**Exhibit 10.1**

** **
| ** ** | ***TEXT OMITTED AND FILED SEPARATELY**                           |
|------------|------------------------------------------------------------------|
| ** ** | **WITH THE SECURITIES AND EXCHANGE**                             |
| ** ** | **COMMISSION**                                                   |
| ** ** | **Pursuant to a Request for Confidential Treatment**             |
| ** ** | **Under 17 C.F.R. Section 200.80(B)(4), 200.83  and  240.24b-2** |

 

**ASSET PURCHASE AGREEMENT**

 

This **Asset Purchase Agreement**(herein referred to as the “*Agreement*”),dated the 12th day of April, 2006, is entered into by and between **Unitime Systems, Inc.**, a Delawarecorporation (“*Buyer*”), and **Time America, Inc.**, a Nevada corporation, (“*Seller*”).

 

**RECITALS**

 

Whereas, Seller desires to sell and deliverto Buyer the Assets (as hereinafter defined) which are owned, held and used bySeller in connection with the operation of Seller’s direct sales business (the “*Business*”); and

 

Whereas, Buyer desires to purchase the Assetson the terms and subject to the conditions set forth in this Agreement.

 

Now, therefore, in consideration of themutual covenants set forth herein and other good and valuable consideration,the receipt and sufficiency of which is hereby acknowledged, Seller and Buyerhereby agree as follows:

 

**1.****            ****DEFINITIONS**. For purposes of this Agreement,including any exhibits hereto, the following terms shall have the correspondingmeanings thereto:

 

(a)           “*Assets*”shall mean a copy of the Source Code, the ASP Customer Contracts, theMaintenance Contracts, and the Direct Sales Unit Pipeline of the Business (assuch terms are hereinafter defined).

 

(b)           “*ASPCustomer Contracts*” shall mean the NETtime ASP customer contractsgenerated through Seller’s direct sales channel and specifically identified inthe ASP Customer Contracts List attached hereto as Exhibit A.

 

(c)           “*DirectSales Unit Pipeline*” shall mean those potential customers identifiedin the Direct Sales Unit Pipeline List attached hereto as Exhibit B,which shall exclude potential customers that are in Buyer’s sales pipeline asof the Closing.

 

(d)           “*ExcludedAssets*” shall mean all property of Seller other than the Assets. Buyeragrees that Seller’s contracts with ARAMARK Corporation (“*ARAMARK*”) and any contracts Seller haswith ARAMARK’s clients are excluded from the Assets. Notwithstanding anythingin this Agreement to the contrary, all Excluded Assets shall be excluded fromthe scope of this Agreement and shall remain the property of Seller and notsubject to the terms and conditions set forth herein.

 

(e)           “*GeneralIntangibles*” shall mean the intangible personal property of allkinds used in connection with the operation of the Business and related to theAssets, including without

 

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limitation (i) alicense granted by Seller to Buyer to use the trademarks, service marks, andtrade names set forth on Exhibit C attached hereto, as necessary toconduct the Business after the Closing; (ii) the customer and transactiondatabases used by Seller in connection with the operation of the Business asmore particularly set forth on Exhibit C attached hereto; (iii) theaccount and customer records and other and intangible business records andfiles used by Seller in or generated with respect to customers in connectionwith the operation of the Business and the Assets; and (iv) the goodwill of theBusiness. Buyer shall have the right, but not the obligation, to use any ofsuch General Intangibles in connection with Buyer’s operation of the Businesssubsequent to the Closing.

 

(f)            “*Intellectual Property*”shall mean the intellectual property used in connection with the operation ofthe Business and related to the Assets, including without limitation allcopyrights and trade secret rights in the Source Code.

 

(g)           “*MaintenanceContracts*” shall mean those hardware and software maintenancecontracts generated through Seller’s direct sales channel and identified in theMaintenance Contracts List attached hereto as Exhibit D.

 

(h)           “*SourceCode*” shall mean a copy of the source code and all IntellectualProperty relating to Seller’s NETtime version 5 and version 6, HourTrack, andGENESIS time and attendance software products, including all interfaces andcommunications software used in connection with such products. Excluded fromthe Source Code are Seller’s right, title and interest in and to its J2EEversion of NETtime.

 

**2.****            ****PURCHASE AND SALE;CLOSING**.

 

**2.1****         ****Purchase and Sale ofAssets**. Subject to theterms and conditions set forth herein, Seller hereby agrees to sell, transferand assign to Buyer, and Buyer hereby agrees to purchase from Seller, theAssets in consideration of Buyer’s payment of the consideration set forth inSection 2.2 hereof.

 

**2.2****         ****Purchase Consideration**.

 

(a)           **Source Code**. Buyer will pay to Seller [*] in cashconsideration at Closing for a copy of the Source Code by wire transfer ofimmediately available funds to an account or accounts designated in writing bySeller. For a period of two years commencing after the Closing, Buyer agreesnot to enter into any agreements with a third party for the sale of Buyer’scopy of the Source Code purchased hereunder if the express purpose of the saleis the transfer of such Intellectual Property. In the event such a transactionoccurs during the two-year period, Buyer agrees to pay Seller an additional [*]in consideration by wire transfer of immediately available funds to account oraccounts designated in writing by Seller within three business days followingthe closing of such transaction. In the event that Buyer enters into a mergeror sale transaction involving all or substantially all of the business orassets of Buyer during such two-year period Buyer shall not be obligated to paySeller the [*] payment set forth in the preceding sentence.

