EXHIBIT 10.1
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ASSET PURCHASE AGREEMENT
This ASSET PURCHASE AGREEMENT is made as of July 28, 2000, by and
among Anchor Tiedown Systems, Inc., a Washington corporation ("Seller"),
and Xxxxx X. Xxxxx, Xxxxxx X. Xxxxxxxxxx, Xxxxxxx X. Xxxxxx and Xxxxxx X.
Xxxxx and Xxxxx X. Xxxxx, husband and wife (the "Shareholders"), on the
one hand, and Xxxxxxx Strong-Tie Company Inc., a California corporation
("Buyer"), on the other hand, with reference to the following facts:
Seller is engaged in the business principally of developing, designing,
manufacturing, marketing, distributing and selling non-wooden
structural assemblies used in building construction. Buyer is engaged in
the business principally of developing, designing, manufacturing,
marketing, distributing and selling connectors, fasteners and other
products used in the construction industry. Seller desires to sell to
Buyer and Buyer desires to purchase from Seller substantially all of the
assets of Seller (the "Assets"), as a going concern, although Seller will
continue to be liable, and Buyer will not assume or otherwise have any
liability, for any of the debts or obligations of Seller (except for
obligations accruing under certain contracts after their assignment to
Buyer hereunder).
NOW, THEREFORE, in consideration of the premises and the mutual
covenants and agreements herein, Buyer, Seller and the Shareholders agree
as follows:
1. Purchase and Sale. Subject to and in reliance on the respective
representations, warranties and agreements of Seller, the Shareholders and
Buyer and subject to the terms and conditions provided in this Agreement:
1.1 Assets. At the closing on the Closing Date (as that term is
defined in section 2.5), Buyer shall purchase from Seller and Seller shall
sell to Buyer all of the Assets, as follows:
1.1.1 Equipment and Furnishings. All apparatus, equipment,
appliances, machines and machinery, devices, furniture, furnishings, tools,
cloth and synthetic material goods, fuel, spare parts and supplies
(collectively, the "Equipment");
1.1.2 Inventory. All inventory, whether held for sale or
held for demonstration or as samples ("Inventory");
1.1.3 Intangible Property. All intangible property
("Intangible Property"), including, without limitation,
(a) all right, title and interest of Seller in, to
and under all leases, contracts and contract rights (including,
without limitation, all licenses and license agreements) to which
Seller is a party or which are for the benefit of Seller, and which
are listed in Schedule 1.1.3(a) attached hereto (the "Assigned
Contracts"); provided that Buyer shall not purchase or acquire any
interest in, and the Assigned Contracts do not include, any automobile
leases or any other contract or agreement that is not listed on
Schedule 1.1.3(a);
(b) all permits, authorizations and licenses, if any,
applicable to Seller or its business and assignable by Seller (whether
or not subject to the consent or approval of any third party),
including, without limitation, all findings, reports and approvals of
the International Conference of Building Officials ("ICBO"), the ICBO
Evaluation Service, Inc. or any other code approval agency
(collectively, the "Code Approvals"), all of such Code Approvals being
listed and described in Schedule 1.1.3(b) attached hereto;
(c) all secret inventions, letters patent, patent
applications, trade secrets, know-how and other intellectual property,
including, without limitation, the patents and patent applications
listed and described on Schedule 5.1.13 attached hereto (the "Patent
Rights");
(d) all confidential or proprietary information,
documents, matter or materials, trade secrets, customer lists and
information, know-how, technologies, algorithms and other intellectual
property related to or useful in connection with any or all of the
Assigned Contracts, the Code Approvals and the Patent Rights or any
development, design, making, use, marketing, distribution or sales of
products based thereon or other commercialization thereof
(collectively, the "Trade Secrets"), which may consist of, among other
things, ideas; designs; equipment; devices; patterns; electronically
recordable data or concepts; computer programs, software and hardware;
software and hardware enhancements, modifications and improvements;
secret inventions; processes; compilations of information; books;
papers; records and specifications; operating practices and related
data; and
(e) all copyrights, trademarks, service marks, trade
names (including, without limitation, all right, title and interest in
and to the trademark "MBR System," the trademarks and trade names
"Anchor Tiedown Systems" and "ATS," applications for the registration
thereof, registrations thereof, and the goodwill associated therewith;
(f) all judgments, orders, decrees, files, books,
records, financial statements, tax returns, correspondence,
instruments, plans, projections, data, information and documents of or
relating to the Assets or Seller's business;
(g) all other accounts (including, without
limitation, accounts and notes receivable, except as set forth in
Sections 1.1.5 and 4.26), chattel paper, contract rights and general
intangibles; and
(h) all rights and obligations of Seller as a party
to the litigation entitled Anchor Tiedown Systems, Inc. v. InQuest
Engineering, LLC, et. al., filed in the United States District Court
for the Western District of Washington under Civil Action No. C98-845 P.
(i) all goodwill;
1.1.4 After-Acquired Assets. All property used or useful in
Seller's business and acquired by Seller after the date hereof; and
1.1.5 Excluded Assets. Notwithstanding any of the foregoing
provisions of this section 1.1, the Assets do not include, and Buyer shall
not purchase from Seller, (a) any prepaid deposits or expenses of Seller,
(b) any cash, certificates of deposit, bank accounts, brokerages accounts,
money market or similar accounts, (c) the lease for the real property
located at 000 X XX 000xx, Xxxxxx, Xxxxxxxxxx, and all of Seller's
furniture (excluding the filing cabinets) or office equipment located at
such property, (d) the leases for the real property located at 0000
Xxxxxxxxxx Xxxxxx, Xxxx X and Unit O, Concord, California, (e) the personal
drafting table owned by Xxxxxx X. Xxxxxxxxxx located at Seller's office in
Mill Valley, California, (f) the lease for the real property located at 000
Xxxxxx Xxxx, Xxxx Xxxxxx, Xxxxxxxxxx and all of Seller's furniture
(excluding the filing cabinets) or office equipment located at such
property, (g) any automobile or lease thereof, (h) the accounts receivable
outstanding for more than ninety days as of the Closing Date, (i) the
promissory notes dated January 1, 1996, executed by Xxxxxx X. Xxxxxxxxxx in
favor of Seller (j) the promissory note dated January 1, 2000, executed by
Xxxxxxx X. Xxxxxx in favor of Seller, or (k) the promissory note dated
January 1, 2000, executed by Xxxxxx X. Xxxxxxxxxx in favor of Seller. Such
assets (the "Excluded Assets") shall be retained by Seller.
1.2 No Assumption of Liabilities. Anything herein to the
contrary notwithstanding, the parties intend and agree that Buyer shall not
under any circumstances assume or become liable for or obligated to pay or
discharge any debt, duty, obligation or liability of Seller, and Seller
shall pay and discharge all of the same as they become due; provided that
Buyer shall assume and pay or discharge when due all debts, duties,
obligations and liabilities of Seller accruing after the closing hereunder
under all Assigned Contracts that are duly and validly assigned to Buyer on
the Closing Date.
2. Payment and Delivery. Subject to and in reliance on the
respective representations, warranties and agreements of Buyer, Seller and
the Shareholders and subject to the terms and conditions provided in this
Agreement:
2.1 Purchase Price. The purchase price of the Assets (the
"Purchase Price") shall be $4,300,000, which shall be paid to Seller, as
provided below in this section 2, subject to the following adjustments:
(a) The amount by which the Closing Date Receivables
(as defined herein) exceed $465,000 shall be added to the Purchase Price or
the amount by which $465,000 exceeds the Closing Date Receivables shall be
subtracted from the Purchase Price. "Closing Date Receivables" means the
accounts receivable of Seller and Inventory value determined in accordance
with Generally Accepted Accounting Principles ("GAAP") as of the Closing
Date. For purposes of valuing such accounts receivable, accounts
receivable outstanding (i) ninety days or less as of the applicable date
will be valued at 100% of their face value, and (ii) more than ninety days
as of the Closing Date will be valued at zero.
(b) $317,215 shall be deducted from the Purchase Price
and paid to the account of Xxxxxxx X. Xxxxxx ("X. Xxxxxx") as payment of
all the remaining obligations of Seller pursuant to the Stock Redemption
and Separation Agreement dated July 31, 1999, between Seller and X. Xxxxxx.
2.2 Payment at Closing. On the Closing Date, Buyer shall pay the
Purchase Price to Seller by check or wire transfer in accordance with such
written instructions as Seller may furnish to Buyer at least three business
days prior to the Closing Date.
2.3 Delivery of Certain Assets. At the closing on the Closing
Date, Seller shall deliver to Buyer (a) originals or true and complete
copies of all Assigned Contracts, all Code Approvals and all Patent Rights,
(b) all warranties or guaranties received by Seller from any contractors,
subcontractors, suppliers or materialmen in connection with Seller's
business, (c) originals or true and complete copies of all building permits
and certificates of occupancy in the possession of Seller that have been
issued for the buildings occupied by Seller, (d) such written notices as
Buyer may request, executed by Seller and addressed to all parties to
Assigned Contracts (other than Seller) and to taxing authorities having
jurisdiction over any or all of the Assets, notifying such parties and
authorities of the sale of the Assets and changing the address for service
of notice and delivery of statements and bills, (e) keys and combinations
to all doors and gates in all premises occupied by Seller and all tangible
personal property included among the Assets, which keys and combinations
shall be properly and clearly tagged for identification, and (f) any other
documents, instruments or agreements required hereunder which are not
otherwise delivered.
