials
or radioactive wastes, however produced, regulated under the
Atomic Energy Act or the Nuclear Wasted Policy Act; chemicals
subject to the OSHA Hazard Communication Standard, 29 C.F.R.
Section 1910. 1200 et seq., and industrial process and pollution
control wastes, whether or not hazardous within the meaning of
RCRA; any substance whose nature and/or quantity of existence,
use, manufacture, disposal or effect render it subject to
federal, state or local regulation, investigation, remediation,
or removal as potentially injurious to public health or welfare.
d. "Use" means to manage, generate, manufacture, process, treat,
store, use, re-use, refine, recycle, reclaim, blend or burn for
energy recovery, incinerate, accumulate speculatively, transport,
transfer, dispose of , or abandon Hazardous Materials.
e. "Release" or "Released" shall mean any actual or threatened
spilling, leaking, pumping, pouring, emitting, emptying,
discharging, injecting, escaping, leaching, dumping, or disposing
of Hazardous Materials into the environment, as "environment" is
defined in CERCLA.
f. "Response"or "Respond" shall mean action taken in compliance with
Environmental Laws to correct, remove, remediate, cleanup,
prevent, mitigate, monitor, evaluate, investigate, assess or
abate the Release of a Hazardous Material.
37.2 Tenant's Obligations with Respect to Environmental Matters. During
the term of this Lease, (a) Tenant shall comply at its own cost with
all Environmental Laws; (b) Tenant shall not Use, or authorize the Use
of, any Hazardous Materials on the Premises, including installation of
any underground storage tanks, without prior written disclosure to and
approval by the Landlord, except for small quantities ordinarily used
by office tenants in ordinary office equipment, such as copying
machines, typewriters and personal computers; but only to the extent
permitted by law; (c) Tenant shall not take any action that would
subject the Premises to permit requirements under RCRA for storage,
treatment or disposal of Hazardous Materials; (d) Tenant shall not
dispose of Hazardous Materials in dumpsters provided by Landlord for
tenant use; (e) Tenant shall not discharge Hazardous Materials into
Project drains or sewers; (f) Tenant shall not cause or allow the
Release of any Hazardous Materials on, to, or from the Project; and
(g) Tenant shall arrange at its own cost close-up for the lawful
transportation and off-site disposal of all Hazardous Materials that
it generates.
37.3 Copies of Notices. During the term of this Lease, Tenant shall
provide Landlord promptly with copies of all summons, citations,
directives, information inquires or requests, notices of potential
responsibility, notices of violation or deficiency, orders or decrees,
Claims, complaints, investigations, judgments, letters, notices of
environmental liens or Response actions in progress and other
communications, written or oral, actual or threatened, from the United
Statues Environmental Protection Agency, Occupational Safety and
Health Administration, or other federal, state or local agency or
authority, or any other entity or individual, concerning (a) any
Release of a Hazardous Material on, to or form the Premises; (b) the
imposition of any lien on the Premises; or (c) any alleged violation
of or responsibility under Environmental Laws. Landlord and
Landlord's beneficiaries, agents and employees shall have the right to
enter the Premises and conduct appropriate inspections or tests in
order to determine Tenant's compliance with Environmental Laws.
37.4 Tests and Reports. Upon written request by Landlord, Tenant shall
provide Landlord without the results of appropriate reports and tests,
with transportation and disposal contracts for Hazardous Materials,
with any permits issued under Environmental Laws, and with any other
applicable documents to demonstrate that Tenant complies with all
Environmental Laws relating to the Premises.
37.5 Tenant's Obligation to Respond. If Tenant's Use of Hazardous
Materials at the Premises (a) gives rise to liability or to a Claim
under any Environmental Law, (b) causes a significant public health
effect, or (c) creates a nuisance, Tenant shall promptly take all
applicable action in Response.
37.6 Indemnification. Tenant shall indemnify, defend, and hold harmless
Landlord, its beneficiaries, its lenders, any managing agents and
leasing agents of the Premises, and their respective agents,
representatives partners, officers, directors and employees from and
against any and all Claims arising from or attributable to any breach
by Tenant of any of its warranties, representations or covenants in
the Article. Tenant's obligations hereunder shall survive the
termination or expiration of this Lease.
37.7 Owner's Representation and Warranty. Real Estate Income Partners
Limited Partnership, represents and warrants that Real Estate Income
Partners Limited Partnership, has not used or disposed, nor has Real
Estate Income Partners Limited Partnership, authorized its agents to
use or dispose of hazardous materials on the Premises in violation of
law.
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38. PARKING
a. Parking Rules and Regulations. Tenant shall observe and abide by
all parking rules and regulations created or imposed from time to
time by Landlord. If Tenant commits, permits or allows any
activity prohibited by the rules and regulations, Landlord shall
have the right, without notice and in addition to any other
available rights and remedies, to remove, tow or physically
incapacitate the vehicle involved at Tenant's cost and expense,
payable immediately upon demand.
b. Changes by Landlord. Landlord reserves the right as it deems
reasonably necessary to change or alter the parking, its layout
or access thereto, and to restrict, expand or reduce the size of
the parking spaces. Tenant acknowledges and agrees, however,
that the parking spaces at the Project may change, either
temporarily or permanently, as a result of governmental acts, or
acquirements (including a taking by eminent domain or a sale in
lieu thereof) or as a result of facts or circumstances not within
Landlord's control.
c. Waiver and Release. The right to park granted hereunder is
solely for the convenience and accommodation of Tenant, and does
not constitute a bailment or create the relationship of bailor
and bailee. Tenant waives and releases Landlord from any
responsibility or liability for loss or damage to any person or
property respecting use of the parking by Tenant, its employees
or invitees.
d. No charge or parking during the term of this Lease. Landlord
agrees that there shall be no charge to Tenant for Tenant's
parking spaces during the original Term of this Lease.
39. MISCELLANEOUS
a. Accord and Satisfaction: Allocation of Payments. No payment by
Tenant or receipt by Landlord of a lesser amount than the Rent
provided for in this Lease shall be deemed to be other than on
account of the earliest Rent due, nor shall any endorsement or
statement on any check or letter accompanying any check or
payment as Rent be deemed an accord and satisfaction, and
Landlord may accept such check or payment without prejudice to
Landlord's right to recover the balance of the Rent or pursue any
other remedy provided for in this Lease. In connection with the
foregoing, Landlord shall have the absolute right in its sole
discretion to apply any payment received from Tenant to any
account or other payment of Tenant then not current and due or
delinquent.
b. Addends. If any provision contained in a Rider to this Lease is
inconsistent with any other provision herein, the provision
contained in the Rider shall control, unless otherwise provided
in the Rider.
c. Attorney's Fees. If any action or proceeding is brought by
either party against the other pertaining to or arising out of
this Lease, the finally prevailing party shall be entitled to
recover all costs and expenses, including reasonable attorneys'
fees, incurred on account of such action or proceeding.
d. Captions, Articles and Section Numbers. The captions appearing
within the body of this Lease have been inserted as a matter of
convenience and for reference only and in no way define, limit or
enlarge the scope or meaning of this Lease. All references to
Article and Section numbers refer to Articles and Sections in
this Lease.
e. Changes Requested by Lender. Neither Landlord or Tenant shall
unreasonably withhold its consent to changes or amendments to
this Lease requested by the lender on Landlord's interest, so
long as these changes do not alter the basic business terms of
this Lease or otherwise materially diminish any rights or
materially increase any obligations of the party from whom
consent to such change or amendment is requested.
f. Choice of Law. This Lease shall be construed and enforced in
accordance with the laws of Maryland.
g. Consent. Notwithstanding anything contained in this Lease to the
contrary, Tenant shall have no claim, and hereby waives the right
to any claim against Landlord for money damages by reason of any
refusal, withholding or delaying by Landlord of any consent,
approval or statement of satisfaction, and in such event,
Tenant's only remedies therefor shall be an action for specific
performance, injunction or declaratory judgment to enforce any
right to such consent, etc. Additionally, unless otherwise
specifically provided herein, Landlord may grant or refuse its
consent to any item in its sole discretion.
h. Authority. If Tenant is a corporation or partnership, each
individual signing this Lease on behalf of Tenant represents and
warrants that he is duly authorized to execute and deliver this
Lease on behalf of the corporation, and that this Lease is
binding on Tenant in accordance with its terms. Tenant shall, at
Landlord's request, deliver a certified copy of a resolution of
its board of directors authorizing such execution.
i. Counterparts. This Lease may be executed in multiple
counterparts, all of which shall constitute one and the same
Lease.
j. Execution of Lease; No Option: The submission of this Lease to
Tenant shall be for examination purposes only, and does not and
shall not constitute a reservation of or option for Tenant to
lease, or otherwise create any interest of Tenant in the Premises
or any other premises within the Building or Project. Execution
of this Lease by Tenant and its return to Landlord shall not be
binding on Landlord notwithstanding any time interval, until
Landlord has in fact signed and delivered this Lease to Tenant.
k. Furnishing of Financial Statements; Tenant's Representations.
In order to induce Landlord to enter into this Lease, Tenant
agrees that it shall promptly furnish Landlord, from time to
time, upon Landlord's written request, with financial statements
reflecting Tenant's current financial condition. Tenant
represents and warrants that all financial statements, records
and information furnished by Tenant to landlord in connection
with this Lease are true, correct and complete in all respects.
Landlord shall use good faith reasonable efforts to keep Tenant's
financial statements, records and information confidential,
however, Tenant acknowledges that such financial statements,
records and information may be disclosed to Landlord's employees,
agents, and representatives, (including property manager and
asset manager) as well as investors, lenders, buyers, prospective
investors, prospective lenders and prospective buyers of the
Project.
l. Further Assurances. The parties agree to promptly sign all
documents reasonably requested to give effect to the provisions
of this Lease.
m. Mortgagee Protection. Tenant agrees to send by certified or
registered mail to any mortgagee or deed of trust beneficiary of
Landlord whose address has been furnished to Tenant, a copy of
any notice of default served by Tenant on Landlord. If Landlord
fails to cure such default within the time provided for in this
Lease, such mortgagee or beneficiary shall have an additional
thirty (30) days to cure such default; provided that if such
default cannot reasonably be cured within that thirty (30) day
period, then such mortgagee or beneficiary shall have such
additional time to cure the default as is reasonably necessary
under the circumstances.
n. Prior Agreements; Amendments. This Lease contains all of the
agreements of the parties with respect to any matter covered or
mentioned in this Lease, and no prior agreement or understanding
pertaining to any such matter shall be effective for any purpose.
No provisions of this Lease may be amended or added to except by
an agreement in writing signed by the parties or their respective
successors in interest.
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o. Recording. Tenant shall not record the Lease without the prior
written consent of Landlord. Tenant, upon the request of
Landlord, shall execute and acknowledge a "short form" memorandum
of this Lease for recording purposes.
p. Severability. A final determination by a court of competent
jurisdiction that any provision of this Lease is invalid shall
not affect the validity of any other provision, and any provision
so determined to be invalid shall, to the extent possible, be
construed to accomplish its intended effect. In the event that
any material provision (or any material part of any provision)
contained in this Lease shall for any reason be held to be
invalid, unlawful or unenforceable in any respect, Landlord and
Tenant shall, at Landlord's election, amend this Lease so as to
render every provision hereby fully valid, lawful and enforceable
in all respect, and so as to result in a revised lease with
equivalent economic and legal substance as if no provision or
portion of this Lease had been declared invalid, unlawful or
unenforceable.
q. Successors and Assigns. This Lease shall apply to and bind the
heirs, personal representatives, and permitted successors and
assigns of the parties.
r. Time of the Essence. Time is of the essence of this Lease.
s. Waiver. No delay or omission in the exercise of any right or
remedy of Landlord upon any default by Tenant shall impair such
right or remedy or be construed as a waiver of such default.
The receipt and acceptance by Landlord of delinquent Rent shall
not constitute a waiver of any default.
No act or conduct of Landlord, including, without limitation, the
acceptance of keys to the Premises, shall constitute an
acceptance of the surrender of the Premises by Tenant before the
expiration of the Term. Only a written notice from Landlord to
Tenant shall constitute acceptance of the surrender of the
Premises and accomplish a termination of the Lease.
Landlord's consent to or approval of any act by Tenant requiring
Landlord's consent or approval shall not be deemed to waive or
render unnecessary Landlord's consent to or approval of any
subsequent act by Tenant.
Any waiver by Landlord of any default must be in writing and
shall not be a waiver of any other default concerning the same or
any other provision of the Lease.
40. WAIVER OF JURY TRIAL
LANDLORD AND TENANT WAIVE TRIAL BY JURY IN ANY ACTION, PROCEEDING OR
COUNTERCLAIM BROUGHT BY EITHER PARTY AGAINST THE OTHER ON ALL MATTERS
ARISING OUT OF THIS LEASE OR USE AND OCCUPANCY OF THE PREMISES, EXCEPT
CLAIMS FOR PERSONAL INJURY OR PROPERTY DAMAGE. IF LANDLORD COMMENCES
ANY SUMMARY PROCEEDING FOR NONPAYMENT OF RENT, TENANT WILL NOT
INTERPOSE, AND WAIVES THE RIGHT TO INTERPOSE, ANY COUNTERCLAIM IN ANY
SUCH PROCEEDING. TENANT HEREBY CONSTITUTES AND IRREVOCABLY APPOINTS
ANY ATTORNEY OF ANY COURT OF RECORD TO BE THE TRUE AND LAWFUL ATTORNEY
OF TENANT, AND, IN THE NAME, PLACE AND STEAD OF THE TENANT (a) TO
APPEAR FOR AND ON BEHALF OF TENANT IN ANY COURT OF RECORD AT ANY TIME
IN ANY ACTION OR ACTIONS BROUGHT AGAINST THE TENANT FOR THE
ENFORCEMENT OF ANY RIGHT OF THE LANDLORD HEREUNDER, (b) TO WAIVE THE
ISSUANCE OF SERVICE OF PROCESS AND TRIAL BY JURY, AND (c) FROM TIME TO
TIME, TO CONFESS JUDGMENT OR JUDGMENTS IN FAVOR OF THE LANDLORD AND
AGAINST TENANT FOR ANY RENT OR OTHER CHARGES DUE HEREUNDER AND
INTEREST THEREON, AND FOR THE COSTS OF SUIT AND REASONABLE ATTORNEYS'
FEES IN FAVOR OF LANDLORD, AND TO RELEASE ALL ERRORS THAT MAY OCCUR OR
INTERVENE IN SUCH PROCEEDINGS, AND TO CONSENT THAT EXECUTION OF ANY
JUDGMENT OR DECREE IN FAVOR OF LANDLORD AND AGAINST TENANT MAY ISSUE
FORTHWITH.
15
<PAGE>
<PAGE>
The parties hereto have executed this Lease as of the dates set forth below.
TENANT LANDLORD
International Data Products, Corp. Real Estate Income Partners III,
Limited Partnership
By: /s/ George D. Fuster By: Birtcher Investments
- ----------------------------
Its: President Its: Authorized Agent
- ----------------------------
Date: 1/25/95 By: /S/ Michael S. Buzar
- ---------------------------- ----------------------------
Michael S. Buzar
By: /s/ Oscar Fuster Its: Senior Vice President
- ----------------------------
Its: VP & Secretary Date: 1/31/95
- ---------------------------- ----------------------------
Date: 1/25/95
- ----------------------------
16
<PAGE>
EXHIBIT "A"
To Lease dated January 6, 1995
By and between
REAL ESTATE INCOME PARTNERS III, Limited Partnership, as Landlord, and
International Data Products, Corp., as Tenant
FLOOR PLAN
[GRAPHIC]
<PAGE>
EXHIBIT "A"
To Lease dated January 6, 1995
By and between
REAL ESTATE INCOME PARTNERS III, Limited Partnership, as Landlord, and
International Data Products, Corp., as Tenant
FLOOR PLAN
[GRAPHIC]
<PAGE>
EXHIBIT "B"
To Lease dated January 6, 1995
By and between
REAL ESTATE INCOME PARTNERS III, Limited Partnership, as Landlord, and
International Data Products, Corp., as Tenant
SITE PLAN
[GRAPHIC]
<PAGE>
EXHIBIT "C"
To Lease dated January 6, 1995
by and between
REAL ESTATE INCOME PARTNERS III, Limited
Partnership, as Landlord, and International
Data Products, Corp., as Tenant
WORK LETTER
THIS WORKLETTER AGREEMENT ("Workletter") is executed simultaneously with that
certain Lease Between Real Estate Income Partners III, as Landlord, and
International Data Products, Corp., as Tenant Relating to demised premises
("Premises"), which Premises are more fully identified in the Lease. Capitalized
Terms used herein, unless otherwise defined in this Workletter, shall have the
respective meanings assigned To them in the Lease.
For and in consideration of the agreement it lease the demised premises and the
mutual covenants contained Herein and in the Lease, Landlord and Tenant hereby
agree as follows:
1. Delivery of Premises. Landlord delivered the Premises to Tenant pursuant
to that Temporary Occupancy Agreement dated January 6, 1995 and Tenant accepted
the Premises in its "as is" condition.
2. Work. Tenant, at its sole cost and expense, shall perform or cause to be
performed the work (the "Work") in the Premises provided for in the Plans (as
defined in Paragraph 3 hereof) submitted to and approved by Landlord, provided,
however, that Tenant's work shall not include Tenant's furniture, furnishings,
equipment or other interior decor. Tenant's Work shall be instructed in a good
and workmanlike fashion, in accordance with the requirements set forth herein
and in compliance with all applicable laws, ordinances, rules and other
governmental requirements. Tenant shall commence the construction of the Work
promptly following compellation of the pre-construction activities provided for
in Paragraph 3 below and shall diligently proceed with all such construction.
Tenant shall coordinate its work so as to avoid interference with any work being
performed by or on behalf of Landlord and other tenants in the Project.
3. Preconstruction Activities:
(a) As soon as reasonably possible, but in no event later than February 15,
1995, Tenant shall submit the following information and items to Landlord for
Landlord's review and approval:
(i) a detailed construction schedule containing the major
components of the Work and the time required for
each, including the scheduled commencement date of
construction of the Work, milestone dates and the
estimated date of completion of construction;
(ii) an itemized statement of the estimated construction
cost, including permits and architectural and
engineering fees;
(iii) evidence satisfactory to Landlord of Tenant's ability
to pay the cost of the Work as and when payments
become due. Such evidence shall be in the form of an
unconditional written commitment from a responsible
leader to pay for the Work or evidence of current net
assets in the form of cash, cash equivalents or other
liquid assets of Tenant which have been and will
continue to be segregated for payment of the Work
when due;
(iv) the names and addresses of Tenant's contractors (and
the contractors' subcontractors) to be engaged by
Tenant for the Work ("Tenant's Contractors").
Landlord has the right to approve or disapprove
Tenant's Contractors. Tenant shall not employ as
Tenant's Contractors any persons or entities
disapproved by Landlord. If Landlord has
affirmatively approved only certain contractor(s)
and/or subcontractors(s) from Tenant's list, Tenant
shall employ as Tenant's contractors only those
persons or entities
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<PAGE>
as approved. Landlord hereby approves Kerr/Mast
Construction Group, Inc. Landlord may, at its
election, designate a list of approved contractors
for performance of work, involving electrical,
mechanical, plumbing or life-safety systems, from
which Tenant must select its contractors for such
Work;
(v) certified copies of insurance policies or
certificates of insurance as hereinafter described.
Tenant shall not permit Tenant's Contractors to
commence work until the required insurance has been
obtained and certified copies of policies or
certificates have been delivered to Landlord:
(vi) payment and performance bonds for all of Tenant's
Contractors naming Landlord as a duel obligee; and
(vii) the Plans for the Work, which Plans shall be subject
to Landlord's approval in accordance with Paragraph 3
(b) below.
Tenant will update such information and items by notice to Landlord of any
changes.
(b) As used herein, the term "Plans" shall mean full and detailed
architectural and engineering plans and specifications cover the Work
(including, without limitation, architectural, mechanical and electrical working
drawings for the Work). The Plans shall be subject to Landlord's approval and
the approval of all local governmental authorities requiring approval, if any.
Landlord shall give its approval or disapproval (giving general reasons in case
of disapproval) of the Plans within five (5) days after the receipt thereof by
Landlord. Landlord agrees not to unreasonably withhold its approval of said
Plans; provided, however, that Landlord shall not be deemed to have acted
unreasonably if it withholds its consent because, in Landlord's opinion: (i) the
Work is likely to affect adversely Building systems, the structure of the
Building or the safety of the Building or project and their occupants; (ii) the
Work would increase Landlord's ability to furnish services to Tenant or other
tenants in the Project; (iii) the work would increase the cost of operating the
Building; (iv) the Work would violate any governmental laws, rules or
ordinances; or (v) the Work contains or uses hazardous or toxic materials; or
(vi) the Work would adversely affect the appearance of the Building or Project.
The foregoing reasons, however, shall not be exclusive of the reasons for which
Landlord may withhold consent, whether or not such other reasons are similar to
or dissimilar from the foregoing. Landlord shall cooperate with Tenant by
discussing or reviewing preliminary plans and specifications, at Tenant's
Request prior to completion of the full, final detailed Plans, in order to
expedite preparation of the final Plans submitted by Tenant, Tenant shall,
within three (3) days thereafter, submit to Landlord for its approval the Plans
as amended in accordance with the changes so required. The Plans shall also be
revised, and the Work shall be changed, to incorporate any work required in the
Premises by any local governmental field inspector. Landlord's approval of the
Plans shall in no way be deemed to be acceptance or approval of any element
therein contained which is in violation of any applicable laws, ordinance,
regulations or other governmental requirements.
(c) No Work shall be undertaken or commenced by Tenant in the Premises
until:
(i) the Plans have been submitted to and approved by Landlord;
(ii) all necessary building permits have been obtained by Tenant:
(iii) all required insurance coverages have been obtained by Tenant.
(Failure of Landlord to receive evidence of such coverage upon
commencement of the Work shall not waive Tenant's obligations
to obtain such coverages.);
(iv) proper provision, which is satisfactory to Landlord, has been
made by Tenant for payment in full of the cost of the Work;
(v) items required to be submitted to Landlord prior to
commencement of construction of the Work have been so
submitted and have been approved, where required;
(vi) the construction escrow referred to in Paragraph 10 hereof has
been established and
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<PAGE>
(vii) Landlord has given written notice that the Work can proceed
subject to such reasonable conditions as Landlord may impose.
4. DELAYS. IN THE EVENT TENANT FAILS TO DELIVER OR DELIVER IN SUFFICIENT
AND ACCURATE DETAIL THE INFORMATION REQUIRED UNDER PARAGRAPH 3 ON OR BEFORE THE
RESPECTIVE DATES SPECIFIED IN SAID PARAPGRAPH, OR IN THE EVENT TENANT, FOR ANY
REASON, FAILS TO COMPLETE THE WORK ON OR BEFORE THE SCHEDULED COMMENCEMENT DATE
OF THE TERM OF THE LEASE, TENANT SHALL BE RESPONSIBLE FOR RENT AND ALL OTHER
OBLIGATIONS AS SET FORTH IN THE LEASE FROM THE SCHEDULED DATE FOR THE
COMMENCEMENT DATE UNDER THE LEASE, REGARDLESS OF THE DEGREE OF COMPLETION OF THE
WORK ON SUCH DATE, AND NO SUCH DELAY IN COMPLETION OF THE WORK ON SUCH DATE, AND
NO SUCH DELAY IN COMPLETION OF THE WORK SHALL RELIEVE TENANT OF ANY OF ITS
OBLIGATIONS UNDER SAID LEASE.
5. Charges and Fees,Subject to Paragraph 9 below, Tenant shall be
responsible for all costs and expenses attributable to the Work including
supervisory fee to Landlord in an amount equal to $15,000.00, which shall be
retained by Landlord, as Landlord's administrative and overhead expense and a
fee for completed space plans in an amount equal to 5,500.00.
6. Change Orders. All changes to the final Plans requested by Tenant must
be approved by landlord in advance in the implementation of such changes as part
of the Work. All delays caused by Tenant- initiated change order review process,
are solely the responsibility of Tenant and shall cause no delay in the
commencement of the Leas or the rental and other obligations therein set forth.
7. Standards of Design and Construction and Conditions of Tenant's
Performance. All work done in or upon the Premises by Tenant shall be done
according to the standards set forth in the Paragraph 7, except as the same may
be modified in the Plans approved by or on behalf of Landlord and Tenant.
(a) Tenant's Plans and all design and construction of the Work shall comply
with all applicable statutes, ordinances, regulations, laws, codes and
industry standards, including, but not limited to, requirements of
Landlord's fire insurance underwriters. Approval by Landlord of the Plans
shall not constitute a waiver of this requirement of assumption by Landlord
of responsibility for compliance. Where several sets of the foregoing laws,
codes and standards must be met, the strictest shall apply where not
prohibited by another law, code or standard.
(b) Tenant shall obtain, at its own cost and expense, all required building
permits and, when construction has been completed, shall obtain, at its own
cost and expense, an occupancy permits for the Premises, which permit shall
be delivered to Landlord. Tenant's failure to obtain such permits shall not
cause a delay in the commencement of the Lease or rental and other
obligations therein set forth.
(c) Tenant's Contractors shall be licensed contractors, possessing good
labor relations, capable of performing quality workmanship and working in
harmony with Landlord's contractors and subcontractors and with other
contractors and subcontractors in the Building. All work shall be
coordinated with any other construction or other work in the Building or
Project in order not to affect adversely construction work being performed
by or for Landlord or its tenants, it being understood that, in the event
of any conflict, Landlord and its contractors and subcontractors shall have
priority over Tenant and Tenant's Contractors.
(d) Landlord shall have the right, but not the obligation, to perform on
behalf of and for the account of Tenant, subject to reimbursement by
Tenant, any work (i) which Landlord deems to be necessary of an emergency
basis, (ii) which pertains to structural components, building systems or
the general utility systems for the Building, (iii) which pertains to the
erection of temporary safety barricades or signs during construction, or
(iv) which pertains to patching of the Work and other work in the Building.
(e) Tenant shall use only new, first-class materials in the Work, except
where explicitly shown otherwise in the Plans approved by Landlord and
Tenant. Tenant shall obtain warranties of at least one (1) year's duration
from the completion of the Work against defects in workmanship and
materials on all performed and equipment installed in the Premises as part
of the Work.
21
<PAGE>
(f) Tenant and Tenant's Contractors, in performing work, shall not
interfere with other tenants and occupants of the Project. Tenant and
Tenant's Contractors shall make all efforts and take all steps appropriate
to construction activities undertaken so as not to interfere with operation
of the Project and shall, in any event, comply with all reasonable rules
and regulations existing from time to time at the Building. Tenant and
Tenant's Contractors shall take all precautionary steps to minimize dust,
noise and construction traffic and to protect their facilities and the
facilities of others affected by the Work and to properly police same.
Construction equipment and materials are to be kept within the Premises,
and delivery and loading of equipment and materials shall be done at such
locations and at such time as Landlord shall direct so as not to burden the
construction or operation of the Building or Project.
(g) Landlord shall have the right to order Tenant or any of Tenant's
Contractors who violate the requirements imposed on Tenant or Tenant's
Contractors in performing work to cease work and remove its equipment and
employees from the Building or Project. No such action by Landlord shall
delay the commencement of the Lease or the rental and other obligations
therein set forth.
(h) Utility costs or charges for ant service (including) HVAC, hoisting or
freight elevator and the like) to the Premises shall be the responsibility
of Tenant and shall be paid for by Tenant at Landlord's rates. Tenant shall
apply and pay for all utility maters required. Tenant shall pay for all
support services provided by Landlord's contractors. Tenant shall arrange
and pay for the removal of construction debris and shall not place debris
in the Building's or Project's waste containers.
(i) Tenant shall permit access to the Premises, and the Work shall be
subject to inspection, by Landlord and Landlord's architects, engineers
contractors and other representatives at all times during the period in
which the Work is being constructed and installed and following completion
of the Work.
(j) Tenant shall proceed with its work expeditiously, continuously and
efficiently, and shall use its best efforts to complete the same as soon as
reasonably possible. Tenant shall notify Landlord upon completion of the
Work and shall furnish Landlord and Landlord's title insurance company with
such further documentation as may be necessary under Paragraphs 9 and 10
below.
(k) Tenant shall have no authority to deviate from the Plans in performance
of the Work, except as authorized by Landlord and its designated
representative in writing. Tenant shall furnish Landlord "as-built"
drawings of the Work within thirty (30) days after completion of the Work.
(l) Landlord shall have the right to run utility lines, pipes, conduits
ductwork and component parts of all mechanical and electrical systems where
necessary or desirable through the Premises, to repair alter, replace or
remove the same, and to require Tenant to install maintain proper access
panels thereto.
(m) Tenant shall impose on and enforce all applicable terms with this
Workletter Agreement against Tenant's architect and Tenant's Contractors.
8. Insurance and Indemnification.
(a) In addition to any insurance which may be required under the Lease,
Tenant shall secure, pay for and maintain or cause Tenant's Contractors secure,
pay for and maintain during the continuance of construction and fixturing work
within the Building or Premises, insurance in the following minimum coverages
and limits of liability:
(i) workers' compensation and employers' liability insurance with
limits of not less than $500,000.00, or such higher amounts as
may be required from time to time by any employee benefit acts
or other statutes applicable where the work is to be
performed, and in any event sufficient to protect Tenant's
Contractors from liability aforementioned acts;
(ii) comprehensive or commercial general liability insurance
(including contractors' protective liability) in an amount not
less than $2,000,000.00 per occurrence whether involving
bodily injury liability
22
<PAGE>
(or death resulting thereform) or property damage liability or
a combination thereof with a minimum aggregate limit of
$2,000,000.00 and with umbrella coverage with limits not less
than $10,000,000.00. Such insurance shall provide for
explosion and collapse, completed operations coverage and
broad form blanket contractual liability coverage and shall
insure Tenant's Contractors against any and all claims for
bodily injury, including death resulting thereform, and damage
to the property of others and arising from its operations
under the contracts whether such operations are performed by
Tenant's Contractors or by anyone directly or indirectly
employed by any of them;
(iii) comprehensive automobile liability insurance, including the
ownership, maintenance and operation of any automotive
equipment, owned, hired or nonowned, in an amount not less
than $500,000.00 for each person in oneaccident and
$1000,000.00 for injuries sustained by two or more persons in
any one accident, and property damage liability in an amount
not less than $1,000,000.00 for each accident. Such insurance
shall insure Tenant's Contractors against any and all claims
for bodily injury, including death resulting thereform, and
damage to the Property of others arising form its operations
under the contracts, whether such operations are performed by
Tenant's Contractors or by anyone directly or indirectly
employee by any of them;
(iv) "all risk" builder's risk insurance upon the entire Work to
the full insurable value thereof. This insurance shall include
the interests of Landlord and Tenant (and their respective
contractors and subcontractors of any tier to the extent of
any insurable interest therein) in the Work and shall insure
against the perils of fire and extended coverage and shall
include "all risk" builder's risk insurance for physical loss
or damage including, without duplication of coverage, theft,
vandalism and malicious mischief. If portions of the Work are
stored off the site of the Building or in transit to said site
are not covered under said "all risk" builder's risk
insurance, then Tenant shall effect and maintain similar
property insurance on such portions of the Work. Any loss
insured under said "all risk" builder's risk insurance is to
be adjusted with Landlord and Tenant and made payable to
Landlord as trustee for the insureds, as their interests may
appear.