 

Buyer willhave the right to modify and customize the GENESIS source code as part of itssupport obligations for those GENESIS customers assumed by Buyer and includedin

 

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Exhibit D.In addition, Buyer will have the right to sell GENESIS software licences tothose customers included in Exhibit D, and their affiliated companies. Anysales of GENESIS software licenses by Buyer to new customer prospects, exceptas identified above, must have the prior written consent from Seller.

 

(b)           **ASP Customer Contracts**. Buyer will pay Seller consideration inan amount equal to [*] times the annualized revenue of the ASP version 6 Customer Contracts. The annualized revenue foreach contract is included on Exhibit A attached hereto and determinedbased on the March 2006 revenue for each such contract. Buyer will pay 100% of the consideration for the ASP CustomerContracts at Closing. Buyer will have an option to purchase the Seller’s ASPversion 5 Customer Contracts over a period of 6 months from the date of closing.Buyer will pay Seller consideration in an amount equal to [*] times theannualized ASP version 5 contract revenues upon the successful conversion ofthe version 5 customers to the version 6 ASP product and transfer to the Buyer’sASP infrastructure, which purchase price shall be determined by reference tothe contract revenues for the full month preceding each such transfer. Selleragrees to cooperate in good faith with Buyer’s efforts to convert the version 5customers in a timely manner. Seller also agrees to provide Buyer with accessto Seller’s Server Advantage Performance data files for a period of 6 monthsfollowing the close of the transaction. Such data files will be made availableon a weekly basis via a mutually acceptable data transfer methodology.

 

(c)           **Maintenance Contracts**. Buyer will provide Seller with a onetime payment in the amount of [*] times the annualized revenue of theMaintenance Contracts included in Exhibit D attached hereto (“*Maintenance**Contract Purchase Value*”). Exhibit D shall consist ofthe following categories of Maintenance Contracts.

 

(i)            Exhibit D(i) contains maintenance customers withcontract end dates after March 31, 2006. Buyer assumes maintenanceresponsibility for these contracts at close and will be provided with any cashfrom renewal payments from these customers.

 

If after 60 days, any of the customers on this list have not paidSeller for an invoice prior to March 31, 2006, Seller will notify Buyer ofcustomer’s delinquency and such customer will be removed from Exhibit D(i)and the Q1 Earnout payment will be adjusted for their removal,described below, accordingly.

 

(ii)           Exhibit D(ii) contains maintenance customers withcontract end dates between January 1, 2006 and March 31, 2006 that are past dueon renewal and have not been sent an invoice by Seller. Buyer does not assumemaintenance responsibility for these contracts at close. Seller will its bestefforts to obtain renewal from these customers and will receive any cashreceived in the renewal. Seller will provide renewed contracts to Buyer atwhich time Buyer can accept the contract as an addition to Exhibit D(i) atwhich time Buyer will assume all customer maintenance obligations and paySeller an amount equal to [*]times the annualized maintenance contract value, 40% of which will be paid bythe 5th of the month following the inclusion of the contract and 60%payable upon the renewal of the maintenance contract. After 60 days, if Seller is not able to affect renewal of contracts in ExhibitD(ii), such contracts will be assigned to Buyer with no further obligationto Seller.

 

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Maintenance contracts that are due for renewal by January 1, 2006 buthave not been renewed as of March 31, 2006 (“*ExpiredContracts*”) will not be included in Exhibit D. Seller shalluse its best efforts to prepare this list and deliver it to Buyer within sixty(60) days of the closing, with no further obligation to Seller.

 

The annualized revenue and the Maintenance Contract Purchase Value foreach Maintenance Contract are included on Exhibit D(i) attached hereto. Buyerwill pay 40% of the total consideration for the Maintenance Contracts on ExhibitD(i) at Closing by wire transfer of immediately available funds to anaccount or accounts designated in writing by Seller, with the remainingconsideration (“*Earnout*”) due and payable uponthe receipt by Buyer of revenues for the renewal of the Maintenance Contractsincluded in Exhibit D(i).

 

Earnout Payments shall be made on a quarterly basis after Closingwithin 45 days after the end of each quarter calculated as 54% of renewalrevenues received by Buyer from Maintenance Contracts during such quarter. TheFinal Maintenance Contract Payment (“*Final Maintenance ContractPayment*”) will cover months 10-14 of the Contract Renewal Period (“*Contract Renewal Period*”), and be equal to an amount suchthat the total payment received by Seller over the 14-month Contract RenewalPeriod will be equal to [*] times the total renewal revenues received by theBuyer over the 14-month Contract Renewal Period from Maintenance Contracts. TheEarnout Payments shall be secured by a security interest in the MaintenanceContracts, subordinated if required by the bank to Buyer’s bank financing.

 

Accounts that are still in the implementation and/or training phase (ExhibitD(iii)) will not be added to the Maintenance Contracts list as included in ExhibitD(i) until the outstanding implementations and/or trainings are completed. UponSeller receiving full payment from the customer, Buyer may accept thesecustomers to be added to the Exhibit D(i) list, at which time Buyer willassume all customer maintenance obligations and pay Seller an amount equal to[*] times the annualized maintenance contract value, 40% of which will be paidby the 5th of the month following the inclusion of the contract and60% payable upon the renewal of the maintenance contract.