2.4 Xxxx of Sale and Assignment. At the closing on the Closing
Date, Seller shall deliver to Buyer a Xxxx of Sale and Assignment, in
substantially the form of Exhibit A attached hereto (the "Xxxx of Sale"),
listing or describing all of the Assets. Seller shall also deliver to
Buyer at or prior to the closing evidence satisfactory to Buyer that as of
the Closing Date there are no filings against Seller or any of the Assets
in the office of either the Washington Secretary of State or the California
Secretary of State or such other governmental officials under any
applicable Uniform Commercial Code that would be a lien on any of the
Assets specified (other than such filings, if any, as are released at the
time of the closing).
2.5 The Closing. The closing of the sale and purchase of the
Assets hereunder shall take place at the offices of Shartsis, Xxxxxx &
Xxxxxxxx LLP, counsel for Buyer, at Xxx Xxxxxxxx Xxxxx, 00xx Xxxxx, Xxx
Xxxxxxxxx, Xxxxxxxxxx, at 10:00 a.m., California time, on July 28, 2000, or
at such other place, time and date as shall be mutually satisfactory to the
parties (the "Closing Date"); provided that the closing may be extended, at
the election of either party, to any date not later than September 30,
2000, if the condition in section 3.1.5 shall not have been satisfied or
waived by Buyer. On the Closing Date, Seller shall deliver to Buyer, in
addition to the matter otherwise required hereby, such other certificates,
instruments and documents as Buyer may request to evidence or perfect
Buyer's ownership of the Assets, and Seller shall turn over to Buyer
possession of all of the Assets.
2.6 Intentionally Omitted.
2.7 Allocation of Purchase Price. The parties shall allocate the
Purchase Price among the Assets as set forth in Schedule 2.7 attached
hereto. The parties agree consistently to state or report such allocation
on all tax and information returns and statements and other statements,
notices or other documents furnished or submitted to or filed with any
governmental bureau, agency or instrumentality of the United States or any
state, territory, protectorate, possession or other jurisdiction of the
United States or any political subdivision thereof.
3. Conditions to Parties' Obligations.
3.1 Conditions to Buyer's Obligations. The obligation of Buyer
to purchase the Assets and all other obligations of Buyer hereunder shall
be subject to the satisfaction on or prior to the Closing Date of the
following conditions precedent:
3.1.1 Due Diligence. Buyer shall have completed to Buyer's
satisfaction such review, examination and inspection of Seller's assets,
business, operations and affairs as Buyer may consider advisable.
3.1.2 Representations and Warranties. The representations
and warranties of Seller and the Shareholders in this Agreement shall be
true and complete on and as of the Closing Date with the same effect as if
those representations and warranties had been made on and as of the Closing
Date, except for any of such representations and warranties made as of a
specific date, which shall have been correct and complete as of such
specific date, and Seller shall have delivered to Buyer a certificate to
that effect dated the Closing Date and signed by the President and the
Secretary of Seller.
3.1.3 Conditions and Covenants. On or prior to the Closing
Date, Seller shall have performed or satisfied all covenants, agreements
and conditions to be performed or satisfied on or prior to the Closing Date
by Seller hereunder, and Seller shall have delivered to Buyer a certificate
to that effect dated the Closing Date and signed by the President and the
Secretary of Seller.
3.1.4 Consents and Waivers. Seller shall have obtained all
necessary consents and waivers with respect to the sale, conveyance,
transfer and delivery of Assets from all parties to any Assigned Contracts
and Code Approvals, with regard to which any such consent or waiver is
required to effect any of such sales, conveyances, transfers or deliveries,
to prevent acceleration of the maturity of any indebtedness secured by a
lien on real or personal property, or to prevent the termination of any of
the Assigned Contracts and Code Approvals, except in any instance in which
Buyer in its exclusive discretion deems the obtaining of such consents or
waivers not material.
3.1.5 Permits. Buyer shall have obtained such licenses,
permits, authorizations and approvals from all federal, state, local and
other governmental agencies, instrumentalities and authorities that Buyer
may consider necessary or advisable for its purchase of the Assets and for
the conduct by Buyer of the business of Seller from and after the Closing
Date as Seller has heretofore conducted such business.
3.1.6 Inventory. Buyer shall have inspected the Inventory
and found it to be in good and marketable condition and otherwise
satisfactory.
3.1.7 Books and Records. Seller shall have furnished to
Buyer and Buyer shall have reviewed and approved all of the books and
records of Seller.
3.1.8 Licenses and Contracts. Seller shall have furnished
to Buyer and Buyer shall have reviewed and approved all of the licenses and
permits to which clause (b) of section 1.1.3 refers (including, without
limitation, all of the Code Approvals) and all Assigned Contracts and all
other material contracts, agreements, purchase orders, leases, commitments
or understandings, whether written or oral, relating to the business of
Seller and to which Seller is a party or by which any of the Assets are
bound or affected.
3.1.9 Xxxx of Sale. Seller shall have duly executed,
acknowledged and delivered the Xxxx of Sale to Buyer.
3.1.10 Assignments of Intellectual Property. Seller shall
have duly executed, acknowledged and delivered to Buyer the Assignments of
Patent Rights (the "Patent Assignments") in substantially the form of
Exhibits B attached hereto.
3.1.11 Business Relationship. Seller shall have furnished to
Buyer the names and addresses and all pertinent information regarding all
customers, employees, suppliers, distributors and others who have business
relationships with Seller, and Buyer shall have satisfied itself that each
of such relationships may reasonably be expected to be continued with Buyer
from and after the Closing Date.
3.1.12 Opinion of Counsel. On the Closing Date, Seller and
the Shareholders shall have delivered to Buyer an opinion, dated the
Closing Date, of Xxxxxx X. Xxxxxxx, Attorney at Law, counsel for Seller and
the Shareholders, to the effects set forth in Exhibit D attached hereto.
3.1.13 Consulting Agreements. Xxxxxxx X. Xxxxxx, Xxxxxx X.
Xxxxxxxxxx and Seller shall have delivered to Buyer a Consulting Agreement
duly executed by him or it pursuant to section 4.18.2.
3.1.14 General Release of X. Xxxxxx. Sellers shall have
delivered to Buyer a General Release executed by X. Xxxxxx, in
substantially the form set forth in Exhibit F attached hereto.
3.2 Conditions to Seller's Obligations. The obligation of Seller
to sell the Assets and all other obligations of Seller and the Shareholders
hereunder shall be subject to the satisfaction on or prior to the Closing
Date of the following conditions precedent:
3.2.1 Representations and Warranties. The representations
and warranties of Buyer in this Agreement shall be true and complete on and
as of the Closing Date with the same effect as if those representations and
warranties had been made on and as of the Closing Date, and Buyer shall
have delivered to Seller a certificate to that effect dated the Closing
Date and signed by the President and the Secretary of Buyer.
3.2.2 Conditions and Covenants. On or prior to the Closing
Date, Buyer shall have performed or satisfied all covenants, agreements and
conditions to be performed or satisfied on or prior to the Closing Date by
Buyer hereunder, and Buyer shall have delivered to Seller a certificate to
that effect dated the Closing Date and signed by the President and the
Secretary of Buyer.
3.2.3 Consulting Agreements. Buyer shall have duly executed
and delivered the Consulting Agreements with each of Xxxxxxx X. Xxxxxx,
Xxxxxx X. Xxxxxxxxxx and Seller pursuant to section 4.18.2.
3.3 Failure of Condition.
3.3.1 Buyer's Remedies. If any of the conditions specified
in section 3.1 are not satisfied, Buyer shall have the right, at its
exclusive election, either to waive the condition in question and proceed
with the purchase of the Assets or to terminate this Agreement; provided
that the Closing Date may be extended, at Buyer's exclusive election, for a
reasonable period to allow all of such conditions to be satisfied, subject
to Buyer's further right to terminate this Agreement on the expiration of
the period of the extension if all of such conditions shall not then have
been satisfied. If Buyer so elects to terminate this Agreement, neither
Buyer nor Seller nor any of the Shareholders shall have any further rights
or obligations under this Agreement, except that the covenants and
agreements in sections 4.3, 4.5.3, 4.5.4 and 4.11 shall survive any
termination of this Agreement. Notwithstanding any of the foregoing
provisions of this section 3.3.1 to the contrary, in the event of any
breach by any of Seller and the Shareholders of any covenant or agreement
herein or hereunder, Buyer may elect nevertheless either (a) to proceed
with the purchase of the Assets, reserving the right to recover damages for
such breach from Seller and the Shareholders, or (b) to terminate this
Agreement by notice to Seller on or prior to the Closing Date, and on such
termination, Buyer shall be relieved of all obligations and liabilities
hereunder and Buyer may proceed against Seller and the Shareholders to
recover any damages occasioned by such breach.