All policies (expect the worker's compensation policy) shall be endorsed to
include as additional insured parties Landlord and its beneficiaries, their
partners, directors, officers, employees and agents, Landlord's contractors,
Landlord's architects, and such additional persons as Landlord may designate.
The waiver of subrogation provisions Contained in the Lease shall apply to all
insurance policies (except the workers' compensation policy) to be obtained by
Tenant pursuant to this Paragraph. The insurance policy endorsements shall also
provide that all additional insured parties shall be given thirty (30) days'
prior written notice of any reduction, cancellation for nonrenewal of coverage
(except that ten (10) days' notice shall be sufficient in the case of
cancellation for nonpayment of premium) and shall provide that the insurance
coverage afforded to the additional insured parties thereunder shall be primary
to any insurance carried independently by said additional insured parties.
Additionally, where applicable, each policy shall contain a cross-liability and
severability of interest clause.
(b) Without limitation of the indemnification provisions contained in the
Lease, to the fullest extent permitted by law Tenant agrees to indemnify,
protect, defend and hold harmless Landlord, Landlord's contractors and
Landlord's architects and their partners, directors, officers, employees and
agents, from and against all claims, liabilities, losses, damages and expenses
of whatever nature arising out of or in connection with the Work or the entry of
Tenant or Tenant's Contractors into the Project, the Building and the Premises,
including, without limitation, mechanics' liens or the cost of any repairs to
the Premises, Building or Project necessitated by activities of Tenant or
Tenant's Contractors and bodily injury to persons or damage to the property of
Tenant, its employees, agents, invitees Or licensees or others. It is understood
and agreed that the foregoing indemnity shall be in addition to the insurance
Requirements set forth above and shall not be in discharge of or in substitution
for same or any other indemnity or Insurance provision of the Lease.
23
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9. Landlord's Contribution: Excess Amounts.
(a) Upon completion of the work, Tenant shall furnish Landlord with final
waivers of liens and contractors' affidavits, in such form as may be required by
Landlord and Landlord's title insurance company, from all parties performing
labor or supplying materials or services in connection with the Work showing
that all of said parties have been compensated in full and waiving all liens in
connection with the Premises and Building. Tenant shall submit to Landlord a
detailed breakdown of Tenant's total construction costs, together with such
evidence of payment as is reasonably satisfactory to Landlord.
(b) Upon completion of the Work and Tenant's satisfaction of all
requirements set for herein, Landlord shall make a dollar contribution in the
amount of Four Thousand Six Hundred Fifty- Nine and No/100 Dollars ($400,659.00)
("Landlord's Contribution") for application to the extent Thereof to the cost of
the Plans, the Work and Tenant's actual. Documented costs to complete its
physical move (the "Moving Expenses"). If such cost of the Plans, the Work and
the Moving Expenses exceeds Landlord's Contribution, or if the Moving Expense
exceed One and No/100 Dollars ($1.00) per rentable square foot, Tenant solely
shall have responsibility for the payment of Such excess cost. If the cost of
the Plans, the Work and the Moving Allowance is less than Landlord's
Contribution, Landlord shall be entitled to retain such excess amount.
Notwithstanding Anything herein to the contrary, Landlord may deduct from
Landlord's Contribution any amounts due to Landlord or its architects or
engineers under this Workletter.
10. Construction Escrow. Prior to commencement of any construction or payment to
Tenant or to any of Tenant's Contractors, Tenant shall establish a construction
escrow or other payment procedure acceptable to Landlord at a title insurance
company designated by Landlord providing for payment to Tenant's Contractors and
payment of all other costs associated with the Work as the Work progresses, upon
the title insurance company's satisfactory review of lien waivers and sworn
statements from the Tenant's Contractors and other applicable parties and upon
the title insurance company's willingness to issue title insurance over
mechanics' lien relating to Tenant's contacts and the Work to the date of each
draw. Tenant shall pay for the Work when required under its contracts for the
Work and shall not permit the Premises or the Building to become subject to any
lien on account of labor, material or services furnished to Tenant. Tenant
shall, from time to time, deposit funds into the construction escrow in amounts
sufficient to pay the costs of the Work. Tenant may not withdraw funds except to
pay Tenant's Contractors, unless Landlord has consented To such withdrawal of
funds by Tenant and shall also provide that if Tenant fails to pay for the Work
when Due or if any mechanics' lien is filed in connection with the Work,
Landlord may use and withdraw the funds in the escrow to pay for the Work or
remove the lien without Tenant's consent. Tenant shall provide such contractor's
affidavits, partial and final waivers of lien, architect's certificates and any
additional documentation (including, without limitation, Tenant or contractor
personal undertakings) which may be requested by Landlord, such title insurance
company or any holder of a mortgage on the Building in connection with said
escrow or consistent with any other title insurance requirements concerning the
Work.
11. Miscellaneous.
(a) Except as expressly set forth herein or in the Lease,
Landlord has no agreement with Tenant and has no obligation to do any
work with respect to the Premises.
(b) If the plans for the Work require the construction and
installation of more fire hose cabinets or telephone/electrical closets
than the number provided in the core of the Building in which the
Premises are located, then Tenant agrees to pay all costs and expenses
arising from the construction and installation of such additional fire
hose cabinets or Telephone/.electrical closets.
(c) Time is of the essence under this Workletter.
(d) Any person signing this Workletter on behalf of Landlord
and/or Tenant warrants and represents he has authority to do so.
(e) If Tenant fails to make any payment relating to the Work
as required hereunder, Landlord, at its option, may complete the work
pursuant to the approved Plans and continue t o hold Tenant liable for
the costs thereof and all other costs due to Landlord. Tenant's failure
to pay any amounts owed by Tenant hereunder when due or Tenant's
failure to perform its obligations hereunder shall also constitute a
default under the Lease, and, Landlord
24
<PAGE>
shall have all the rights and remedies granted to Landlord under the lease
for non-payment of any amounts owed thereunder or failure by Tenant to
perform its obligations thereunder.
(f) Notices under this Workletter shall be given in the same manner as
under the Lease.
(g) The liability of Landlord hereunder or under any amendment hereto
or any instrument or document executed in connection herewith (including,
without limitation, the Lease) shall be limited to and enforceable solely
against Landlord's interest in the Building.
(h) The headings set forth herein are for convenience only.
(i) This Workletter sets forth the entire agreement of Tenant and
Landlord regarding the Work. This Workletter may only be amended if in
writing and duly executed by both Landlord and Tenant.
IN WITNESS WHEREOF, this Workletter is executed as of this 31st day of
January, 1995.
LANDLORD:
REAL ESTATE INCOME PARTNERS III
By: Birzhar Investments
Its: Authorized Agent
By: /s/ [illegible]
---------------------------
Title:
---------------------------
TENANT:
INTERNATIONAL DATA PRODUCTS, CORP.
By: /s/ Oscar Fuster
---------------------------
Title: VP & Secretary
<PAGE>
EXHIBIT "D"
To Lease dated January 6, 1995
by and between
REAL ESTATE INCOME PARTNERS III, Limited Partnership, as Landlord,
and International Data Products, Corp., as Tenant.
RULES AND REGULATIONS
1. The sidewalks, entrances, passages, concourses, ramps, courts,
vestibules, stairways, corridors, or halls shall not be obstructed or
used by Tenant or the employees, agents, servants, visitors or business
of Tenant for any purposes other than ingress and egress to and from the
Premises and for delivery of merchandise and equipment in prompt and
efficient manner, using elevators and passageways designated for
delivery by Landlord.
2. No awnings, air conditioning units, fans or other projections shall be
attached to the Building. No curtains, blinds, shades or screens shall
be attached to or hung in or used in connection with, any window or door
of the Premises or Building, without the prior written consent of
Landlord. All electrical fixtures hung in offices or spaces along the
perimeter of the Premises must be fluorescent, of a quality type, design
and bulb color approved by Landlord unless the prior consent of Landlord
has been obtained for other lamping.
3. No sign, advertisement, notice or other lettering shall be exhibited,
inscribed, painted or affixed by any Tenant on any part of the outside
of the Premises or Building or inside of the Premises if the same can be
seen from the outside of the Premises without the prior written consent
of Landlord. In the event of the violation of the foregoing by Tenant,
Landlord may remove same without any liability, and may charge the
expense incurred by such removal to Tenant. Interior signs on doors and
directory tablet shall be inscribed, painted or affixed for Tenant by
Landlord and shall be of a size, color and style acceptable to Landlord.
4. The exterior windows and doors that reflect or admit light and air into
the Premises or the halls, passageways or other public places in the
Building, shall not be severed or obstructed by Tenant, nor shall any
articles be placed on the windowsills. No showcases or other articles
shall be put in front or affixed to any part of the exterior of the
Building, not placed in the halls, corridors or vestibules, nor shall
any article obstruct any air-conditioning supply or exhaust without the
prior written consent of Landlord.
5. The electrical and mechanical closets, water and wash closets, drinking
fountains and other plumbing, electrical and mechanical fixtures shall
not be used for any purposes other than those for which they are
constructed, and no sweepings, rubbish, rags, coffee grounds, acids or
other substances shall be deposited therein. All damages resulting from
any misuse of the fixtures shall be borne by the Tenant who, or whose
servants, employees, agents, visitors or licensees, shall have caused
the same. No person shall waste water by interfering or tampering with
the faucets or otherwise.
6. Tenant shall not mark, paint, drill into, or in any way deface any part
of the Premises or the Building. No boring, drilling of nails or screws,
outting or stringing of wires shall be permitted, except with the prior
written consent of Landlord, and as Landlord may direct. Tenant shall
not lay floor tile or other similar floor covering in the Premises,
except with the prior approval of Landlord.
7. No portion of the Premises or the Building shall be used or occupied at
any time for manufacturing, for the storage of merchandise, for the sale
of merchandise, goods or property of any kind at auction or otherwise
without the express consent of Landlord, or as sleeping or lodging
quarters.
8. Tenant, Tenant's servants, employees, agents, visitors or licensees,
shall not at any time bring or keep upon the Premises any hazardous
waste, toxic, inflammable, combustible, caustic, poisonous or explosive
fluid, chemical or substance.
9. No bicycles, vehicles, or animals of any kind (other than a seeing eye
dog for a blind person), shall be brought into or kept by Tenant in or
about the Premises of the Building.
10. Tenant shall not use or occupy or permit any portion of the Premises to
be used or occupied as an office for offset printing or for the
possession, storage, manufacture, sale of liquor or narcotics, or as a
barber or manicure shop, a labor office, a doctor's or dentist's office,
a dance or music studio, any type of school, or for any use other than
those specifically granted in the Lease and with the express consent of
the Landlord. Tenant shall not engage or pay any employees on the
Premises, except those actually working for such Tenant on said Premises.
11. Landlord shall have the right to prohibit any advertising by Tenant
which, in Landlord's opinion, tends to impair the reputation of the
Building or Project or its desirability as a building for offices, and
upon written notice from Landlord, Tenant shall refrain from or
discontinue such advertising. In no event shall Tenant, without the
prior written consent of Landlord, use the name of the Building or
Project or use pictures or illustrations of the Building or Project.
12. Any person in the Building will be subject to identification by
employees and agents of Landlord. All persons in or entering Building
shall be required to comply with the security policies of the Building.
Tenant shall keep doors to unattended areas locked and shall otherwise
exercise reasonable precautions to protect property from theft, loss or
damage. Landlord shall not be responsible for the theft, loss or damage
of any property.
13. No additional locks or bolts of any kind shall be placed on any door in
the Building or the Premises and no lock on any door therein shall be
changed or altered in any respect without the consent of the Landlord.
Landlord shall furnish two keys for each lock on exterior doors to the
Premises and shall, on Tenant's request and at Tenant's expense, provide
additional duplicate keys. All keys, either furnished to, or otherwise
procured by Tenant, shall be returned to Landlord upon termination of
this Lease. Landlord may at all times keep a pass key to the Premises.
All entrance doors to the Premises shall be left closed at all times,
and left locked when the Premises are not in use. Tenant shall not copy
any keys.
14. Tenant shall give immediate notice to Landlord in case of theft,
unauthorized solicitation or accident in the Premises or in the Building
or of defects therein or in any fixtures or equipment, or of any known
emergency in the Building.
15. Tenant shall not use the Premises or permit the Premises to be used for
photographic, multilith or multigraph reproductions, except in
connection with its own business and not be a service for others,
without Landlord's prior permission.
16. No freight, furniture or bulky matter of any description will be
received into the Building or Project except in such manner, during such
hours and using such passageways as may be approved by Landlord, and
then only upon having been scheduled at least two (2) working days prior
to the date on which such service is required. Any hand trucks,
carryalls, or similar appliances suited for the delivery or receipt of
merchandise or equipment shall be equipped with rubber tires, side
guards and such other safeguards as Landlord shall require.
17. Tenants, or the employees, agents, servants, visitors or licensees of
Tenant shall not at any time place, leave or discard any rubbish, paper,
articles, or objects of any kind whatsoever outside the doors of the
Premises or in the corridors or passageways of the Building or Project.
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18. Tenant shall not make excessive noises, cause disturbances or
vibrations or use or operate any electrical or mechanical devices that
emit excessive sound or other waves or disturbances or create
obnoxious odors, any of which may be offensive to the other tenants and
occupants of the Building or Project, or that would interfere with the
operation of any device, equipment, radio, television broadcasting or
reception from or within the Building or elsewhere and shall not place
or install any projections, antennas, aerials or similar devices inside
or outside of the Premises or on the Building with Landlord's prior
written approval.
19. Tenant shall comply with all applicable federal, state and municipal
laws, ordinances and regulations, and building rules and shall not
directly or indirectly make any use of the Premises which may be
prohibited by any of the foregoing or which may be dangerous to persons
or property or may increase the cost of insurance or require additional
insurance coverage.
20. Tenant, its servants, employees, customers, invitees and guests shall,
when using the parking facilities in and around the Building observe
and obey all signs regarding fire lanes, no parking zones, visitor
parking and handicapped zones, and when parking, always park between
designated lines. Landlord reserves the right to tow away, at the
expense of the owners, any vehicle which is improperly parked or parked
in a "No Parking" zone. All vehicles shall be parked at the sole risk of
the owners, and Landlord assumes no responsibilities for damage or loss
of vehicles. There shall be no overnight parking of any kind, without
Landlord's prior written consent, which consent may be granted or
withheld at Landlord's sole discretion.
21. Tenant shall not serve, nor permit the serving of alcoholic beverages
in the Premises unless Tenant shall have procured Host Liquor Liability
Insurance, issued by companies and in amounts reasonably satisfactory
to Landlord, naming Landlord as an additional party insured.
22. The requirements of Tenant will be attended to only upon written
application at the office of the Building. Employees shall not perform
any work or do anything outside of the regular duties unless under
special instructions from the office of Landlord.
23. Canvassing, soliciting and peddling in the Building or Project is
prohibited and Tenant shall cooperate to prevent the same.
24. Except as otherwise explicitly permitted in its lease, Tenant shall not
do any cooking, conduct any restaurant, luncheonette or cafeteria for
the sale or service of food or beverages to its employees or to others,
install or permit the installation or use of any food, beverage,
cigarette, cigar or stamp dispensing machine or permit the delivery of
any food or beverage to the Premises, except by such persons
delivering the same as shall be approved by Landlord.
25. Tenant shall at all times keep the Premises neat and orderly.
26. The regular business hours of the Building shall be between 7:00 a.m.
to 6:00 p.m., Monday through Friday, and 8:00 a.m. to 1:00 p.m. on
Saturdays. The Building shall be closed to the public on Sundays, and
on New Year's Day, President's Day, Memorial Day, Independence Day,
Labor Day, the Thanksgiving holiday and Christmas, and such other
federal or state holidays as Landlord shall elect by notice to the
Tenants.
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Exhibit 10.16
PUERTO RICO INDUSTRIAL DEVELOPMENT COMPANY
PO BOX 362350
SAN JUAN, PUERTO RICO 00936-2350
LEASE CONTRACT
PROJECT NO. T-0609-0-63
LOCATION: GUAYAMA, PUERTO RICO
THIS AGREEMENT ENTERED into on July 15, 1994 BY: AS "LANDLORD", THE PUERTO
RICO INDUSTRIAL DEVELOPMENT COMPANY, AND AS "TENANT", PUERTO RICO INDUSTRIAL
MANUFACTURING OPERATING, CORP.
WITNESSETH
WHEREAS, LANDLORD is the owner of certain landsite and building, identified
in the Epigraph, hereinafter referred to as the Premises.
WHEREAS, LANDLORD has agreed to lease to TENANT, and TENANT has agreed to
hire from LANDLORD the Premises.
NOW THEREFORE, in consideration of the foregoing premises, the parties
herein agree on this lease subject to the following:
TERMS AND CONDITIONS
ONE: LANDLORD hereby demises and lets unto TENANT, and TENANT hereby leases
from LANDLORD the Premises which are fully described in Schedule "A" hereto
annexed and made a apart hereof.
The Premises are subject to the encumbrances, liens and/or restrictions, if
any, that may appear from said Schedule "A". Furthermore, the air rights of the
Premises, are excepted and reserved to LANDLORD.
TWO: Premises shall be used and occupied exclusively in the manufacture of
"Computers and Peripherals". (SIC. #0347, 03572 and 03575).
THREE: TENANT shall hold the Premises for a period of Five (5) years. TENANT
hereby acknowledges that the building herein demised is in need of certain
repairs which LANDLORD undertakes to commence presently after execution hereof;
therefore, the terms of the leases hereunder shall, anything to the contrary
notwithstanding commence on the tenth (10th) working day after the termination
notice sent to TENANT by Certified Mail that the building is ready for
occupancy.
FOUR: Commencing on the first day of the following month after the
commencement term of this, TENANT shall pay to LANDLORD an annual rental of
$2.20 per square foot of gross building area during the term of this lease.
This rental shall be paid in equal monthly installments of $4,190.17.
The monthly installments for rent specified herein, shall be paid in advance
on the first day of each month at LANDLORD'S office, or at any other place that
LANDLORD may notify. In the event that the date of commencement does not fall on
the first of the month, TENANT further agrees to pay the first partial monthly
installments, prior to, or on the date of commencement.
FIVE: The deposit required under the provisions of this contract amounts to
(a) $2,095.04 previously deposited by TENANT to cover the
<PAGE>
reservation period of Project T-0609-0-63 (CR# 13226) shall be credited to
the required deposit and (b) $3,938.80 to be paid by TENANT in certified
check simultaneously with the execution of this Contract.
This deposit shall guarantee the compliance by TENANT of its obligations,
under this Contract, particularly, but not limited to, the payment of rent, the
compliance of the environmental classes herein included and the return of the
Premises in proper condition at the termination of this Lease. On said
termination, if TENANT is not in default of any of the terms and conditions of
this Contract, LANDLORD will return to TENANT the sum of money, if any, held
pursuant to this provision, after LANDLORD'S Environmental office certifies that
there are no environmental deficiencies as a result of TENANT'S manufacturing
operation on the demised Premises.
SIX: TENANT agrees to have on the date of commencement of the term of this
Lease a capitalization of $175,000.000.
Likewise TENANT agrees to install within six (6) months from the same date
manufacturing machinery and equipment with a value of at least $100,000.00.
This shall not include the cost of transportation and installation thereof,
nor its ordinary depreciation after installation, and within eighteen (18)
months from the date of commencement of the term, to employ a minimum of thirty
(30) production workers. The aforementioned levels, shall be maintained
throughout the term of this Lease or any extension thereof.
SEVEN: All notices, demands, approvals, consents and/or communications
herein required or permitted shall be in writing. If by mail should be certified
and to the following addresses, to LANDLORD: PO BOX 362350, SAN JUAN, PUERTO
RICO 00936-2350. To TENANT:
ATT. Maria F. Glinsmann
GENERAL COUNSEL
7-4 Metropolitan Court
Gaithersburg, MD 20878-4000
Phone (301) 590-8123
(301) 590-8100
Fax (301) 590-8133
EIGHT: Net Lease -- This Lease shall be interpreted as a net lease; it being
the exclusive responsibility of TENANT to pay for all operating expenses,
utilities, maintenance, expenses, insurance, taxes or any other costs, expenses
or charges of any nature not specifically assumed by LANDLORD hereunder.
NINE: Warranty as to use -- LANDLORD does hereby warrant that at the time of
the commencement of the term of this Lease, the Premises may be used by TENANT
for the manufacturing purposes herein intended which are deemed consistent with
the design and construction in accordance with the corresponding plans and
specifications.
TEN: Alterations -- TENANT shall make no alterations, additions or
improvements to the Premises without the prior consent of LANDLORD and all such
alterations, additions or improvements made by or for
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TENANT, shall be at TENANT'S own cost and expenses and shall, when made, be
the property of LANDLORD without additional consideration and shall remain upon
and be surrendered with the Premises as a part thereof at the expiration or
earlier termination of this Lease, subject to any right of LANDLORD to require
removal or to remove as provided for hereinafter.
In the event TENANT asks for LANDLORD'S consent for any alteration; LANDLORD
may at its option, require from TENANT to submit plans and specifications for
said alteration. Before commencing any such work, said plans and specifications,
if required, shall be filed with and approved by all governmental agencies
having jurisdiction thereof, and the consent of any mortgagee having any
interest in or lien upon this Lease shall be procured by TENANT and delivered to
LANDLORD if required by the term of the mortgage.
Before commencing any such work, TENANT shall at TENANT'S own cost and
expense, deliver to LANDLORD a General Accident Liability Policy more
particularly described in Article THIRTY (30) hereof, but said policy shall
recite and refer to such work, and in addition thereto, if the estimated cost of
such work, and in addition thereto, if the estimated cost of such work is more
than FIVE THOUSAND DOLLARS ($5,000.00), TENANT shall, at TENANT'S own cost and
expense deliver to LANDLORD a surety bond or a performance bond from a company
acceptable to LANDLORD, or a similar bond or other security satisfactory to
LANDLORD, in an amount equal to the estimated cost of such work, guaranteeing
the completion of such work within a reasonable time, due regard being had to
conditions, free and clear of materialmen liens, mechanics liens or any other
kind of lien, encumbrances, chattel mortgages and conditional bills of sale and
in accordance with said plans and specifications submitted to and approved by
LANDLORD. At LANDLORD'S option TENANT shall provide a blanket-written guarantee
in an amount sufficient to satisfy LANDLORD as to all alterations, changes,
additions and improvements to the Premises in lieu of separate guarantee for
each such project.
TENANT shall pay the increased premium, if any, charged by the insurance
companies carrying insurance policies on said building, to cover the additional
risk during the course of such work.
ELEVEN: Power Substation -- If required by TENANT'S operations, TENANT
shall, at its own cost and expense, construct and /or install a power substation
and connect it to the PUERTO RICO ELECTRICAL POWER AUTHORITY (PREPA)
distribution lines, for voltages up to [number illegible in master] KV; and to
PREPA transmission lines for voltages of 38 KV, all in conformity to PREPA'S
requirements. Such construction shall, in no event, be
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undertaken by TENANT until after LANDLORD has approved the location thereof,
as well as the routing of the power line extension.
TWELVE: Repairs and Maintenance -- TENANT shall, at its own cost and
expense, put, keep and maintain in thorough repair and good order and safe
condition the building and improvements standing upon the Premises at the
commencement of the term hereon or thereafter erected upon the premises, or
forming part of the Premises, and their full equipment and appurtenances, the
sidewalk areas, sidewalk hoists, railing, gutters, curbs and the like in from of
the adjacent to the Premises, and each and every part thereof, both inside and
outside, extraordinary and ordinary, and shall repair the whole and each and
every part thereof in order to keep the same at all times during the term hereof
in thorough repair and good order and safe conditions, whenever the necessity or
desirability therefore may occur, and whether or not the same shall occur, in
whole or in part, by wear, tear, obsolescence or defects, and shall use all
reasonable precautions to prevent waste, damage or injury, except as provided
hereinafter.
LANDLORD and not TENANT, shall be responsible for and shall promptly correct
any defects in the building on the Premises which are due to faulty design, or
to errors of construction not apparent at the time the Premises were inspected
by TENANT for purposes of occupancy by TENANT; this shall not be interpreted to
relieve TENANT of any responsibility or liability herein otherwise provided,
including among others, for structural failure due to the fault or negligence of
TENANT.
TENANT shall also, at TENANT'S own cost and expense, maintain the
landsite in thoroughly clean condition; free from solid waste (which includes
liquid and gaseous waste as defined by the Resource Conservation and Recovery
Act), and the Regulation on Hazardous and Non-Hazardous Waste of the
Environmental Quality Board, as amended, rubbish, garbage and other
obstructions. Specifically, TENANT shall not use said landsite, nor permit it
to be used, as a deposit or as a dump for raw materials, waste materials,
hazardous, toxic or non-toxic substances, or substances of whichever nature.
TENANT shall neither make any excavation for the purpose of storing, putting
away and/or concealing raw materials or waste materials of any kind.
Underground storage of hazardous and /or toxic substances is specifically
prohibited.
TENANT shall not do or cause to be done, nor permit on the Premises anything
deemed extra hazardous, nor shall it store in the Premises flammable or toxic
products of any class or kind without taking the proper precautions and
complying with applicable Federal and Commonwealth laws and regulations.
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In case TENANT needs to store in the landsite raw materials of a hazardous
and/or toxic nature or hazardous and/or toxic wastes, TENANT shall notify
LANDLORD and secure its prior authorization. LANDLORD shall be furnished with a
copy of any permit issued for such storage.
Although it is not intended that TENANT shall be responsible for any
decrease in value of the Premises due to the mere passing of time, or for
ordinary wear and tear of surfaces and other structural members of the building,
nevertheless TENANT shall; (i) replace, with like kind and quality, doors,
windows; electrical, sanitary and plumbing, fixtures; building equipment and/or
other facilities or fixtures in the Premises which through TENANT's use, fault
or negligence, become too worn out to repair during the life of this Lease, (ii)
paint the property inside and outside as required.
In addition to the foregoing, TENANT shall indemnify and safe harmless
LANDLORD from and against any and all cost, expenses, claims, losses, damage, or
penalties, including counsel fees, because of or due to TENANT's failure to
comply with the foregoing, and TENANT shall not call upon LANDLORD for any
disbursement or outlay of money whatsoever, and hereby expressly releases and
discharges LANDLORD of and from any liability or responsibility whatsoever in
connection therewith.
THIRTEEN: Roof Care -- TENANT, without the prior consent of LANDLORD, shall
not: (i) erect or cause to be erected on the roof any billboard, aerial sign, or
structure of any kind, (ii) place any fixture, equipment or any other load over
the roof, (iii) drill any hole on the roof for whichever purpose, (iv) use the
roof for storage, nor (v) correct any leaks whatsoever, this being LANDLORD's
sole responsibility. Furthermore, TENANT shall take all reasonable precautions
to insure that the drainage facilities of the roof are not clogged and are in
good and operable conditions at all times.
FOURTEEN: Floor Loads -- TENANT hereby acknowledges that it has been
informed by LANDLORD that the maximum floor load of the Premises herein demised
is 150 pounds per sq. ft. Therefore, TENANT hereby agrees that in the event the
load of the machinery and equipment to be installed thereat exceeds such maximum
load, it shall, at its own cost and expense, carry out any improvements to the
floor of the Premises which may be necessary to support such additional load, it
being further agreed and understood that construction and/or installation of
such improvements shall not be commenced until after LANDLORD's approval of the
plans to be prepared therefor by TENANT and thereafter,
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<PAGE>
after completion of construction and/or installation of said facilities, they
shall be deemed covered by and subject to the applicable provisions of this
Contract; it being further specifically agreed and understood that upon
termination of this Lease, such facilities shall be removed by TENANT, at its
own cost and expense, or in the alternative, and upon request by LANDLORD,
they shall remain as part of the Premises with no right whatsoever on the
part of TENANT to be reimbursed and/or compensated therefor.
FIFTEEN: Fixtures -- TENANT shall not affix to the ceiling, nor to its
supporting joists or columns, nor to any of its walls, any air conditioning
unit, nor any other fixture, without the prior consent of LANDLORD.
SIXTEEN: Environmental Protection and Compliance -- TENANT agrees, as a
condition hereof, that it will not discharge its solid, liquid or gaseous
industrial and/or sanitary effluent or discharges, either into the sewer
system and/or into any other place until after required authorizations
therefor have been obtained from the Puerto Rico Aqueduct and Sewer
Authority, and/or the Department of Health of Puerto Rico and/or
Environmental Quality Board, and/or any other governmental agency having
jurisdiction thereof and TENANT further agrees and undertakes to pre-treat
any such effluent, prior to discharge thereof as required by the said
Authority, Department and/or governmental agency with jurisdiction, and/ or
to install any equipment or system required, and to fully abide by and comply
with any and all requisites imposed thereby, and upon request by LANDLORD to
submit evidence of such compliance; it being agreed that non-compliance
thereof by TENANT for a period of ninety (90) days after notice shall be
deemed an additional event of default under the provisions hereof provided,
that no construction and/or installation shall be made until LANDLORD has
approved of it.
TENANT shall also, at TENANT'S own cost and expense, construct and maintain
Premises, processes and/or operating procedures in compliance with the terms,
conditions and commitments specified in any Environmental Impact Statement,
Environmental Assessment or any other analogous document produced by the
Commonwealth of Puerto Rico, Economic Development Administration/LANDLORD as
lead agency, or by any other governmental agency in connection with the approval
or operation of the project.
TENANT shall also serve LANDLORD with a copy of any lawsuit, notice of
violation order to show cause or any other regulatory or legal action against
TENANT in any environmental [material missing in master]
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TENANT shall also serve LANDLORD with a copy of any permit granted to TENANT
for air emissions, water discharge, solid waste generation, storage, treatment
and/or disposal, and for any hazardous and /or toxic waste raw materials or
by-products used or generated, stored, treated and/or disposed or any other
endorsement, authorization or permit required to be obtained by TENANT.
TENANT shall also serve LANDLORD with a copy of any filing or notification
to be filed by TENANT with any regulatory agency or any environmentally related
case or issue, especially in any situation involving underground or surface
water pollution, hazardous and/or toxic waste spillage and ground contamination.
The notification to LANDLORD shall take place not later than the actual filing
of the pertinent documents with the regulatory agency.
SEVENTEEN: Improper Use -- TENANT, during the term of this Lease and of any
renewal or extension thereof, agrees not to use or keep or allow the leased
Premises or any portion thereof to be used or occupied for any unlawful purpose
or in violation of this Lease or of any certificate of occupancy or certificate
of compliance covering or affecting the use of the Premises or any portion
thereof, and will not suffer any act to be done or any condition to exist on the
Premises or any portion thereof, or any article to be brought thereon, which may
be dangerous, unless safeguarded as required by law, or which may in law,
constitute a nuisance, public or private, or which may make void or voidable any
insurance then in force on the leased Premises.