 

Any cash payments received by Seller with respect to MaintenanceContracts listed in Exhibit D(i) for maintenance commencing after April1, 2006 that are invoiced after March 31, 2006 will be transferred to Buyer bythe end of each month.

 

(d)           **Direct Sales UnitPipeline**. Any revenuesreceived by Buyer from customers on Exhibit B attached hereto (includingsales of Unitime products and services) within one year after Closing shallresult in the payment by Buyer to Seller of a royalty equal to [*] on suchrevenues. Such royalty payments will be made to Seller monthly within 30 daysafter the end of each month for cash paid on applicable revenues receivedduring such month. For six months after the Closing, Seller may add additionalleads (“*Subsequent Leads*”) to theDirect Sales Unit Pipeline List, and should those Subsequent Leads be acceptedby Buyer and are not already included in Buyer’s sales pipeline, Buyer agreesto pay Seller the [*] royalty payment on any revenues generated from thoseSubsequent Leads over the 12 months following their submission by Seller.

 

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**2.3****         ****Audit Rights**. Solely for purposes of verifying theamounts payable to Seller under Sections 2.2(c) and 2.2(d) above, Seller shallhave the right, during normal business hours, to audit the books and records ofBuyer relating to the Maintenance Contracts and the Direct Sales Unit Pipeline.Such audit shall be at the sole cost and expense of Seller, shall notunreasonably interfere with the operation of Buyer’s business, and shall beconducted no more than once every six calendar months.

 

**2.4****         ****Liens**. On or before Closing, Seller shallsatisfy in full and extinguish any liens, claims or encumbrances against theAssets, specifically including but not limited to those resulting from Seller’sexisting financing arrangements.

 

**2.5****         ****Closing**. The closing of the transactionscontemplated herein (the “*Closing*”)shall occur on April 12, 2006, subject to the conditions to Closing as setforth herein having been satisfied in full, or such other date as is mutuallyagreed upon in writing between Buyer and Seller, at the offices of the Buyer’scounsel or at such other location, date and time as may be agreed upon betweenBuyer and the Seller (such date and time being called the “*Closing Date*”). The parties hereby agreethat the Closing shall be deemed effective March 31, 2006.

 

**2.6****         ****Seller’s Deliveries atClosing**. At Closing,Seller shall deliver to Buyer the following:

 

(a)           A complete copy of the Source Code.

 

(b)           An assignment of all the other Assets toBuyer.

 

(c)           Releases of all liens or encumbrances onthe Assets.

 

(d)           Such other documents, instruments andcertificates as Buyer shall reasonably request.

 

**2.7****         ****Buyer’s Deliveries atClosing**. At Closing,Buyer shall deliver to Seller the Purchase Consideration and such otherdocuments, instruments and certificates, including without limitation,Secretary’s Certificates and Incumbency Certificates, as Seller shallreasonably request.

 

**3.****            ****CONDITIONS TO THEOBLIGATIONS OF THE BUYER**.The obligation of Buyer to consummate the transactions contemplated in thisAgreement is subject to the satisfaction (or waiver by Buyer) of the followingconditions precedent to be satisfied prior to or at the time of the Closing:

 

**3.1****         ****No Default**. The Seller shall not be in materialdefault under this Agreement, and there shall not exist any event orcircumstance which, with notice or lapse of time or both, would constitute sucha default.

 

**3.2****         ****Representations andWarranties**. Therepresentations and warranties of Seller contained in this Agreement shall havebeen true and correct on the date such representations and warranties weremade, and shall continue to be true and correct in all material respects at thetime of the Closing.

 

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**3.3****         ****Due Diligence.**Buyer’s determination and satisfaction,in its sole discretion, with the results of a due diligence investigation ofthe Assets and Business, including without limitation, any and all recordsrelated to the Assets. In particular, and not by way of limitation, Buyer mustbe satisfied that it will be able to retain key Seller personnel necessary forcontinuation of the Business after the Closing.

 

**3.4****         ****Seller’s Authority**. Seller shall have adopted resolutionsauthorizing Seller’s execution and delivery of this Agreement and theconsummation of the transactions contemplated herein and therein.

 

**3.5****         ****Seller’s Performance**. The Seller shall have performed allits pre-Closing covenants and agreements required to be performed by it as setforth herein prior to Closing.

 

**3.6****         ****Sublease**. Buyer and Seller shall have enteredinto a mutually acceptable sublease of a portion of Seller’s premises foroperation of the Business after Closing.

 

**3.7****         ****Customer Consents**. Seller agrees to provide all necessarycustomer consents to the transfer of the ASP Customer Contracts and theMaintenance Contracts prior to Closing.

 

**4.****            ****CONDITIONS TO THEOBLIGATIONS OF SELLER**. Theobligation of Seller to consummate the transactions contemplated by thisAgreement is subject to the satisfaction (or waiver by Seller) of the followingconditions precedent to be satisfied prior to or at the time of the Closing:

 

**4.1****         ****No Default**. Buyer shall not be in material defaultunder this Agreement, and there shall not exist any event or circumstancewhich, with notice or lapse of time or both, would constitute such a default.