3.3.2 Seller's Remedies. If any of the conditions in
section 3.2 are not satisfied, Seller shall have the right, at Seller's
exclusive election, either to waive the condition in question and proceed
with the sale or to terminate this Agreement; provided that the Closing
Date may be extended, at Seller's exclusive election, for a reasonable
period to allow all of such conditions to be satisfied, subject to Seller's
further right to terminate this Agreement on the expiration of the period
of the extension if all of such conditions shall not then have been
satisfied. If Seller so elects to terminate this Agreement, neither Buyer
nor Seller nor the Shareholders shall have any further rights or
obligations under this Agreement, except that the covenants and agreements
in sections 4.3, 4.5.3, 4.5.4 and 4.11 shall survive any termination of
this Agreement.
4. Covenants.
4.1 Permits. Buyer shall, at its own expense, forthwith apply
for and diligently pursue the issuance of the licenses, permits,
authorizations and approvals to which section 3.1.5 refers. Buyer shall
take all reasonable actions to apply for the same and shall diligently and
in good faith process such applications and avoid taking any action that
would delay the investigation and processing thereof by the appropriate
governmental authorities. Seller shall cooperate fully and in good faith
with Buyer, as and to the extent that Buyer may reasonably request, in
making and processing such applications, and Seller shall execute and
deliver all such certificates, instruments and documents as Buyer may
reasonably request in connection therewith.
4.2 Assignments of Permits, Contracts, Patent Rights and
Trademarks. Seller shall apply for and obtain legal, valid and binding
assignments to Buyer of the permits, authorizations and licenses to which
clause (b) of section 1.1.3 refers (including, without limitation, all of
the Code Approvals) and to the Assigned Contracts, and all consents and
waivers in connection therewith that Buyer may reasonably consider to be
necessary or advisable. Seller shall also execute, acknowledge and deliver
the Patent Assignments. Seller shall cooperate fully and in good faith
with Buyer to record the Patent Assignments in accordance with the
requirements of the United States Patent and Trademark Office to effect the
assignment and transfer of exclusive rights to the letters patent,
applications for letters patent, trademark registrations and applications
for trademark registrations included in the Assets. Buyer shall cooperate
fully and in good faith with Seller, as and to the extent that Seller may
reasonably request, in obtaining the same, and Buyer shall execute and
deliver all such certificates, instruments and other documents as Seller
may reasonably request in connection therewith.
4.3 Indemnity.
4.3.1 By Buyer. Buyer agrees to indemnify and defend
Seller, its directors, officers, employees and agents and the Shareholders
and to hold them harmless from and against any and all claims, liabilities,
damages and expenses (including, without limitation, the fees and expenses
of attorneys and expert witnesses, the costs of investigation and court
costs) suffered or incurred by them, when and as suffered or incurred,
whether or not any of such claims, liabilities, damages or expenses are
suffered or incurred in connection with the ownership, operation, use, sale
or possession of any of the Assets, directly or indirectly in connection
with (a) the Assigned Contracts and arising after the Closing Date, to the
extent that such claims, liabilities, damages or expenses are specifically
disclosed in writing by Seller to Buyer and accepted by Buyer prior to the
Closing Date, (b) as a direct or indirect result of any breach of any
covenant, agreement, representation or warranty by Buyer hereunder, or (c)
otherwise relating to Buyer's ownership, operation, use, sale or possession
of any of the Assets and arising after the Closing Date.
4.3.2 By Seller and the Shareholders. Subject to the
limitations set forth in Section 4.3.3(ii), Seller and the Shareholders
jointly and severally agree to indemnify and defend Buyer and Buyer's
directors, officers, employees and agents and to hold them harmless from
and against any and all claims, liabilities, damages and expenses
(including, without limitation, the fees and expenses of attorneys and
expert witnesses, the costs of investigation and court costs) suffered or
incurred by them, when and as suffered or incurred, whether or not any of
such claims, liabilities, damages or expenses are suffered or incurred in
connection with the ownership, operation, use, sale or possession of any of
the Assets, directly or indirectly in connection with (a) the Assigned
Contracts and arising on or prior to the Closing Date, to the extent that
any of such claims, liabilities, damages and expenses are not specifically
disclosed in writing by Seller to Buyer or are not accepted by Buyer prior
to the Closing Date, or (b) any written or oral contracts, agreements,
understandings or commitments that are not included in the Assets or are
not legally and validly assigned hereunder, or (c) any breach of any
covenant, agreement, representation or warranty by any of Seller and the
Shareholders hereunder, (d) any infringement or violation by Seller of any
intellectual property rights of any other person, or (e) any flaw or
default in the design, materials used in, manufacture or installation of
any Product manufactured or sold by Seller prior to the Closing Date, or
(f) the use or ownership of any of the Intangible Property, or (g) any
failure by Seller to comply with any provision of the bulk sales laws, if
any, of either of the States of California and Washington, Article 6 of the
Uniform Commercial Code, as in effect in such states.
4.3.3 Limitations.
(i) Anything herein to the contrary notwithstanding,
neither Buyer nor Seller and the Shareholders shall have any liability or
obligation under section 4.3.1 or 4.3.2, respectively, (a) with respect to
any claim, liability, damage or expense suffered or incurred by the other
party unless and until (i) the amount of any individual claim, liability,
damage, or expense exceeds $2,000, or (ii) the aggregate of all such
claims, liabilities, damages and expenses exceed $25,000, or (b) with
respect to any claim made against such party more than two years after the
Closing Date.
(ii) The obligation of each Shareholder to indemnify
Buyer as provided in Section 4.3.1 shall not in the aggregate exceed such
Shareholder's prorata share of the Purchase Price received by Seller
pursuant to this Agreement. A Shareholder's prorata share of the Purchase
Price shall be determined by multiplying the Purchase Price by a fraction,
the numerator of which is the number of shares of Seller owned by such
Shareholder and the denominator of which is the number of shares of Seller
owned by all the Shareholders.
4.4 Operation Prior to Closing Date. Prior to the closing on the
Closing Date, Seller and the Shareholders shall use their best efforts to
preserve the organization of Seller intact, keep available the services of
Seller's employees and preserve Seller's relationships with suppliers,
distributors, customers and others having business relations with Seller.
Prior to the closing on the Closing Date and except as may be first
approved by Buyer or as is otherwise permitted by this Agreement, (a)
Seller shall conduct its business only in the usual and ordinary course and
the character and extent of its business shall not be changed, (b) no
increase shall be made in the compensation payable or to become payable by
Seller to any of its employees, nor shall any bonus payment or arrangement
be made by Seller to or with any such employee, provided that Seller may
continue to pay its existing employees and contractors in accordance with
agreements existing on the date of this Agreement, (c) Seller shall not
acquire or dispose of any Assets except for sales of inventory in good
faith in the usual and ordinary course of business and, in the event of any
disposition of any Asset, shall replace such Asset as may be reasonable in
the ordinary conduct of business, (d) Seller shall maintain all tangible
Assets in good condition and repair (ordinary wear and tear excepted) and
in accordance with all applicable laws, rules and regulations, as is
reasonable in the ordinary course of business, and (e) Seller shall not,
and the Shareholders shall not suffer or permit Seller to, declare or pay
any dividend or other distribution to its shareholders, as such; provided
that Seller may repay indebtedness to its Shareholders that is outstanding
as of the date of this Agreement.
4.5 Buyer's Investigation.
4.5.1 Entry and Inspection. Seller shall make available to
Buyer and Buyer's officers, employees, attorneys, accountants and other
authorized representatives reasonable access at all times to all of the
Assets and related properties, operations, books and financial records,
contracts, commitments and sales, production and maintenance records, will
permit Buyer and such representatives to enter any real property occupied
by Seller, will make Seller's officers, employees, agents, contractors and
consultants available to Buyer and such representatives so that Buyer may
make such inquiries as Buyer may deem appropriate, and will furnish Buyer
with all information concerning the assets, operations, affairs and
business of Seller as is required hereby or as Buyer may reasonably
request.
4.5.2 No Waiver. Anything in this Agreement to the contrary
notwithstanding, no inquiry or investigation by or on behalf of Buyer shall
constitute a waiver of, negate, abrogate or otherwise affect the validity
of any representation, warranty or covenant of Seller or the Shareholders
in, pursuant to or in connection with this Agreement or modify or affect
any of Seller's or any Shareholder's obligations or Buyer's rights herein
or hereunder in the event of any breach of any such representation,
warranty or covenant.
4.5.3 Indemnity. Buyer agrees to indemnify and defend
Seller and hold Seller harmless from and against any and all mechanics'
liens, physical damage to property or persons and claims arising therefrom,
and losses arising out of any interference with contractual relations
between Seller and third parties, if any of the foregoing result from entry
by Buyer or such representatives on premises occupied by Seller pursuant to
section 4.5.1.
4.5.4 Return of Materials. On any termination of this
Agreement without consummation of the transactions contemplated hereby,
Buyer shall return to Seller all documents, work papers and other materials
(including all copies thereof) in connection with the transactions
contemplated hereby and shall use all reasonable efforts to keep
confidential any information obtained pursuant to this Agreement, unless
disclosure is required by law or unless such information has otherwise been
obtained by third parties without any obligation of confidentiality to
Seller through no fault of Buyer.