EIGHTEEN: Government Regulations -- TENANT agrees and undertakes to abide by
and comply with any and all rules, regulations and requirements of the Planning
Board of Puerto Rico, the Department of Health, the Environmental Quality Board,
the Environmental Protection Agency (EPA), where applicable and/or of any other
governmental agency, having jurisdiction thereon applicable to TENANT's
operations at the Premises and/or products to be manufactured thereat, and if
requested by LANDLORD, TENANT shall submit evidence of such compliance; it being
agreed and understood that noncompliance with any and all such rules,
regulations and requisites shall be deemed an additional event of default under
the provisions of this Contract, unless remedied within thirty (30) days after
receipt of notice thereof.
Any and all improvements to the Premises required by any governmental
agency, having jurisdiction hereon so as to carry TENANT's operations in
accordance with the regulations and requisites thereof, shall be at TENANT's own
cost and expense, except for any
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improvements that may be required as a result of any violation by LANDLORD
that may exist at the effective date hereof other than violations caused by
TENANT or TENANT's agents.
TENANT further agrees and undertakes to install in the Premises, at its
own costs and expense, such devices as may be necessary to prevent any
hazard, which may be caused or created by its operations from affecting the
environmental integrity of the landsite or causing any nuisance to adjacent
TENANTS and/or the community in general; it being agreed and understood that
creating or causing any such nuisance, shall be deemed an additional event of
default under the provisions of this Contract.
TENANT further agrees and undertakes to abide by and comply with any and all
rules, regulations and requisites of the Fire Department relative to the use and
storage of raw materials, finished products and/or inflammable materials, and/or
of any other governmental agency, having jurisdiction thereon applicable to
TENANT's operations at the Premises, and if requested by LANDLORD, TENANT shall
submit evidence of such compliance; it being agreed and understood that
noncompliance by TENANT with any of the aforementioned rules, regulations and
requisites shall be deemed, in each of such cases, an additional event of
default under the provisions of this Contract, unless remedied within thirty
(30) days after receipt of notice thereof.
If as a consequence of the foregoing dispositions, TENANT needs to make
alterations to the Premises, the same shall be done subject to the dispositions
of Article TEN hereof.
NINETEEN: Use Permit -- TENANT agrees to abide by and comply with any and
all conditions and requisites included in the Use Permit which may be issued by
the Puerto Rico Permits and Regulations Administration (ARPE), and if requested
by LANDLORD , shall submit evidence of such compliance; it being agreed and
understood that noncompliance by TENANT with any and all such conditions and
requisites and/or the cancellation of the said Use Permit shall, in each of such
cases, be deemed an additional event of default under the provisions of this
Contract.
TWENTY: Inspection -- TENANT shall permit LANDLORD or LANDLORD's agents
to enter the Premises at all reasonable time for the purpose of inspecting
the same, or of making repairs that TENANT has neglected or refused to make
as required by the terms, covenants and conditions of this Lease, and also
for the purpose of showing the Premises to persons wishing to purchase the
same, and during the year next preceding the expiration of this Lease, shall
permit inspection thereof by or on
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behalf of prospective TENANTS. If, at a reasonable time, admission to the
Premises for the purposes aforesaid cannot be obtained, or if at any time an
entry shall be deemed necessary for the inspection or protection of the
property, or for making any repairs, whether for the benefit of TENANT or
LANDLORD, LANLORD's agents or representatives may enter the Premises by
force, or otherwise, without rendering LANDLORD, or LANDLORD's agents or
representative liable to any claim or cause of action or damage by reason
thereof, and accomplish such purpose.
The provisions contained in this Article are not to be construed as an
increase of LANDLORD's obligations under this Lease; it being expressly agreed
that the right and authority hereby reserved does not impose, nor does LANDLORD
assume, by reason thereof, any responsibility or liability whatsoever for the
repair, care of supervision of the Premises, or any building, equipment or
appurtenance on the Premises.
TWENTY ONE: LANDLORD's entry for repairs and alterations -- LANDLORD
reserves the right to make such repairs, changes, alterations, additions or
improvements in or to any portion of the building and to the fixtures and
equipment which are reputed part thereof as it may deem necessary or desirable
and for the purpose of making the same, to use the street entrances, halls,
stairs and elevators of the building, provided that there be no unnecessary
obstruction of TENANT's right of entry to and peaceful enjoyment of the
Premises, and TENANT shall make no claim for rent abatement compensation or
damages against LANDLORD by reason of any inconvenience or annoyance arising
therefrom.
TWENTY TWO: LANDLORD excused in certain instances -- If, by reason of
inability to obtain and utilize labor, materials or supplies, or by reason of
circumstances directly or indirectly the result of any state of war, or of
emergency duly proclaimed by the corresponding governmental authority, or by
reason of any laws, rules, orders, regulations or requirements of any
governmental authority now or hereafter in force or by reason of strikes or
riots, or by reason of accidents, in damage to or the making of repairs,
replacements or improvements to the building or any of the equipment thereof,
or by reason of any other cause reasonable beyond the control of LANDLORD,
LANDLORD shall be unable to perform or shall be delayed in the performance of
any covenant to supply any service, such non-performance or delay in
performance shall not be ground to any claim against LANDLORD for damages or
constitute a total or partial eviction, constructive or otherwise. It being
agreed and understood that the time for completion of any such construction,
shall be extended for a period of time equal to the number of days of any
such delay.
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TWENTY THREE: Quiet Enjoyment -- TENANT on paying the full rent and keeping
and performing the conditions and covenants herein contained, shall and may
peaceable and quietly enjoy the Premises for the term aforesaid, subject,
however, to the terms of this Lease and to the mortgages hereinafter mentioned.
TWENTY FOUR: Leasehold Improvements -- If leasehold improvements made by or
for the benefit of TENANT in the Premises at his request or other personal
property to TENANT are assessable or taxable and a tax liability is imposed to
TENANT or LANDLORD, it is understood that it shall be the sole responsibility of
TENANT to pay such taxes and in no event shall such taxes be the liability of or
be transferable to LANDLORD. In the event that by operation of law, such taxes
became a liability of LANDLORD, TENANT shall pay such taxes as they become due
and payable and shall promptly reimburse LANDLORD for any payments or expenses
incurred or disbursed by LANDLORD by reasons of any such assessment. Said amount
shall be due and payable, as additional rent, with the next installment of rent.
In the event that TENANT fails to make this payment when due, it shall be
subject to the dispositions of Article THIRTY SEVEN hereof.
TWENTY FIVE: Stoppage of Operations -- It is understood by the parties
hereto that this Lease is made by LANDLORD in furtherance of the
industrialization plans of the Commonwealth of Puerto Rico, and it is
accordingly understood that TENANT will use all reasonable efforts while this
Lease is in effect to maintain a manufacturing operation upon the Premises, but
nothing contained in this paragraph shall be deemed to require TENANT to
maintain such an operation otherwise than in accordance with sound principles of
business management, or (without limiting the generality of the foregoing) to
prevent TENANT from curtailing such operation or from shutting it down, whenever
and as often as TENANT may, in the exercise of sound business judgment, deem
such action advisable. However, TENANT shall give to LANDLORD notice of any
necessary or convenient curtailment and/or shut-down, at least seven (7) days
prior to the date fixed therefor except in cases of an emergency shut-down, in
which case such notice shall be given at the earliest possible time. No
curtailment of operations or shut-down in accordance with the provisions of this
paragraph shall constitute a default under the provisions of this Contract which
will enable LANDLORD to terminate it, unless such plants shall have been
shut-down for a period of six (6) consecutive months. A shut-down on account of
unforeseeable event or events which although foreseeable could not be
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prevented, shall not constitute a breach of this agreement. Nothing in this
paragraph contained shall relieve TENANT from the payment of rent during the
period of any shut-down or curtailments of operations.
TWENTY SIX: Assignment and Subletting -- TENANT shall not assign, this Lease
nor let or sublet the Premised or any part thereof except to its parent company,
to a wholly owned subsidiary, to an affiliate of TENANT, wholly owned by
TENANT's parent company or to a cooperation to be organized by TENANT. In any of
these cases, TENANT shall promptly notify LANDLORD of said assignment or
subletting, it being agreed and understood that no such assignment or subletting
shall; (i) reduce or, in any way, affect the obligations of TENANT under this
Lease, nor (ii) release TENANT from liability under this Lease.
TWENTY SEVEN: Successors in Interest -- This Lease Contract and every
provision thereof, shall bind and inure to the benefit of the legal
representatives, successors and assigns on the parties. However, the term
"LANDLORD", as used in this Contract, so far as any covenants or obligations
on the part of LANDLORD under this Lease are concerned, shall be limited to
mean and include only the owner or lessor, at the time in question, of the
Premises, so that in the event hereafter of a transfer of the title to the
Premises, whether any such transfer be voluntary or by operation of law or
otherwise, the person, natural or juridical, by whom any such transfer is
made, shall be and hereby is entirely freed and relieved of all personal
liability as respects the performance of the covenants and obligations of
LANDLORD under this Lease from and after the date of such transfer.
TWENTY EIGHT: No Representation by LANDLORD -- LANDLORD, LANDLORD's agents
or employees, or the agents, executives or employees of the Economic Development
Administration, have made no representations or promises with respect to the
Premises except as herein expressly set forth and no rights, easements or
licenses are acquired by TENANT by implication or otherwise except as expressly
set forth in the provisions of this Contract. The taking possession of the
premises by TENANT, shall by conclusive evidence, as against TENANT, that TENANT
accepts same "AS IS" and that said Premises, particularly the building which
forms a part of the same, were in good and satisfactory condition at the time
such possession was so taken.
TWENTY NINE: Damages -- LANDLORD shall not be responsible for any latent
defect or change of conditions in the Premises resulting in damage to the same,
or the property or person therein, except to the
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extent of LANDLORD's gross negligence, and provided such claims or loss is
not covered by insurances herein required from TENANT. TENANT shall promptly
notify LANDLORD of any damage to or defects in the Premises, particularly in
any part of the building's sanitary, electrical, air-conditioning or other
systems located in our passing through the Premises, and the damage or
defective conditions, subject to the provisions of Article TWENTY ONE (21)
hereof, shall be remedied by LANDLORD with reasonable diligence.
THIRTY: General Liability Insurance -- TENANT shall indemnify, have harmless
and defend LANDLORD and agents, servants and employees of LANDLORD against and
from any and all liability, fines, suits, claims, demands, expenses, including
attorneys' fees, and actions of any kind or nature arising by reason of injury
to person or property including the loss of use resulting thereof or, violation
of law occurring in the Premises occasioned in whole or in part by any negligent
act or omission on the part of TENANT or an employee (whether or not acting
within the scope of his employment), servant, agent, licensee, visitor, assignor
or undertenant of TENANT, or by any neglectful use or occupancy of the Premises
or any breach, violation or non-performance of any covenant in this Lease on the
part of TENANT to be observed or performed.
Pursuant to the foregoing, TENANT shall, maintain during the term of this
lease, at its own cost and expense, a Comprehensive General Liability Policy.
Said policy shall: (i) be for a combined single limit of no less than
$500,000.00 per accident, (ii) hold LANDLORD harmless against any and all
liability as hereinbefore stated, and (iii) the care, custody & control
exclusion shall be deleted from this coverage. LANDLORD may require additional
reasonable limits of public liability insurance and coverages, when changing
circumstances so require.
THIRTY ONE: Property Insurance -- TENANT recognizes that the rent provided
for herein does not include any element to indemnify, repair, replace or make
whole TENANT, his employees, servants, agents, licensees, visitors, assignees,
or undertenant for any loss or damage to any property or injury to any person in
the Premises.
Accordingly, during the term of this Lease, TENANT shall keep the building
standing upon the Premises at the commencement of the term hereof or thereafter
erected upon the Premises, including all equipment appurtenant to the Premises
and all alterations, changes, additions and improvements, insured for the
benefit of LANDLORD and TENANT as their
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respective interest may appear, in an amount at least equal to the
percentages stated below (as LANDLORD may from time to time determine). The
basis of the Property Insurance shall be Replacement Cost and the coverage an
"All Risks" Property Insurance Policy. Coverages included in the All Risks
Form:
1. Fire -- "Building & Contents Form"
(a) Building -- 100% of insurable value exclusive of
foundations
(b) Contents -- All equipment appurtenant to the
Premises to the Premises (State value of Policy)
2. ADDITIONAL COVERAGES UNDER THE FIRE POLICY
(a) Extended Coverage Endorsement -- 100% of insurable
value exclusive of foundations
(b) Earthquake -- 100% of insurable value including
foundations
(c) Vandalism and Malicious Mischief Endorsement
(d) Improvements and Betterments -- For all alterations,
changes, additions and improvements
3. LANDSITE AND FLOOD WHENEVER APPLICABLE AND/OR NECESSARY
4. Boiler and Machinery (if any) -- 100% of insurable value
5. Pollution Liability Policy -- if necessary.
THIRTY TWO: Multifactory Building Specific Dispositions -- In the event that
the Premises constitute a section or sections of an industrial building and
landsite in which other operations are conducted by other TENANTS: (i) the
insurance coverage herein required, shall be acquired by LANDLORD for the whole
of the industrial building and TENANT shall reimburse LANDLORD, for its
proportionate share in the total cost of said policies, (ii) if, because of
anything done, caused or permitted to be done, permitted or omitted by TENANT,
the premium rate for any kind of insurance affecting the Premises shall be
increased, TENANT shall pay to LANDLORD the additional amount which LANDLORD may
be thereby obligated to pay for such insurance, and if LANDLORD shall demand
that TENANT remedy the condition which caused the increase in the insurance
premiums rate, TENANT will remedy such conditions within five (5) days after
such demand, and (iii) the insurance policies required in the preceding Articles
THIRTY (30) & THIRTY ONE (31) shall be endorsed to include a waiver of
subrogation against TENANT. All amounts to be reimbursed by TENANT under this
Article, shall be due and payable, as additional rent, with the next
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installment of rent. In the event that TENANT fails to make this payment,
when due, it shall be subject to the dispositions of Article THIRTY-SEVEN
(37) hereof.
THIRTY THREE: Additional Dispositions about Insurance -- All the Insurance
policies herein required from TENANT, shall be taken in form and substance
acceptable to LANDLORD with insurance companies duly authorized to do business
in Puerto Rico, having an "A" or a higher financial rating according to Best's
Insurance Report and shall include LANDLORD as additional insured. TENANT shall
instruct the corresponding insurer to deliver such policies or certified copies
of Certificates of Insurance, in lieu of, directly to LANDLORD. LANDLORD
reserves the right not to deliver possession of the Premises to TENANT, unless,
and until two (2) days after such original policies, or certified copies or
certificates have been deposited with LANDLORD.
Furthermore, said polices, shall: (i) provide that they may not be
cancelled by the insurer for nonpayment of premium or otherwise, until at
least thirty (30) days after services of notice by registered or certified
mail of the proposed cancellation upon LANDLORD, and (ii) be promptly renewed
by TENANT upon expiration and TENANT shall, within thirty (30) days after
such renewal, deliver to LANDLORD adequate evidence of the payment of
premiums thereon. If such premiums or any of them shall not be so paid,
LANDLORD may procure the same in the manner set forth for governmental
agencies, and TENANT shall reimburse LANDLORD any amount so paid. This
reimbursement being due and payable with the next installment of rent. In the
event that TENANT fails to make this payment when due, it shall be subject to
the dispositions of Article THIRTY SEVEN (37) hereof. It is expressly agreed
and understood, that payment by LANDLORD of any such premiums shall not be
deemed to waive or release the default in the payment thereof by TENANT nor
the right of LANDLORD to take such action as may be available hereunder as in
the case of default in the payment of rent.
Upon the commencement of the term hereof, TENANT shall pay to LANDLORD the
apportioned unearned premiums on all such policies of insurance then carried by
LANDLORD in respect of the Premises in the event TENANT continues with the
insurance policies placed in LANDLORD.
TENANT shall not violate nor permit to be violated any of the conditions or
provisions of any of said policies, and TENANT shall so perform and satisfy the
requirements of the companies writing such policies that at all times companies
of good standing and acceptable to LANDLORD shall be willing to write and
continue such insurance.
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TENANT shall cooperate with LANDLORD in connection with the collection of
any insurance monies that may be due in the event of loss and shall execute and
deliver to LANDLORD such proofs of loss and other instruments that may be
required for the purpose of facilitating the recovery of any such insurance
monies, and in the event that TENANT shall fail or neglect so to cooperate or to
execute, acknowledge and deliver any such instrument, LANDLORD, in addition to
any other remedies, may as the agent or attorney-in fact of TENANT, execute and
deliver any proof of loss or any other instruments as may seem desirable to
LANDLORD and any mortgagee for the collection of such insurance monies. This
shall not be interpreted as any waiver of the obligations of TENANT under
Articles THIRTY, THIRTY ONE, THIRTY TWO and THIRTY THREE hereof or exclusively
in favor of LANDLORD under Article THIRTY NINE hereof.
THIRTY FOUR: Waivers -- The receipt by LANDLORD of the rent, additional
rent, or any other sum or charges payable by TENANT with or without knowledge of
the breach of any covenant of this Contract, shall not be deemed a waiver of
such breach. No act or omission of LANDLORD or its agents during the term of
this Lease shall be deemed an acceptance of a surrender of the Premises and no
agreement to accept a surrender of the Premises shall be valid unless it be made
in writing and subscribed by LANDLORD. This Contract contains all the agreements
and conditions made between the parties hereto with respect to the Premises and
it cannot be changed orally. Any additions to, or charges in this Lease must be
in writing, signed by the party to be charged.
Failure on the part of LANDLORD to act or complain of any action or
nonaction on the part of TENANT shall not be deemed to be a waiver of any of its
respective rights hereunder nor constitute a waiver at any subsequent time of
the same provision. The consent or approval by LANDLORD to, or of any action by
the other requiring consent or approval, shall not be deemed to waive or render
unnecessary the consent or approval by LANDLORD of any subsequent similar act.
THIRTY FIVE: Reinstatement -- No receipt of monies by LANDLORD for TENANT
after the termination or cancellation hereof in any lawful manner shall
reinstate, continue or extend the term hereof or affect any notice theretofore
given to TENANT, or operate as a waiver of the right of LANDLORD to enforce the
payment of rent, additional rent, or other charges then due or thereafter
falling due, or operate as a waiver of the right of LANDLORD to recover
possession of the Premises by proper suit, action, proceeding or remedy; it
being agreed that,
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after the service of notice to terminate or cancel this Lease, and the
expiration of the time therein specified, if the default has not been cured
in the meantime, or after the commencement of suit, action or summary
proceedings or of any other remedy, or after a final order, warrant of
judgment of the possession of the Premises, LANDLORD may demand, receive and
collect any monies then due, or thereafter becoming due, without in any
manner affecting such notice, proceeding, suit, action, order, warrant or
judgment; and any and all such monies so collected shall be deemed to be
payments for the use and occupation of the Premises, or at the election of
LANDLORD, on account of TENANT's liability hereunder. Delivery or acceptance
of the keys to the Premises, or any similar act, by the LANDLORD, or its
agents or employees, during the term hereof, shall not be deemed to be a
delivery or an acceptance of a surrender of the Premises unless LANDLORD
shall explicity consent to it, in the manner set forth hereinbefore.
THIRTY SIX: Subordination and Attornment -- This Lease is and shall be
subject and subordinate to all liens, or mortgages which may now or hereafter
affect the Premises and to all renewals, modifications, consolidations,
replacements and extensions thereof and, although this subordination
provision shall be deemed for all purposes to be automatic and effective
without any further instrument on the part of TENANT, TENANT execute any
further instrument requested by LANDLORD to confirm such subordination.
TENANT further covenants and agrees that if by reason of a default upon
the part of LANDLORD of any mortgage affecting the Premises, the mortgage is
terminated or foreclosed by summary proceedings or otherwise, TENANT will
attorn to the mortgagee or the purchaser in foreclosure proceedings, as the
case may be, and will recognize such mortgage or purchaser, as the TENANT's
landlord under this Lease. TENANT agrees to execute and deliver, at any time
and from time to time, upon the request of LANDLORD or of the mortgagee or
the purchaser in foreclosure proceedings, as the case may be, any reasonable
instrument which may be necessary or appropriate to evidence such attornment.
TENANT further waives the provision of any statute or rule of law now or
hereafter in effect which may give or purport to give TENANT any right of
election to terminate this lease or to surrender possession of the Premises
demised hereby in the event any such proceeding is brought by the holder of
any such mortgage, and TENANT'S obligations hereunder shall not be affected
in any way whatsoever by any such proceeding.
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TENANT, covenants and agrees, upon demand of the holder of any mortgage duly
recorded or recordable in the corresponding Registry of the Property or of any
receiver duly appointed by the foreclose any such mortgage, to pay to the holder
of any such mortgage or to such receiver, as the case may be, all rent becoming
due under this Lease after such demand, provided such holder of any such
mortgage or any such receiver complies with the obligations of LANDLORD under
this Lease.
TENANT, upon request of LANDLORD or any holder of any mortgage or lien
affecting the Premises, shall form time to time, deliver or cause to be
delivered to LANDLORD or such lien holder or mortgage, within ten (10) working
days from date of demand a certificate duly executed and acknowledged in form
for recording, without charges, certifying, if true, or to extent true, that
this Lease is valid and subsisting and in full force and effect and LANDLORD is
not in default under any of the terms of the Lease.
THIRTY SEVEN: Late Payments and Payment by LANDLORD -- In the event that (i)
TENANT makes late payment, or fails to make payments to LANDLORD, in whole or in
part, of the rent, or of the additional rent, or of any of the other payments of
money required to be paid by TENANT to LANDLORD, as stipulated in this Lease,
when and as due and payable; or if (ii) LANDLORD, without assuming any
obligation to do so, after any notice or grace period provided hereunder,
performs or causes to be performed, at the cost and expense of TENANT, any of
the acts or obligations agreed to be performed by TENANT, as stipulated in this
Lease, and TENANT fails to refund LANDLORD any amounts of money paid or incurred
by LANDLORD in performing or causing the performance of such acts or
obligations, when and as due and payable, TENANT undertakes and agrees to pay
LANDLORD as additional rent, interest on such lately paid or unpaid rents,
additional rent, and/or on such other payments of money required to be paid,
and/or on any such amounts of money required to be refunded, from and after the
date when payment thereof matured or became due and payable, until full payment,
at the rate of twelve (12%) per cent per annum, or if such 12% interest, is
unlawful, then and in such event, at the highest maximum prevailing rate of
interest on commercial unsecured loans as fixed by the Board of Regulatory Rates
of Interest and Financial Charges, created under Law #1, approved October 15,
1973 (10 LPRA 998), as amended, or by any successor statute or regulation
thereof.
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THIRTY EIGHT: Abatement--If any substantial service or facility to be
provided by LANDLORD is unavailable for a period of time exceeding thirty (30)
days and LANDLORD has been notified of the same, should time unavailability of
such service render all or any portion of the Premises untenable, TENANT after
the aforesaid thirty (30) days shall be entitled to an abatement of a portion of
the rent that shall reflect that portion of the Premises which is untenable,
provided the damage to the service or facility is not attributable to the act or
neglect of TENANT or the employees, servants, licensees, visitors, assigns or
undertenants of TENANT.
THIRTY NINE: Fire or other Casualty -- If before or during the term of this
Lease, the Premises shall be damaged by fire or other casualty, LANDLORD after
written notice thereof is given by TENANT, shall repair the same with reasonable
dispatch after notice to it of the damage, due allowances being made for any
delay due to causes beyond the LANDLORD'S reasonable control, provided, however,
that LANDLORD shall not be required to repair or replace any furniture,
furnishings or other personal property which TENANT may have placed or installed
or which it may be entitled or required to remove from the Premises. LANDLORD
shall proceed with due diligence to obtain the corresponding insurance
adjustment of the loss and TENANT shall fully cooperate with LANDLORD and assist
in the adjustment of the loss. Until such repairs are completed, and provided
such damage or other casualty is not attributable to the act or neglect of
TENANT or other casualty is not attributable to the act or neglect to TENANT or
the employees, servants, licensees, visitors, assigns or undertenants of TENANT,
the rent required to be paid pursuant to Article FOUR hereof, shall be abated in
proportion to the part of the Premises which are untenable. If the building, be
so damaged that LANDLORD shall decide to demolish and/or to reconstruct the
building, in whole or in part, LANDLORD may terminate this Lease by notifying
TENANT within a reasonable time after such damage of LANDLORD'S election to
terminate this Lease, such termination to be effective immediately if the term
shall not have commenced or on a date to be specified in such notice if even
during the term. In the event of the giving of such notice during the term of
this Lease, the rent shall be apportioned and paid up to the time of such fire
or other casualty if the Premises are damaged, or up to the specified date of
termination if the Premises are not damaged and LANDLORD shall not be otherwise
liable to TENANT for the value of the unexpired term of this Lease.
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FORTY: Default Provisions -- If, during the term of this Lease, TENANT
shall: (i) apply for or consent in writing to, the appointment of a receiver,
trustee or liquidator of TENANT or of all or substantially all of its assets or
(ii) seek relief under the Bankruptcy Act, or admit in writing its inability to
pay its debts as they become due, or (iii) make a general assignment for the
benefit of this creditors, or (iv) file a petition case or an answer seeking
relief (other than a reorganization not involving the liabilities of TENANT) or
arrangement with creditors, or take advantage of any insolvency law, or (v) file
and answer admitting the material allegations of a case filed against it in any
bankruptcy, reorganization or insolvency proceeding or, if an order, judgement
or decree shall be entered by any court of competent jurisdiction on the
application of TENANT or creditor adjudicating TENANT a bankruptcy,
reorganization or insolvency proceeding or, if an order, judgement or decree
shall be entered by any court of competent jurisdiction on the application of
TENANT or creditor adjudicating TENANT a bankrupt or insolvent, or approving a
petition seeking reorganization of TENANT (other than a reorganization not
involving the liabilities of TENANT) or appointment of a receiver, trustee or
liquidator of TENANT, or decree, shall continue stayed and in effect for any
period of sixty (60) consecutive days, the term of this Lease and all right,
title and interest of TENANT hereunder shall expire as fully and completely as
if that day were the date herein specifically fixed for the expiration of the
term, and TENANT hereunder shall expire as fully and completely as if that day
were the date herein specifically fixed for the expiration of the term, and
TENANT will then quit and surrender the Premises to LANDLORD, but TENANT shall
remain liable as hereinafter provided.
If, during the term of this Lease: (I) TENANT shall default in fulfilling
any of the covenants of this Lease other than the covenants for the payment
of rent or additional rent or of any other standing contract with LANDLORD or
(ii) if, during the term of this Lease TENANT shall abandon, vacate, or
remove form the Premises the major portion of the goods, wares, equipment, or
furnishings usually kept on said premises, of (iii) this Lease, without the
prior consent of LANDLORD, shall be encumbered, assigned or transferred in
any manner in whole or in part or shall, by operation of law, pass to or
devolve upon any third party, except as herein provided, or (iv0 if TENANT is
in violation of laws rules and regulations regarding minimum wages of its
employees, or of any other law, rules and regulations applicable to his
operations, but which have not been specifically mentioned in this Lease,
LANDLORD may give to TENANT notice of any such default or the happening of
any event referred to above and if at the expiration of thirty (30) days
after the service of such a notice the default or event upon which said
notice was based shall continue to exist, or in the case of a default which
cannot with due diligence be
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cured within a period of thirty (30 days, if TENANT fails to proceed
promptly after the service of such notice and with all due diligence to cure
the same and thereafter to prosecute the curing of such default with all due
diligence (it being intended that in connection with a default not
susceptible of being cured with due diligence within thirty (30) days that
the time of TENANT within which to cure the same shall be extended for such
period as may be necessary to complete the same with all due diligence),
LANDLORD may give the TENANT a notice of expiration of the term of this Lease
as of the date of the service of the term of this Lease and all right, title
and interest of TENANT hereunder shall expire as full and completely as if
that day were the date herein specifically fixed for the expiration of the
term, and TENANT or any party holding under his will then quit and surrender
the premises to LANDLORD, but TENANT shall remain liable as hereinafter
provided.
If, (i) TENANT shall default in the payment of the rent, the additional
rent, or of any other payment as required under this Lease and such default
shall continue for ten (10) working days after notice thereof by LANDLORD, of
(ii) if the default of the payment of the rent, continues for thirty (30) days
from the date any such payment became due and payable (AUTOMATIC DEFAULT
TERMINATION), OR (III) IF THIS Lease shall terminate as in Paragraph one and two
of this Article provided, this Lease shall terminate and TENANT will then quit
and surrender the Premises to LANDLORD or LANDLORD'S agents and servants may
immediately or ant any time thereafter re-enter the Premises and remove all
persons and all or any property therefrom, whether by summary dispossess
proceedings or by any suitable action or proceeding at law, or with the license
and permission of TENANT, which shall under this Contract be deemed given upon
expiration of the strict thirty (30) days notice period of subdivision of
paragraph Two of the Article, without LANDLORD being liable to indictment,
prosecution or damages therefor and repossess and enjoy the Premises with all
additions, alterations and improvements.
If TENANT shall fail to take possession of the Premises within ten (10) days
after the commencement of the term of this Lease, or if TENANT shall vacate and
abandon the Premises, LANDLORD shall have the right, at LANDLORD'S option, to
terminate this Lease and the term hereof, as well as all the right, title and
interest of TENANT hereunder, by giving TENANT five (5) days notice in writing
of such
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intention, and upon the expiration of the time fixed in such latter notice,
if such default be not cured prior thereto, this lease and the term hereof,
as well as all the right, title and interest of TENANT hereunder, shall
wholly cease and expire in the same manner and with the same force and effect
(except as to TENANT'S liability) as if the date fixed by such latter notice
were the expiration of the term herein originally granted; and TENANT shall
immediately quit and surrender to LANDLORD the Premises and each and every
part thereof and LANDLORD in this Article or any other Article of this Lease
to terminate this Lease, the exercise of any such right by LANDLORD during
the term hereby granted, shall terminate any extension or renewal of the term
hereby granted and any right on the part to TENANT thereto.