 

**4.2****         ****Representation of Buyer**. The representations and warranties ofBuyer contained in this Agreement shall have been true and correct on the datesuch representations and warranties were made, and shall continue to be trueand correct in all material respects at the time of the Closing.

 

**4.3****         ****Buyer’s Authority**. Buyer’s Board of Directors shall haveadopted resolutions authorizing Buyer’s execution and delivery of thisAgreement and the consummation of the transactions contemplated herein andtherein.

 

**4.4****         ****Buyer’s Performance**. Buyer shall have performed all itspre-Closing covenants and agreements required to be performed by it as setforth herein prior to Closing.

 

**5.****            ****PRE-CLOSING COVENANTSOF SELLER**. Prior to theClosing, except as otherwise directed by Buyer in writing, Seller shall:

 

(a)           Continue to operate the Business in theordinary and usual course of business and use its best efforts to keep in fullforce and effect all material rights and preserve the current businessrelationships relating or pertaining to the Business; provided, however, thatSeller shall not enter into any new agreements, contracts or otherarrangements, or otherwise amend, modify or terminate any existing agreements,contracts or other arrangements, with any suppliers or

 

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customers of theBusiness without Buyer’s prior written consent, which consent shall not beunreasonably conditioned, withheld or delayed.

 

(b)           Seller shall pay all salaries, wages,payroll taxes, benefits, vacation pay, all other fringe benefit costs, and allother costs of every nature whatsoever due or accrued at or prior to Closing toor for the benefit of its employees, contractors and agents listed on Schedule5(b), and Seller hereby acknowledges and agrees that Buyer shall assume noresponsibility for any of the foregoing. Effective as of the Closing Date,Seller shall terminate the employment of the employees listed on Schedule5(b), and any existing relationships with contractors and agents relatingspecifically to the Business and will cooperate and use commercially reasonableefforts to assist Buyer in consummating an employment or independent contractorrelationship with such individuals as Buyer and Seller may mutually agree.

 

(c)           Seller shall pay each and every one ofits accounts payable and other liabilities relating to the Business in theordinary course of business consistent with past practice.

 

(d)           Seller shall promptly file all taxreturns and pay all federal, state and local tax assessments and governmentalcharges that are or may be lawfully levied or assessed against Seller, theBusiness or the Assets that are due on or prior to the Closing Date, includingwithout limitation, ad valorem, sales, use, excise, franchise, income andpersonal property taxes.

 

(e)           Seller shall maintain the Assets incustomary repair, order and condition, ordinary wear and tear excepted,maintain all existing insurance coverages applicable to the Assets through theClosing Date, and, in the event of a casualty, loss or damage to any of theAssets prior to the Closing Date, either repair or replace the same or, ifapplicable, at Buyer’s option, transfer the proceeds of any insurance coveragepayable in connection with such casualty, loss or damage to Buyer as of theClosing. Seller shall be responsible for all risk of loss prior to the ClosingDate.

 

(f)            Seller shall maintain the books,accounts and records relating to the Business through the Closing Date insubstantially the same manner as and on a basis consistent with the manner inwhich such figures have been maintained prior to the date hereof.

 

(g)           Seller shall duly comply in all materialrespects with all applicable laws, regulations and rules applicable to it andthe Business.

 

(h)           Seller shall promptly deliver to Buyerwritten notice in the event any of the information set forth in the Schedulesor Exhibits attached hereto shall no longer be true and correct.

 

(i)            Unless and until this Agreement isterminated by either party in accordance with the terms and conditions setforth in Section 10 below, Seller shall not (and shall instruct its officers,agents, representatives and affiliates not to) take or cause, directly orindirectly, any of the following actions with any person other than Buyer andits designees or agents: (i) solicit, encourage, initiate or participate in anynegotiations, inquiries or discussions with respect to any offer or proposal toacquire all or any substantial part of the Assets or the Business (“*Acquisition**Transaction*”); (ii) disclose any information not customarilydisclosed to any person concerning the Assets or the Business, except in theordinary course of business consistent with past practice

 

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and as may be requiredin connection with any official governmental request for information; (iii)enter into or execute any agreement relating to an Acquisition Transaction, orother agreement calling for the sale, directly or indirectly, of all or anysignificant part of the Assets or the Business; or (iv) make or authorize anypublic statement, recommendation or solicitation with respect to anyAcquisition Transaction other than with respect to the transactionscontemplated hereby.

 

**6.****            ****MUTUAL REPRESENTATIONSAND WARRANTIES OF THE PARTIES**. Seller and Buyer each hereby represent and warrant to the other that:

 

**6.1****         ****Organization andAuthority**. The partymaking such representation and warranty is duly organized and existing and ingood standing under the laws of the jurisdiction of its incorporation, and hasthe power and authority to enter into and perform its obligations under thisAgreement and the documents related hereto (collectively, the “*Transaction Documents*”).

 

**6.2****         ****Enforceable Obligations**. The person executing and deliveringthe Transaction Documents on behalf of such party is duly authorized to makesuch execution and delivery and, upon the execution and delivery hereof, theTransaction Documents will constitute valid obligations binding upon andenforceable against the party so representing and warranting in accordance withits terms, subject to applicable bankruptcy, insolvency, reorganization,moratorium, fraudulent transfer or other similar laws now or hereafter ineffect, and as such enforceability may be limited by general principles ofequity (whether considered in a suit at law or in equity).