4.6 Further Assurances. Seller and the Shareholders shall
cooperate with Buyer, at Buyer's request, after the Closing Date and
without further consideration, (a) to execute, deliver, record and publish
as Buyer considers appropriate such other certificates, instruments and
documents of sale, assignment, transfer and conveyance of the Assets, and
take such other action, as Buyer may reasonably request more effectively to
convey, assign, sell and transfer to or vest in Buyer, and to put Buyer in
possession of, any and all of the Assets, (b) in the case of Assigned
Contracts, if any, that have not at the Closing Date been transferred
effectively due to the lack of consents of third parties, to continue to
endeavor to obtain such consents promptly and, if any such consents are not
obtainable, to provide Buyer with the benefit thereof in some other manner,
and (c) to assist Buyer in connection with any actions, proceedings or
arrangements or disputes relating to ownership of and other rights in the
Assets. The parties shall each do or perform such further acts and things
and execute and deliver such further certificates, instruments and other
documents as may be reasonably necessary and proper to implement the intent
of the parties as expressed in this Agreement.
4.7 Proceedings. Each party shall promptly inform the other of
the making of any threat or claim or the commencement of any investigation,
litigation or proceeding against or affecting Seller, the business or
operations of Seller, the Assets or any of the transactions contemplated
hereby.
4.8 Employees. From and after the closing hereunder, Buyer shall
not assume any obligation or liability of any nature whatsoever with
respect to, and shall have no duty to employ, any of the employees of
Seller, or any consultants engaged to render services to Seller; and Seller
shall deliver the Assets to Buyer free and clear of any such obligations,
liabilities and duties. Notwithstanding the foregoing, Buyer shall be
permitted to interview the individuals employed or engaged by Seller during
the thirty-day period prior to the closing and the thirty-day period
following the closing to determine which employees and consultants Buyer
might desire to employ or engage after the Closing Date. The hiring of any
such employees or consultants by Buyer shall be on such terms and
conditions as may be agreeable to Buyer and shall be without regard to the
terms and conditions of the employment or engagement of such individuals
established by Seller prior to the Closing Date.
Notwithstanding the foregoing, Seller agrees to continue to employ
those employees currently employed by Seller at its Mill Valley, Santa
Clarita and Concord locations for a period of three months after the
Closing Date, and thereafter on a month to month basis until written notice
is given by either Buyer or Seller to the other party at least thirty days
prior to termination of such arrangement. Seller agrees to cause such
employees to perform services for the benefit of and on behalf of Buyer.
Seller agrees to compensate such employees at the same rate of pay and in
the same manner as such employees were compensated prior to the Closing
Date, except that Xxxx Xxxxxxxxxx'x compensation will be increased from
$2,350 to $3,000 per month. Buyer will compensate Seller for such
employment payments pursuant to the Consulting Agreement between Buyer and
Seller attached hereto as Exhibit E.
4.9 Sales Tax. Except as specifically provided in section 4.10,
Seller shall pay when due, to the appropriate governmental authority or
authorities, all sales, use and excise taxes and levies, if any, arising
from the sale of any of the Assets hereunder.
4.10 Prorations. Real property taxes, water, sewer, gas,
electric, telephone and other utility charges, permit fees, inspection fees
and other expenses normal to the operation and maintenance of the business
of Seller shall be prorated as of 12:01 a.m. on the Closing Date on the
basis of a 365-day year. If any of the aforesaid prorations cannot be
calculated accurately at such time on the Closing Date, the same shall be
calculated within thirty days after the Closing Date and either party owing
the other a sum of money based on such subsequent proration shall promptly
pay said sum to the other party.
4.11 Expenses. Each party shall pay all costs, expenses and fees
of his or its own attorneys, accountants, auditors and other advisers and
consultants incurred in negotiating the terms and conditions of this
Agreement, making any investigation in connection herewith, preparing and
executing this Agreement and any certificates, instruments and documents
necessary in connection herewith and consummating the transactions
contemplated hereby.
4.12 Risk of Loss. Risk of loss, damage or destruction of any of
the Assets shall be borne by Seller until the closing on the Closing Date
and delivery of possession thereof to Buyer.
4.13 Casualty and Condemnation. If, prior to the closing on the
Closing Date, any of the Assets or any part of any Asset is destroyed or
materially damaged, or if condemnation proceedings are commenced against
any of the Assets, Buyer shall have the right, exercisable by notice to
Seller within fifteen days after receiving actual notice of such damage,
destruction or condemnation proceedings, to terminate this Agreement, in
which event neither Seller nor the Shareholders nor Buyer shall have any
further rights or obligations hereunder, except that the covenants and
agreements in sections 4.3, 4.5.3, 4.5.4 and 4.11 shall survive such
termination. If Buyer does not so elect to terminate this Agreement, Buyer
may elect to accept the Assets in their then condition and all proceeds of
insurance or condemnation payable to Seller by reason of such damage,
destruction or condemnation shall be paid and assigned to Buyer. In the
event of any immaterial damage to any Assets that Seller is unwilling to
repair or replace, Buyer shall have the right, exercisable by notice within
fifteen days after receiving actual notice of such damage, either (a) to
terminate this Agreement as provided above in this section 4.13 or (b) to
accept the Assets in their then condition and proceed with the purchase, in
which event Buyer shall be entitled to a reasonable reduction of the
Purchase Price to offset the cost of repairing or replacing the damaged
Assets.
4.14 Buyer's Consent to New Contracts. Seller shall not hereafter
enter into any oral or written lease, amendment of lease, contract,
agreement, commitment or understanding pertaining to any of the Assets,
other than in the ordinary course of business as heretofore conducted,
without obtaining Buyer's prior written consent thereto, which consent
shall not be unreasonably withheld.
4.15 Brokers and Finders. Buyer represents and warrants to Seller
and the Shareholders, and Seller and the Shareholders represent and warrant
to Buyer, that it or they, respectively, have not had any contact or
dealings regarding any of the Assets, or communications in connection with
the subject matter of this Agreement, with or through any broker or finder
who can claim a valid and lawful right to a commission or fee as a
procuring cause of the transactions contemplated hereby. If any such
broker or finder perfects a claim for any commission or fee based on any
such contact, dealings or communications, the party or parties through whom
or by whose authority such broker or finder makes such claim shall be
responsible for such commission or fee and all costs and expenses
(including reasonable attorneys' fees) incurred by the other party or
parties in defending the same.
4.16 No Solicitation. Prior to the Closing Date, Seller shall not
contact, solicit or discuss or negotiate with any person other than Buyer
any of the transactions contemplated hereby, the possible sale to any
person of the Assets or any substantial part thereof or any possible
business combination involving Seller.
4.17 Publicity. Prior to the closing on the Closing Date, no
publicity, release, announcement, notice, statement or report concerning
the transactions contemplated hereby shall be issued by any party without
the prior approval of the form and substance thereof by Buyer and Seller;
provided that Buyer and its affiliates shall have the right, in their
absolute discretion, to make or file with the Securities and Exchange
Commission or any other governmental agency such releases, announcements,
notices, statements or reports as they may determine to be necessary or
advisable for Buyer or any of its affiliates to comply with applicable
laws, rules and regulations.
4.18 Consultation.
4.18.1 By Seller. From and after the Closing Date, Seller
shall, without further consideration, cooperate with and assist Buyer in
effecting an orderly transition of ownership and operation of the Assets
and the business of Seller as contemplated hereby.
4.18.2 By Xxxxxxxxxx, Boilen and Seller. Buyer agrees to
engage as independent contractors and consultants, Xxxxxx X. Xxxxxxxxxx,
Xxxxxxx X. Xxxxxx and Seller (the "Consultants"), and the Consultants agree
to be so engaged by Buyer, to perform such services as Buyer may reasonably
request to facilitate an orderly transition of Seller's business to Buyer
and to promote and market products. At the Closing, each of the
Consultants and Buyer shall enter into a Consulting Agreement in
substantially the form set forth in Exhibit E attached hereto.
4.19 Noncompetition. None of Seller and the Shareholders shall,
at any time within five years after the Closing Date, directly or
indirectly, own an interest in, join, operate, control or participate in,
or be connected as an officer, employee, agent, independent contractor,
consultant (except pursuant to section 4.19.2), partner, member, manager,
shareholder (except as holder of not more than one percent of the
outstanding stock of any corporation, which stock is actively and publicly
traded) or principal with, any corporation, limited liability company,
partnership, joint venture, proprietorship, association, firm or other
entity or person engaged in any business that would be competitive with the
business of Seller as conducted by Seller on or prior to the Closing Date
in any state where Seller shall have conducted business or where any
customer of Seller is located on or prior to the Closing Date.
4.20 Name Change. On or promptly after the Closing Date (and in
any event within ten days thereafter), Seller shall change its name to a
name that does not include any of the words in Seller's name at the date
hereof or any variation or abbreviation thereof, which new name is not
similar to Seller's name at the date hereof.
4.21 Project Work Files. Buyer agrees to maintain, for a period
of five years after the Closing Date, Seller's Project Work Files (as
defined herein) purchased by Buyer hereunder. During that period, Buyer
shall afford Seller access to and permit Seller to make copies of the
Project Work Files; provided that Seller first shall request the same by
notice to Buyer that includes a statement of purpose for such access, and
Buyer shall have approved such request, which approval shall not be
unreasonably withheld. For purposes of this Agreement, "Project Work
Files" means Seller's blueprints, contracts, invoices, receipts and other
documents pertaining to completed or prospective projects and customer
contacts, which are included in the Assets.