Upon the termination of this Lease by reason of any of the foregoing
event, or in the event of the termination of this Lease by summary dispossess
proceedings or under any provisions of law, now or at any time hereafter, in
force by reason of , or based upon, or arising out of a default under or
breach of this Lease on the part of TENANT, or upon LANDLORD recovering
possession of the premises in the manner or in any of the circumstances
whatsoever, whether with or without legal proceedings, by reason of, or based
upon, or arising our of a default under or breach of this Lease on the part
to TENANT, LANDLORD, at its option, but without assuming any obligation to do
so in any case, may at any time, and from time to time, relet the Premises or
any part or parts thereof for the account of TENANT or otherwise on such
terms as LANDLORD may elect, including the granting of concessions, and
receive and collect the rents therefor, applying the same at a rental not
higher than the one stipulated in this Contract, first to the payment of such
reasonable expenses as LANDLORD may have incurred in recovering possession of
the Premises, including reasonable legal expenses, and for putting the same
into good order or condition or preparing or altering the same for re-rental,
and expenses, commissions and charges paid, assumed, or incurred by LANDLORD
in and about the reletting of covenants of TENANT hereunder. Any such
reletting herein provided for, may be for the remainder of the term of this
Lease or for a longer or shorter period or at a higher or lower rental. In
any such case, whether or not, the Premises or any part thereof be relet,
TENANT shall
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pay to LANDLORD the rent required to be paid by TENANT up to the
time of such termination of this Lease, and/or the full rent provided for in
the agreement for any holdover of such period after termination and up to the
surrender or recovery of possession of the Premises by LANDLORD, as the case
may be, and thereafter TENANT covenants and agrees, to pay to LANDLORD until
the end of the term of this Lease as originally demised the equivalent of any
deficiency amount of all the rent reserved herein, less the net avails of
reletting, if any, as specified hereinabove in this Article and the same
shall be due and payable by TENANT to LANDLORD as provided herein, that is to
say, TENANT shall pay to LANDLORD the amount of any deficiency then existing.
FORTY ONE: LANDLORD'S Remedies -- In the event TENANT shall default in the
performance of any of the terms, covenants or provisions herein contained,
LANDLORD may, but without the obligation to do so, perform the same for the
account of TENANT and any amount paid or expense incurred by LANDLORD in the
performance of the same shall be repaid by TENANT on demand. In the event of a
breach or threatened breach by TENANT of any of the covenants, conditions or
provisions hereof, LANDLORD shall have the right of injunction to restrain the
same, and the right to invoke any remedy allowed by law or in equity as if
specific remedies, indemnity or reimbursement were not herein provided for. The
rights and remedies given to LANDLORD in this Lease are distinct, separate and
cumulative, and no one of them, whether or not exercised by LANDLORD, shall be
deemed to be a waiver, or an exclusion of any of the others.
FORTY TWO: Notice of Default -- Anything in this Lease to the contrary
notwithstanding, it is specifically agreed that there shall be no enforceable
default against LANDLORD under any provisions of this lease, unless notice of
such default be given by TENANT to LANDLORD in which TENANT shall specify the
default or omission complained of, and LANDLORD shall have thirty (30) days
after receipt of such notice in which to remedy such default, or if said default
or omission shall be of such a nature that the same cannot be cured within said
period, then the same shall not be an enforceable default if LANDLORD shall have
commenced taking the necessary steps to cure or remedy said default within the
said thirty (30) days and diligently proceeds with the correction therof.
22
<PAGE>
<PAGE>
FORTY THREE: Capitalization - For the purpose of this Contract,
specifically of Article SIX, Capitalization includes the total owner's equity
sources (preferred stock, common stock and surplus accounts) plus long-term
debts, it being agreed and understood that the amortization of any such debt
shall in no way diminish the amount originally determined as capitalization.
FORTY FOUR: Disclosure of Information - TENANT agrees to furnish to
LANDLORD within ninety (90) days after the expiration of each fiscal year of
TENANT, an annual statement certified by an indpendent Certified Public
Accountant showing as of the end of each such fiscal year: (i) TENANT'S paid-in
capital, (ii) long-term debts and capitalization as required by Articles SIX and
FORTY THREE hereof, (iii) investment in machinery and its capacity to provide
employment, (iv) taxes (including Social Security taxes) paid, and (v) any other
information as required by this Lease.
In the event such statement is not filed with LANDLORD as herein provided,
LANDLORD may obtain such information from TENANT at TENANT'S expense, and for
such purpose TENANT shall make available LANDLORD'S designated representatives,
its books of accounts and other necessary data and facilities, all of which
shall be provided and made available at TENANT'S principal office in Puerto
Rico.
FORTY FIVE: Automatic Renewal - In the event TENANT does not vacate the
Premises in the manner and under the conditions hereinbefore provided, within
ninety (90) days after the normal expiration of the term hereof, LANDLORD shall
have the option to be exercised at any time thereafter, to notify TENANT that
the lease herein has been renewed for an additional term of FIVE (5) years from
the date of the last normal expiration of the term hereof and, in such event,
the parties agree that this Contract shall be held to have been renewed and to
continue in full force and effect for such additional term of FIVE (5) years
upon the mere mailing of such notice by LANDLORD to TENANT. This provision shall
in no way prejudice, affect or deny any right which LANDLORD may otherwise have
because, or at the time, of any such termination of the term hereof,
particularly whenever LANDLORD does not exercise such option; it being agreed
and understood that such renewal shall be upon the same terms and conditions
contained herein except that the rental rate to be charged shall be the rate
then currently---
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<PAGE>
being charged by LANDLORD for similar building in the area, but in no event
shall it be less than the rate herein stipulated.
FORTY SIX: Partial Invalidity and Applicable Law - If any term or
provisions of this Lease or the application thereof to any person or
circumstances shall, to any extent, be invalid or unenforceable, the remainder
of this Lease and the application of such term or provision to persons or
circumstances other than those as to which it is held invalid or unenforceable,
shall not be affected thereby, and each term and provision of this Lease shall
be valid and be enforceable to the fullest extent permitted by law. This
Contract is entered into and shall be interpreted in accordance with the laws of
the Commonwealth of Puerto Rico.
FORTY SEVEN: Lease Termination and Holding Over - Upon the expiration or
termination of this Lease:
24
<PAGE>
(ii) TENANT shall remove all hazardous and toxic substances belonging to
TENANT or to a third party. TENANT shall also remove all other property of
TENANT and that of any third parry and failing so to do, TENANT hereby appoints
LANDLORD its agent so that LANDLORD may cause all of the said property to be
removed at the expense and risk of TENANT. TENANT covenants and agrees to give
full and timely observance and compliance to this covenant to remove all its
property and surrender the Premises broom clean. TENANT hereby agrees to pay all
reasonable necessary cost and expenses thereby incurred by LANDLORD. If, as the
sole result of the removal of TENANT'S property any portion of the Additional
Premises or of the building of which they are a part, are damaged, TENANT shall
pay to LANDLORD the reasonable cost of repairing such damages unless due to the
gross negligence of LANDLORD, its agents, servants, employees and contractors.
TENANT'S obligation to observe or perform this covenant shall survive the
expiration or other termination of the term of this Lease.
FORTY EIGHT: Change of Address - TENANT shall promptly notify LANDLORD of
any change in the addresses other than those required from it in Article SEVEN
hereof.
FORTY NINE: TENANT will indemnify LANDLORD for any and all liability, loss,
damages, expenses, penalties and/or fines, and any additional expenses including
any attorney fees LANDLORD may suffer as a result of claims, lawsuits, demands,
administrative orders, costs, resolutions or judgements against it arising out
of negligence and/or failure of TENANT or those acting under TENANT to conform
to the statutes, ordinances, or other regulations or requirements of any
governmental authority, be it Federal, of the Commonwealth of Puerto Rico, its
instrumentalities or public corporations, in connection with he performance of
this Lease.
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<PAGE>
FIFTY: TENANT hereby acknowledges that the building herein demised is in
need of certain repairs which LANDLORD undertakes to commence presently after
execution hereof; therefore, the term of the lease hereunder shall, anything to
the contrary notwithstanding, commence on the tenth. (10th.) working day after
the termination notice sent to TENANT by Certified Mail that the building is
ready for occupancy.
FIFTY ONE: Anything contained in this Contract to the contrary
notwithstanding, in the event that TENANT requires additional volume of water
and/or pressure as is now available within the area wherein the demised premises
are located, it shall be at its own cost and expense the construction and/or
installation of such improvements and/or facilities as may be necessary to or
convenient and/or required by the Puerto Rico Aqueduct and Sewer Authority to
increase such volume and/or pressure; it being agreed and understood, however,
that such construction and/or installation shall in no event be commenced until
after LANDLORD'S written approval has first been requested and obtained.
FIFTY TWO: TENANT hereby acknowledges that in the industrial park there are
other industries; therefore TENANT hereby specifically agrees and undertakes to
take such steps and install such equipment as may be necessary to prevent that
any hazard and/or noise which may be created by its operations may in any way or
manner unduly affect the operations of the other industries and therefore TENANT
hereby releases and saves LANDLORD harmless from any and all claims or demands
arising therefrom or in connection therewith.
FIFTY THREE: TENANT shall, at its own cost and expense, install fire
protection system and shall obtain the endorsement and approval from said Fire
Department for such installation. TENANT must also provide security measures to
prevent or reduce fire hazard due to the storage of inflammable materials and
products.
FIFTY FOUR: TENANT shall procure and obtain a permit for the operation of a
solid waste emission source from the Environmental Quality Board and
authorization for the Office of Solid Waste and/or from the Municipality of
Guayama for the final disposition of wastes.
FIFTY FIVE: TENANT, at its own cost and expense, shall implement the
necessary measures and install the control equipment to maintain the
atmospheric air quality levels in compliance with the environmental
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<PAGE>
laws and regulations of the Environmental Quality Board and the Environmental
Protection Agency, as promulgated by any succeeding law or regulations.
FIFTY SIX: It is hereby agreed and understood that TENANT shall take the
necessary steps to comply with the regulations and law requirements of the
PUERTO RICO OCCUPATIONAL SAFETY AND HEALTH OFFICE (PROSHO).
FIFTY SEVEN: TENANT must comply with the rules and regulations of
pre-treatment established by the Puerto Rico Aqueduct and Sewer Authority, the
Environmental Quality Board and the Environmental Protection Agency related to
the effluent industrial discharge in the sanitary sewer system and their final
disposition. Also, any improvement necessary to provide pre-treatrnent
facilities for the above mentioned effluents shall be at TENANT'S own cost and
expense and in coordination and with the approval of LANDLORD's Engineering and
Maintenance Departments.
FIFTY EIGHT: It is hereby agreed and understood that TENANT, at its own
cost and expense, shall install an air conditioning system in the demised
premises, in the event TENANT needs to use and/or install it in his process.
Such air conditioning system shall be considered as a special facility from
LANDLORD, and it shall be installed in coordination with LANDLORD'S Engineering
and Maintenance Departments.
FIFTY NINE: Anything herein to the contrary notwithstanding, the parties
have agreed and understood that the following special facilities, shall be
utilized by TENANT "AS IS" and "WHERE IS", free of charge, but TENANT shall
repair and maintain said special facilities as provided under the applicable
provisions of the Contract:
a. Iron Grill works in windows and in parking and driveway gates.
b. Cyclone Fence around the perimeter of the lot.
c. Sprinkler System without water tank and pump system
d. Guard House
e. Office Partitions with hung ceiling and vinyl floor tiles and a glass
main entrance door
f. 44 Flourescent lamps - 2 tubes (8'-0")
g. Loading platform
h. Exterior security illumination lamps
i. Galvanized ceiling structures (exterior)
j. Electric Power Sub-station - 3 transformers
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<PAGE>
The above mentioned special facilities shall be deemed an integral part of
the demised premises and as such subject to and covered by the terms and
conditions of this contract as they may be applicable thereto.
SIXTY: LANDLORD shall provide a basic electrical distribution system
consisting of a 200 AMP meterbase, conduits, conductors, receptacles and
junction boxes as indicated in PRIDCO'S Electrical Distribution System Drawings
for indicated building.
SIXTY ONE: TENANT shall, at is own cost and expense, construct and/or
install all necessary equipment required to connect the building's electrical
system to the Puerto Rico Electrical Power Authority's electrical distribution
lines, such connection to be made in compliance with the requirement of PREPA.
SIXTY TWO: TENANT certifies and guarantees that at the date of subscribing
this Contract it has submitted the Corporate Tax Returns Forms during the last
five (5) years and does not have any tax debt pending with the Commonwealth of
Puerto Rico, or is complying with the terms of a payment plan duly approved.
TENANT also certifies and guarantees that at the date of execution of this
contract it has paid unemployment insurance compensation, temporary disability
insurance, and the driver's social security (as applicable); or is complying
with a payment plan duly approved.
TENANT acknowledges that this is an essential condition of the Contract
and if the above certification is incorrect in any of its parts, LANDLORD may
cancel this contract.
SIXTY THREE: LANDLORD reserves the right to audit three leased premises
from time to time during the term of this contract, as LANDLORD may deem
necessary, in order to assess all aspects of the environmental condition of said
premises and TENANT's compliance with all environmental legislation and
regulations, under Commonwealth and federal law; TENANT hereby agrees to provide
access to all areas and structures of the premises for these purposes, upon
LANDLORD's request, and to also provide access to all books, records, documents
and instruments which LANDLORD may deem necessary in order to fully audit the
premises as herein stated, provided that such access shall be limited to the
environmental matters.
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<PAGE>
SIXTY NINE: TENANT agrees to submit to LANDLORD within thirty (30) days
from the date of execution of this Contract: (a) evidence of its registration
in the Department of State of the Commonwealth of Puerto Rico and the name and
address of its resident agent; and (b) a certificate of a resolution of its
Board of Directors either authorizing or ratifying the execution of this
Contract.
IN WITNESS WHEREOF, LANDLORD and TENANT have respectively signed upon
proper authority this Lease, this 15 day of July 1994
PUERTO RICO INDUSTRIAL DEVELOPMENT COMPANY
BY: /s/ ILLEGIBLE
-------------------------------
PUERTO RICO INDUSTRIAL MANUFACTURING OPERATIONS, CORP.
S.S.P. 66-0506009
BY: /s/ Oscar Fuster
-------------------------------
30
<PAGE>
ANNEX "A"
DESCRIPTION OF PARCEL OF LAND
LOT NUMBER 1 AND 3 (GROUPED)
LOCATED AT MACHETE INDUSTRIAL PARK
IN GUAYAMA, PUERTO RICO
SITE FOR PROJECT NO. T-0609-0-63
================================================================================
GENERAL:
Parcel of land, Lots number 1 and 3, located at Machete Industrial Park in
Guayama, Puerto Rico.
It bounds: by the NORTH, with the land owned by Genaro Cautino Bruno; by
the SOUTH, with access street of the same industrial same; by the East, with Lot
No. 5 of the same industrial area; and by the West with State Road P.R. No. 744.
It has a surface area of 7,100 square meters, equivalent to 1.8 "cuerdas".
It is affected by a 12' 6" wide right of way in favor of the Puerto Rico
Electric Power Authority running along its northern boundary.
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<PAGE>
ANNEX "B"
COMPLIANCE REPORT OF WITH
ENVIRONMENTAL REQUIREMENTS
In the period of ___________ to ______________
I. PERMITS
PERMITS NUMBER EXPIRATION RENEWAL DATE
DATE (IF APPLY)
II. COMPLIANCE ACTIONS
REFERENCE/CASE NUMBER DATE RESPONSE OF
DATE OF
III. CERTIFICATION
I certify, under penalty of law, that this document was prepared under my
supervision and direction; and that was based in my investigation by the persons
directly responsible of gathering the information, that the information here
submitted is, according to my best judgment, certain, complete and precise.
INITIAL HERE
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SUPPLEMENT AND AMENDMENT TO LEASE CONTRACT
NOW COMES the PUERTO RICO INDUSTRIAL DEVELOPMENT COMPANY (hereinafter
referred to as the "LANDLORD"), and P.R. INDUSTRIAL MANUFACTURING OPERATIONS
CORP., (hereinafter referred to as the "TENANT") and agree to supplement and
amend a certain Lease Contract entered into by them on July 15, 1994 as
subsequently amended (hereinafter referred to as the "Contract") covering
certain landsite and buildings located in Guayama, Puerto Rico, identified as
Project No. T-0609-0-63 (hereinafter referred to as the "Original Premises") in
the following aspects:
ONE: LANDLORD hereby demises and lets unto TENANT, and TENANT hereby leases
from LANDLORD the premises identified as Project No. T0462-0-58 located at
Guayama, Puerto Rico, (hereinafter referred to as the "Additional Premises"),
which are fully described in Schedule "A" hereto annexed and made a part hereof.
TWO: The Additional Premises shall be used and occupied exclusively for
warehousing in connection to TENANT's manufacturing operations being carried out
al Project No. T-0609-0-63 located in Guayama, Puerto Rico.
THREE: Commencing on the first day of the following month after the
delivery of the premises, TENANT shall pay to LANDLORD an annual rental for the
Additional Premises of $2.20 per square foot of gross building area, equivalent
to $2,191.54 monthly during the remaining term of the Contract.
The monthly installments for rent specified herein, shall be paid in
advance on the first day of each month at LANDLORD may notify. In the event that
the date of commencement does not fall on the first of the month, TENANT further
agrees to pay the first partial monthly installments, prior to, or on the date
of commencement.
FOUR: The deposit required under the provisions of this Supplement and
Amendment to Lease Contract shall be complied with by TENANT as hereinafter
specified:
a. The amount of $1,643.67 previously deposited by TENANT to reserve
Project T-0462-0-58 (CR#136137 of 12/95, CR #135365 fo 9/22/95 and CR #134918 of
6/23/95). CR 137254 $1,512.15 6/14/96
b. The amount of $1,512.15 shall be paid by TENANT in certified check with
the execution of this Supplement and Amendment to Lease Contract.
This deposit shall guarantee the compliance by TENANT of its obligations,
under this Supplement and Amendment to Lease Contract, particularly, but not
limited to, the payment of rent, the compliance of any environmental clauses
herein included and the return of the Additional Premises in proper conditions
at the termination of the
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<PAGE>
2
Lease. On said termination, if TENANT is not in default on any of the terms and
conditions of the Contract, LANDLORD will return to TENANT the sum of money, if
any, held pursuant to this provision, after LANDLORD's Environmental Office
certifies that there are no environmental deficiencies as a result of TENANT's
use, occupation or manufacturing operations on the Additional Premises.
FIVE: All notices, demands, approvals, consents and/or communications
herein required or permitted shall be in writing. If by mail should be certified
and to the following addresses, to LANDLORD: P.O. Box 362350, San Juan, Puerto
Rico 00936-2350, to TENANT: Mr. Luis E. Maldonado, P.O. Box 2910, Guayama,
Puerto Rico 00785-2910.
SIX: Anything herein to the contrary notwithstanding, in the event that
TENANT requires additional volume of water and/or pressure as is now available
within the area wherein the Additional Premises are located, it shall be at its
own cost and expense the construction and/or installation of such improvements
and/or required by the Puerto Rico Aqueduct and Sewer Authority to increase
such volume and/or pressure; it being agreed and understood, however, that such
construction and/or installation shall in no event be commenced until after
LANDLORD'S written approval has first been requested and obtained.
SEVEN: TENANT hereby acknowledges that in the industrial park where the
Additional Premises are located there are other industries established;
therefore, TENANT hereby specifically agrees and undertakes to take such steps
and install such equipment as may be necessary to prevent that any hazard and/or
noise which may be created by its operations may in any way or manner unduly
affect the operations of said other industries and therefore TENANT hereby
releases and saves LANDLORD harmless from any and all claims or demands arising
therefrom or in connection therewith.
EIGHT: TENANT shall, at its own cost and expense, install a fire protection
system and shall obtain the endorsement and approval from the Puerto Rico Fire
Department for such installation. TENANT must also provide security measures to
prevent or reduce fire hazards due to the storage of inflammable materials and
products.
NINE: TENANT, at its own cost and expense, shall implement the necessary
measures and install the equipment to control and maintain the atmospheric air
quality levels in compliance with the environmental laws and regulations of the
Environmental Quality Board and the Environmental Protection Agency, as
promulgated or any successor law or regulations.
INITIAL HERE
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<PAGE>
3
TEN: It is hereby agreed and understood that TENANT shall take the
necessary steps to comply with the regulations and law requirements of the
PUERTO RI CO OCCUPATIONAL SAFETY AND HEALTH OFFICE (PROSHO).
ELEVEN: TENANT shall, at is own cost and expense, construct and/or install
all necessary equipment required to connect the building's electrical system to
the Puerto Rico Electrical Power Authority's electrical distribution lines, such
connection to be made in compliance with the requirement of said Authority.
TWELVE: It is hereby agreed and understood that TENANT, at its own cost and
expense, shall install an air conditioning system in the Additional Premises, in
the event TENANT needs to use and/or install it in his process. Such air
conditioning system shall be considered as a special facility, and it shall be
installed in coordination with LANDLORD'S Engineering and Maintenance Offices.
THIRTEEN: Anything herein to the contrary notwithstanding, the parties have
agreed and understood that the following special facilities, shall be utilized
by TENANT "AS IS" and "WHERE IS", free of charge, but TENANT shall repair and
maintain said special facilities as provided under the applicable provisions of
the Contract:
(1) Sprinkler System
The above mentioned special facilities shall be deemed an integral part of
the Additional Premises and as such subject to and covered by the terms and
conditions of the Contract as they may be applicable thereto.
FOURTEEN: TENANT agrees to submit to LANDLORD within thirty (30) days from
the date of execution of this Supplement and Amendment to Lease Contract a
certificate of a resolution of its Board of Directors either authorizing or
ratifying the execution of said Supplement and Amendment to Lease Contract.
FIFTEEN: TENANT must comply with the rules and regulations of pre-treatment
established by the Puerto Rico Aqueduct and Sewer Authority, the Environmental
Quality Board and the Environmental Protection Agency related to the effluent
industrial discharge in the sanitary sewer system and their final disposition.
Also, any improvement necessary to provide pre-treatment facilities for the
above mentioned effluents shall be at TENANT'S own cost and expense and in
coordination and with the approval of LANDLORD's Engineering and Maintenance
Offices.
SIXTEEN: It is hereby agreed and understood that this Supplement and
Amendment to Lease Contract is entered by and between the parties hereto, based
on TENANT's representations that it shall expand its manufacturing operations in
the Original Premises in Guayazma, Puerto Rico. TENANT's projections for said
expansion are that it will
INITIAL HERE
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<PAGE>
4
generate approximately 30 additional employees with a Capitalization of
$60,000.00 and as investment in Machinery and Equipment of $60,000.00.
SEVENTEEN: TENANT hereby acknoledges that the building herein demised is in
need of certain repairs which LANDLORD undertakes to commence presently after
execution hereof.
EIGHTEEN: It is further agreed and understood by the parties herein, that
all other terms and conditions of the Contract which are not inconsistent with
the term and conditions of this Supplement and Amendment, shall remain in full
force and effect.
NINETEEN: All terms and conditions of the Lease Contract executed on July
15, 1994 shall be deemed supplemented and amended to the extend inconsistent
with the terms hereof and shall remain in full force and effect as herein
supplemented and amended.
IN WITNESS WHEREOF, the parties hereto executed this Supplement to Lease
Contract at San Juan, Puerto Rico, this 18th day of June, 1996
PUERTO RICO INDUSTRIAL DEVELOPMENT COMPANY
BY: /s/ ILLEGIBLE
-------------------------------
PUERTO RICO INDUSTRIAL MANUFACTURING OPERATIONS, CORP.
S.S.P. 66-0506009
BY: /s/ ILLEGIBLE
-------------------------------
<PAGE>
SCHEDULE "A"
DESCRIPTION OF BUILDING NO. T-0462-0-58
LOCATED IN GUAYAMA, PUERTO RICO
This is a pitched roof type building consisting of reinforced concrete
foundations, columns and girders supporting 30 ft. long Pacadar joists which in
turn support prestressed concrete boards, covered by 1/2" cellotex insulation
and a 3-ply built-up roofing. This building has no monitor but roof ventilators
are provided.
The structure consists of a main floor 121'-5" x 90'-10" out to out
dimensions with an area of 11,028.57 sq. ft. of manufacturing space; an entrance
porch 14'-0" x 7'-0" for an area of 98 sq. ft., two lean-to 31'-2" x 10'-6" for
an area of 327.28 sq. ft., and 20' x 25' for an area of 500 sq. ft. This gives a
total area of 11,953.85 sq. ft. of covered floor space.
The floor consists of a 4" thick reinforced concrete slab with a monolithic
cement finish on the manufacturing area, janitor's room, storage room and
stairs; quarry tiles on the entrance porch and ceramic tiles on the men and
ladies toilet rooms. Exteriors walls are of concrete blocks plastered and
painted on both sides, except on the front wall which is plastered and painted
together with a stucco finish. Interior walls at the lean-to are plastered and
painted together with a 5,-l1" high sprayed-on glazed finish wainscot at the men
and ladies toilet rooms.
Ceiling is rubbed and painted throughout the building.
Windows are miami louvers throughout the building.
Doors are made of ply wood, except for one flush metal double swing door at
the main entrance; a similar door equipped with antipanic hardware set at the
rear entrance, and one double sliding door at the loading platform.
Clearance in the manufacturing area from finish floor to lowest part of
beams at the side eaves is 12'-0" and 14'-9" at the highest point of the
building.
DESCRIPTION OF PARCEL OF LAND, LOT #2
LOCATED AT MACHETE INDUSTRIAL PARK
GUAYAMA, PUERTO RICO
SITE FOR PROJECT NO. T-0462-0-58
General:
Parcel of land, identified as Lot #2, located at Machete Industrial Park in
Guayama, Puerto Rico.
It bounds: by the North, with the main street of the industrial park; by the
South, with land owned by Genaro Cautino Bruno; by the East, with Lot #4 of
same industrial park; and by the West, with State Road PR-7 44.
It has a surface area of approximately 7,074.71 square meters, equivalent to 1.8
"cuerdas".
It is affected by a 5'-0" wide right of way in favor of the Puerto Rico Electric
Power Authority along its eastern boundary.
INITIAL HERE
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<PAGE>
<TABLE>
Exhibit 10.17
OMB 0990-0115
- --------------------------------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
AWARD/CONTRACT 1 THIS CONTRACT IS A RATED ORDER RATING PAGE OF PAGES
UNDER DPAS (15 CFR 350)
PRIME 1 | 120
- ---------------------------------------------------------------------------------------------------------------------------
2. CONTRACT (Proc. Inst. Ident.) NO. 3. EFFECTIVE DATE 4. REQUISTION/PURCHASE REQUEST, PROJECT NO.
600-95-21451 See Page A-2 See Continuation Sheet, Page A-3
- ---------------------------------------------------------------------------------------------------------------------------
ISSUED BY CODE 6. ADMINISTERED BY (if other than Item 5) CODE
---------------- ----------------
See Continuation Sheet, Page A-2 See Continuation Sheet, Page A-2
- ---------------------------------------------------------------------------------------------------------------------------
7. NAME AND ADDRESS OF CONTRACTOR (No., street, city, county, State, and ZIP Code) 8. DELIVERY
U.S. Small Business Administration FOB Destination
Washington District Office |_| FOB ORIGIN |X| OTHER (See Below)
1110 Vermont Avenue, NW, 9th Floor --------------------------------------
Washington, DC 20043-4500 9. DISCOUNT FOR PROMPT PAYMENT
---------------------------------------
International Data Products Corporation Net 30
20 Firstfield Road --------------------------------------
Gaithersburg, MD 20878 10. SUBMIT INVOICES ITEM
Attention: Ruth Caffrey (4 copies unless other-
- ------------------------------------------------------------------------------------ wise specified) TO THE See Block 12
CODE TIN-52-1328445 FACILITY CODE ADDRESS SHOWN IN
- ---------------------------------------------------------------------------------------------------------------------------
11. SHIP TO/MARK FOR CODE 12. PAYMENT WILL BE MADE BY CODE
---------------- ----------------
See Section J. Social Security Administration
Office of Finance
Post Office Box 47
Baltimore, MD 21235
- ---------------------------------------------------------------------------------------------------------------------------
13. AUTHORITY FOR USING OTHER THAN FULL AND OPEN COMPETI- 14. ACCOUNTING AND APPROPRIATION DATA
TION:
15 USC 637(a) Section 8(a) See Continuation Sheet, Page A-3
|_| 10 U.S.C. 2304(c)( ) |_| 41 U.S.C. 253(c)( )
- ---------------------------------------------------------------------------------------------------------------------------
15A. ITEM NO 15B. SUPPLIES/SERVICES 15C. QUANTITY 15D. UNIT 15E. UNIT PRICE 15F. AMOUNT
- ---------------------------------------------------------------------------------------------------------------------------
PSC 7025 Laptop Computers & Associated Peripherals
1. Equipment 1 lot $438,214 $438,214
2. Software 1 lot 73,937 73,937
3. Outside PPM, No Trouble Found 1 lot NTE 5,000
Calls, etc.
- ---------------------------------------------------------------------------------------------------------------------------
15G. TOTAL AMOUNT OF CONTRACT $517,151
- ---------------------------------------------------------------------------------------------------------------------------
16. TABLE OF CONTENTS
- ---------------------------------------------------------------------------------------------------------------------------
(X) SEC. DESCRIPTION PAGE(S) (X) SEC. DESCRIPTION PAGE(S)
- ---------------------------------------------------------------------------------------------------------------------------
PART I - THE SCHEDULE PART II - CONTRACT CLAUSES
- ---------------------------------------------------------------------------------------------------------------------------
X A SOLICITATION/CONTRACT FORM A1-8 X I CONTRACT CLAUSES I1-12
- ---------------------------------------------------------------------------------------------------------------------------
X B SUPPLIES OR SERVICES AND PRICES/COSTS B1-3 PART III - LISTS OF DOCUMENTS, EXHIBITS AND OTHER ATTACH.
- ---------------------------------------------------------------------------------------------------------------------------
X C DECRIPTION/SPECS/WORK STATEMENT C1-26 X J LIST OF ATTACHMENTS J1-40
- ---------------------------------------------------------------------------------------------------------------------------
X D PACKAGING AND MARKING D1-2 PART IV - REPRESENTATIONS AND INSTRUCTIONS
- ---------------------------------------------------------------------------------------------------------------------------
X E INSPECTION AND ACCEPTANCE E1-7 K REPRESENTATIONS, CERTIFICATIONS AND
- ----------------------------------------------------------- X OTHER STATEMENTS OF OFFEREORS K-1
X F DELIVERIES OR PERFORMANCE F1-5
- ---------------------------------------------------------------------------------------------------------------------------
X G CONTRACT ADMINISTRATION DATA G1-5 L INSTRS. CONDS. AND NOTICES OF OFFERORS
- ---------------------------------------------------------------------------------------------------------------------------
X H SPECIAL CONTRACT REQUIREMENTS H1-9 M EVALUATION FACTORS FOR AWARD
- ---------------------------------------------------------------------------------------------------------------------------
CONTRACTING OFFICER WILL COMPLETE ITEM 17 OR 18 AS APPLICABLE
- ---------------------------------------------------------------------------------------------------------------------------
17. |X| CONTRACTOR'S NEGOTIATED AGREEMENT (Contractor is 18. |_| AWARD (Contractor is not required to sign this
required to sign this document and return _____ copies to document.) Your offer on Solicitation Number _______,
issuing office.) Contractor agrees to furnish and deliver including the additions or changes made by you which
all items or perform all the services set forth or additions or changes are set forth in full above, is
otherwise identified above and on any continuation sheets hereby accepted as to the items listed above and on any
for the consideration stated herein. The rights and continuation sheets. This award consummates the contract
obligations of the parties to this contract shall be which consists of the following documents: (a) the
subject to and governed by the following documents: (a) Government's solicitation and your offer, and (b) this
this award/contract, (b) the solicitation, if any, and (c) award/contract. No further contractual document is
such provisions, representations, certifications, and necessary.
specifications, as are attached or incorporated by
reference herein. (Attachments are listed herein.)