 

**6.3****         ****No Conflicts**. Neither the execution and delivery ofthe Transaction Documents nor the due performance of the obligations set forththerein will result in any breach of or constitute any default under theorganizational documents of the party making such representation or warranty,or under any agreement to which such party is bound or by which any interest ofsuch party is affected or will violate any statute, law, regulation, orjudicial order or decree binding on or applicable to such party.

 

**6.4****         ****No Litigation**. There are no suits or proceedingspending or, to the knowledge of the party making such representation andwarranty, threatened in any court or before any regulatory commission, board orother administrative agency against or affecting such party which, if adverselydetermined, would have a material adverse effect on the ability of such partyto fulfill its obligations hereunder.

 

**7.****            ****REPRESENTATIONS ANDWARRANTIES OF SELLER**. Sellerhereby represents and warrants to Buyer as of the date hereof and again as ofthe Closing Date:

 

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**7.1****         ****Absence of CertainChanges**. Since January1, 2006, Seller, the Business and the Assets have not:

 

(a)           incurred any obligations or liabilitiesexcept current liabilities related to the Business in the ordinary course ofbusiness and consistent with past practice, none of which obligations orliabilities are being assumed by Buyer;

 

(b)           cancelled or waived any claim of rightof substantial value or sold, assigned, transferred or encumbered any of itsproperties or assets, except for fair consideration and in the ordinary courseof business and consistent with past practice;

 

(c)           granted any increase in compensation,rate of compensation or commission payable or to become payable, or made anyloan, advance or other extension of credit to any employees, contractors oragents of the Business;

 

(d)           materially changed any methods ofoperations or practices of the Business;

 

(e)           suffered any material damage,destruction or loss (whether or not covered by insurance) materially andadversely affecting the Assets or the operations of the Business;

 

(f)            lost any material or key employees ofthe Business;

 

(g)           agreed either in writing or otherwise toany material amendment, modification or termination of any contracts withcustomers, service providers or other third parties relating to the Business;

 

(h)           been advised of the termination of itsrelationship with any material customer listed on the ASP Customer ContractList or the Maintenance Contract List;

 

(i)            changed in any material respect thebusiness policies or practices of Seller or failed to operate the Business ingood faith and in the ordinary course.

 

**7.2****         ****Title to Assets**. Seller owns good and marketable title,free and clear of all liens and encumbrances, to all of the Assets (includingthe Intellectual Property, except for liens for taxes for the current yearwhich are not yet due and payable). The Assets constitute all of the materialassets used by Seller in the Business.

 

**7.3****         ****Taxes**. All taxes, duties and assessmentspayable or incurred by Seller prior to the Closing Date which might result in alien or encumbrance upon any of the Assets have been timely paid by Seller; allstate and local tax returns and tax reports required to be filed as of theClosing by or with respect to Seller and relating to the Assets have been dulyfiled.

 

**7.4****         ****Employee Matters.**All of Seller’s employees that will beemployed by Buyer subsequent to the Closing are subject to “at will” employmentrelationships, and there are no continuing contracts or employment with anyemployees of Seller. Seller has complied with all applicable laws relative toemployee benefits, including COBRA and ERISA, and there are no unfundedliabilities relating to any pension or welfare benefit plan for which Sellercould be liable. There is no existing dispute or controversy between Seller andany Employee that would

 

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be affected by the saleand purchase of the Assets. Seller does not maintain or contribute to and hasnever maintained or contributed to, any employee benefit plan (as defined inERISA) that is either an employee pension benefit plan (as defined in ERISA) oran employee welfare benefit plan (as defined in ERISA).

 

**7.5****         ****Intellectual Property.**Seller has solely developed theIntellectual Property or has contracted for the development of the same on a “workfor hire” basis such that no third parties have any valid claims to any right,title or interest in or to any of the Intellectual Property. The softwarecomprising the Intellectual Property performs in accordance with itsspecifications and is free from any material bugs, errors and defects. To ourknowledge, Seller has taken all necessary and desirable action to obtain,perfect and maintain Seller’s right, title and interest in and to theIntellectual Property. Seller has not interfered with, infringed upon,misappropriated or otherwise come into conflict with any intellectual propertyrights of any third parties. In particular, and not by way of limitation, theSource Code does not infringe any intellectual property rights of any thirdparties. Seller has not received any notice, complaint, demand, claims orcharges in connection with any such interference, infringement,misappropriation or other violation of the intellectual property rights of athird party. No third parties have interfered with, infringed upon,misappropriated or otherwise come into conflict with Seller’s rights, title andinterest in and to the Intellectual Property. Seller is not a party to anylicenses, sublicenses or other agreements related to or used in connection withthe Intellectual Property, other than such customer licenses as are beingtransferred to Buyer.

 

**7.6****         ****Licenses; Permits**. Seller has all necessary licenses,permits and authorizations for the conduct of the Business and Seller is notaware of any circumstances that indicate that any of such licenses, permits orauthorizations are likely to be revoked or not renewed in the ordinary course.

 

**7.7****         ****Litigation**. There are no actions, suits,proceedings, orders or investigations pending or, to Seller’s knowledge,threatened, against or affecting Seller relating to the Assets.

 

**7.8****         ****Brokerage**. There are no claims for brokeragecommissions, finders’ fees or similar compensation in connection with thetransactions contemplated by this Agreement based on any arrangement oragreement made by or on behalf of Seller.