4.22 Introductions of Buyer. Within thirty days of the Closing
Date, Seller shall introduce Buyer to all customers, employees, suppliers,
distributors and others who have or had a business relationship with Seller
prior to the Closing Date.
4.23 Job Bid Proposals. Buyer agrees to honor all reasonable job
bid proposals that shall have been issued by Seller, prior to the Closing
Date in the ordinary course of business consistent with past practice, and
which remain valid for sixty days from their respective issue dates.
4.24 Seller's and Shareholders' Representative. Seller and the
Shareholders hereby designate and appoint Xxxxx X. Xxxxx as their attorney-
in-fact and agent, to act in their place and stead and on their behalf, in
connection with all matters arising under or relating to this Agreement,
including, without limitation, the defense and settlement of all claims
within the scope of their indemnification obligations under section 4.3.2
of this Agreement. Such attorney-in-fact shall have full power and
authority to do and perform every act, deed, matter and thing whatsoever in
connection therewith, as fully and effectually to all intents and purposes
as Seller or the Shareholders might or could do in person if personally
present. This power of attorney shall become effective on the date of this
Agreement and shall terminate when all of Seller's and the Shareholders'
obligations under this Agreement have been satisfied in full or expired.
This power of attorney shall not be affected by the disability or death of
any of the Shareholders and shall be irrevocable for its term. Any person
acting without negligence and in good faith in reasonable reliance on this
power of attorney shall not incur any liability thereby. Any actions so
taken, unless otherwise invalid or unenforceable, shall be binding on the
successors, assigns, heirs and personal representative of Seller and the
Shareholders. Buyer shall be entitled to rely on instructions of the
attorney-in-fact without reservation, unless and until all the Shareholders
and Seller state to the contrary by written notice to Buyer signed by all
of them.
4.25 Real Property Leases. Seller agrees to continue to lease (i)
the real property located at 000 Xxxxxx Xxxx, Xxxx Xxxxxx, Xxxxxxxxxx
("Mill Valley Location") for a period of three months after the Closing
Date, and thereafter on a month to month basis until either Buyer or Seller
gives the other party written notice at least thirty days prior to
termination of such arrangement, (ii) the real property located at 0000
Xxxxxxxxxx Xxxxxx, Xxxx X and Unit O, Concord, California ("Concord
Location") for a period of one month after the Closing Date, and thereafter
on a month to month basis until either Buyer or Seller gives the other
party written notice at least thirty days prior to termination of such
arrangement, and (iii) the real property located at 000 X XX 000xx, Xxxxxx,
Xxxxxxxxxx ("Burien Location") for a period of three months after the
Closing Date, and thereafter on a month to month basis until either Buyer
or Seller gives the other party written notice at least thirty days prior
to termination of such arrangement. Buyer agrees to pay Seller $4,158 per
month for costs incurred in maintaining the Mill Valley Location, which
payment includes rental payments to be paid by Seller to the landlord,
utility payments, telephone service payments and other costs and expenses
incurred in maintaining an office at such location. Buyer agrees to pay
Seller $2,280 per month for costs incurred in maintaining the Concord
Location, which payment includes rental payments to be paid by Seller to
the landlord, utility payments, telephone service payments and other costs
and expenses incurred in maintaining an office at such location. Buyer
agrees to pay Seller $17,500 per month for costs incurred in maintaining
the Burien Location, which payment includes rental payments to be paid by
Seller to the landlord, utility payments, telephone service payments,
monthly salary payments to Xxxxx X. Xxxxx and Xxxxxx XxXxxxxx and other
costs and expenses incurred in maintaining an office at such location.
Seller agrees to use such payments to pay the respective landlords and
utility, telephone services and other expenses incurred at such locations.
Seller agrees to allow Buyer to store and access (during normal business
hours) the inventory and Project Work Files currently located at the Mill
Valley Location, the Burien Location and the Concord Location and purchased
by Buyer hereunder.
4.26 Accounts Receivable. The parties agrees that the accounts
receivable outstanding for more than ninety days as of the Closing Date
shall remain the property of Seller, and Seller shall hold and attempt to
collect such accounts for the benefit of Seller; provided, that Seller
shall use or employ, or authorize any third party to use or employ, only
those collection practices and/or procedures with respect to such accounts
receivable that were employed by Seller in the ordinary course of business
prior to the Closing Date. Buyer shall not have (i) any right to receive
any of such collections and (ii) any obligation to assist Seller in the
collection of such accounts receivable.
5. Representations and Warranties.
5.1 Of Seller and the Shareholders. Seller and Shareholders,
jointly and severally, hereby represent and warrant to and agree with
Buyer, as follows:
5.1.1 Organization. Seller is a corporation duly organized,
validly existing and in good standing under the laws of the State of
Washington, and has full power and authority to carry on its business as
now conducted and to own its assets. Seller is duly qualified to conduct
business and is in good standing as a foreign corporation under the laws of
the State of California and each other jurisdiction where, by virtue of its
business conducted therein, it is required to be so qualified. The copies
of the Articles of Incorporation and Bylaws of Seller heretofore delivered
by Seller to Buyer are true and complete copies thereof as in effect on the
date hereof. The minute books of Seller, true and complete copies of which
have heretofore been furnished by Seller to Buyer, contain substantially
accurate records of all meetings of Seller's Board of Directors, all
committees of such Board of Directors, and Seller's shareholders since
inception and accurately reflect all material transactions to which such
minutes refer.
5.1.2 Capitalization. The authorized capital stock of
Seller consists of 50,000 shares of common stock, of which 32,222 shares
have been validly issued and, except as set forth on Schedule 5.1.2, are
outstanding, fully paid, nonassessable and free of preemptive and similar
rights. Such issued and outstanding shares and all right, title and
interest therein, of record and beneficial, are owned by the persons and in
the amounts stated on Schedule 5.1.2 attached hereto.
5.1.3 Subsidiaries. Seller has no subsidiaries and does not
own of record or beneficially any capital stock or other equity securities
issued by any other person.
5.1.4 Options, Warrants, Convertible Securities, etc. There
are no outstanding options, rights, warrants, convertible securities,
commitments or agreements calling for the issuance or the transfer, sale or
disposition by any person of any shares of capital stock of Seller or of
any securities convertible into or exchangeable therefor, except as set
forth in the Articles of Incorporation of Seller and in a Shareholders
Agreement, dated as of January 1, 2000, between Seller and the
Shareholders, true and complete copies of which, as currently in full force
and effect, have been delivered to Buyer.
5.1.5 Directors and Officers. The directors and officers of
Seller are as set forth on Schedule 5.1.5 attached hereto. No other person
is a director or officer of Seller.
5.1.6 No Restriction on Transaction. Neither Seller nor any
of the properties, business or operations of Seller is subject to (a) any
mortgage, pledge, lien, claim, charge, encumbrance, security interest or
other restriction or defect in title (each, a "Lien"), except as shown on
Schedule 5.1.6 attached hereto, each of which Liens will be discharged and
released on or prior to the Closing Date, or (b) any indenture, lease,
agreement, instrument, law, statute, code, ordinance, rule, regulation,
order, judgment or decree, or any other restriction, that would interfere
with consummation of the transactions contemplated by this Agreement or the
conduct by Seller of its business and operations hereafter or the conduct
of such business by Buyer from and after the closing hereunder. This
Agreement has been duly authorized, executed and delivered by each of
Seller and the Shareholders and is the legal, valid and binding agreement
of each of them, enforceable against each of them in accordance with its
terms, except as such enforceability may be limited by bankruptcy,
insolvency, reorganization, arrangement, moratorium or other similar laws
relating to or affecting the rights of creditors generally and except for
limitations imposed by general principles of equity on the availability of
equitable remedies.
5.1.7 No Conflicts. Except as set forth on Schedule 5.1.7,
the execution and delivery by each of Seller and the Shareholders of this
Agreement, the performance by each of them of its or his respective
obligations hereunder and its or his performance of, fulfillment of and
compliance with all of the terms and conditions hereof, do not and will not
conflict with, breach or result in a breach of the terms, conditions or
provisions of, or constitute a default under, result in the creation of any
Lien on any of its or his properties pursuant to, give any third party the
right to accelerate any obligation under, violate or result in a violation
of, or require any authorization, consent, approval, exemption or other
action by or notice to any person or any court or administrative or
governmental body or agency pursuant to, any agreement, indenture,
mortgage, instrument, law, statute, code, ordinance, rule, regulation,
order, judgment or decree to or by which any of them or any of the Assets
is a party, is subject or is bound.
5.1.8 Financial Statements. Seller has furnished to Buyer
Seller's financial statements consisting in each case of unaudited balance
sheets as of December 31, 1998 and 1999, and the related unaudited
statements of earnings for the years then ended, and Seller's unaudited
balance sheet as of March 31, 2000, and the related statements of earnings
for the three-month period then ended. Such financial statements are
complete and correct and fairly present the financial position and results
of operations of Seller at the dates and for the periods indicated, except
that Seller does not perform a physical inventory of Product in its
warehouse at the end of the month. At the respective dates of such
financial statements, there were no material liabilities of Seller (actual,
contingent or accrued), which should have been shown or reflected therein
or in the notes thereto but which are not shown or reflected therein.