- ---------------------------------------------------------------------------------------------------------------------------
19A. NAME AND TITLE OF SIGNER (Type or print) 20A. NAME OF CONTRACTING OFFICER
See Continuation Sheet, Page A-2 See Continuation Sheet, Page A-2
- ---------------------------------------------------------------------------------------------------------------------------
19B. NAME OF CONTRACTOR 19C. DATE SIGNED 20B. UNITED STATES OF AMERICA 20C. DATE SIGNED
BY_______________________________________ See Page A-2 BY_______________________________________ See Page A-2
(Signature of person authorized to sign) (Signature of person authorized to sign)
- ---------------------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------------------
NSN 7540-01-152-8069 A-1 STANDARD FORM 26 (REV.4-85)
PREVIOUS EDITION UNUSABLE Prescribed by GSA
FAR (48 CFR) 53.214(a)
*U.S. GOVERNMENT PRINTING OFFICE: 1989 - 241-175
</TABLE>
<PAGE>
STANDARD FORM 26 - AWARD/CONTRACT
CONTINUATION SHEET/SIGNATURE PAGE
Standard Form (SF) 26, Block Numbers 3, 5, 6, 19A, 19B, 19C, 20A, 20B & 20C
TRIPARTITE AGREEMENT FOR:
Prime Contract Number: 600-95-21451
SBA Contract Number: _____________
Contract Effective Date: _____________
International Data Products Corporation
20 Firstfield Road
Gaithersburg, Maryland 20878
By: /s/ Oscar Fuster 6-26-95
-------------------------------- ------------------------------
Name and Title: Oscar Fuster Date
V.P. Marketing &
Sales
U.S. Small Business Administration
Washington District Office
1110 Vermont Avenue, NW, 9th Floor
Post Office Box 34500
Washington, DC 20043-4500
By: /s/ [ILLEGIBLE] 7-11-95
-------------------------------- ------------------------------
Name and Title: Date
U.S. Social Security Administration
Office of Acquisition and Grants
1710 Gwynn Oak Avenue
Baltimore, Maryland 21207
By: /s/ Marcia Friedman Katz 6-26-95
-------------------------------- ------------------------------
Name and Title: Marcia Friedman Katz Date
Contracting Officer
A-2
<PAGE>
Prices contained on Page A-1 have been derived as follows:
<TABLE>
<CAPTION>
UNIT TOTAL
ITEMS QUANTITY PRICE PRICE
----- -------- ----- -----
<S> <C> <C> <C>
1. DGI Notebook II Series 500 107 ea. $3,880 $415,160
w/MS DOS 6.22 & MS Windows
for Workgroups v3.11
2. DGI Mouse 25 ea. 8 200
3. HP DeskJet 320 78 ea. 293 22,854
4. WordPerfect for Windows 107 ea. 295 31,565
5. Lotus for Windows 107 ea. 281 30,067
6. Laplink for Windows v6.0 107 ea. 115 12,305
7. Outside PPM, No Trouble 1 lot NTE 5,000
Found Calls
Block 4, and Block 14
- ---------------------
Requisition - Accounting and Appropriation Data
R-3800-95-0208 - 2858704, 4003800, 319F, IFAS T205205LO -- $274,527.00
R-3800-95-0208.1 - 2858704, 4003800, 319F, IFAS T205205LO -- $145,176.00
R-3318-95-7903 - 2858704, 4003318, 319F, IFAS 0301-30180 -- $ 97,448.00
TOTAL CONTRACT AMOUNT: $517,151.00
</TABLE>
Award is made in accordance with International Data Products Corporation's
(IDP) proposal dated May 1, 1995 and IDP's Best and Final Offer dated
June 14, 1995.
The prices set forth in Section B of the contract have been derived from
IDP's proposal dated June 14, 1995. Section G-1, "Contract Administration";
Section G-3, "Designation of Government Project Officer"; Section G-8
"Contractor's Remittance or Check Mailing Address"; and Section G-9
"Responsible Official(s) Who Can Receive Notification Of An Improper Invoice
And Answer Questions Regarding The Invoice" have been completed as
applicable. Section I, FAR clause 52.244-1 date was changed to FEB 1995; and
on pages I-1 and I-12, Section I-12 FIRMR clause was changed to read
201-39.5202-3. Section J, Attachment 7 -- "Contract Pricing Proposal Cover
Sheet (Standard Form 1411)" is hereby deleted.
A-3
<PAGE>
SECTION A - SOLICITATION/CONTRACT FORM
A-1 52.219-11 - SPECIAL 8(A) CONTRACT CONDITIONS (FEB 1990)
A-2 52.219-12 - SPECIAL 8(A) SUBCONTRACT CONDITIONS (FEB 1990)
A-3 52.219-14 - LIMITATIONS ON SUBCONTRACTING (JAN 1991)
A-4 52.219-17 - SECTION 8(A) AWARD (FEB 1990)
A-4
<PAGE>
SECTION A - SOLICITATION/CONTRACT FORM
A-1 52.219-11 SPECIAL 8(A) CONTRACT CONDITIONS (FEB 1990)
-----------------------------------------------------
The Small Business Administration (SBA) agrees to the following:
(a) To furnish the supplies or services set forth in this contract
according to the specifications and the terms and conditions hereof
by subcontracting with an eligible concern pursuant to the
provisions of section 8(a) of the Small Business Act, as amended (15
U.S.C. 637(a)).
(b) That in the event SBA does not award a subcontract for all or a part
of the work hereunder, this contract may be terminated either in
whole or in part without cost to either party.
(c) Except for novation agreements and advance payments, delegates to
the Social Security Administration the responsibility for
administering the subcontract to be awarded hereunder with complete
authority to take any action on behalf of the Government under the
terms and conditions of the subcontract; provided, however, that the
Social Security Administration shall give advance notice to the SBA
before it issues a final notice terminating the right of a
subcontractor to proceed with further performance, either in whole
or in part, under the subcontract for default or for the convenience
of the Government.
(d) That payments to be made under any subcontract awarded under this
contract will be made directly to the subcontractor by the Social
Security Administration.
(e) That the subcontractor awarded a subcontract hereunder shall have
the right of appeal from decisions of the Contracting Officer
cognizable under the Disputes clause of said subcontract.
(f) To notify the Social Security Administration Contracting Officer
immediately upon notification by the subcontractor that the owner or
owners upon whom 8(a) eligibility was based plan to relinquish
ownership or control of the concern.
A-5
<PAGE>
A-2 52.219-12 SPECIAL 8(A) SUBCONTRACT CONDITIONS (FEB 1990)
--------------------------------------------------------
(a) The Small Business Administration (SBA) has entered into Contract No.
600-95-21451 with the Social Security Administration to furnish the
supplies or services as described therein. A copy of the contract is
attached hereto and made a part hereof.
(b) International Data Products Corporation, hereafter referred to as
the subcontractor, agrees and acknowledges as follows:
(1) That it will, for and on behalf of the SBA, fulfill and perform
all of the requirements of Contract No. 600-95-21451 for the
consideration stated therein and that it has read and is
familiar with each and every part of the contract.
(2) That the SBA has delegated responsibility, except for novation
agreements and advance payments, for the administration of this
subcontract to the Social Security Administration with
complete authority to take any action on behalf of the
Government under the terms and conditions of this contract.
(3) That it will not subcontract the performance of any of the
requirements of this subcontract to any lower tier subcontractor
without the prior written approval of the SBA and the designated
Contracting Officer of the Social Security Administration.
(4) That it will notify the Social Security Administration
Contracting Officer in writing immediately upon entering an
agreement (either oral or written) to transfer all or part of
its stock or other ownership interest to any other party.
(c) Payments, including any progress payments under this subcontract,
will be made directly to the subcontractor by the Social
Security Administration.
A-3 52.219-14 LIMITATIONS ON SUBCONTRACTING (JAN 1991)
--------------------------------------------------
(a) This clause does not apply to the unrestricted portion of a
partial set-aside.
(b) By submission of an offer and execution of a contract, the
Offeror/Contractor agrees that in performance of the contract in the
case of a contract for--
A-6
<PAGE>
(1) Services (except construction). At least 50 percent of the cost
of contract performance incurred for personnel shall be expended
for employees of the concern.
(2) Supplies (other than procurement from a regular dealer in such
supplies). The concern shall perform work for at least 50 percent
of the cost of manufacturing the supplies, not including the cost
of materials.
(3) General construction. The concern will perform at least 15 percent
of the cost of the contract, not including the cost of materials,
with its own employees.
(4) Construction by special trade contractors. The concern will perform
at least 25 percent of the cost of the contract, not including the
cost of materials, with its own employees.
A-4 52.219-17 SECTION 8(A) AWARD (FEB 1990)
- -------------------------------------------
(a) By execution of a contract, the Small Business Administration
(SBA) agrees to the following:
(1) To furnish the supplies or services set forth in the contract
according to the specifications and the terms and conditions
by subcontracting with the Offeror who has been determined
an eligible concern pursuant to the provisions of section 8(a)
of the Small Business Act, as amended (15 U.S.C. 637(a)).
(2) Except for novation agreements and advance payments,
delegates to the Social Security Administration the
responsibility for administering the contract with
complete authority to take any action on behalf of the
Government under the terms and conditions of the contract;
provided, however that the contracting agency shall give
advance notice to the SBA before it issues a final notice
terminating the right of the subcontractor to proceed with
further performance, either in whole or in part, under the
contract.
(3) That payments to be made under the contract will be made
directly to the subcontractor by the contracting activity.
A-7
<PAGE>
(4) To notify the Social Security Administration Contracting
Officer immediately upon notification by the subcontractor
that the owner or owners upon whom 8(a) eligibility was based
plan to relinquish ownership or control of the concern.
(b) The offeror/subcontractor agrees and acknowledges that it will,
for and on behalf of the SBA, fulfill and perform all of the
requirements of the contract.
A-8
<PAGE>
SECTION B -- SUPPLIES OR SERVICES AND PRICES/COSTS
B-1 DETAILED EQUIPMENT AND SOFTWARE PRICE TABLE
B-2 ON-CALL MAINTENANCE DURING PRINCIPAL PERIOD OF MAINTENANCE PRICE TABLE
B-3 OUTSIDE PRINCIPAL PERIOD OF MAINTENANCE PRICE TABLE
B-4 NO TROUBLE FOUND CALL PRICE TABLE
B-1
<PAGE>
B-1 DETAILED EQUIPMENT AND SOFTWARE PRICE TABLE
Contract Years 1 & 2 Pricing
<TABLE>
UNIT
DESCRIPTION PRICE
----------- -----
<S> <C> <C>
1. DGI Notebook II Series 500C $3,880
2. DGI Mouse $ 8
3. HP DeskJet 320 $ 293
4. MS DOS 6.22 NSP
5. MS Windows for Workgroups v3.11 NSP
6. WordPerfect for Windows $ 295
7. Lotus for Windows $ 281
8. Laplink for Windows v6.0 $ 115
Contract Year 3 Pricing
UNIT
DESCRIPTION PRICE
----------- -----
1. DGI Notebook II Series 500C $3,880
2. DGI Mouse $ 8
3. HP DeskJet 320 $ 283
4. MS DOS 6.22 NSP
5. MS Windows for Workgroups v3.11 NSP
6. WordPerfect for Windows $ 295
7. Lotus for Windows $ 281
8. Laplink for Windows v6.0 $ 115
</TABLE>
B-2
<PAGE>
B-2 ON-CALL MAINTENANCE DURING PRINCIPAL PERIOD OF MAINTENANCE PRICE TABLE
<TABLE>
<CAPTION>
FIXED MONTHLY RATE PER UNIT
--------------------------
DESCRIPTION YR.1 YR.2 YR.3 YR.4 YR.5
----------- ----------------------------------------
<S> <C> <C> <C> <C> <C>
1. DGI Notebook II Series 500C N/C $20 $24 $28 $30
2. DGI Mouse N/C N/A N/A N/A N/A
3. HP DeskJet 320 N/C $13 $17 $18 $20
4. MS DOS 6.22 N/C N/C N/C N/C N/C
5. MS Windows for Workgroups v3.11 N/C N/C N/C N/C N/C
6. WordPerfect for Windows N/C N/A N/A N/A N/A
7. Lotus for Windows N/C N/A N/A N/A N/A
8. Laplink for Windows v6.0 N/C N/A N/A N/A N/A
</TABLE>
B-3 OUTSIDE PRINCIPAL PERIOD OF MAINTENANCE PRICE TABLE
<TABLE>
<CAPTION>
FIXED HOURLY RATE
-----------------
YR.1 YR.2 YR.3 YR.4 YR.5
----------------------------------------
<S> <C> <C> <C> <C> <C>
Weekdays $115 $115 $115 $115 $115
Saturdays $115 $115 $115 $115 $115
Sundays $115 $115 $115 $115 $115
Holidays $115 $115 $115 $115 $115
Minimum Charge $115 $115 $115 $115 $115
Maximum Charge $575 $575 $575 $575 $575
</TABLE>
B-4 NO TROUBLE FOUND CALL PRICE TABLE
FIXED HOURLY RATES YEARS 1 - 5 - $89.00
B-3
<PAGE>
SECTION C--DESCRIPTION/SPECIFICATIONS/WORK STATEMENT
C-1 SCOPE OF WORK
C-2 MANDATORY GENERAL REQUIREMENTS
C-3 MANDATORY EQUIPMENT/SOFTWARE SPECIFICATIONS
C-4 INSTALLATION/DELIVERY
C-5 MAINTENANCE
C-6 FIELD PROVEN EQUIPMENT AND SOFTWARE
C-7 EXISTING FACILITIES
C-8 USED EQUIPMENT
C-9 SOFTWARE SUPPORT
C-10 TECHNOLOGY SUBSTITUTION
C-11 MINIMUM/MAXIMUM QUANTITIES
C-1
<PAGE>
C-1 SCOPE OF WORK
(a) The contractor shall furnish, as required, the hardware, software,
supplies, maintenance and other contractor support services required for
the installation and support of all items supplied under this contract.
Such hardware, software, supplies, maintenance and other contractor
support services shall be supplied in conformance with the terms and
conditions of this contract.
(b) These specifications describe the necessary hardware, software and
services used to support notebook computers for Social Security
Administration (SSA) offices nationwide. The equipment will be used to
support distributed data processing (DDP) and automation activities in
all SSA offices (i.e., central office components in Woodlawn and
Baltimore, Maryland; 10 regional offices; 6 program service centers; 74
area director offices; 35 teleservice center offices; and over 1,400
district, branch and hearings offices).
(c) The contractor shall provide the hardware, software, supplies and
services according to the specifications stated in Section C. These
specifications are mandatory and are stated in the terms of minimum
capacities, rates of operation and characteristics required by the
Government. Any additional components necessary to satisfy the specified
performance and configuration requirements must also be identified,
provided and included in the equipment cost tables in Section B.
(d) The contract shall be a firm-fixed price, indefinite quantity contract
with the minimum and maximum quantities identified in Section C-11. The
equipment and software is to be ordered before the end of Contract Year
3.
C-2 MANDATORY GENERAL REQUIREMENTS
(a) Compatibility
The objective of this procurement is to provide DDP and automation
capabilities to SSA offices. The notebook computers shall be
multifunctional. It is SSA's intention to use this equipment with the
software provided in this contract plus commercial off-the-shelf software
and custom developed applications obtained outside this contract. SSA
may connect this equipment with local area networks (LAN) and wide area
networks (WAN). In order for the equipment provided in this contract
to become an integral part of SSA's Information Systems strategy, it is
essential that it have certain operating characteristics. The equipment
C-2
<PAGE>
selected for this contract must be compatible with the IBM PC/AT. This
does not mean that the equipment must be IBM, but that it fully
accommodate hardware and software designed to operate on IBM hardware.
(b) Safety
(1) Shielded Power Supply - All power supplies must be shielded.
(2) FCC Certification - All hardware, where applicable, must meet FCC
requirements for certification of compliance with maximum allowable
radiation limits. The notebook computer, mouse, and printer must
be FCC Class B certified as of the release date of this
solicitation and have FCC stickers displayed externally on the
hardware.
(3) UL Approval - All hardware requiring a 120 volt power source must be
Underwriter's Laboratories (UL) listed (approved) as of the release
date of this solicitation.
C-3 MANDATORY EQUIPMENT/SOFTWARE SPECIFICATIONS
(a) NOTEBOOK COMPUTER
The notebook computer must meet the following specifications:
(1) General Requirements
a. Notebook Computer Configuration
A notebook computer must consist of:
1) A system unit;
2) A display;
3) A fixed disk drive;
4) A diskette drive and diskettes;
5) A keyboard;
6) A carrying case;
7) A battery;
8) An AC adapter (if required);
9) A spare battery, and spare AC adapter;
10) A pointing device;
11) File transfer software and cable;
12) A data/fax modem;
13) A portable, battery powered printer; and
14) Documentation.
C-3
<PAGE>
b. The entire system, including system unit, display, keyboard,
and battery must close into a single unit for transportation.
c. The entire system including system unit, display, fixed disk
drive, diskette drive, keyboard, battery, AC power connection,
pointing device, and carrying case must not exceed ten (10)
pounds in weight.
d. The notebook computer must meet FCC requirements for
certification of compliance with maximum allowable radiation
limits. It must be FCC Class B certified as of the closing
date of this solicitation and have a FCC sticker displayed
externally on the hardware.
e. Documentation
Documentation for the notebook computer shall be delivered at
a ratio of one (1) set of documentation for each notebook
computer. All manuals must be original and phototypeset.
Manuals must be the same quality as those provided by the
manufacturer to its commercial customers. The cost of the
documentation shall be included in the cost of the notebook
computer.
(2) System Unit
a. Processor and Operating System Compatibility
The notebook computer processor must support PC-DOS or
MS-DOS Versions 6.0 and later as well as OS/2 Version
2.1. Applications designed to run under these operating
systems must work properly on the offered hardware
without hardware or software modification. At a minimum,
all notebook computers must support all of the software
included in this contract.
b. Applications Software Compatibility
The notebook computer must support all of the workstation
software included in this contract along with Government
furnished software (i.e., cc:Mail and Organizer).
c. Must include a 15-pin connector for attachment of an
external 256-color SVGA (1024x768) monitor.
C-4
<PAGE>
d. Microprocessor must be an Intel 486DX2 or equivalent and must
operate at a speed of 66 megahertz or greater.
e. Must provide power management features to spin down the hard drive,
turn off the display's backlighting, and slow down the CPU and
clock.
1) Power management features must be user-definable, i.e. must be
able to be turned on and off and set to variable times.
2) When the system resumes full power, it must be returned to the
same state it was in when power management was invoked.
3) Power management features must be able to be invoked
automatically at the preset time or manually invoked to
start immediately.
f. Each notebook computer must be equipped with two PCMCIA (Personal
Computer Memory Card International Association) Type II slots which
are fully compliant with release 2.0 of the PCMCIA standard.
g. Must include an internal day/date time clock with battery backup,
so that date and time is maintained when the system is turned off,
or electrical power fails.
h. Must have a minimum of 16MB of RAM on the motherboard.
i. Must be equipped with a serial port with a connector that is either
an IBM-compatible 9-pin male serial connector or a 25-pin male
connector conforming to EIA RS-232C specifications. This serial
port must use the 16550AFN UART chip.
j. Must be equipped with an enhanced parallel port (EPP) with an
IBM-compatible 25-pin connector that allows connection to devices
that use a Centronics parallel communications interface.
k. Must be equipped with a speaker or functional equivalent.
C-5
<PAGE>
(3) Notebook Computer Display/Adapter Specifications
Each notebook computer must be equipped with an active matrix color
display and adapter that meet the following specifications:
a. Must be an active-matrix color display.
b. The display adapter must interface to the processor through a local
bus.
c. In text mode, the video display must have a minimum of 25 lines
with 80 characters per line.
d. The video display and adapter must be compatible with the IBM Super
Video Graphics Array (SVGA - 1024 X 768) and must contain at least
1Mb of video memory.
e. The video display must be high quality to allow easy viewing and
reading of data from the display.
f. The visible portion of the screen must measure a minimum of eight
and one-half (8.5) inches on the diagonal.
(4) Notebook Computer Fixed Disk Drive
Each notebook computer must contain a fixed disk drive that meets the
following specifications:
a. Must have a minimum formatted capacity of 300MB as validated by the
operating system disk management utility (1MB = 1048576 bytes).
b. Must have a visible in-use indicator.
c. Fixed disk read/write heads must automatically "park" (i.e., move
to a position to avoid physical damage) during normal power-down of
the system.
(5) Notebook Computer Diskette Drive
Each notebook computer must be equipped with a diskette drive that meets
the following specifications:
a. Must have a formatted capacity of 1.44MB.
b. Must have a visible in-use indicator.
C-6
<PAGE>
c. Must read and write 3.5 inch, 1.44MB diskettes. Formatting of
1.44MB diskettes must be performed on the notebook computers
provided.
d. Must read and write 3.5 inch, 720KB diskettes
Formatting of 720KB diskettes must be performed on the notebook
computers provided.
e. Must be compatible with the IBM PS/2 diskette drive. Data exchange
must not require the use of conversion.
(6) Notebook Computer Keyboard
Each notebook computer must be equipped with a keyboard that meets the
following specifications:
a. Capable of generating the full 127 character American Standard Code
for Information Interchange (ASCII) set (decimal characters 1-127)
and the IBM high order ASCII characters (decimal characters
128-255).
b. Standard typewriter style layout (QWERTY) with standard placement
of the Shift and Carriage Return keys.
c. The Pg-Up, Pg-Dn, Home and End keys must be invoked in a single key
stroke (without the need for any other keys).
d. There must be at least twelve (12) user definable function keys.
e. Function key operation must be capable of being redefined by Alt,
Ctrl and Shift Keys.
f. Must have an automatic repeat function for all printable ASCII
characters, cursor controls and backspace functions.
g. A multikey rollover function must be included (i.e., when more than
one key is depressed simultaneously, the effective key is the last
one depressed).
(7) Carrying Case
Must include a carrying case for transporting the notebook computer, AC
adapter (if required), modem, portable printer, and manuals. The
carrying case must include both hand and shoulder straps.
C-7
<PAGE>
(8) Battery
a. Must be equipped with a rechargeable nickel metal hydride, lithium
ion, or lithium polymer battery power supply with a rated life of
at least two and one half (2 1/2) hours without the need for
recharging. The battery must be located such that the user has easy
access to it for replacement.
b. Must be equipped with an indication of low battery power.
(9) AC Adapter
The notebook computer must be capable of operating on a 110 volt, 60
cycles per second alternating current power source. The power cord must
be at least nine (9) feet long.
(10) Battery/Charger Only (1)
Each notebook computer must be supplied with a spare battery, a spare
battery charger, and a spare power supply (if required) to allow
charging of the spare battery while the computer is in use.
(11) Notebook Computer Pointing Device
Each notebook computer must be equipped with a pointing device that
meets the following specifications:
a. The pointing device must be integral to the computer.
b. Must have a minimum of two (2) buttons and a maximum of four (4).
c. Must include a driver for Microsoft Windows that enlarges the
cursor in Graphical User Interface (GUI) mode for easy viewing.
(12) Serial Mouse
A mouse will be ordered configured with some notebooks. It must meet the
following specifications:
a. Ball Type Mouse
Must operate on any flat surface without the need for special pads
or surfaces.
C-8
<PAGE>
b. Resolution
Must have a resolution of at least 400 points per inch.
c. Buttons
Must have at least two (2) and no more than three (3) buttons.
d. Cord Length
Cord length must be at least six (6) feet.
e. Applications Software Compatibility
Must support, at minimum, all of the software provided under this
contract, and Microsoft Windows 3.1.
f. Right/Left Handed Use
Buttons must be re-assignable for right- or left- handed use.
g. Connector
Must include a DB-9 serial connector.
(13) File Transfer Software/Cable
a. Each notebook computer must include software that has the
capability of transferring files across the cables provided to
workstations using both the parallel port and the serial port at a
minimum speed of 115,000 bits per second.
b. Software for both the notebook computer and the workstation shall
be provided.
c. A cable, at least 10 feet long, with 25-ping male connectors on
both ends must be provided for connections using the parallel port.
d. A null-modem cable, at least 10 feet long, with both 9-pin and
25-pin female connectors at both ends must be provided for
connections to other workstations using the serial port.
C-9
<PAGE>
(14) Data/Fax Modem
Must include an asynchronous data/fax modem that interfaces with the
notebook either internally, through the PCMCIA slot, or externally
through the RS-232C port. This modem must meet the following
specifications:
a. Must operate at 14,400, 9600 and 2400 bits per second (bps) for
data and 14,400 and 9600 bps for fax. Must use CCITT v.42 bis,
v.42, v.32, v.32 bis, and v.22 bis standard protocols, and be fully
compatible with the Hayes AT command set.
b. Must support Microcom Networking Protocol (MNP) level 5 data
compression protocol.
c. Provide asynchronous transmission with full duplex operation.
d. Able to both originate and answer calls, and support automatic
dialing via the Hayes AT command set.
e. Must support automatic fallback.
f. Must be compatible with cc:Mail from Lotus Development Corp.
g. Must have minimum diagnostics capabilities which include local and
remote digital-loopback tests.
h. Must have FCC Class B certification as of the closing date of this
solicitation.
i. If internal or PCMCIA, must be configurable to COM1, COM2, and COM3.
j. If the modem is external, it must be powered by both AC and
battery; must be pocket sized; a new, fresh alkaline battery and a
minimum four feet long interface cable must be provided; and a case
must be provided to accommodate the modem, AC adapter, and cable.
k. Documentation for the modem shall be delivered at a ratio of one
(1) set of documentation for each notebook computer. All manuals
must be original and phototypeset. Manuals must be the same quality
as those provided by the manufacturer to its commercial customers.
The cost of the documentation shall be included in the cost of the
notebook computer.
C-10
<PAGE>
(15) Portable Printer
Some of the notebook computers will require printers. The
printers must be portable and meet the following
specifications:
a. Must print the 95-character ASCII subset (decimal
characters 32-126) as well as the IBM extended ASCII
character set (decimal characters 128-254).
b. The printer must have a manufacturer's rated speed of at
least two (2) pages per minute in letter quality mode.
c. Must include at least 48KB of RAM. The memory must be
fully contained and integrated into the printer.
d. Must interface to an IBM-compatible parallel printer port.
e. Must be capable of operating on a 110 volt, 60 cycles per
second alternating current power source.
f. Must be equipped with a rechargeable battery power supply
capable of printing at least 100 text pages without
recharging as rated by the manufacturer.
g. The battery must be recharged whenever the printer is
connected to an AC power source.
h. Must use a print process of plain paper drop on-demand
thermal ink jet printing with an ink jet cartridge that
contains at least 50 jets.
i. Must include a printer cable at least ten (10) feet long to
connect the printer to the notebook computer.
j. Must provide at least the following resident (come
internally installed in the printer, not downloaded) or
cartridge resident fonts. If a font cartridge is required,
it must be provided with each printer. Fonts must include:
1) Courier 10 pitch (portrait and landscape orientation);
2) Font using pitch between 16 and 20 (portrait
orientation);
C-11
<PAGE>
3) Font using pitch between 16 and 20 (landscape
orientation);
4) Proportional spacing sans serif font; and
5) Proportional serif font.
k. All fonts required must support bold, underline,
superscript/subscript, italics and combinations thereof.
l. Just be capable of printing a full page of graphics and/or
text at 300 dots per inch in a single pass with the
equipment provided.
m. Must be capable of printing on overhead transparencies and
labels.
n. Must provide Hewlett-Packard (HP) Printer Control Language
Level 3 (PCL3) emulation.
o. Must support an optional single-bin cut sheet feeder
capable of holding at least 50 sheets.
p. Must accept paper weights from 16 to 24 pounds inclusive.
q. Must have a manufacturer's recommended duty cycle of at
least 500 pages per month.
r. Must have a MTBF of at least 20,000 hours of use, as rated
by the manufacturer.
s. The contractor must provide with each printer, enough
supplies (other than paper) to accommodate the printing of
at least 1500 pages at 5% coverage. The quantities
provided must be based on manufacturer recommended duty
cycle or replacement intervals. All supplies must include
clear instructions on their use and replacement procedures.
t. Must provide manual controls to perform the following
functions:
1) Power on;
2) Online/Offline;
3) Font;
4) Draft;
5) Printout of available fonts;
6) LF/FF; and
7) Change Pen/Menu.
C-12
<PAGE>
u. Printer supplies, including cartridges and other consumable
items, must be available to the Government from
independent suppliers.
v. Must be fully operational with and supported by all of the
software available in this contract. The contractor must
identify and implement any installation options and
drivers necessary to make the printer fully operational
with the software.
w. Printer noise level, as measured by the manufacturer, must be
no greater than 45 dBA (A-weighted sound pressure level)
when measured at a distance of one meter from the front of
the printer.
x. The portable printer must meet FCC requirements for
certification of compliance with maximum allowable
radiation limits. It must be FCC Class B certified as of
the closing date of this solicitation and have an FCC
sticker displayed externally on the hardware.
y. Documentation
Documentation for the printer shall be delivered at a
ratio of one (1) set of documentation for each notebook
computer. All manuals must be original and phototypeset.
Manuals must be the same quality as those provided by the
manufacturer to its commercial customers. The cost of the
documentation shall be included in the cost of the
notebook computer.
(b) Software
(1) Operating System
Each notebook computer must be provided with operating
system software. The software must meet the following
specifications:
a. Disk Operating System
An operating system must be provided that recognizes and
executes the same command set and functions in a manner
identical to one of the following operating systems:
- PC-DOS version 6.1 as published by IBM; or
- MS-DOS version 6.2 as published by Microsoft Corporation.
C-13
<PAGE>
b. Utilities
Utilities equivalent to those included with PC-DOS 6.1 and
MS-DOS 6.2 must be provided. These utilities must include
a virtual disk driver to emulate a disk drive in RAM
(RAMDRIVE), a print spooler to expedite printing
operations (PRINT), an extended memory manager (HIMEM), an
expanded memory emulator (EMM386), a disk caching program
(SMARTDRV), a file/directory/drive backup program, HELP
command, and MORE, SORT and FIND filters.
c. High Memory Loadable
The operating system must be capable of loading into the
high memory area to the extent possible in order to make
maximum conventional memory available for applications
software.
d. Upper Memory Area
The operating system must provide the capability of loading
device driver software and resident programs into the
upper memory area.
e. Hardware Compatible
The operating system must be fully supported by the
hardware.
f. Documentation
Each copy of the operating system must come with a complete
set of documentation. All manuals must be original and
phototypeset. Manuals must be the same quality as those
provided by the manufacturer to commercial customers.