 

**7.9****         ****Absence of UndisclosedLiabilities**. As of theClosing, Seller will not have any obligations or liabilities arising out oftransactions entered into at or prior to the Closing, which will adverselyaffect Buyer’s ownership and use of the Assets.

 

**7.10****       ****Compliance with Laws**. To Seller’s knowledge, Seller is notin violation of any applicable law, rule, regulation, order or restriction ofany domestic or foreign government or any instrumentality or agency thereofapplicable to the operation of the Business or the ownership of the Assetswhich violation would have a material adverse affect on the Buyer’s operationof the Business or ownership or use of the Assets. No governmental orders,permissions, consents, approvals or authorizations are required to be obtainedand no registrations or declarations are required to be filed in connectionwith the execution and delivery of the Transaction Documents.

 

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**7.11****       ****Contracts**. Except as set forth on Schedule7.11, Seller has fully performed all of its obligations relating to the ASPCustomer Contracts and the Maintenance Contracts, and is not in default underany of such contracts. All such contracts are in full force and effect and areaccurately described on the exhibits to this Agreement, and Seller hasdelivered true and correct copies of all such contracts and all invoicedocumentation to Buyer.

 

**8.****            ****POST-CLOSING COVENANTS**.

 

**8.1****         ****Contracts**. Buyer shall assume and duly performSeller’s post-Closing performance obligations with respect to all the ASPCustomer Contracts and the Maintenance Contracts; provided, however, that Buyershall not assume or agree to pay, discharge, or perform any liabilities orobligations arising out of any breach by Seller of any such contract arisingprior to the Closing.

 

**8.2****         ****Source Code Maintenanceand Upgrades**. Selleragrees to supply Buyer, without additional consideration, with all NETtime,HourTrack, and GENESIS product upgrades, patches, bug fixes and other productchanges developed by Seller for the NETtime and HourTrack products in Seller’sordinary course of business for a period of one year after Closing. Inparticular, and not by way of limitation, Seller shall provide Buyer with thethen-current version of the source code of such products on a monthly basisduring such one year period, and will also allow Buyer access to the Seller’sGemini system for tracking and monitoring software development and upgrades. Afterone year, Buyer will have the option of subscribing to future NETtime andHourTrack product upgrades and enhancements for an annualized cost of $80,000per year. Notwithstanding the foregoing, if Seller elects at any time after theinitial one-year period to terminate the development of such product upgradesand enhancements, Seller shall have no further obligation to Buyer with respectto the same. Such payments will be made on a quarterly basis and Buyer willprovide Seller with 60 days notice if Buyer does not intend to continue tosubscribe to the upgrade services. The Software delivered by Seller pursuant tothis section will perform in accordance with its specifications and be freefrom all material bugs, errors, and defects.

 

**8.3****         ****Software License**. Seller hereby grants to Buyer,effective as of the Closing, a nonexclusive, fully paid up perpetual license touse, modify, incorporate in other products, and distribute the NETtime,HourTrack, and GENESIS products, subject only to the restrictions set forth inthis Agreement.

 

**8.4****         ****Nonsolicitation**. Seller will be prohibited fromsoliciting or providing further products or services for customers on the ASPContracts Lists or the Maintenance Contracts List for a period of two yearsafter Closing, without the prior written consent of Buyer. Buyer shall refrainfrom soliciting or providing products and services to ARAMARK or its clientsfor a period of two years after Closing, without the prior written consent ofSeller. In the event of breach or threatened breach of this Section 8.4, thenondefaulting party shall be entitled to specific performance and/or injunctiverelief against the defaulting party, in addition to any other remediesavailable at law or in equity.

 

**8.5****         ****Obligations**. Buyer is specifically not assuming anyobligations of Seller, including those obligations of the Business arisingprior to the Closing. Seller shall be fully

 

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responsible for andshall satisfy all such obligations, and shall hold Buyer, Buyer’s consultant,Hereford Capital Advisors, and employees harmless from any loss, liability orclaim, including reasonable attorney’s fees and costs incurred by Buyer inconnection with any such claim, relating to any obligations of the Businessprior to the Closing. Buyer shall be fully responsible for and shall satisfyall obligations of the Business arising after the Closing, and shall holdSeller and Seller’s employees harmless from any loss, liability or claim,including reasonable attorney’s fees and costs incurred by Seller in connectionwith any such claim, relating to any obligations of the Business after theClosing.

 

**9.****            ****DEFAULT; REMEDIES**.

 

**9.1****         ****Events of Default**. For purposes of this Agreement, theterm “*Default*” shall include anyof the following:

 

(a)           In the event that any party shall havefailed to perform or observe any other obligation, covenant or agreement setforth in the Transaction Documents and such failure continues for a period often (10) days after the date of written notice thereof from the other party;

 

(b)           If any representation or warranty madeherein or in any report, certificate, opinion, financial statement or otherdocument or statement delivered pursuant to the Transaction Documents, shallprove to have been false or misleading in any material respect as of the dateon which the same was made;

 

(c)           In the event either party shall be indefault under any other agreement between Seller and Buyer and such default hasnot been cured within any applicable cure period related thereto;

 

(d)           A material adverse change in thefinancial condition of Seller or the Business has occurred which, in Buyer’sreasonable judgment, will have an adverse effect on Seller’s ability to performits obligations as set forth in the Transaction Documents.