5.1.9 Changes in Condition. Since March 31, 2000, there has
not been (a) any change in the assets or liabilities or condition
(financial or other) of Seller from that set forth in Seller's balance
sheet as of that date, except changes in the ordinary course of business,
none of which has been material or adverse, (b) any damage, destruction or
loss materially or adversely affecting Seller or its business or the
Assets, whether covered by insurance or not, (c) any substantial increase
in the compensation paid or payable to any employee of Seller, including
any direct or indirect form of payment made to or with respect to any such
person, or (d) any labor dispute involving Seller.
5.1.10 Books of Account. The books of account of Seller are
complete and correct in all material respects and have been furnished to
Buyer, and all monies due or to become due from or to or owing by, and all
liabilities (actual, contingent or accrued) of, Seller by reason of any
transaction, matter, cause or thing, which should be entered therein, have
been duly, correctly and completely entered therein.
5.1.11 Validity of Contracts. The Assigned Contracts are
legal, valid, binding and subsisting agreements of Seller and each other
party thereto, enforceable against each other party thereto in accordance
with their respective terms; provided that certain executed proposals may
be cancelled or terminated by the third party thereto prior to performance
by Seller. No party to any contractual arrangements with Seller (including
Seller) is not in compliance with or is in default (without regard to any
requirement of notice or grace period or both) in the observance or
performance of any term, condition or provision of any such contractual
arrangement relating to or affecting Seller or its business or the Assets
in any manner so as presently or at any future time to have any material
adverse effect on Seller or its business, operations or financial condition
or any of the Assets.
5.1.12 Properties.
(a) Seller has all requisite power, capacity and
authority to own and hold, and has good and marketable indefeasible title
to, all of the Assets, which are all of the assets and properties used or
useful in or in connection with Seller's business, subject to no Lien,
excepting only such as will be discharged or released on or prior to the
Closing Date, the Assigned Contracts and minor easements and exceptions,
none of which will interfere with the use by Buyer of the Assets.
(b) At the closing on the Closing Date, Buyer will
acquire good and marketable indefeasible title to all of the Assets,
subject to no Lien, except only the Assigned Contracts.
(c) No condemnation proceeding or eminent domain
proceeding of any kind is pending or, to the best knowledge of Seller and
the Shareholders, contemplated or threatened, against any of the Assets.
(d) To the best knowledge of Seller and the
Shareholders, no permits, licenses or certificates pertaining to the
ownership or operation of any of the Assets, other than those that are
transferable therewith and those to which section 3.1.5 refers, are
required by any governmental agency having jurisdiction over any of the
Assets or Seller's business or operations. Seller has furnished to Buyer
true and complete copies of all Code Approvals relating to any one or more
products designed, developed, manufactured or marketed by Seller. All such
Code Approvals are valid and in full force and effect and are based on and
supported by bona fide, accurate and complete test results, engineering
calculations and other information procured by Seller and furnished to ICBO
or any other code approval agency. The load values and other information
set forth in each such Code Approval are accurate and complete. Seller has
disclosed to Buyer that certain Code Approvals listed on Schedule 1.1.3(d)
expire as of August 1, 2000 and September 1, 2000, and Buyer has agreed to
take full responsibility for obtaining renewal of such Code Approvals;
provided that Seller shall cooperate with Buyer in obtaining such Code
Approvals, at Buyer's request, after the Closing Date and without further
consideration.
5.1.13 Intellectual Property.
(a) "Intellectual Property" means all Code Approvals,
Patent Rights, Trade Secrets, trademarks, service marks, trade names and
copyrights and all rights and licenses relating thereto and all other
tangible or intangible proprietary information and materials used or useful
in Seller's business, as well as all registrations and pending applications
for registration of any of the foregoing in any jurisdiction, and including
each license, sublicense or other contract relating thereto. Except as set
forth on Schedule 5.1.13, Seller owns absolutely and exclusively all of the
Intellectual Property used or useful in Seller's business free and clear of
any Lien. To the best knowledge of Seller and the Shareholders, Seller has
fully disclosed to Buyer all material information regarding the
Intellectual Property, all of which is listed and described on Schedule
5.1.13 attached hereto.
(b) Schedule 5.1.13 sets forth a complete and correct
list and description of all of the following Intellectual Property owned by
Seller and a corresponding list of each jurisdiction in which a patent or
registration for such item has been issued or in which an application has
been filed therefor in the name of Seller: (i) letters patent and patent
applications, (ii) trademarks, service marks and trade names, and (iii)
copyrights. Except as set forth on Schedule 5.1.13, each item set forth on
Schedule 5.1.13 that is registered is registered in the name and for the
exclusive benefit of Seller.
(c) Except as set forth on Schedule 5.1.13, Seller
has sole and exclusive rights to, and no other person or entity has any
claim of ownership or option to purchase, whether joint or individual, with
respect to, the Intellectual Property. Except as set forth on Schedule
5.1.13, each patent and each registration listed on Schedule 5.1.13 is
valid, enforceable, subsisting and in full force and effect and has been
duly prosecuted, registered and maintained by Seller in each jurisdiction
listed. No pending application for a patent or for registration of a
trademark has been rejected, suspended, made a subject of an office action
or other challenge by the agency with which such application has been filed
or by any third party, except as disclosed in Schedule 5.1.13. Excepted as
disclosed on Schedule 5.1.13, no patent has been claimed or adjudicated to
be invalid or unenforceable as a whole or in part, no trademark or service
xxxx has been the subject of any claim of abandonment or otherwise
challenged as invalid and no copyright has been invalidated or alleged to
be in the public domain. No patent or registration is subject to any
current tax, maintenance fee or renewal fee which has not been paid. All
trademarks, service marks and trade names set forth on Schedule 5.1.13 have
been used continuously by Seller since adoption by Seller.
(d) All of the Trade Secrets are valid and
protectable, are not publicly known and have not been disclosed or
otherwise made available to any person except pursuant to a written
confidentiality agreement. Seller has taken all reasonable and appropriate
steps to protect and preserve all of the Trade Secrets and all other
Intellectual Property that is not otherwise protected by patents or by
copyright registrations. Each item of the Trade Secrets qualifies as a
"trade secret" under the Uniform Trade Secrets Act as enacted as part of
the California Civil Code. Seller does not possess and has not used in its
business any confidential information or trade secrets owned by any person
other than Seller except in strict compliance with the terms and conditions
of a valid and enforceable agreement between Seller and the owner or owners
of such trade secret or confidential information.
(e) Seller owns or is licensed or otherwise possesses
legally enforceable rights to use all Intellectual Property that is used or
useful in the business of Seller. No license, consent or other
authorization is required from any third party with respect to any
Intellectual Property used or useful in the business of Seller or, if so
required, each such license or consent has been obtained, is valid and
enforceable in accordance with its terms and is in full force and effect
and is not the subject of any notice of termination or nonrenewal, and
there is no default or alleged or threatened default with respect to any
such license or consent.
(f) Seller's possession and use of the Intellectual
Property does not conflict with, infringe, violate, interfere with or
constitute a misappropriation of any right, title, interest or goodwill of
any other person. None of Seller and the Shareholders possesses any
information or is otherwise aware of any basis for any claim against Seller
with respect to any infringement, misappropriation or other misuse of any
intellectual property of any third party. Seller has not infringed,
misappropriated or misused and is not now infringing, misappropriating or
misusing any intellectual property belonging to any other person.
5.1.14 Tax Returns and Payments. Seller has filed all tax and
information returns and reports required by law to be filed by Seller,
including those with respect to receipts, income, sales, use, value added,
ad valorem, withholding, social security, excise, franchise and
unemployment taxes. All returns are proper and all taxes shown to be due
and all additional assessments and charges on Seller or on or measured by
properties, assets, receipts, income, sales or payroll of Seller have been
paid. The reserves for current taxes accrued on the books of Seller are
reasonable and substantially adequate in amount. Seller has not received
any notice of assessment or proposed assessment of any United States,
state, municipal or other tax on or measured by income, receipts or sales,
nor to the best of Seller's and the Shareholders' knowledge, is there any
basis for any additional assessment of any such tax.
5.1.15 Litigation. Except as set forth on Schedule 5.1.15,
Seller is not a party to any pending, and neither Seller nor any of the
Shareholders has any notice or knowledge of any threatened or any knowledge
of any basis for any, action, suit, proceeding or investigation, at law or
in equity or otherwise, in, before or by any court or arbitrator or any
governmental board, commission, agency, department or officer, in which an
adverse determination could have any material adverse effect on Seller or
its business, operations or financial condition or on any of the Assets.