(2) Graphical User Interface (GUI)
The Graphical User Interface must meet the following:
a. For each notebook, the contractor shall provide Microsoft
Windows version 3.1 or Windows for Workgroups 3.11
(standalone).
b. Each copy of Microsoft Windows 3.1 or Windows for
Workgroups 3.11 (standalone) must be complete with all of
the functions and features that are included in the
packaging of the software for commercial customers.
c. Each copy of Microsoft Windows 3.1 or Windows for
Workgroups 3.11 (standalone) must be provided with
C-14
<PAGE>
an original copy of the user's manual.
d. Each copy of Microsoft Windows 3.1 or Windows for
Workgroups 3.11 (standalone) must include drivers for the
following printers:
- Hewlett Packard P320 Deskjet;
- Fujitsu DL3400 and DL3600;
- Hewlett Packard LaserJet Series II;
- Hewlett Packard LaserJet Series III;
- Hewlett Packard LaserJet Series 4; and
- IBM 4019 LaserPrinter E.
(3) Word Processing Software/Windows
Wordperfect from Wordperfect Corporation has been
established as an agency standard at SSA. Wordperfect for
Windows will be ordered configured with each notebook. It
must meet the following specifications:
a. For each order, the contractor shall provide WordPerfect
6.1 for Windows.
b. Each copy of WordPerfect for Windows must be complete with
all of the functions and features that are included in the
packaging of the software for commercial customers.
c. Each copy of WordPerfect for Windows must be provided with
an original copy of the WordPerfect 6.1 for Windows manual.
d. Each copy of WordPerfect for Windows must be provided with
a WordPerfect 6.1 for Windows template. The template must
be of a quality comparable to that provided to commercial
WordPerfect customers.
e. Each copy of WordPerfect for Windows must include, at a
minimum, drivers for the following printer models:
- Hewlett Packard P320 Deskjet;
- Fujitsu DL3400 and DL3600;
- Hewlett Packard LaserJet Series II;
- Hewlett Packard LaserJet Series III;
- Hewlett Packard LaserJet Series 4; and
- IBM 4019 LaserPrinter E.
f. Each copy of WordPerfect for Windows must be provided with
a copy of the WordPerfect 6.1 for Windows tutorial.
C-15
<PAGE>
(4) Spreadsheet Software/Windows
Lotus 1-2-3 from Lotus Development Corporation has been
established as an SSA standard. Lotus 1-2-3 for Windows
may be ordered configured with each notebook. It must meet
the following specifications:
a. For each order, the contractor shall provide Lotus 1-2-3
Release 5.0 for Windows.
b. Each copy of Lotus 1-2-3 for Windows must be complete with
all of the functions and features that are included in the
commercial packaging of the software for commercial customers.
c. Each copy of Lotus 1-2-3 for Windows must be provided with
an original copy of the 1-2-3 Release 5.0 for Windows manual.
d. Each copy of Lotus 1-2-3 for Windows must be provided with
an original copy of the Lotus 1-2-3 Release 5.0 for
Windows quick reference guide. The quick reference card
must be of a quality comparable to that provided to
commercial Lotus 1-2-3 customers.
e. Each copy of Lotus 1-2-3 for Windows must be provided with
a copy of the Lotus 1-2-3 Release 5.0 for
Windows tutorial.
(5) File Transfer Software - See Section C-3 (a) (13)
C-4 INSTALLATION/DELIVERY
(a) Miscellaneous
(1) Equipment from this contract shall be ordered in one of two ways,
at the option of the Government:
a. SYSTEM ORDERS are comprised of a notebook, in addition to
some number of accessories.
b. STANDALONE ORDERS are orders for accessory equipment
separate from a notebook (i.e. HP320 Printer).
(2) Standalone orders shall be shipped or delivered to the site
specified by the Government and installed by the Government with
telephone assistance from the contractor, if required.
C-16
<PAGE>
(3) System orders shall be shipped to the appropriate sites with all
software loaded and operational on the fixed disk.
(4) All orders, except those to SSA headquarters in Woodlawn,
Maryland must be delivered to the building and room location
specified in the delivery order (inside delivery).
(5) Deliveries made to SSA headquarters in Woodlawn, Maryland shall
arrive at the SSA loading dock between the hours of 7:00 a.m. and
noon. The contractor must provide a minimum of one day
pre-shipment notice to the Project Officer or the designated
alternate Project Officer, whose names will be provided in
Section G-3.
(6) Equipment shipped to SSA headquarters in Woodlawn, Maryland shall
be delivered on pallets.
(7) The contractor must provide all necessary cables and connectors.
(b) System Assembly and Burn-in Procedures
(1) Hardware Burn-in
The contractor must assemble and burn-in each system prior to
shipment according to the following procedure:
a. The system hard disk must be initialized with a sector
interleave of 1-to-1.
b. The fixed disk must be formatted with the operating system
and operationally configured, including the display and any
orderable accessory items.
c. The system diagnostics must be run continuously for at
least 24 hours and all detected errors must be resolved
prior to shipment.
d. There shall be no "bytes in bad sectors" (from DOS CHKDSK
command) on any of the system fixed drives delivered.
(2) Software Loading
The operating system, Microsoft Windows, and all additional
software ordered shall be installed on each notebook. The
fixed disk shall be divided into appropriately named
subdirectories for each software item ordered
as part of the system and all software
C-17
<PAGE>
shall be loaded into the subdirectories. Microsoft Windows, when
ordered, shall be configured such that each software item
is contained as a separate, appropriately named "group"
within the Program Manager and is executable from within
Windows.
(3) Packaging and Shipping
a. After successful completion of burn-in and software
loading, the notebook and/or items (including user manuals
and supplies) shall be repacked, using the original packing
materials, for shipment to the SSA site. The system items'
individual boxes shall be packaged for shipment.
b. Shipment of a system or standalone order to each site shall
be in a single parcel. The parcel is defined as a single
box or several boxes that are banded or wrapped together.
The parcel must be clearly labeled. The design of the parcel
must be such that it can be moved easily through a standard
30"-wide, 7'-high doorway and such that it can withstand
normal movement by freight companies. The individual item
boxes must be packed in the shipping parcel in such a way
that they are stationary when the shipping parcel is moved.
Filler boxes should be used to fill space in the shipping
parcel.
c. Each shipping parcel shall have a shipping label placed
externally for easy viewing by the freight company and the
user. The shipping label shall contain the destination
address (including room number), user contact person and
contact telephone number.
d. A separate label containing the internal SSA identification
number in characters which are at least one (1) inch high
for easy identification shall be placed under or above the
shipping label and on each box in the parcel. The SSA
identification number shall be provided by the Government
in the delivery order.
e. The contractor shall attach to the outside of the Picking
Slip parcel an inventory, listing every item (hardware and
software) included in the equipment order.
f. Trucks used for shipping must not exceed 13 feet 1 inch in
height, in order to accommodate the Government's inside
loading docks.
C-18
<PAGE>
g. Equipment not packaged and shipped as required shall be
subject to refusal of delivery by the Government
representative. Refusal of delivery for these purposes
shall not relieve the contractor of its requirements for
timely equipment delivery.
h. The contractor shall provide with each equipment order
three (3) copies of a checklist of all equipment included
in the shipment. This will be used to report
receipt/acceptance data to the Government Project Officer.
The checklist shall list each orderable item shipped and
its serial number, provide space for comments and spaces
for date of receipt and signature of the employee receiving
the order. A stamped envelope addressed to the Government
Project Officer shall be included for mailing the form.
(Address information shall be provided after contract
award.)
i. Installation Problems
The contractor is encouraged to take steps to minimize the
number of deliveries that will not include the correct
hardware and/or software items. In the event that any site
receives an incomplete or incorrect configuration, the
contractor must provide the correct/required configuration
by using one of the following methods. The method selected
shall be at the option of the Government:
1) Making on-site visit to make the configuration conform
to the configuration required by the delivery order;
or
2) Reshipping an entire new configuration; or
3) Reshipping missing or incorrect items.
In all cases, the contractor must provide the correct
configuration within five (5) working days of notification
by the Government that the delivered configuration was
incorrect.
C-19
<PAGE>
(4) Reports
For each equipment order, the contractor shall provide to the
Government Project Officer documentation that the equipment (hardware
and/or software) has been delivered or shipped. This document shall
contain at a minimum, the internal SSA identification number (taken
from the delivery order), the delivery location, the manufacturer,
description and serial number of each item (hardware and software),
and the date the equipment was shipped or delivered. The required
information shall be in a DBMS format defined by the Government and
compatible dBase IV from Borland International, Inc. The information
shall be transmitted to the Government Project Officer using a
mutually agreed upon medium (e.g. electronic mail, diskette) within 15
days of the delivery date of the equipment. The Government shall
provide within 15 days of contract award the required data format,
standardized coding requirements and standardized equipment
descriptions.
(5) Site Visit
a. The Government shall be provided with the opportunity to inspect
the contractor's facility for system assembly and burn-in and to
inspect the final design of the shipping parcels. The Government
shall also inspect the fixed disk setups to ensure that the
software has been properly installed. Such inspection shall take
place after the delivery of test systems to SSA in Woodlawn as
specified in Section E-3(a)(1) and before any equipment is
delivered to user locations.
b. The Government reserves the right to make other site visits to
the contractor's production facility during the life of the
contract.
C-5 MAINTENANCE
(a) On-Call Maintenance Service
(1) The contractor shall provide the Government with on-call maintenance
service on an on-site or replacement basis (i.e., contractor personnel
report to the site of the equipment for replacement), for the SSA
offices listed on Page J-7; or on a depot repair basis (i.e.,
contractor will ship an entire system to replace inoperative equipment
within 24-hours of a service call, and contractor shall pay for all
associated shipping costs for the return of the inoperative equipment
to the contractor's depot service center), for all SSA offices listed
on Pages J-8 through J-34.
C-20
<PAGE>
(2) the contractor shall provide on-call maintenance service at the fixed
monthly charges shown in Section B of this contract during the
Principal Period of Maintenance (PPM), which is defined as Monday
through Friday, 8:00 AM to 5:00 PM local prevailing time, exclusive of
Federal holidays.
(3) On-call maintenance service shall be provided for equipment which may
be located in any of the locations set forth in Section J, Attachment
3.
(4) The contractor shall provide maintenance (labor and parts) at the
prices shown in Section B and shall keep the equipment in good
operating condition. Maintenance service shall not include electrical
work external to the equipment, furnishing supplies, or adding or
removing any devices not supplied by the contractor. It shall not
include repair of damage resulting from accident, transportation
between Government sites, neglect, misuse, failure of electrical
power, air-conditioning, or humidity control or causes other than
ordinary use.
(b) Maintenance Coverage
(1) The contractor shall honor orders for maintenance for periods of one
(1) year or less at the prices shown in Section B.
(2) The effective date of maintenance service shall not be prior to the
expiration of the warranty period prescribed in Section H-5.
(3) During the warranty period, the same level of service as specified
under this Section C-5 of the contract shall be provided by the
contractor.
(c) Remedial Maintenance
(1) Remedial maintenance shall be performed after notification that
hardware and/or software is inoperative. The contractor shall provide
to the Government a single designated point of contact in the form of
a 24-hour toll-free telephone number. The contractor shall make
arrangements to provide an answering service or other continuous
telephone coverage to permit the Government to make such contact seven
days a week. Refer to Section H-12.
(2) Calls for remedial maintenance shall be made by the Government
whenever there is an equipment failure.
C-21
<PAGE>
(3) The contractor shall maintain facilities for receiving maintenance
calls such that Government waiting time (i.e., time spent by
Government employee waiting for contractor personnel to take
information about required maintenance) shall not exceed five
minutes.
(d) Return-To-Operation Time
(1) The contractor shall return the equipment to service within 24 hours
of notification that remedial maintenance is required, excluding
weekends and Federal holidays.
(2) A system shall be considered out of service if any item for which the
contractor is responsible for maintenance is malfunctioning and the
system cannot be used for all of its intended functions.
(3) Equipment shall be considered returned to service when the
contractor's repair order is signed, with date and time, by a
responsible Government employee. In the event that an employee is
not available to sign the order, the contractor must call the
Government Project Officer at a number to be provided. This
telephone number shall be equipped with a voice messaging system
to receive calls 24 hours a day.
(e) Responsibilities of the Contractor
(1) The contractor's responsibilities under maintenance shall include the
replacement of consumable parts for the HP320 DeskJet printer (other
than paper and Ink) as well as replacement of batteries in the
notebooks.
(2) Failed equipment shall be repaired or replaced at the option of the
contractor. If the contractor elects to replace a failed item, it
must be replaced with identical equipment (i.e., identical make and
model).
(3) Only new standard parts or parts equal in performance to new parts
shall be used in effecting repairs. Parts which have been replaced
shall become the property of the contractor.
(4) Equipment repairs shall take place during the Principal Period of
Maintenance except by mutual agreement between the contractor and the
Government.
C-22
<PAGE>
(5) The Government retains the right to interchange items (boards, drives,
monitors, printers, etc.) among the workstations covered, with no
penalty for so doing unless the equipment is damaged. In such cases,
the Government shall be responsible for any damage caused by
Government personnel while interchanging equipment.
(6) The contractor is required to service all equipment covered in this
contract. The Government retains the right to configure systems
included in this contract with components acquired from sources
outside of this contract. The contractor shall not be responsible for
maintenance of such components or any damage caused by their addition
to systems included in this contract.
(7) When it has been determined that a system fixed disk drive is to be
replaced, where possible the contractor shall provide the Government
user an opportunity to perform a fixed disk backup prior to removing
the disk drive to be replaced.
(8) When a system fixed disk drive is replaced with a new unit by the
contractor, the contractor shall erase or otherwise destroy all data
on the replaced unit.
(9) Contractor maintenance engineers must use certified virus-free
diagnostic software when making repairs to ensure that a virus is not
introduced into the workstation or LAN server during service. After
maintenance is performed on a system, the contractor shall run a virus
check on the system to assure it is free from viruses.
(f) Non-Chargeable Maintenance Items
There shall be no additional charges to the Government for:
(1) Remedial maintenance, regardless of when the maintenance is performed;
(2) Replacement parts, unless such parts are required due to the fault or
negligence of the Government;
(3) Time spent by maintenance personnel after arrival at the site
awaiting the arrival of additional maintenance personnel and/or
delivery of parts, etc., after a service call has commenced; and
(4) Any travel expenses, etc. for maintenance personnel.
C-23
<PAGE>
C-6 FIELD PROVEN EQUIPMENT AND SOFTWARE
Each item proposed in response to this solicitation shall be off-the-shelf
and field proven in Government or commercial customer accounts that are
financially independent from the offeror or the offeror's subcontractors
and are not test sites; shall be in an on-going, current production made
by the manufacturer(s) as of the date of the offeror's proposal; and
shall meet the following minimum requirements:
(a) Each item, including hardware and software, provided to meet the
Government's specifications shall have been successfully used by a
minimum of 3 customers by the date of the offeror's proposal.
(b) The total minimum number of installed devices at the 3 or more sites
shall equal or exceed 100 of each item,.
(c) A hardware or software item shall be considered field proven only if:
(1) The make, model and version proposed meets the requirements of
Sections C-6(a) and C-6(b); or,
(2) The item proposed is a commercially available upgrade (as of the
date of the offeror's proposal) to an item that meets the
requirements of Sections C-6(a) and C-6-(b).
C-7 EXISTING FACILITIES
All equipment must operate in a normal office environment using available
facilities as specified below.
(a) Available Power
120 Volt, 60 Cycle, 15 ampere maximum draw and NEMA 5-20
receptacle.
(b) Available Air Conditioning
Equipment must operate within a temperature range of 60-85
degrees Fahrenheit (15.5-32.2 degrees Celsius), and 30%-80%
relative humidity, non-condensing.
(c) Floor Area
Adequate floor space shall be provided by the Government for all
system configurations.
C-24
<PAGE>
(d) Access Doors
The contractor shall be provided adequate access for installation/repair
of all equipment.
C-8 USED EQUIPMENT
All equipment must be new. Used equipment shall not be accepted.
C-9 SOFTWARE SUPPORT
Should any of the software provided under the terms of this contract contain
defects for which the software manufacturer provides repair or replacement to
its customers free of charge, the contractor shall provide said repair or
replacement to the Government free of charge.
Should the manufacturer of any software provided under the terms of this
contract upgrade the product with a new release, the Government shall,
whenever possible, have the option to (a) require the latest release for
subsequent deliveries or (b) require no change in delivered software. Should
the Government require an upgraded release for which the manufacturer has
altered the list price, the unit cost for that item in this contract shall be
subject to renegotiation.
C-10 TECHNOLOGY SUBSTITUTION
Over the delivery period of the contract, it may be in the mutual best
interest of the Government and the contractor to substitute hardware and
software of a newer technology. The following conditions must be satisfied:
(a) The item substituted shall be fully compatible with the originally
proposed item.
(b) The item substituted shall meet or exceed the specifications of the item
previously supplied or the mandatory technical requirements of the
contract, whichever is greater.
(c) The item substituted shall meet all of the marketability requirements of
the solicitation to ensure field-proven and off-the-shelf configurations.
(d) The item substituted shall undergo an acceptance test equal in scope and
duration to the original Phase I acceptance test.
C-25
<PAGE>
(e) The cost of the item substituted shall be equal to or lower than that for
the originally proposed item.
(f) Delivery, installation, and maintenance of the substituted item must meet
or exceed all the terms and conditions of this contract.
(g) The substitution shall be by mutual agreement.
C-11 MINIMUM/MAXIMUM QUANTITIES
The following represent the minimum quantities of supplies which the Government
is obligated to order under the term of the contract as well as the maximum
quantities of supplies which the Government can order under the term of the
contract:
<TABLE>
<CAPTION>
Minimum Maximum
------- -------
<S> <C> <C>
HARDWARE
Laptop Notebook Computer 85 571
Mouse 25 130
Printer 68 360
SOFTWARE
Operating System 85 571
Microsoft Windows (GUI) 85 571
WordPerfect for Windows 85 571
Lotus for Windows 85 571
File Transfer Software 85 571
</TABLE>
C-26
<PAGE>
Exhibit 10.18
DUNN COMPUTER CORPORATION
EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT (this "Agreement") made as of this ____ day of
___________, 1998 by and between DUNN COMPUTER CORPORATION, a Virginia
corporation, having an office at 1306 Squire Court, Sterling, Virginia 20166
(hereinafter referred to as "Employer") and [George Fuster/D. Oscar Fuster], an
individual residing at [Residential address] (hereinafter referred to as
"Employee");
W I T N E S S E T H:
WHEREAS, Employer has entered into an Acquisition Agreement, dated
March 9, 1998 to purchase all of the outstanding stock of International Data
Products, Corp., a Maryland corporation ("IDP") and through a newly formed
Puerto Rico subsidiary of Employer,Puerto Rico Industrial Manufacturing
Operations Acquisition Corp., ("NEW PRIMO") to purchase substantially all of
the net assets of Puerto Rico Industrial Manufacturing Operations Corp., a
Puerto Rican corporation ("OLD PRIMO"); and
WHEREAS, Employee is a selling stockholder of IDP and has been acting
as [President/Vice President] of IDP and of OLD PRIMO; and
WHEREAS, as a condition to entering into the Acquisition Agreement,
Employer desires to ensure that Employee serves as [President/Vice President]
of NEW PRIMO, and continues to serve as [President/Vice President] of IDP; and
WHEREAS, Employee is willing to be employed as [President/Vice
President] of NEW PRIMO and to continue to be employed as President/Vice
President of IDP in the manner provided for herein, and to perform the duties
of [President/Vice President] of IDP and NEW PRIMO upon the terms and
conditions herein set forth;
NOW, THEREFORE, in consideration of the promises and mutual covenants
herein set forth it is agreed as follows:
1. Employment of [President/Vice President]. Employer hereby employs
Employee as [President/Vice President] of IDP and of NEW PRIMO.
2. Term of Employment.
(a) The Employee's term of employment under this Agreement
shall commence on the date hereof (the "Commencement Date") and, except for the
provisions of Section 8 hereof, shall expire three (3) years from the
Commencement Date unless Employee's employment is terminated earlier pursuant to
Section 9 (the "Term of Employment").
3. Duties. During the Term of Employment, the Employee shall perform
those functions generally performed by persons of such title and position and
such duties as may be assigned to him from time to time by the President and
Chief Executive Officer of Employer (the "CEO"), and
<PAGE>
2
shall at all times be subject to the direction and control of the CEO. During
the Term of Employment, Employee shall serve the Employer faithfully and to the
best of his abilities and shall devote substantially all of his business time
and efforts to Employer and its subsidiaries and affiliates. Employee shall give
the CEO periodic reports and shall keep the CEO informed on a current basis
concerning the duties assigned to Employee. Other than for customary and
reasonable business travel, Employee shall not be required to perform his duties
outside of a 60 mile radius of Washington, D.C.
4. Compensation and Benefits.
(a) (i) During the Term of Employment, IDP shall pay to Employee as
compensation for services hereunder a salary at the annual rate of Two Hundred
Thousand Dollars ($200,000), which amount shall be payable in approximately
equal monthly installments or at more frequent intervals in accordance with
IDP's customary compensation policies. The Board of Directors of Employer (the
"Board"), in the exercise of its sole discretion, may increase the Employee's
salary based upon his performance with Employer.
(ii) During the Term of Employment, Employee shall be eligible
to earn and receive an annual bonus on the last day of Employer's fiscal year,
commencing with the fiscal year ended October 31, 1998, which bonus, if any,
shall be paid within ninety (90) days following the end of each such fiscal
year. The calculation of the amount of such bonus will be determined by the
Board and shall be equal to the amount determined by the application of the
formulas set forth on Schedule A hereto.
(b) Employer hereby grants Employee a nonqualified stock option
(the "Option") to purchase from the Employer 300,000 shares (or, if the price
per share at which the Employer's shares are sold in the initial public
offering which is a condition to the execution and delivery of the Acquisition
Agreement is greater than $10.00, 400,000 shares) of Employer's common stock at
a price per share of $____, to be exercisable as to 50% of the shares subject to
the Option on or after that date which is six (6) months after the date hereof;
and as to the remaining 50% of the shares on or after that date which is one (1)
year after such date; and provided that this Option shall expire ten (10) years
after the date of grant and must be exercised, if at all, on or before such
date. The Option shall be evidenced by a written instrument, in such form and
substance not inconsistent with this section 4(b) as the Employer may reasonably
prescribe, which shall provide (i) that the Option shall be fully vested and
nonforfeitable when granted, (ii) that Option, or any part thereof, may be
transferred by the Employee to any one or more of his spouse and lineal
descendants, or any entity wholly-owned by any one or more of them, (iii) that
the Option shall be subject to customary anti-dilution adjustments, and (iv)
that shares of common stock acquired upon exercise of the Option shall not be
subject to any contractual holding period. As soon as practicable following the
execution of this Agreement, the Employer shall take all corporate action
necessary to reserve for future issuance a sufficient number of shares of its
common stock to provide for the satisfaction of its obligations with respect to
the Option and after one year from the date hereof, register on Form S-8 the
common stock issuable upon exercise of the Option.
<PAGE>
3
(c) Employee shall be entitled to participate in all Employer
benefit plans as are maintained, from time to time, on behalf of Employer and
which are available to employees of Employer generally, subject to eligibility
requirements then in effect; provided however, that nothing herein shall require
the Employer at any time to create or maintain any such plan, program or
arrangement. Employer shall pay all costs for health insurance benefits for
Employee and his immediate family.
(d) Employee shall be entitled to vacation, sick leave and
holidays at full pay in accordance with the Employer's policies established and
in effect from time to time; provided however, that in no event shall Employee
be entitled to less than four (4) weeks paid vacation in any one (1) year. Upon
separation of employment, for any reason, vacation time accrued and not used
shall be paid at the salary rate of Employee in effect at the time of employment
separation.
5. Board of Directors. Employer agrees that so long as this Agreement
is in effect, Employee will be nominated to the Board as part of management's
slate of Directors.
6. Expenses. During the Term of Employment, (i) Employer shall pay or
reimburse Employee for all ordinary and necessary business expenses incurred and
paid by Employee in the course of and within the scope of the performance of his
duties hereunder, provided such expenses are reasonable and are documented in
accordance with Employer's policies in effect from time to time with respect to
travel, entertainment and other business expense, and (ii) Employer shall pay to
Employee $1,000 per month for an automobile and pay dues at one club up to
$4,800 per year.
7. Confidential Information. Employee acknowledges that all
information that is or will be in his possession relating to Employer or any of
its affiliates which is of a secret or confidential nature, including, without
limitation, financial information, market research and development, lists of
customers, technical and production know-how, inventions, processes and
administrative procedures (collectively, "Confidential Information"), is the
exclusive property of Employer or its affiliates, as the case may be provided,
however, that Confidential Information shall not include information which (a)
is or becomes generally available to the public other than as the result of a
disclosure by Employee, or (b) is or becomes available to Employee on a
non-confidential basis from a source other than the Employee or its affiliates;
provided, however, that such source is not known by Employee to be bound by a
confidentiality agreement with or other obligation of secrecy to or for the
benefit of the Employee or any of its affiliates. In the event Employee shall be
legally compelled to make disclosures covered by this Section 7 to any
governmental or regulatory agency or subdivision thereof, such disclosure shall
not constitute a breach by Employee of his obligations hereunder; provided that
Employee shall have consulted with the Employer in advance of, and cooperated
with the Employer with respect to the form of, such disclosure to the extent
permitted by law. Employer shall not, during the Term of Employment or any time
thereafter, use Confidential Information in any manner other than for the
benefit of the Employer or its affiliates or disclose any Confidential
Information to any third party except as required by law. Employer shall, upon
termination of his employment hereunder, immediately surrender and turn over to
the Employer all books, forms, accounts, records, customer lists and any other
documents and information relating to the Employer or any of its affiliates in
his
<PAGE>
4
possession or in the possession of his agents or representatives, without
retaining any copy, summary or extract thereof on any storage medium whatsoever.
8. Covenant Not to Compete. Employee agrees that during the term of
Employment and for a period of one (1) year thereafter (the "Noncompetition
Period"), Employee shall not, either alone or in conjunction with any
individual, firm, corporation, association or other entity, whether as
principal, agent, shareholder (except as a passive investor owning less than 5%
of any class of voting securities of any entity if such securities are
registered pursuant to the Securities Exchange Act of 1934, as amended),
officer, director or in any other capacity whatsoever, without the prior written
consent of the Board, which consent may be withheld at the sole discretion of
such Board:
(i) engage or participate in, assist or have an interest in,
directly or indirectly, any business or enterprise which is directly or
substantially in competition with the present or presently contemplated Business
(as defined below) or prospects of the Employer or its affiliates within the
territories in which such Business of Employer or its affiliates is then carried
on or engaged in starting or acquiring a business;
(ii) attempt to direct any supplier or customer of the
Employer or its affiliates away from business for products competitive with
those products of the Employer or its affiliates;
(iii) solicit or attempt to solicit any employee of the
Employer or its affiliates to leave his or her employment and accept employment
elsewhere within three (3) months following their termination of such employee's
employment with the Employer or its affiliates; or
(iv) take any action as a result of which the relations between
the Employer and its affiliates and their suppliers, customers or others are
impaired or which is otherwise detrimental to the business of the Employer and
its affiliates as then conducted.
As used in this Agreement, the "Business" of Employer and its
affiliates shall be deemed to include the manufacturing and marketing of
computer systems.
9. Death, Disability and Termination.
(a) This Agreement shall terminate immediately upon the death of
Employee and may be terminated by the Employer upon the giving of at least
thirty (30) days written notice of its intention to do so, consistent with all
applicable laws and regulations, if Employee becomes ill or is injured or
otherwise incapacitated (either mentally or physically) and such illness, injury
or incapacity shall meet the standard for disability benefits under the federal
Social Security Act.
(b) The Employer may terminate this Agreement and Employee's
employment hereunder for cause immediately upon delivery of written notice to
Employee. For purposes of this Agreement, "cause" shall mean (i) any act or
omission which results in a breach of any
<PAGE>
5
material term or condition of this Agreement (for reasons other than disability
or death), provided such breach continues for a period of thirty (30) days after
the Employer shall have notified the Employee in writing of such breach; (ii)
any act or omission which constitutes fraud, misappropriation or embezzlement in
the performance of his duties or in the course of his employment hereunder;
(iii) any act or omission which constitutes a felony involving moral turpitude
for which Employee is convicted; (iv) any breach of fiduciary duty by the
Employee for personal gain or enrichment, and (v) any act or omission intended
by Employee to cause a material adverse effect on the Employer.
(c) The Employer's obligation to pay Employee in accordance with
the provisions of Section 4 hereof shall immediately terminate in the event of
termination of Employee's employment hereunder pursuant to paragraphs (a) or (b)
of this Section 9. If Employee's employment is terminated by the Employer other
than pursuant to Sections 9(a) or (b), or if Employee resigns for "good reason"
(as defined in Section 9(d) hereof), the Employee will be entitled to receive
promptly after such termination or resignation a lump sum payment in respect of
his base salary and all other benefits under Section 4 hereof, for the duration
of the three (3) year period commencing the date hereto, and for the duration of
such three year period, Employee shall be entitled to any bonus that is payable
under Section 4(a)(ii) hereof, provided that in the second and third bonus
periods (as set forth in Schedule A hereto), the bonus shall not exceed the
bonus paid in the preceding such period.
(d) Employee shall have the right to terminate his employment
under this Agreement upon 30 days' notice to Employer given within 90 days
following the occurrence of any of the following events (i) through )(vi) or
within three years following the occurrence of event (vii) (any of such events,
"good reason"):
(i) Employee is not elected to or retained in the position
stated in Section 1 hereof;
(ii) Employer acts to materially reduce Employee's duties and
responsibilities hereunder. Employee's duties and responsibilities shall not be
deemed materially reduced for purposes hereof solely by virtue of the fact that
Employer is (or substantially all of its assets are) sold to, or is combined
with, another entity, provided that Employee shall continue to have the same
duties and responsibilities with respect to Employer's business, and Employee
shall report directly to the chief executive officer and/or board of directors
of the entity that acquires Employer or its assets;
(iii) Employer acts to change the geographic location of the
performance of Employee's duties from the Washington, D.C. Metropolitan area.
For purposes of this Agreement, the Washington D.C. Metropolitan area shall be
deemed to be the area within 60 miles of Washington, D.C.;
(iv) A Material Reduction (as hereinafter defined) in
Employee's rate of base compensation, or Employee's other benefits. "Material
Reduction" shall mean a ten percent (10%) differential;
<PAGE>
6
(v) A failure by Employer to obtain the assumption of this
Agreement by any successor;
(vi) A material breach of this Agreement by Employer, which
is not cured within thirty (30) days of written notice of such breach by
Employer.