 

**9.2****         ****Remedies**. If any Default shall occur and becontinuing, the non-defaulting party may, at its option, (a) terminate thisAgreement and any other agreement between Seller and Buyer; (b) enforcespecific performance of any of the Transaction Documents; (c) exercise anyoneor more of the rights and remedies granted to the non-defaulting party by law,in equity or under this Agreement; and (d) collect from the defaulting partyall reasonable expenses, including legal fees and recordation fees, incurred bythe non-defaulting party in connection with its enforcement of any of itsrights and remedies set forth herein. All rights and remedies of thenon-defaulting party hereunder shall be cumulative and non-exclusive of anyrights or remedies which the non-defaulting party may have under any otheragreement, by operation of law, or otherwise. No failure to exercise and nodelay in exercising, on the part of the non-defaulting party, any right,remedy, power or privilege hereunder, shall operate as a waiver thereof; norshall any single or partial exercise of any right, remedy, power or privilegehereunder preclude any other or further exercise thereof or the exercise of anyother right, remedy, power or privilege.

 

**10.****         ****TERMINATION**. This Agreement may be terminated atany time prior to the Closing:

 

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(a)           By the mutual written consent of Sellerand Buyer;

 

(b)           By Buyer in accordance with the termsand conditions set forth in Section 3 above;

 

(c)           By Seller in accordance with the termsand conditions set forth in Section 4 above

 

(d)           By either Seller or Buyer upon theoccurrence of a Default as more particularly set forth in Section 9.1 above onthe part of the other party.

 

**11.****         ****INDEMNIFICATION**.

 

**11.1****       ****Survival ofRepresentations, and Covenant**. All of Seller’s representations, and covenants contained herein andin any documents delivered pursuant to this Agreement and the TransactionDocuments shall survive the Closing for a period of one (1) year.

 

**11.2****       ****Indemnification bySeller**. Seller agreesto indemnify and hold harmless Buyer, its employees, officers, directors,shareholders, managers, advisors and partners from and against any loss,liability, damage or expense (including reasonable legal fees and out-of-pocketcosts) that Buyer may suffer, sustain, or become subject to as a result of orin connection with (a) the breach by Seller of any representation, covenant oragreement set forth in the Transaction Documents; (b) any claim brought againstBuyer arising from or related to operation of the Business by Seller whichaccrued on or prior to the Closing Date; (c) the ownership, maintenance oroperation of the Assets on or prior to the Closing Date; and (d) any payroll,withholding and other employment tax liabilities and other liabilities relatedto employee benefits related to or arising from the Business of the Sellerprior to the Closing Date. The indemnification granted by Seller to Buyerhereunder shall apply to any claim by Buyer against Seller under thisAgreement, whether such claim is styled as one in contract or tort, in law or inequity.

 

**11.3****       ****Indemnification byBuyer**. Buyer agrees toindemnify and hold harmless Seller from and against any loss, liability, damageor expense (including reasonable legal fees and out-of-pocket costs) thatSeller may suffer, sustain or become subject to as a result of or in connectionwith (a) the breach by Buyer of any representation, warranty, covenant oragreement of Buyer set forth in the Transaction Documents; (b) any claimbrought against Seller arising from or related to Buyer’s operation of theBusiness after the Closing Date; and (c) the ownership, maintenance oroperation of the Assets after the Closing Date. The indemnification granted byBuyer to Seller hereunder shall apply to any claim by Seller against Buyerunder this Agreement, whether such claim is styled as one in contract or tort,in law or in equity.

 

**11.4****       ****Defense; Settlement**. The indemnified party shall deliver tothe indemnifying party prompt notice of any claims of third parties thatrequire indemnification hereunder. The indemnifying party shall have the rightto assume the good faith defense, compromise or settlement of any such claim(without prejudice to the right of the indemnified party to participate in suchdefense) at its own expense through attorneys reasonably acceptable to theindemnified party, but may not, without the prior written consent of theindemnified party, agree or consent to (a) any injunctive relief orrestrictions affecting the indemnified party; or (b) any settlement that wouldadversely affect the business or operations of the indemnified party. If the

 

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indemnifying party doesnot elect to defend such claim or suit within ten days after having receivednotice thereof or fails to prosecute its defense diligently, the indemnifiedparty may in its sole discretion defend against such claim or suit at theindemnifying party’s expense. The indemnified party may thereafter elect tosettle such claim or suit or otherwise enter into a compromise with theclaimant.

 

**12.****         ****MISCELLANEOUS**.

 

**12.1****       ****Confidentiality.**(a) The parties hereby agree that forthe purposes of the Transaction Documents, “*ConfidentialInformation*” shall mean and include all information provided by oneparty (the “*Disclosing Party*”) tothe other (the “*Receiving Party*”),whether in writing or otherwise embodied in a tangible medium of expression,including any electronic, optical, or digitally-stored information, and deemedproprietary or confidential by the Disclosing Party. Any ConfidentialInformation delivered pursuant to this Agreement is provided solely to assistthe Receiving Party in evaluating whether to consummate the transactionscontemplated in the Transaction Documents, in evaluating whether the conditionsprecedent set forth herein have been satisfied and in the performance of itsobligations hereunder or thereunder, as applicable; and such ConfidentialInformation shall not be used for any other purpose. Each party shall maintainall Confidential Information with at least the same degree of care that it usesto protect its own confidential information, provided that in no event shall ituse less than reasonable care.