5.1.16 Employee Claims. No present or former employee or
consultant of Seller has asserted any material claim directly or indirectly
gainst Seller or its business or the Assets on account of or for (a)
overtime pay, other than overtime pay for work done in the current payroll
period, (b) wages or salary for any period other than the current payroll
period, (c) any material amount of vacation time off or pay in lieu of
vacation time off, other than vacation time off (or pay in lieu thereof)
earned in or in respect of the current fiscal year, or (d) any violation of
any statute, ordinance or regulation relating to minimum wages or maximum
hours of work. To the best knowledge of Seller and the Shareholders, no
person or party (including, but not limited to, governmental agencies of
any kind) has asserted any claim, or has any basis for any action or
proceeding, against Seller under or arising out of any statute, ordinance
or regulation relating to discrimination in employment or employment
practices.
5.1.17 Contracts for Personal Services. Seller is not a
party or subject to any contract, agreement or commitment, written or oral,
for or relating to personal services rendered or to be rendered to Seller,
and the Assets do not include, and after the closing hereunder will not be
affected by, any such contract, agreement or commitment.
5.1.18 Employee Benefit Arrangements. Except as set forth on
Schedule 5.1.18, Seller is not a party to or bound by any contract,
agreement or commitment by the terms of which any person is or may become
entitled (for any reason or in any capacity) to any share in the proceeds,
earnings or profits of Seller or its business or of any department,
division or other unit of Seller or its business, and Seller has no pension
or retirement income plan, contract, agreement or commitment in force for
the benefit of any of its employees or consultants, the obligations under
which will not at the Closing Date have been fully discharged. No person
or party has asserted any claim under which Seller has any liability under
any health, sickness, disability, medical, surgical, hospital or similar
benefit plan or arrangement (whether legally binding or not) maintained by
Seller, or to or by which Seller or its business or any of the Assets is a
party or is subject or is bound, or under any workers' compensation or
similar law, which is not fully covered by insurance maintained with
reputable, financially responsible insurers.
5.1.19 Collective Bargaining Agreements. Seller is not a
party to or bound by any collective bargaining agreement or other labor
agreement with any bargaining agent (exclusive or otherwise) of any of its
employees, except only for such collective bargaining agreements as shall
have been terminated and fully performed and discharged by Seller on or
prior to the Closing Date.
5.1.20 Other Interested Parties. Seller has not adopted or
become a party to any plan, contract, agreement or commitment for the sale,
distribution or issuance of any interest in Seller or its business or any
of the Assets to any person (other than as provided herein).
5.1.21 Contracts for Purchase or Sale. Seller is not a party
to or bound by any contract, agreement or commitment with any person or
party for the purchase of any properties or assets which requires that
payment for such properties or assets shall be made whether or not delivery
is ever made thereof, and Seller is not a party to or bound by any other
contract, agreement or commitment for the purchase or for the sale of any
properties or assets of any nature, except only such as have been made in
the ordinary course of business.
5.1.22 Insurance. To the best knowledge of Seller and the
Shareholders, all of the tangible Assets are insured to their full
replacement value with financially sound and reputable insurers. Schedule
5.1.22 attached hereto contains a true and complete list and description of
all insurance policies of which Seller is the owner or beneficiary.
5.1.23 Condition of Assets. All of the tangible Assets are
in good operating condition and repair and in compliance with all
applicable laws and regulations. The use and operation of the Assets is in
full compliance with applicable building codes, environmental, zoning and
land use laws, and all other local, state and federal laws and regulations.
All of the Assets described in clause (g) of section 1.1.3 will have arisen
or accrued, at the Closing Date, in the ordinary course of business, will
at the Closing Date represent legal, valid and binding obligations due to
Seller, and will at the Closing Date be collectible in the ordinary course
of business in the full recorded amounts thereof (except only for any
thereof for which reserves have been established on Seller's balance sheet
as of March 31, 2000). The Inventory is in good and merchantable
condition, reasonably in balance and currently of a usable and saleable
quality.
5.1.24 Licenses. Seller has obtained, and the Assets include,
all licenses, permits, easements and rights of way, but excluding those to
which section 3.1.5 refers, required from all governmental authorities
having jurisdiction over Seller or any of the Assets or from private
parties, for the normal use and operation of the Assets and Seller's
business and to insure vehicular and pedestrian ingress to and egress from
the premises where the Assets are located.
5.1.25 Additions. Seller is not a party to any contract,
agreement or commitment for any additions, repairs or improvements to any
Assets for which payment has not been made in full.
5.1.26 No Liens. None of the Assets is subject to or
affected by any Lien, and no such Lien has been claimed and there is no
basis for any such claim.
5.1.27 Compliance with Laws. Seller has complied with, and
is not in violation of or default under, any laws, rules, regulations,
orders or decrees applicable to Seller or any of the Assets. To the best
of Seller's and the Shareholders' knowledge, (a) the sale and assignment
hereunder of the Assets to Buyer will include all rights necessary to
ensure compliance with all governmental statutes, laws, rules and
regulations, and (b) since December 31, 1999, no law, code, regulation or
ordinance has been adopted or is pending before ICBO or any other code
approval agency or any legislative or administrative body in any
jurisdiction where Seller carries on its business, which would, if adopted
or enacted, materially and adversely affect such business as now conducted.
5.1.28 Buyer's Use. None of Seller and the Shareholders has
any knowledge of any plan, study or effort of ICBO or any other code
approval agency or any governmental authority that would materially affect
the business of Seller or the use of the Assets, or any portion thereof,
for their intended uses, or of any intended public improvements that could
result in any charge being levied against, or any Lien assessed on, Seller
or its business or any of the Assets. None of Seller and the Shareholders
has any notice or knowledge of any facts that would adversely affect
Buyer's usage and operation of the Assets after the closing hereunder in
the manner in which the Assets are now used and operated by Seller.
5.1.29 Environmental Matters. Seller is in compliance with
every, and has no liability (actual, fixed, contingent, matured, unmatured,
liquidated, unliquidated or accrued) under any, law, code, statute,
ordinance, rule or regulation relating to the environment or the discharge
of matter into the air, ground or water, or the generation, disposal or
storage of any substance, which liability arises or results, or may arise
or result, from any act or omission of Seller. There has been no
production, disposal or storage on or in any properties used, possessed or
occupied by Seller, nor any use in the construction or operation thereof,
of any hazardous waste or toxic substance, nor, to the best of Seller's and
the Shareholders' knowledge, by any previous owner, tenant or user thereof.
To the best of Seller's and the Shareholders' knowledge, no claims,
actions, suits, proceedings, investigations or inquiries are pending or
contemplated or have been threatened and no judgments have been entered by
or before any court or governmental authority or agency concerning any of
such laws, codes, statutes, ordinances, rules, or regulations or any such
production, disposal or storage.
5.1.30 Disclosure. Neither this Agreement nor the financial
statements delivered as provided in section 5.1.8 nor any exhibit or
schedule hereto nor any other certificate, instrument, document or
information furnished by Seller or any of the Shareholders to Buyer
hereunder or in connection herewith contains any untrue statement of a
material fact or omits to state any material fact necessary to make the
statements contained therein or herein not misleading. To the best
knowledge of Seller and the Shareholders, there is no fact which adversely
affects or in the future may (so far as Seller and the Shareholders can
reasonably foresee) materially adversely affect any of the Assets or the
business of Seller that has not been set forth herein or in an exhibit or
schedule hereto or otherwise disclosed in writing to Buyer.
5.2 Of Buyer. Buyer hereby represents and warrants to and agrees
with Seller, as follows:
5.2.1 Organization. Buyer is a corporation duly organized,
validly existing and in good standing under the laws of the State of
California, and has full corporate power and authority to carry on its
business as now conducted and to own its assets.
5.2.2 No Restrictions on Transaction. Buyer is not subject
to any charter provision, bylaw, Lien, indenture, lease, agreement,
instrument, law, rule, regulation, order, judgment or decree or any other
restriction that would interfere with consummation of the transactions
contemplated by this Agreement. This Agreement has been duly authorized,
executed and delivered by Buyer and is the legal, valid and binding
agreement of Buyer, enforceable against Buyer in accordance with its terms,
except as such enforceability may be limited by bankruptcy, insolvency,
reorganization, arrangement, moratorium or other similar law relating to or
affecting the rights of creditors generally and except for limitations
imposed by general principles of equity on the availability of equitable
remedies.
5.2.3 No Conflicts. The execution and delivery by Buyer of
this Agreement, the performance by Buyer of its obligations hereunder and
its performance of, fulfillment of and compliance with all of the terms and
conditions hereof, do not and will not conflict with, breach or result in a
breach of the terms, conditions or provisions of, or constitute a default
under, result in the creation of any Lien on any of its properties pursuant
to, give any third party the right to accelerate any obligation under,
violate or result in a violation of, or require any authorization, consent,
approval, exemption or other action by or notice to any person or any court
or administrative or governmental body or agency pursuant to, any
agreement, indenture, mortgage, instrument, law, statute, code, ordinance,
rule, regulation, order, judgment or decree to or by which Buyer is a
party, is subject or is bound.
5.2.4 Litigation. Buyer is not a party to any pending, and
has no notice or knowledge of any threatened or any knowledge of any basis
for any, action, suit, proceeding or investigation, at law or in equity or
otherwise, in, before or by any court or arbitrator or any governmental
board, commission, agency, department or officer, in which an adverse
determination could have a material adverse effect on the execution,
delivery or performance by Buyer of this Agreement.