(vii) A Change of Control (as defined in the following
paragraph). For purposes of this Section 9, the term "Change of Control" shall
mean:
a. A person (other than a person who is an officer or a
director of Employer on the effective date hereof),
including a "group" as defined in Section 13(d)(3) of
the Securities Exchange Act of 1934, becomes, or
obtains the right to become, the beneficial owner of
Employer securities having 30% or more of the
combined voting power of the then outstanding
securities of Employer that may be cast for the
election of directors of Employer;
b. At any time, the Board-nominated slate of candidates
for the Board is not elected;
c. Employer consummates a merger in which it is not the
surviving entity;
d. Substantially all of Employer's assets are sold; or
e. Employer's stockholders approve the dissolution or
liquidation of Employer.
(e) Upon the termination pursuant to this Section 9, for any
reason, Employee shall have no further obligation to the Employer except that he
shall (i) continue to be bound by the provisions of Sections 7 and 8 hereto; and
(ii) remain subject to liability to the Employer for any damages caused by
Employees conduct described in paragraph (b) of this Section 9.
10. Corporate Opportunities. Employee agrees that during the Term of
Employment he will not take any action to divert from the Employer any
opportunity which is within the scope of any of the businesses or prospects of
the Employer or its affiliates.
11. Injunctive Relief. It is understood and agreed by and between the
parties hereto that the obligations of Employee as set forth in Sections 7 and 8
hereof, and the rights and privileges granted to the Employer by Employee
hereunder, are of a special, unique, extraordinary and intellectual character,
the loss of which cannot be reasonably or adequately compensated in damages in
any action at law, and that a breach by Employee of the terms and conditions
contained in Sections 7 or 8 of this Agreement will cause the Employer
irreparable damage. Employee hereby expressly agrees that the Employer shall be
entitled to the remedies of
<PAGE>
7
injunction, specific performance and other equitable relief to prevent a breach
or anticipated breach by Employee of Sections 7 or 8 hereof, without being
required to prove damages or furnish any bond or other security. This provision
shall be in addition to any other remedies which the Employer may have as a
result of a breach of this Agreement and shall not be construed as a waiver of
any of the rights which the Employer may have for damages or otherwise.
12. Arbitration. Any controversies between Employer and Employee
involving the construction or application of any of the terms, provisions or
conditions of this Agreement, save and except for any breaches arising out of
Sections 7 and 8 hereof, shall on the written request of either party served on
the other be submitted to arbitration. Such arbitration shall comply with and be
governed by the rules of the American Arbitration Association. An arbitration
demand must be made within one (1) year of the date on which the party demanding
arbitration first had notice of the existence of the claim to be arbitrated, or
the right to arbitration along with such claim shall be considered to have been
waived. An arbitrator shall be selected according to the procedures of the
American Arbitration Association. The cost of arbitration shall be borne by the
losing party or in such proportions as the arbitrator shall decide. The
arbitrator shall have no authority to add to, subtract from or otherwise modify
the provisions of this Agreement, or to award punitive damages to either party.
This Section 12 shall not prevent the Employer from seeking equitable relief as
contemplated in Section 11.
13. Attorneys; Fees and Costs. In the event that any party commences
legal action or proceeding to enforce any of the terms or provisions of this
Agreement, the substantially prevailing party shall be entitled to recover
reasonable attorney's fees and costs incurred in the trial court and on appeal,
and in enforcing any judgment obtained.
14. Entire Agreement, Modification and Waiver. This Agreement
constitutes the entire agreement between the parties hereto pertaining to the
subject matter hereof and supersedes all prior understandings, representations,
and warranties, agreements, communications and discussions, whether oral or
written, of the parties. No supplement, modification, or amendment of this
Agreement shall be binding unless executed in writing by all of the parties
hereto. No waiver shall be binding unless executed in writing by the party
making the waiver. No waiver of any of the provisions of this Agreement shall be
deemed to be or shall constitute a continuing waiver.
15. Severability. If any provision of this Agreement is held to be
invalid, void or unenforceable, in whole or in part, then such provision shall
be deemed to be modified or restricted to the extent and in the manner necessary
to render the same valid and enforceable, or shall be deemed excised from this
Agreement, as the case may require, and this Agreement shall be construed and
enforced to the maximum extent permitted by law as if such provision had been
originally incorporated herein as so modified or restricted or as if such
provision had not been originally incorporated herein, as the case may be. In
the event that any provision of this Agreement is held to be invalid, void or
unenforceable, the remaining provisions shall continue in full force and effect,
without being impaired or invalidated in any way.
<PAGE>
8
16. Survival of Certain Obligations. The obligations of the Employer
and the Employee set forth in this Agreement which by their terms extend beyond
or survive the termination of the Term of Employment shall not be affected or
diminished in any way by the termination or expiration of the Term of
Employment.
17. No Assignment.
(a) This Agreement is personal to the Employee and, without
the prior written consent of the Employer, is not assignable by the Employee.
(b) This Agreement shall inure to the benefit of and be
binding upon the Employer and its successors and assigns. The Employer shall be
entitled to assign all its obligations hereunder to IDP and treat the Employee
as an employee of IDP for all purposes, but Employer shall remain liable for the
full, timely performance of all the obligations so assigned as if the assignment
had not been made.
18. No Third Party Beneficiaries. Nothing expressed or implied in this
Agreement is intended, or shall be construed, to confer upon or give any person
or entity other than the parties hereto and the parties specified in Section 17,
any rights or remedies by reason of this Agreement.
19. Governing Law. This Agreement and all the amendments hereof, and
waivers and consents with respect thereto shall be governed by the internal laws
of the Commonwealth of Virginia, without regard to the conflicts of laws
principles thereof.
20. Notices. Any notice or other communications required or permitted
under this Agreement shall be sufficiently given if in writing and delivered by
hand or sent by telex or telefax, (with receipt confirmed), provided that a copy
is mailed by registered or certified mail, postage prepaid, return receipt
requested; or sent by overnight courier addressed as follows:
If to the Employer to:
Dunn Computer Corporation
1306 Squire Court
Sterling, Virginia 20166
Attention: John D. Vazzana
Telefax: (703) 450-0406
<PAGE>
9
Telephone: (703) 450-0400
If to the Employee to:
[Oscar/George Fuster]
[Residential Address]
[Tel/Fax Numbers]
Unless otherwise specified herein, such notices or other communication
shall be deemed received (a) on the date delivered, if delivered personally, by
telex or telefax or (b) one business day after being sent, if sent by overnight
courier. Each of the addressees shall be entitled to specify a different address
by giving notice as aforesaid to the parties hereto in accordance with this
notice provision.
21. Further Assurances. Each party hereto agrees to execute and deliver
all documents and instruments and to take or cause to be taken such other
actions that are reasonably necessary or appropriate to consummate the
transactions contemplated by this Agreement.
22. 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, the undersigned have executed this Agreement as of
the day and year first above written.
DUNN COMPUTER CORPORATION
By:
-----------------------------
John D. Vazzana
Executive Vice President
EMPLOYEE
----------------------------
[George/D. Oscar Fuster]
<PAGE>
Schedule A
To [George/Oscar]
Fuster Employment Agreement
Bonus Formulas
1. If the combined operating profits of IDP and PRIMO from the earlier
to occur of the closing date and May 1, 1998 through October 31, 1998, exceed
$5.0 million, then the following portion of such operating profits (i.e., income
before interest and income taxes) will be contributed to a bonus pool: 20% of
the amount of operating profits (if any) between $5.0 and $7.0 million, plus 35%
of the amount of operating profits (if any) between $7.0 and $9.0 million plus
50% of the amount of operating profits (if any) in excess of $9.0 million.
George D. Fuster and D. Oscar Fuster will each be entitled to receive 30% of
this bonus pool, and the other 40% of the bonus pool will be paid to other
members of the IDP management team.
2. If the combined operating profits of IDP and PRIMO for the period
November 1, 1998 - October 31, 1999 exceed $10 million, then the following
portion of such operating profits (i.e. income before interest and income taxes)
will be contributed to a bonus pool: 20% of the amount of operating profits (if
any) between $10 million and $16 million, plus 35% of the amount of operating
profits (if any) between $16 million and $20 million, plus 50% of the operating
profits (if any) in excess of $20 million. George D. Fuster and D. Oscar Fuster
will each be entitled to receive 30% of this bonus pool, and the other 40% of
the bonus pool will be paid to other members of the IDP management team.
3. If the combined operating profits of IDP and PRIMO for the period
November 1, 1999 - October 31, 2000 exceed $15 million, then the following
portion of such operating profits (i.e. income before interest and income taxes)
will be contributed to a bonus pool: 20% of the amount of operating profits (if
any) between $15 million and $22 million, plus 35% of the amount of operating
profits (if any) between $22 million and $30 million, plus 50% of the operating
profits (if any) in excess of $30 million. George D. Fuster and D. Oscar Fuster
will each be entitled to receive 30% of this bonus pool, and the other 40% of
the bonus pool will be paid to other members of the IDP management team.
<PAGE>
EXHIBIT 10.19
[Letterhead]
April 6, 1998
Ferris, Baker Watts, Incorporated
1720 Eye Street, N.W.
Washington, D.C. 20006
Dunn Computer Corporation
1306 Squire Court
Sterling, Virginia 20166
Re: Dunn Computer Corporation
Registration Statement on Form S-l
Registration No. 333-47631
Ladies and Gentlemen:
The undersigned has been advised that Dunn Computer Corporation (the
"Company"), is contemplating an underwritten public offering (the "Offering") of
3,250,000 shares of its common stock, $.001 par value per share (the "Common
Stock"), pursuant to an Underwriting Agreement (the "Underwriting Agreement"),
to be entered into with Ferris, Baker Watts, Incorporated (the "Underwriters")
in connection with the Offering.
In order to induce the Underwriters to enter into the Underwriting
Agreement with the Company the undersigned, intending to be legally bound,
hereby agrees that the undersigned and any entities through which the
undersigned owns any shares of Common Stock, will not, without the prior written
consent of the Underwriters, directly or indirectly, sell, offer, pledge, offer
to sell, contract to sell, grant any option to purchase or otherwise transfer or
dispose of (or announce any offer, sale, pledge, offer of sale, contract of
sale, grant of an option to purchase or other transfer or disposition), any
shares of Common Stock or any securities convertible into, exercisable or
exchangeable for, shares of Common Stock for a period of 180 days from the
effective date of the Registration Statement.
The undersigned acknowledges that any sale, hypothecation or transfer of
any securities of the Company in violation of this letter will be null and void.
The undersigned acknowledges that it is impossible to measure the damages that
will accrue to the Company by reason of a failure of the undersigned to comply
with the provisions of this letter. Therefore, if the Company shall
<PAGE>
Ferris, Baker Watts, Incorporated
Dunn Computer Corporation
Page 2
institute any action or proceeding to enforce the provisions hereof, the
undersigned agrees that the Company shall be entitled to injunctive relief, and
the undersigned waives, and shall not allege, any claim or defense to such
action or proceeding, including, without limitation, any claim or defense that
the undersigned has an adequate remedy at law.
Notwithstanding the foregoing, if the undersigned is an individual, the
undersigned may transfer any securities of the Company either during the
undersigned's lifetime or upon death by will or intestacy to immediate family or
to a trust the beneficiaries of which are exclusively the undersigned and/or a
member or members of the undersigned's immediate family; provided, however, that
in any such case it shall be a condition to the transfer that the transferee
execute an agreement stating that the transferee is receiving and holding the
securities subject to the provisions of this letter, and there shall be no
further transfer of such securities except in accordance with this letter. For
purposes of this paragraph, "immediate family" shall mean spouse, former spouse,
lineal descendant, father, mother, brother or sister of the undersigned.
This letter shall have no further force or effect if the Underwriting
Agreement is not entered into on or prior to June 30, 1998 or, if the
Underwriting Agreement is entered into, if it shall be terminated pursuant to
Section 11 thereof.
Very truly yours,
By:
-----------------------------
(print or type name)
<PAGE>
Ferris, Baker Watts, Incorporated
Dunn Computer Corporation
Page 3
Schedule of Lock-up Agreements
Thomas P. Dunne
John D. Vazanna
Claudia N. Dunne
George D. Fuster
D. Oscar Fuster
E. A. Burkhalter, Jr.
Daniel Sinnott
Steve Salmon
John Signorello
Timothy McNamee
Damon Testaverde
William Hunt
Richard Hunt
Network 1 Financial Securities, Inc.
<PAGE>
Exhibit 10.20
CONSENT AGREEMENT
THIS CONSENT AGREEMENT (this "Agreement"), dated as of April 20, 1998,
by and among Dunn Computer Corporation, a Delaware corporation (the "Company"),
Dunn Computer Corporation, a Virginia corporation ("DCC"), Network 1 Financial
Securities, Inc., a Texas corporation (the "Representative"), and Damon
Testaverde, William Hunt and Richard Hunt (collectively, the "Other Holders").
RECITALS
WHEREAS, the Company and Representative are parties to an Underwriting
Agreement dated April 21, 1997 (the "Underwriting Agreement");
WHEREAS, pursuant to the Underwriting Agreement, the Company has issued
to Representative and the Other Holders a warrant for the purchase of an
aggregate of 100,000 shares of the Company's common stock (the "Representative's
Warrant");
WHEREAS, in September 1997 the Company acquired STMS, Inc. and in
connection with that acquisition issued certain shares of the Company's common
stock and options to purchase shares of the Company's common stock;
WHEREAS, the Company and DCC have entered into an Acquisition
Agreement, dated March 9, 1998, providing for the acquisition by DCC of all of
the stock of International Data Products, Corp. and, through a subsidiary,
substantially all of the net assets of Puerto Rico Industrial Manufacturing
Operations, Corp. (the "Acquisition") in exchange for cash and stock of DCC and
providing for employment agreements, and DCC stock options, for two of the
sellers in the Acquisition;
WHEREAS, the Company, DCC and a wholly-owned subsidiary of DCC, Dunn
Merger Corp., a Delaware corporation, have entered into an Agreement of Merger
dated as of March 18, 1998 (the "Merger Agreement"), which provides for, subject
to the satisfaction of certain conditions, the merger of Dunn Merger Corp. with
the Company (the "Merger") concurrently with the closing of the Acquisition;
WHEREAS, immediately upon the effectiveness of the Merger, each
outstanding share of common stock of the Company will be exchanged for a share
of common stock of DCC, resulting in the Company becoming a wholly-owned
subsidiary of DCC;
WHEREAS, Section 2.1(e) of the Merger Agreement provides for the
conversion of the Representative's Warrant, at the time the Merger is effective,
from a warrant to purchase 100,000 shares of common stock of Company into a
warrant to purchase 100,000 shares of DCC common stock;
<PAGE>
WHEREAS, DCC has filed a Registration Statement on Form S-4 with the
Securities and Exchange Commission ("SEC") relating to the Merger and the
Acquisition, and Representative and the Other Holders have received a copy of
the prospectus that is included in that Registration Statement; and
WHEREAS, DCC has filed a Registration Statement on Form S-1 with the
SEC relating to a proposed underwritten public offering of common stock by DCC
that is scheduled to close contemporaneously with the effectiveness of the
Merger.
NOW, THEREFORE, for the mutual promises and covenants contained herein,
and for other good and valuable consideration, the receipt and sufficiency of
which is hereby acknowledged, the parties hereto agree as follows:
1. CONSENT
Representative hereby consents to the Merger Agreement and the
consummation of the Merger pursuant thereto.
2. REPRESENTATIVE'S WARRANT
On the date the Merger becomes effective, DCC shall execute and deliver
to Representative and each of the Other Holders a warrant instrument in the form
set forth as Exhibit A hereto, in exchange for the warrant instruments dated
April 25, 1997 delivered by the Company to Representative and the Other Holders,
to represent the Representative's Warrant. The new warrant instruments executed
and delivered by the DCC will reflect the same allocation of the
Representative's Warrant as the warrant instruments previously executed and
delivered by the Company for which the new warrant instruments are exchanged, as
follows: Representative, 40,000 shares; Damon Testaverde, 30,000 shares; William
Hunt, 15,000 shares; and Richard Hunt, 15,000 shares.
3. WAIVER
Representative and the Other Holders hereby waive and release any
notice, registration or other rights they might have in connection with the
actions and transactions set forth in the recitals to this Agreement.
4. LOCKUP
Representatives and each of the Other Holders shall not exercise all or
any part of the Representative's Warrant for 180 days after the effective date
of the Offering. Concurrently with the execution and delivery of this Agreement,
Representative and the Other Holders will each execute and deliver a letter, in
the form attached hereto as Exhibit B, to DCC and the underwriters of DCC's
public offering of common stock that is scheduled to close contemporaneously
with the effectiveness of the Merger.
-2-
<PAGE>
5. PAYMENT
Upon the Closing of the Offering, the Company shall pay to
Representative and the Other Holders the aggregate amount of Thirty-Five
Thousand Dollars ($35,000).
6. MISCELLANEOUS
6.1 NOTICES. All communications hereunder, except as herein otherwise
specifically provided, shall be in writing and shall be mailed, delivered or
telecopied and confirmed:
If to the Representative or Other Holders:
Network 1 Financial Securities, Inc.
The Galleria
Building Two, Penthouse
2 Bridge Avenue
Red Bank, New Jersey 07701-1106
Attention: William Hunt
Copy to:
Stark & Stark, A Professional Corporation
993 Lenox Drive, Building Two
Lawrenceville, New Jersey 08648
Attention: Michael P. Weiner, Esquire
If to the Company:
Dunn Computer Corporation
1306 Squire Court
Sterling, Virginia 20166
Attention: Thomas P. Dunne, President and C.E.O.
6.2 HEADINGS. The headings contained herein are for the sole purpose of
convenience of reference, and shall not in any way limit or affect the meaning
or interpretation of any of the terms or provisions of this Agreement.
6.3 AMENDMENT. This Agreement may only be amended by a written
instrument executed by each of the parties hereto.
6.4 ENTIRE AGREEMENT. This Agreement (together with the other documents
attached as exhibits hereto) constitutes the entire agreement of the parties
hereto with respect to the subject matter hereof, and supersede all prior
agreements and understandings of the parties, oral and written, with respect to
the subject matter hereof.
-3-
<PAGE>
6.5 BINDING EFFECT. This Agreement shall inure solely to the benefit of
and shall be binding upon the parties hereto and their respective successors,
legal representatives and assigns, and no other person shall have or be
construed to have any legal or equitable rights, remedy or claim under or in
respect of or by virtue of this Agreement or any provisions herein contained.
6.6 GOVERNING LAW; JURISDICTION. This Agreement shall be governed by
and construed and enforced in accordance with the laws of the State of New
Jersey, without giving effect to conflict of laws rules of such State. Any
action, proceeding or claim against any of the parties hereto arising out of, or
relating in any way to, this Agreement shall be brought and enforced in the
federal or state courts of the State of New Jersey, and the parties hereto
irrevocably submit to such jurisdiction, which jurisdiction shall be exclusive.
The parties hereto hereby waive any objection to such exclusive jurisdiction and
that such courts represent an inconvenient forum. Except as otherwise provided
in this Agreement, the prevailing party(ies) in any such action shall be
entitled to recover from the other party(ies) all of its reasonable attorneys'
fees and expenses relating to such action or proceeding and/or incurred in
connection with the preparation therefor.
6.7 EXECUTION IN COUNTERPARTS. This Agreement may be executed in one or
more counterparts, and by the different parties hereto in separate counterparts,
each of which shall be deemed to be an original, but all of which taken together
shall constitute one and the same agreement, and shall become effective when one
or more counterparts has been signed by each of the parties hereto and delivered
to each of the other parties hereto.
6.8 WAIVER, ETC. The failure of any of the parties hereto to at any
time enforce any of the provisions of this Agreement shall not be deemed or
construed to be a waiver of any such provision, nor to in any way effect the
validity of this Agreement or any provision hereof or the right of any of the
parties hereto to thereafter enforce each and every provision of this Agreement.
No waiver of any breach, non-compliance or non-fulfillment of any of the
provisions of this Agreement shall be effective unless set forth in a written
instrument executed by the party or parties against whom or which enforcement of
such waiver is sought; and no waiver of any such breach, non-compliance or
non-fulfillment shall be construed or deemed to be a waiver of any other or
subsequent breach, non-compliance or non-fulfillment.
6.9 TERMINATION. This Agreement shall terminate and be of no force or
effect if the Merger Agreement shall terminate or the Merger shall not have
become effective on or before June 30, 1998; provided that the termination of
this Agreement shall not affect the effectiveness of Section 3 hereof, to the
extent that it relates to actions and transactions occurring prior to the date
of this Agreement, or Section 5 hereof.
-4-
<PAGE>
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first above written.
DUNN COMPUTER CORPORATION,
a Delaware corporation
By:
---------------------------------
Its:
--------------------------------
NETWORK 1 FINANCIAL SECURITIES, INC.,
a Texas corporation
By: /s/ William Hunt
--------------------------------
Its: President
--------------------------------
DUNN COMPUTER CORPORATION,
a Virginia corporation
By:
-------------------------------
Its:
-------------------------------
/s/ Damon Testaverde
-----------------------------------
Damon Testaverde
/s/ William Hunt
-----------------------------------
William Hunt
/s/ Richard Hunt
-----------------------------------
Richard Hunt
-5-
<PAGE>
Exhibits
Exhibit A - Underwriter's Warrant to Purchase
Exhibit B - Form of Lock-up Agreement
[Exhibits will be provided upon request.]
-6-
<PAGE>
EXHIBIT 10.21
SUPPORT AGREEMENT
THIS SUPPORT AGREEMENT (the "Agreement") dated as of April 3, 1998,
between Ferris, Baker Watts, Incorporated ("FBW"), Gerard Klauer Mattison & Co.,
Inc. ("GKM"), and each of the individuals listed on Schedule A attached hereto
(collectively, the "Stockholders").
WHEREAS, Dunn Computer Corporation, a Delaware corporation ("Dunn") has
entered into a letter agreement with FBW, dated January 15, 1998 (the
"Engagement Letter"), pursuant to which FBW has agreed to serve as lead managing
underwriter in connection with a proposed public offering of common stock (the
"Offering"), the net proceeds of which are contemplated to be used in connection
with the acquisition by Dunn of International Data Products, Corp. ("IDP") and
its affiliate, Puerto Rico Industrial Manufacturing Corp. ("PRIMO")
(collectively the transactions are referred to as the "IDP Acquisition"); and
WHEREAS, the IDP Acquisition is to be accomplished through a
reorganization whereby Dunn Computer Corporation, a Virginia corporation
incorporated on February 26, 1998 (the "Company"), will become a holding company
owning 100% of the issued and outstanding capital stock of Dunn, IDP and another
subsidiary which will acquire substantially all of the net assets of PRIMO; and
WHEREAS, in connection with the reorganization, a newly-formed Delaware
subsidiary of the Company will merge with and into Dunn (the "Merger"); and
WHEREAS, in connection with the Merger, the Company has entered into an
Agreement of Merger ("Merger Agreement") with Dunn, dated as of March 18, 1998,
pursuant to which the Company would acquire Dunn through the conversion of (i)
each issued and outstanding share into the right to receive a share of common
stock of the Company; (ii) each outstanding option to purchase common stock of
the Company into an option to purchase a like number of shares of the common
stock of the Company; and (iii) each outstanding warrant to purchase shares of
commons stock of the Company into a warrant to purchase shares of the Company's
common stock; and
WHEREAS, pursuant to Delaware law, the Merger and the Merger Agreement
must be approved by the stockholders of Dunn; and
WHEREAS, the closing of each of the Offering, the IDP Acquisition and
the Merger will occur simultaneously (the "Closing"( and each is conditioned
upon the closing of the other. As a result of the reorganization, the Company
will be the issuer of the common stock in the Offering; and
WHEREAS, the specific terms and conditions of the underwritten offering
are to be set forth in a definitive underwriting agreement (the "Underwriting
Agreement") to be executed by
<PAGE>
and between the Company, certain selling stockholders and the underwriters, as
represented by FBW and GKM (the "Representatives"), at the time the public
offering price for the Offering is determined; and
WHEREAS, the Stockholders (i) collectively possess the sole or joint
right to vote, or direct the voting of, an aggregate of 3,790,000 shares of
common stock, $.001 par value, of Dunn (the "Shares") which constitute
approximately 74% of the outstanding capital stock of the Dunn, no other shares
of any other class of capital stock of Dunn being issued or outstanding, and
(ii) individually possess the right to vote, or direct the voting of, the number
of shares set forth opposite such Stockholder's name on Schedule A hereto; and
WHEREAS, the Stockholders (i) collectively possess the sole or joint
power to dispose of, or to direct the disposition of an aggregate of 3,790,000
Shares, which constitute approximately 74% of the outstanding capital stock of
Dunn, and (ii) individually possess the power to dispose of, or direct the
disposition of the number of Shares set forth opposite such Stockholder's name
on Schedule A hereto; and
NOW, THEREFORE, to induce the Representatives to initiate
preliminary selling efforts in connection with the Offering and in
consideration of the mutual covenants and agreements set forth herein and in
the Engagement Letter (and subject to the conditions and limitations set
forth in the Engagement Letter) and intending to be legally bound hereby, the
parties hereto agree as follows:
1. REPRESENTATIONS OF STOCKHOLDERS. Each of the Stockholders,
severally, and not jointly, represent that:
(a)(1) such Stockholder possesses the sole or joint right to
vote, or direct the voting of, all of the Shares set forth on Schedule A
opposite the Stockholder's name, (2) such number of Shares constitutes all of
the Shares with respect to which the Stockholder possesses the sole or joint
right to vote, or direct the voting of, as the case may be, and (3) such
Stockholder has good and marketable title to all of the Shares indicated on
said list opposite the Stockholder's name, free of all restrictions and
encumbrances of every kind and character, except as indicated on Schedule A.
(b)(1) such Stockholder possesses the sole or joint power to
dispose of, or direct the disposition of, the Shares set forth on Schedule A
opposite the Stockholder's name, (2) such number of Shares constitutes all of
the Shares with respect to which the Stockholder possesses or will possess the
sole or joint power to dispose of or direct the disposition of, and (3) such
Stockholder has good and merchantable title to all of the Shares indicated on
said list opposite the Stockholder's name free of all restrictions and
encumbrances of any kind or character except as indicated on Schedule A.
(c) such Stockholder has full right, power and authority to
enter into, deliver and perform this Agreement; this Agreement has been duly
executed and delivered by such Stockholder; and this Agreement constitutes the
legal, valid and binding obligation of the Stockholder, and is enforceable in
accordance with its terms.
2
<PAGE>
2. COVENANTS OF STOCKHOLDERS. Each of the Stockholders, severally and
not joint, covenant as follows:
(a) RESTRICTIONS ON TRANSFER. Subject to the fiduciary
obligations of such Stockholder as a director of Dunn, with respect to Shares
listed on Schedule A, during the term of this Agreement, such Stockholder
shall not pledge, hypothecate, grant a security interest in, sell, transfer
or otherwise dispose of or encumber any of such Shares and will not enter
into any agreement, arrangement or understanding (other than a proxy for the
purpose of voting his or her Shares in accordance with Subparagraph 2(c)
hereof) which would, during that term (i) restrict, (ii) establish a right of
first refusal to, or (iii) otherwise relate to the transfer or voting of such
Shares.
(b) OTHER RESTRICTIONS. Subject to the fiduciary obligations of
such Stockholder as a direct of Dunn, during the term of this Agreement, such
Stockholder shall not, directly or indirectly, solicit, initiate or encourage
inquiries or proposals from, or participate in any discussions or
negotiations with, or provide any information to, any individual,
corporation, partnership, or other person, entity or group (other than the
Company, IDP and PRIMO and the affiliates, officers, employees,
representatives and agents of each of them) concerning any sale of assets,
sale of shares of Capital stock, merger, consolidation, share exchange or
similar transactions involving Dunn, and such Stockholder will use all
commercially reasonable efforts to assure that Dunn takes no such steps. Such
Stockholder shall promptly advise the Representatives of, and communicate to
the Representatives, the terms of, any such inquiry or proposal addressed
either to such Stockholder or to Dunn that such Stockholder receives or of
which such Stockholder has knowledge.
(c) MERGER. With respect to the Shares listed on Schedule A, such
Stockholder shall vote such Shares in favor of the Merger Agreement, the
Merger and the transactions contemplated thereby. Each of the Stockholders,
further agrees to use all commercially reasonable efforts to cause the Merger
to be effected, subject to such Stockholder's fiduciary obligations as a
director.
(d) ADDITIONAL SHARES. The provisions of subparagraphs (a) and
(c) above shall apply to all Shares currently owned and hereafter acquired,
of record or beneficially, by each of the Stockholders.
3. TERMINATION. This Agreement shall terminate upon the Closing
4. GOVERNING LAW. This Agreement shall in all respects be governed by
and construed under the laws of the State of Maryland, all rights and remedies
being governed by such laws, without regard to conflict of law principles.
5. BENEFIT OF AGREEMENT. This Agreement shall be binding upon and inure
to the benefit of, and shall be enforceable by, the parties hereto and their
respective personal representatives, successors and assigns, except that neither
party may transfer or assign any of its respective rights or obligations
hereunder without the prior written consent of the other party.
6. COUNTERPARTS. For convenience of the parties hereto, this Agreement
may be executed in several counterparts, each of which shall be deemed an
original, all of which together shall constitute one and the same instrument.
3
<PAGE>
IN WITNESS WHEREOF, the Representatives and the Stockholders have
caused this Agreement to be duly executed as of the day and year first above
written.
FERRIS, BAKER WATTS, INCORPORATED
By: /s/ Charles W. Place
--------------------------------------
Charles W. Place
Vice President
GERARD KLAUER MATTISON & CO., INC.
By: /s/ Christopher H. Sands
--------------------------------------
Christopher H. Sands
Managing Director
STOCKHOLDERS
/s/ John D. Vazzana
------------------------------------------
John D. Vazzana
/s/ Thomas P. Dunne
------------------------------------------
Thomas P. Dunne
/s/ Claudia N. Dunne
------------------------------------------
Claudia N. Dunne
4
<PAGE>
SCHEDULE A
<TABLE>
- -------------------------------------------------------------------------------------------------
Number of
Number of Shares as to
Shares as to which Holder
which Holder has Sole or
Number of Number of has Direct or Shared Power
Shares Shares as to Indirect to
as to which which Holder Control Dispose or
Holder has Sole has Joint Power of Power to Direct
Name Power to Vote to Vote Vote Disposition Encumbrance
---- ------------- ------- ---- ----------- -----------
- -------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
Thomas P. Dunne 2,085,000 0 0 Same None
- -------------------------------------------------------------------------------------------------
Claudia N. Dunne 560,000 0 0 Same None
- -------------------------------------------------------------------------------------------------
John D. Vazzana 1,145,000 0 0 Same None
- -------------------------------------------------------------------------------------------------
0 0 Same None
- -------------------------------------------------------------------------------------------------
Total 3,790,000
- -------------------------------------------------------------------------------------------------
</TABLE>
5
<PAGE>
Exhibit 10.23
AMENDMENT NO. 4 TO LOAN AND SECURITY AGREEMENT
THIS AMENDMENT NO. 4 TO LOAN AND SECURITY AGREEMENT (this "Amendment"),
dated as of the 28th day of February, 1998 is made by and between DUNN COMPUTER
CORPORATION, a Virginia corporation (the "Borrower"), and FIRST UNION NATIONAL
BANK, a national banking association (successor by merger to Signet Bank and the
"Lender").