 

(b)           The parties to this Agreement agree thatthe specific terms of the Transaction Documents constitute ConfidentialInformation and shall be held confidential in accordance with the terms ofSection 12.1, except that either party may disclose the existence of theTransaction Documents and the general nature of the transactions contemplatedherein and make such other disclosures as is required by law.

 

(c)           Notwithstanding the foregoing, thisAgreement shall not be interpreted to prevent the use or disclosure ofConfidential Information that (i) is required to be disclosed pursuant to acourt order, a valid administrative agency subpoena, or a lawful request forinformation by an administrative agency so long as the Receiving Party shall(to the extent lawful) give the Disclosing Party prompt notice of any suchcourt order, subpoena, or request for information; (ii) becomes a part of thepublic domain other than by a breach of an obligation of confidentiality; (iii)is rightfully received from a third party not obligated to hold suchConfidential Information confidential; (iv) is disclosed to the Receiving Party’slegal counsel or financial advisors; or (v) is disclosed by Buyer to any thirdparty in connection with any prospective financing of its acquisition of theAssets, provided such parties are informed of the confidentiality obligationsunder this Agreement and agree to be bound by the same.

 

**12.2****       ****Further Assurances**. The parties agree to perform acts andto execute and deliver any further documents as may be reasonably necessary tocarry out the intent and provisions of this Agreement.

 

**12.3****       ****Successors and Assigns**. This Agreement and all of theprovisions hereof will be binding upon and inure to the benefit of the partieshereto and their respective successors and permitted assigns. Neither thisAgreement nor any of the rights, interests or obligations hereunder may beassigned by either party without the prior written consent of the other party.

 

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**12.4****       ****Notices**. All notices to be delivered inconnection with this Agreement shall be in writing and shall be deemed to havebeen given when personally delivered, sent by overnight delivery service,mailed by first class mail, return receipt requested, or delivered byfacsimile, when transmitted and the appropriate confirmation of delivery isreceived. Notices, demands and communications shall, unless another address isspecified in writing, be sent to the addresses for the parties as set forthabove.

 

**12.5****       ****Entire Agreement;Severability; Amendments**.This Agreement, including the Transaction Documents, constitutes the entireunderstanding or agreement between the parties, and there is no understandingor agreement, oral or written, which is not set forth herein or therein. In theevent any provision of the Transaction Documents shall be prohibited orunenforceable in any jurisdiction, it shall, as to such jurisdiction, be deemedmodified to conform to the minimum requirements of such law, or if for anyreason it is not deemed so modified, it shall be ineffective only to the extentof such prohibition or unenforceability without affecting the remainingprovisions hereof, and any such prohibition or unenforceability shall not invalidateor render unenforceable such provision in any other jurisdiction. ThisAgreement may not be amended, modified, or changed, nor shall any waiver of anyprovision of this Agreement be effective, except by written instrument signedby the party against whom enforcement of such amendment, modification, orwaiver is sought.

 

**12.6****       ****Governing Law; Venue;Jurisdiction.**Thevalidity and interpretation of this Agreement shall be governed by the laws ofthe State of Colorado. The parties agree that any action or proceedingcommenced under or with respect to this Agreement shall be brought only in thecounty or district courts of Boulder County, Colorado, and the partiesirrevocably consent to the jurisdiction of such courts and waive any right toalter or change venue, including by removal.

 

**12.7****       ****Legal Expenses**. Each party shall be responsible forits own costs and expenses (including legal fees) in connection with thenegotiation, preparation and execution of this Agreement. In the event eitherparty institutes any legal action to enforce or construe any provision of thisAgreement (including in any arbitration or mediation), the non-prevailing partyshall pay to the prevailing party the reasonable costs and expenses (includinglegal fees) incurred by such prevailing party in connection therewith.

 

**12.8****       ****Counterparts**. This Agreement may be executed in anynumber of counterparts, each of which when so executed shall be deemed to be anoriginal and all of which taken together shall constitute one and the same agreement.

 

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IN WITNESS WHEREOF, the parties have executed this Agreement to beeffective as of the date first above written.

 
| Buyer:                    | Seller:                |
|---------------------------|------------------------|
| **UNITIME SYSTEMS, INC.** | **TIME AMERICA, INC.** |
|                      |                   |
| By:                       |                   |   | By: |   |   |
|                      |                   |   |   |   |   |
| Name:                     |                   |   | Name: |   |   |
|                      |                   |   |   |   |   |
| Title                     |                   |   | Title: |   |   |
|                           |                        |  |  |  |  |  |  |  |  |

 

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**EXHIBIT A**

 

**ASP ASSUMED CONTRACTS LIST**

 

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**EXHIBIT B**

 

**DIRECT SALES UNIT PIPELINE LIST**

 

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**EXHIBIT C**

 

**GENERAL INTANGIBLES**

 

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**EXHIBIT D**

 

**MAINTENANCE CONTRACTS LIST**

 

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**SCHEDULE 5(b)**

 

**EMPLOYEES**

 

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**SCHEDULE 7.11**

 

**CONTRACTS**

 

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