RECITALS
A. The Lender and the Borrower entered into a Loan and Security Agreement
dated as of May 28, 1997 (as amended through the date hereof, the
"Agreement") pursuant to which the Lender has agreed to extend credit to
the Borrower, and the Borrower has agreed to obtain credit from the Lender,
on the terms and conditions set forth in such Agreement.
B. The Borrower has requested that the Lender make certain modifications to
the Agreement, including increasing the Maximum Amount, and the Lender has
consented to such request subject to the execution of this Amendment and
the satisfaction of the conditions specified herein.
C. The Borrower and the Lender now desire to execute this Amendment to set
forth their agreements with respect to the modifications to the Agreement.
Accordingly, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Lender and the Borrower agree
as follows:
SECTION 1. Definitions. Capitalized terms used in this Amendment and not
defined herein are defined in the Agreement.
SECTION 2. Amendments to Agreement. Section 1 of the Agreement is amended
by replacing the definition of the term Termination Date its entirety with the
following definition:
"Termination Date" means May 31, 1998, and any extensions or extensions
thereof granted by the Lender in its sole discretion.
SECTION 3. Representations and Warranties of Borrower. The Borrower
represents and warrants to the Lender that:
(a) It has the power and authority to enter into and to perform this
Amendment, to execute and deliver all documents relating to this Amendment,
and to incur the obligations provided for in this Amendment, all of which
have been duly authorized and approved in accordance with the Borrower's
corporate documents;
(b) This Amendment, together with all documents executed pursuant
hereto, shall constitute when executed the valid and legally binding
obligations of the Borrower in accordance with their respective terms;
(c) Except with respect to events or circumstances occurring
subsequent to the date thereof and known to the Lender, all representations
and warranties made in the Agreement are true and correct as of the date
hereof, with the same force and effect as if all representations and
warranties were fully set forth herein;
(d) The Borrower's obligations under the Loan Documents remain valid
and enforceable obligations, and the execution and delivery of this
Amendment and the other documents executed in connection herewith shall not
be construed as a novation of the Agreement or any of the other Loan
Documents; and
(e) As of the date hereof, the Borrower has no offsets or defenses
against the payment of any of the Obligations.
<PAGE>
SECTION 4. Waiver of Claims. As a specific inducement to the Lender without
which the Borrower acknowledges the Lender would not enter into this Amendment
and the other documents executed in connection herewith, the Borrower hereby
waives any and all claims that it may have against the Lender, as of the date
hereof, arising out of or relating to the Agreement or any other Loan Document
whether sounding in contract, tort or any other basis.
SECTION 5. Conditions of Effectiveness. This Amendment shall become
effective when, and only when, the Lender shall have received this Amendment,
all executed and completed by the Borrower.
SECTION 6. Waiver of Default. Upon the Lender's execution of this Amendment
and the occurrence of the conditions to the effectiveness of this Amendment set
forth in Section 5 hereof, the Lender agrees to waive the Default under the
Agreement resulting from the Borrower's entering into an Agreement in Principal
to acquire the business and operations of International Data Products Corp. and
Puerto Rico Industrial Manufacturing Operations Corp. in violation of Section
6.10; provided, however, that this waiver shall not constitute a waiver of any
right, power or privilege to which the Lender is entitled under this Amendment,
the Agreement or any of the other Loan Documents as a result of any other
Default or upon the occurrence of a subsequent Default, including a Default
occurring because of the continuation of conduct by the Borrower as to which the
Lender is waiving its rights as of the date hereof.
SECTION 7. Miscellaneous.
7.1 Reference to Agreement. Upon the effectiveness of this Amendment,
each reference in the Agreement to "this Agreement" and each reference in
the other Loan Documents to the Agreement, shall mean and be a reference to
the Agreement as amended hereby.
7.2 Effect on Loan Documents. Except as specifically amended above,
the Agreement and all other Loan Documents shall remain in full force and
effect and are hereby ratified and confirmed. Without limiting the
generality of the foregoing, all Collateral given to secure the Obligations
of the Borrower under the Agreement and the other Loan Documents prior to
the date hereof does and shall continue to secure all Obligations of the
Borrower under the Agreement, as amended hereby and the other Loan
Documents, and, except as provided in the Agreement and the other Loan
Document, no such Collateral shall be released until all Obligations are
satisfied and completely discharged.
7.3 No Waiver. Except as specifically provided in Section 7 hereof,
the execution, delivery and effectiveness of this Amendment shall not
operate as a waiver of any right, power or remedy of the Lender under any
of the Loan Documents, nor constitute a waiver of any provision of any of
the Loan Documents.
7.4 Costs, Expenses and Taxes. The Borrower agrees to pay on demand
all costs and expenses of the Lender in connection with the preparation,
reproduction, execution and delivery of this Amendment and the other
instruments and documents to be delivered hereunder, including the
reasonable fees and out-of-pocket expenses of counsel for the Lender with
respect thereto.
7.5 Governing Law. This Amendment shall be governed by and construed
in accordance with the laws of the Commonwealth of Virginia, without giving
effect to conflict of law provisions.
<PAGE>
IN WITNESS WHEREOF, the Borrower and the Lender have caused this Amendment
to be signed by their duly authorized representatives under seal all as of the
day and year first above written.
DUNN COMPUTER CORPORATION, a Virginia
corporation
ATTEST: By: /s/ Thomas P. Dunn
------------------------------------
Thomas P. Dunn, President
/s/ Claudia N. Dunne
- --------------------------
(Asst. Secretary)
[corporate seal]
FIRST UNION NATIONAL BANK,
National banking association
By: /s/ Robert L. Reed
------------------------------------
Robert L. Reed, Asst. Vice President
<PAGE>
Exhibit 99.1
STOCK EXCHANGE AGREEMENT
By and Among
DUNN COMPUTER CORPORATION, a Delaware Corporation
and
THOMAS P. DUNNE
and
JOHN VAZZANA
and
CLAUDIA DUNNE
and
DUNN COMPUTER CORPORATION, a Virginia Corporation
January 6, 1997
<PAGE>
STOCK EXCHANGE AGREEMENT
STOCK EXCHANGE AGREEMENT (the "Agreement") dated as of January 6, 1997, by
and among;
DUNN COMPUTER CORPORATION, a Delaware corporation with its principal place
of business at 1306 Squire Ct., Sterling, Virginia 20166 ("Dunn Delaware");
and
THOMAS P. DUNNE, an individual with his principal residence at 10856
Patowmack Drive, Great Falls, Virginia;
JOHN VAZZANA, as individual with his principal residence at 39470
Charlestown Pike, Hamilton, Virginia;
and
CLAUDIA DUNNE, an individual with her principal residence at 10856 Patowmack
Drive, Great Falls, Virginia;
(Thomas P. Dunne, John Vazzana and Claudia Dunne are collectively referred to
herein as the "Shareholders")
and
DUNN COMPUTER CORPORATION, a Virginia corporation with its principal place
of business at 1306 Squire Ct., Sterling, Virginia 20166 ("Dunn Virginia");
WITNESSETH
WHEREAS, Shareholders own 1,429 shares of common stock (the "Dunn Virginia
Shares") of Dunn Virginia, representing all of the issued and outstanding common
stock thereof; and
WHEREAS, Dunn Delaware has been authorized to exchange Four Million
(4,000,000) shares of its common stock (the "Dunn Delaware Shares") for the Dunn
Virginia Shares (the Four Million shares being determined based on an exchange
rate of 2,799.160251 shares of Dunn Delaware common stock for each share of Dunn
Virginia common stock); and
WHEREAS, Shareholders desire to exchange, and Dunn Delaware desires to
exchange, at the Closing, the Dunn Virginia Shares for the Dunn Delaware Shares,
on the terms and conditions set forth in this Agreement.
NOW, THEREFORE, in consideration of the premises and of the agreements set
forth below, the parties hereto agree to the following:
<PAGE>
I. EXCHANGE OF SHARES
A. Shares to be Exchanged. At the Closing and upon the terms and subject to
the conditions of this Agreement, and upon the representations, warranties and
covenants herein made, Shareholders agree to assign, transfer, convey and
deliver to Dunn Delaware the Dunn Virginia Shares, and Dunn Delaware agrees to
assign, transfer, convey and deliver to the Shareholders, pro rata with the
ownership of the Dunn Virginia Shares, the Dunn Delaware Shares, all such shares
being free and clear of all liens, pledges, security interests, options, claims,
charges and encumbrances of any kind whatsoever, together with all rights now
and hereafter attaching thereto.
B. Deliver of Dunn Virginia Shares and the Dunn Delaware.
At the Closing (as hereinafter defined):
1. Shareholders shall transfer the Dunn Virginia Shares to Dunn
Delaware by delivering to Dunn Delaware, or its designee, the
original stock certificates representing ownership of Dunn
Virginia Shares, such Shares being properly endorsed for transfer
or accompanied by a stock power executed in blank, at which time
ownership of the Dunn Virginia Shares will pass.
2. Dunn Delaware shall transfer the Dunn Delaware Shares to the
Shareholders by delivering to the Shareholders, or their designee,
the original stock certificates representing ownership of Dunn
Delaware Shares, such share exchange having been duly authorized
by the board of directors of Dunn Delaware, at which time
ownership of the Dunn Delaware Shares will pass.
C. Closing. The closing of the Exchange of the Dunn Virginia Shares and the
Dunn Delaware Shares (the "Closing") will take place upon the execution of this
Agreement on the date hereof (the "Closing Date").
II. REPRESENTATIONS AND WARRANTIES
A. Representations and Warranties of Dunn Virginia and the Shareholders.
Dunn Virginia and the Shareholders hereby represent and warrant to Dunn Delaware
as follows, and acknowledge and confirm that Dunn Delaware is relying upon such
representations and warranties in connection with the execution, delivery and
performance of this Agreement, notwithstanding any investigation made by Dunn
Delaware or on its behalf, which shall be true as of the Closing and shall
survive the Closing:
1. Dunn Virginia and the Shareholders represent and warrant that Dunn
Virginia is a corporation duly organized, validly existing and in good standing
under the laws of the State of Virginia.
2
<PAGE>
2. The Shareholders have the requisite power and authority to enter
into this Agreement and to consummate the transaction contemplated hereby. The
execution and delivery of this Agreement and the consummation of the transaction
contemplated hereby has been or will be duly authorized by all necessary action
on the part of the Shareholders. This Agreement has been duly executed and
delivered by the Shareholders, and constitutes a legal, valid and binding
obligation of the Shareholders, enforceable against the Shareholders in
accordance with its terms subject as to enforcement of remedies, to applicable
bankruptcy, insolvency, reorganization, moratorium or similar laws affecting
creditors' rights generally. The Shareholders are not the subject of, nor the
debtor in, any pending, potential or threatened bankruptcy proceeding, voluntary
or involuntary, or any similar proceeding, claim or action which could result in
such an event. No consent, approval, order or authorization of, or registration,
declaration or filing with any governmental authority or any other party is
required to be made or obtained by the Shareholders in order to execute this
Agreement or fulfill the obligations provided for hereby.
3. The issued and outstanding capital stock of Dunn Virginia consists
solely of the Dunn Virginia Shares being exchanged by the Shareholders hereby.
There are no outstanding securities, options, warrants, agreements or
undertakings of any kind with respect to the Dunn Virginia Shares being sold
hereby (except for this Agreement) or under which Dunn Virginia would issue or
deliver, or cause to be issued or delivered, additional shares of capital stock
of Dunn Virginia.
4. The Dunn Virginia Shares being exchanged hereby are validly issued
and outstanding, fully paid and non-assessable, and are owned by the
Shareholders free and clear of all security interests, pledges, liens, charges
or encumbrances of any kind or nature whatsoever.
5. There are no legal, administrative or other proceedings or
governmental investigations pending or threatened, which, alone or in the
aggregate, would materially adversely affect the Shareholders' ownership of the
Dunn Virginia Shares. The Shareholders are not party to any agreement or
instrument or subject to any judgment, order, regulation, code or ordinance of
any court or governmental body or authority, domestic or foreign, which
adversely affects, or might reasonably be expected to adversely affect, the
Shareholders' ownership of the Dunn Virginia Shares.
B. Representations and Warranties of Dunn Delaware. Dunn Delaware hereby
represents and warrants to the Shareholders as follows, and acknowledges and
confirms that the Shareholders are relying upon such representations and
warranties in connection with the execution, delivery and performance of this
Agreement, notwithstanding any investigation made by the Shareholders or on
their behalf:
1. Dunn Delaware represents and warrants that it is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Delaware.
2. Dunn Delaware represents and warrants that it has the requisite
corporate power and authority to enter into this Agreement and to consummate the
transaction contemplated hereby. The execution and delivery of this agreement
and the consummation of the transaction contemplated hereby have been duly
authorized by all necessary corporate action on
3
<PAGE>
the part of Dunn Delaware. This Agreement has been duly executed and delivered
by Dunn Delaware and constitutes a legal, valid and binding obligation of Dunn
Delaware, enforceable against Dunn Delaware in accordance with its terms,
subject to applicable bankruptcy, insolvency, moratorium or similar laws
affecting creditors' rights generally. Dunn Delaware is not the subject of, or
the debtor in, any pending, potential or threatened bankruptcy proceeding,
voluntary or involuntary, or any similar proceeding, claim or action which could
result in such an event. No consent, approval, order or authorization of, or
registration, declaration or filing with any authority or any third party is
required to be made or obtained by Dunn Delaware in order to execute this
Agreement or fulfill the obligations provided for hereby.
3. The Dunn Delaware Shares, when issued, shall be validly issued and
outstanding, fully paid and non-assessable, and free and clear of all security
interests, pledges, liens, charges as encumbrances of any kind or nature
whatsoever.
III. COVENANTS
A. Consents and Notices. Promptly after the date hereof, the shareholders
and Dunn Delaware shall use their best efforts to obtain all consents, waivers,
approvals and authorizations which may be necessary to effectuate this Agreement
and to consummate the transactions contemplated hereby in accordance with the
terms hereof, or to continue in effect, and shall give all notices to third
parties required to be given by the Shareholders in contemplation and as a
result of the transactions contemplated by this Agreement. The Shareholders
shall promptly advise Dunn Delaware of any difficulties encountered in obtaining
any such consents, waivers, approvals and authorizations.
B. Further Assurances and Documents.
1. At any time and from time to time after the Closing, at Dunn
Delaware's request, and without further consideration, the Shareholders will
execute and deliver such other instruments of sale, transfer, conveyance,
assignment and confirmation, and take such actions, as Dunn Delaware may
reasonably deem necessary or desirable in order more effectively to transfer,
convey and assign to Dunn Delaware, and to confirm Dunn Delaware's title to, all
of the Dunn Virginia Shares, to put Dunn Delaware in actual possession thereof,
and to assist in exercising all rights with respect thereto.
2. At any time and from time to time after the Closing, at
Shareholders' request, and without further consideration. Dunn Delaware will
execute and deliver such other instruments of sale, transfer, conveyance,
assignment and confirmation, and take such actions, as Shareholders may
reasonably deem necessary or desirable in order more effectively to transfer,
convey and assign to Shareholders, and to confirm Shareholders' title to, all of
the Dunn Delaware Shares, to put Shareholders in actual possession thereof, and
to assist in exercising all rights with respect thereto.
4
<PAGE>
IV. INDEMNIFICATION
A. Indemnification by the Shareholders and Dunn Delaware. The Shareholders
and Dunn Delaware hereby agree to indemnify and hold harmless each other against
all losses, liabilities, costs, damages and expenses (including reasonable
attorney's fees) incurred by each resulting from, arising out of or connected
with:
1. any damage or deficiency resulting from any breach of the
representations and warranties contained in this Agreement or any instrument
furnished hereunder, any misrepresentation or omission, breach of warranty,
nonfulfillment of any agreement under this Agreement or from any
misrepresentation in or omission from any certificate, document or other
instrument furnished or to be furnished hereunder;
2. the nonfulfillment of any agreement or covenant made in this
Agreement or in any instrument furnished hereunder or in connection with the
Closing.
3. all actions, suits, proceedings, demands, assessments, judgments,
costs (including reasonable attorney's fees) and expenses incident to any of the
foregoing.
B. Claims.
1. If it shall be determined in accordance with this Section that the
Shareholders or Dunn Delaware are required to indemnify the other for any claim,
judgment and expenses (including attorneys' fees) relating to any litigation by
a court of competent jurisdiction of which the Shareholders or Dunn Delaware
have received notice and an opportunity to participate in the defense or as a
result of a settlement approved by the Shareholders or Dunn Delaware, the amount
of such indemnification shall be paid by the Shareholders or Dunn Delaware from
time to time, on demand, for any amounts as to which the indemnity relates.
2. In the event of a determination of the amount of any indemnification
pursuant to this Section, the Shareholders or Dunn Delaware shall give written
notice of the existence of any claim by or under this Agreement, and written
notice of the amount of loss or damage relating to any such claim within sixty
(60) days after the Shareholders or Dunn Delaware has actual notice thereof in
the case of any claim made by a third party of which the Shareholders or Dunn
Delaware has actual notice thereof before settling any claim for which it
expects to be reimbursed in whole or in part, and the Shareholders or Dunn
Delaware shall give the other the right to participate in the defense of any
such claim at their own expense.
5
<PAGE>
V. GENERAL PROVISIONS
A. Entire Agreement. This Agreement, and any agreements specifically
referred to herein, constitute the entire agreement among the parties hereto and
supersede all prior agreements and understandings, oral and written, among the
parties hereto with respect to the subject matter hereof.
B. Survival of Representations, Warranties and Agreements. Notwithstanding
any investigation conducted or notice or knowledge obtain by or on behalf of any
party hereto, each representation and warranty in this Agreement and in the
Exhibits and certificates delivered pursuant to this Agreement and each
agreement or covenant in this Agreement which does not by its own terms expire
on or prior to the Closing, shall survive the Closing without limitation as to
time.
C. Descriptive Headings. Descriptive headings used in this Agreement are for
convenience only and shall not control or affect the meaning or construction of
any provision of this Agreement.
D. Notices. All notices or other communications which are required or
permitted hereunder, shall be in writing and shall be sufficient if delivered or
mailed by registered or certified mail, postage prepaid, or by overnight
courier, or faxed (but then confirmed by mailing of the original by registered
or certified mail, or overnight courier) at the following addresses or as the
appropriate party may advise each other hereto in writing:
To Dunn Delaware:
Dunn Computer Corporation
1306 Squire Court
Sterling, Virginia 20166
Attention: Thomas P. Dunne
6
<PAGE>
With a copy to:
GERSTEN, SAVAGE, KAPLOWITZ, FREDERICKS &
CURTIN, LLP
101 East 52nd Street, 9th Floor
New York, New York 10022
Attention: Arthur S. Marcus
To the Shareholders:
THOMAS P. DUNNE
10856 Patowmack Drive
Great Falls, Virginia
JOHN VAZZANA
39470 Charlestown Pike
Hamilton, Virginia
CLAUDIA DUNNE
10856 Patowmack Drive
Great Falls, Virginia
E. 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 Agreement.
F. Binding Nature; Assignment. This Agreement is binding upon, and inures to
the benefit of the parties hereto and their respective heirs, successors and
assigns, only. There are no third party beneficiaries to this Agreement. This
Agreement may not be assigned by the Shareholders or Dunn Delaware without the
prior written consent of the Shareholders or Dunn Delaware.
G. Exhibits and Documentation. All Exhibits annexed hereto and all
documentation referred to herein are incorporated in and made a part of this
Agreement as if set forth herein. Any matter disclosed on any documentation
herein or Exhibit hereto shall be deemed also to have been disclosed on any
other applicable documentation referred to herein and/or Exhibit hereto, as the
case may be.
H. Expenses. The Shareholders and Dunn Delaware shall each be responsible
for their respective expenses in connection with the transaction contemplated
hereby, including but not limited to attorneys fees.
7
<PAGE>
I. Waivers and Amendments. Any waiver of any term or condition of this
Agreement, or any amendment or supplementation of this Agreement, shall be
effective only if in writing. A waiver of any breach or failure to enforce any
of the terms or conditions of this Agreement shall not in any way affect, limit
or waive a party's rights hereunder at any time to enforce strict compliance
thereafter with every term or condition of this Agreement.
J. Severability of Provisions. If any provision or any portion of any
provision of this Agreement or the application of any such provision or any
portion thereof to any person or circumstance, shall be held invalid or
unenforceable, the remaining portion of such provision and the remaining
provisions of this Agreement, or the application of such provision or portion of
such provision as is held invalid or unenforceable to persons or circumstances
other than those as to which it is held invalid or unenforceable, shall not be
affected thereby.
K. Governing Law. This Agreement shall be governed by, and constituted to
accordance with the laws of the State of Delaware, without regard to its
conflicts of laws principles.
IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement as
of the date first above written.
DUNN COMPUTER CORPORATION, a Delaware
Corporation
/s/ Thomas P. Dunne
-----------------------
By: Thomas P. Dunne
Title: President
/s/ Thomas P. Dunne
-----------------------
THOMAS P. DUNNE
/s/ John Vazzana
-----------------------
JOHN VAZZANA
/s/ Claudia Dunne
-----------------------
CLAUDIA DUNNE
DUNN COMPUTER CORPORATION, a Delaware
Corporation
/s/ Thomas P. Dunne
-----------------------
By: Thomas P. Dunne
Title: President
8
<PAGE>
Exhibit 99.2
ATTACHMENT 2
RECIPROCAL RELEASE
This Reciprocal Release is entered into as of September 12, 1997 (the
"Release Date") by and between BARRY D. BERGMAN and JACQUELINE L. BERGMAN (the
"Bergmans"), and PRIMARY TELECOMMUNICATIONS, INC. ("PTT"), a Pennsylvania
corporation (the Bergmans and Primary are together referred to herein as the
"Bergman Group"); STMS, Inc., a Virginia corporation, formerly known as SERVICE
AND TECHNOLOGY MICRO SYSTEMS, INC. ("STMS"); JOHN SIGNORELLO ("Signorello");
TIMOTHY McNAMEE ("McNamee"); STEVE SALMON ("Salmon"); and DUNN COMPUTER
CORPORATION ("Dunn"), a Delaware corporation. All parties except the Bergman
Group are referred to herein as "The Dunn Group."
This Reciprocal Release is entered pursuant to Section 8 of a Stock
Acquisition, Stock Option, Settlement, Covenant Not to Sue and Reciprocal
Release Agreement (the "Agreement") dated as of September 12, 1997.
1. Release of the Bergman Group by the Dunn Group. Subject to the specific
exclusions enumerated in Section 3 of this Reciprocal Release, the Dunn Group
and each member thereof, individually, jointly and severally, hereby RELEASES
and DISCHARGES the Bergman Group and each member thereof, individually, jointly
and severally, and the Bergman Group's agents, attorneys, successors and assigns
from any and all claims, demands, suits and causes of action of any kind arising
from events occurring in whole or part prior to the Release Date, whether
contingent in whole or in part or fixed, accrued in whole or in part, or
unaccrued, legal or equitable, oral or written, known or unknown. The Dunn Group
also releases any and all claims against any other person relating to the
formation or operation of Mindshare Corporation.
2. Release of the Dunn Group by the Bergman Group. Subject to the specific
exclusions enumerated in Section 3 of this Reciprocal Release, the Bergman Group
and each member thereof, individually, jointly and severally, hereby RELEASES
and DISCHARGES the Dunn Group and each member thereof, individually, jointly and
severally, and the Dunn Group's agents, attorneys, successors and assigns from
any and all claims, demands, suits and causes of action of any kind arising from
events occurring in whole or part prior to the Release Date, whether contingent
in whole or in part or fixed, accrued in whole or in part, or unaccrued, legal
or equitable, oral or written, known or unknown.
3. Exclusions.
(a) The parties acknowledge that this Reciprocal Release does not
release any claims that the Dunn Group may have or assert against Ira Saul or
George J. Mercuro, Jr. as tort-feasors or otherwise concerning their role in the
formation or operation of Glacier LLC, a Virginia limited liability company.
This Release also does not release any claims (if any exist) that the Dunn Group
may have or assert against Ira Saul or George J. Mercuro, Jr. as tort-feasors or
otherwise concerning any aspect of their activities as former employees or
officers of STMS (except
<PAGE>
that any and all claims against them relating to the formation or operation of
Mindshare Corporation are released, as provided above).
(b) The parties acknowledge that this Reciprocal Release shall not
affect the validity or enforceability of debts owned by Glacier to the Bergman
Group which were incurred prior to August 1, 1997, and all interest accruing
forward from such debt.
(c) The parties acknowledge that this Reciprocal Release shall not
affect the validity or enforceability of the representations, warranties,
covenants and obligations under the Stock Acquisition, Stock Option, Settlement,
and Reciprocal Release Agreement dated the date hereof among the parties hereto,
or the Dunn Computer Corporation Common Stock Option dated the date hereof.
4. Stipulated Amount. The parties agree and stipulate that the amount of the
Dunn Group's claims against Ira Saul or George Mercuro, Jr. relating to the
formation and operation of Glacier LLC or their activities as former employees
or officers of STMS shall be reduced by $250,000 as a result of this Release,
pursuant to Va. Code Section 8.01-35.1(A)(1). Dunn's offer to purchase the
Bergmans' Glacier Units shall be deemed to have been made at the offer price of
One Hundred Twenty Five Thousand Dollars ($125,000) solely for the purpose of
the first refusal right set forth in Section 12.02(b) of the Operating Agreement
of Glacier.
5. Law Governing. The laws of the Commonwealth of Virginia (except as to
conflicts of law) shall govern the validity, interpretation and enforcement of
this Reciprocal Release. The parties acknowledge that the parties concluded this
Reciprocal Release in Virginia, that part or all of the parties' performance
shall occur in Virginia, and that either the Federal District Court for the
Eastern District of Virginia, Alexandria Division, or the Circuit Court of
Fairfax County, Virginia shall have jurisdiction over any dispute directly or
indirectly related to any aspect of the parties' Reciprocal Release.
6. Amendments and Waivers. No amendment of this Reciprocal Release shall
bind the parties unless they sign a written document containing the
modification.
7. Severability. If a court of competent jurisdiction finds any provision of
this Reciprocal Release invalid or unenforceable, the court will enforce the
remaining provisions of this Reciprocal Release to the maximum extent permitted
by law. Further, if the court concludes that this Reciprocal Release has a
number of possible constructions, one of which would render this Reciprocal
Release void while the other interpretation would render the Reciprocal Release
enforceable, the parties intend the meaning that will render this Reciprocal
Release enforceable.
8. Construction. The parties have participated jointly in negotiating and
drafting this Reciprocal Release. If an ambiguity or question of intent or
interpretation arises, no presumption or burden of proof shall arise favoring or
disfavoring any party by virtue of the authorship of any of the provisions of
this Reciprocal Release.
<PAGE>
9. Headings. The headings in this Reciprocal Release appear only for
convenient reference and do not constitute a part of this Reciprocal Release.
10. Counterparts. The parties may execute this Reciprocal Release in one or
more counterparts, each of which constitutes an original copy and all of which
together shall comprise one agreement binding upon the parties.
IN WITNESS WHEREOF, the parties to this Reciprocal Release have caused this
Reciprocal Release to be duly executed and delivered as of the date above
written.
BARRY D. AND JACQUELINE L. BERGMAN
/s/ Barry D. Bergman 9/12/97
- ----------------------------------- (Seal)
Barry D. Bergman
/s/ Jacqueline L. Bergman
by: Barry Bergman
her attorney in fact 9/12/97
- ----------------------------------- (Seal)
Jacqueline L. Bergman
PRIMARY TELECOMMUNICATIONS, INC.
/s/ Barry D. Bergman 9/12/97
By:
- ----------------------------------- (Seal)
Title: President
DUNN COMPUTER CORPORATION
/s/ John Vazzana
By:
- ----------------------------------- (Seal)
Title: Executive VP
STMS, INC.
/s/ John Signorello
By:
- ----------------------------------- (Seal)
Title: CEO
JOHN SIGNORELLO
/s/ John Signorello
- ----------------------------------- (Seal)
TIMOTHY McNAMEE
/s/ Timothy McNamee
- ----------------------------------- (Seal)
<PAGE>
STEVE SALMON
/s/ Steve Salmon
- ----------------------------------- (Seal)
<PAGE>
Exhibit 99.3
SUPPLEMENTAL AGREEMENT
THIS SUPPLEMENTAL AGREEMENT ("Supplemental Agreement"), is made and entered into
as of the 26th day of March 1998 by and among Dunn Computer Corporation (the
"Company"), Barry D. Bergman and Jacqueline L. Bergman ("the Bergmans").
Whereas the Bergmans are owners of 50,000 shares of the Company's common stock,
which they acquired pursuant to the Stock Acquisition, Stock Option, Settlement
and Reciprocal Release Agreement (the "Agreement"), dated September 12, 1997;
Whereas the Bergmans are holders of a Dunn Computer Corporation Common Stock
Option dated September 12, 1997, under which the Company has granted the
Bergmans the option to purchase up to 25,000 shares of the Company's common
stock at an exercise price of $6.125 per share (the "Option");
Whereas the stock is not yet registered, and the Bergmans desire, at this time,
to Put both the Stock and the Options back to the Company at the price as
defined in the Agreement;
NOW THEREFORE, for good and valuable consideration, the parties agree as
follows:
(1) The Company agrees to pay the Bergmans a sum of $533,250.00 by wire transfer
to be paid on or before March 30, 1998, in payment for the Stock and Options now
held by the Bergmans. And, the Bergmans agree to surrender the Stock Certificate
and Options Agreement within seven days after receiving payment for same.
(2) The Company hereby grants the Bergmans a full and unconditional release for
any and all of the Bergmans actions relating to Glacier LLC, and the Company
releases and covenants not to sue the Bergmans, for any claim, liability,
action, or debt relating to the Bergmans' ownership, transfer, or other dealings
in Governance of Financial Units in Glacier LLC.
The backup calculations regarding the payment are as follows:
(A) Stock: 50,000 shares x $9.15 per share (average price last 30 days) -
$457,500.00
(B) Options on 25,000 shares at $6.125/share: Average Price - $9.15 $9.15 minus
$6.125 - $3.03 $3.03 x 25,000 - $75,750.00
Therefore amount due for both is $457,500.00 plus $75,750.00 - $533,250.00. - To
be wired to: Mellon Bank, Pittsburgh, PA; ABA#043000261; Merrill Lynch
a/c#101-1730 for further credit to 795-69145.
All other terms and conditions of the September 12, 1997 Agreement remain
unchanged and in force.
<PAGE>
In witness whereof, the parties hereto have executed this Supplemental Agreement
as of March 26, 1998.
Dunn Computer Corporation /s/ Jacqueline L. Bergman
by Barry Bergman
/s/ John Vazzana /s/ Barry D. Bergman her atty in fact
- ------------------- --------------------- --------------------------
By: John Vazzana Barry D. Bergman Jacqueline L. Bergman
Executive Vice President By: Barry D. Bergman
her attorney-in-fact
2