5.3 Survival. All representations, warranties and agreements in
this Agreement shall survive any investigation made by or on behalf of any
party and shall survive the consummation of the transactions contemplated
by this Agreement and shall terminate on the second anniversary of the
Closing Date.
6. Attorneys' Fees. If any party hereto shall fail to perform any of
its or his obligations under this Agreement or if a dispute arises
concerning the meaning or interpretation of any provision of this
Agreement, the defaulting party or parties or the party or parties not
prevailing in such dispute, as the case may be, shall pay any and all costs
and expenses incurred by the other party or parties in enforcing or
establishing their or its or his rights hereunder, including, without
limitation, court costs and the fees and expenses of attorneys and expert
witnesses.
7. Time. Time is of the essence of this Agreement.
8. Entire Agreement. This Agreement contains the entire agreement of
the parties and supersedes any and all prior or contemporaneous
negotiations, correspondence, understandings and agreements between or
among the parties, written or oral, regarding the subject matter hereof.
9. Modification and Waiver. This Agreement may be amended or
modified at any time only by a written instrument executed by Seller,
Shareholders holding a majority of the shares of common stock of Seller
owned by all of the Shareholders, and Buyer. Any of the terms, covenants,
representations, warranties or conditions hereof may be waived by a written
instrument executed by the party waiving compliance; provided that, for
this purpose, the Shareholders all be deemed to be a single party, and such
instrument need be executed only by the holders of a majority of the shares
of common stock of Seller held by all of them. The failure of any party at
any time or times to require performance of any provision hereof shall in
no manner affect the right of such party at a later time to enforce the
same. No waiver by any party of the breach of any term, agreement,
covenant, representation or warranty in this Agreement as a condition to
such party's obligations hereunder shall release or affect any liability
resulting from such breach, and no waiver of any nature, whether by conduct
or otherwise, in any one or more instances shall be deemed to be or be
construed as a further or continuing waiver of any such condition or of any
breach of any other term, agreement, covenant, representation or warranty.
10. Notices. All notices, requests, waivers, approvals, instructions,
consents, demands and other communications hereunder shall be in writing
and shall be deemed duly given and received when delivered personally, when
transmitted by facsimile, one business day after being deposited for next-
day delivery with a nationally recognized overnight delivery service, or
three days after being deposited with the United States Postal Service as
first class mail, with all charges or postage prepaid, properly addressed,
as follows:
If to Seller, at --
Anchor Tiedown Systems, Inc.
000 X.X. 000xx Xx., Xxxxx X
Xxxxxx, XX 00000
Facsimile No. (000) 000-0000
Attention: Xxxxx X. Xxxxx
With a copy to:
Xxxxxx Xxxxxxx, Esq., Attorney at Law
0000 - 000xx Xxxxxx Xxxxxxxxx, Xxxxx X000
Xxxxxxxx, XX 00000
Facsimile No. (000) 000-0000
And:
Xxxxxxx X. Xxxxxx
Xxxxxx & Xxxxxx
0000 Xxxxxxxxx Xxxxx, Xxxxx 000
Xxx Xxxxxx, Xxxxxxxxxx 00000
Facsimile No. (000) 000-0000
If to Buyer, at --
0000 Xxxxxx Xxxxx, Xxxxx 000
P.O. Box 10789
Xxxxxxxxxx, Xxxxxxxxxx 00000
Facsimile No. 925-847-9114
Attention: Xx. Xxxxxxx X. Xxxxxxx
With a copy to:
Shartsis, Xxxxxx & Xxxxxxxx LLP
Xxx Xxxxxxxx Xxxxx, 00xx Xxxxx
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Facsimile No. 000-000-0000
Attention: Xxxxxxx X. Xxxxxx, Esq.
11. Counterparts. This Agreement may be executed in any number of
counterparts, or by different parties in different counterparts, each of
which shall be deemed an original, but all of which together shall
constitute one and the same instrument.
12. Successors and Assigns. This Agreement shall bind and inure to
the benefit of the parties hereto and their respective successors and
assigns; provided that none of Seller and the Shareholders shall assign
this Agreement or any rights hereunder or delegate any duties hereunder,
without the prior consent of Buyer, and any attempted or purported
assignment or delegation by any of Seller and the Shareholders without the
consent of Buyer shall be void.
13. Exhibits. All schedules and exhibits attached hereto and the
documents and instruments delivered at the closing hereunder are expressly
made a part of this Agreement as fully as though completely set forth
herein, and all references to this Agreement herein or in any of such
documents and instruments (whether or not such references include a
specific reference to such documents and instruments) shall be deemed to
refer to and include all such documents and instruments. Any breach of or
default under any provision of any of such documents and instruments,
shall, for all purposes, constitute a breach or default under this
Agreement.
14. Number and Gender. Whenever the context requires, the use in this
Agreement of the singular number shall be deemed to include the plural and
vice versa, each gender shall be deemed to include each other gender, and
"person" shall be deemed to include, in addition to natural person,
corporation, partnership, limited liability company, trust, association,
firm or other entity or organization.
15. No Third Party Beneficiaries. This Agreement is not intended, nor
shall it be construed, to confer any enforceable rights on any person who
is not a party hereto.
16. Governing Law. This Agreement shall be governed by and construed
and interpreted in accordance with the laws of the State of California.
17. Headings. The headings herein are for convenience of reference
only, are not part of this Agreement and shall not affect the construction
or interpretation of any provision hereof.
IN WITNESS WHEREOF, this Asset Purchase Agreement has been duly
executed by or on behalf of the parties hereto as of the date first above
written.
---------------------------------
Xxxxx X. Xxxxx
---------------------------------
Xxxxxx X. Xxxxxxxxxx
---------------------------------
Xxxxxxx X. Xxxxxx
---------------------------------
Xxxxxx X. Xxxxx
---------------------------------
Xxxxx X. Xxxxx
ANCHOR TIEDOWN SYSTEMS, INC.
By
---------------------------------
Xxxxx X. Xxxxx
President
XXXXXXX STRONG-TIE COMPANY INC.
By
---------------------------------
Xxxxxxx X. Xxxxxxx
Chief Financial Officer
LIST OF EXHIBITS AND SCHEDULES
Exhibit A Form of Xxxx of Sale and Assignment
Exhibit B Form of Assignment of Patent Rights
Exhibit C Intentionally Omitted
Exhibit D Form of Opinion of Counsel for Seller and the
Shareholders
Exhibit E Form of Consulting Agreement
Exhibit F General Release
Schedule 1.1.3(a) Assigned Contracts
Schedule 1.1.3(b) Code Approvals
Schedule 2.7 Allocation of Purchase Price
Schedule 5.1.2 Share Ownership of Seller
Schedule 5.1.5 Directors and Officer of Seller
Schedule 5.1.6 Liens Affecting Seller or Its Properties or
Business
Schedule 5.1.7 Conflicts
Schedule 5.1.13 Intellectual Property
Schedule 5.1.15 Litigation
Schedule 5.1.18 Employment Arrangements
Schedule 5.1.22 Insurance
EXHIBIT A
XXXX OF SALE AND ASSIGNMENT
AND
ASSUMPTION OF LIABILITIES
FOR VALUABLE CONSIDERATION, the receipt and sufficiency of which are
hereby acknowledged, and pursuant to that certain Asset Purchase Agreement
dated as of July ___, 2000 (the "Agreement"), among Anchor Tiedown Systems,
Inc., a Washington corporation ("Transferor"), Xxxxx X. Xxxxx, Xxxxxx X.
Xxxxxxxxxx, Xxxxxxx X. Xxxxxx, and Xxxxxx X. Xxxxx and Xxxxx X. Xxxxx,
husband and wife, and Xxxxxxx Strong-Tie Company Inc., a California
corporation ("Buyer"), Transferor hereby sells, assigns and transfers to
Buyer all right, title and interest in and to all of the tangible and
intangible assets identified or described on Exhibits I, II, III, IV, V and
VI attached hereto and incorporated herein by this reference (the
"Assets"). Capitalized terms used and not otherwise defined herein have
the meanings respectively ascribed to them in the Agreement. Transferor
covenants and warrants that:
(a) Transferor has fully paid for, and is the owner of, and has
absolute title to, all of the Assets, free and clear of all mortgages,
pledges, liens, claims, charges, encumbrances, community property
rights, security interests and other defects of title, of any kind or
nature, except only as is expressly set forth in an exhibit attached
hereto.
(b) Transferor has not made any prior sale, assignment, transfer
or other disposition of any of the Assets to any person, firm or
association.
(c) Transferor has all right, power, authority and capacity to
sell, assign, convey and transfer each and all of the Assets to Buyer.
(d) None of the licenses or permits, Assigned Contracts or leases
or other contracts, or Code Approvals, included in the Assets, has
been amended or changed, nor has any oral or written notice of breach,
violation or default been received by Transferor under any of such
licenses, permits, leases or contracts.
(e) No notice is necessary or desirable to be given to, and no
consent or approval is necessary or desirable to be obtained from, any
person or party or governmental authority in connection with the
transactions effected hereby, except such as have been given or
obtained by Transferor and are in full force and effect.
(f) All of the Assets that are tangible, and each item thereof,
are in good repair, condition and working order, reasonable wear and
tear excepted, and, in the case of inventory, are in merchantable
condition and of a usable and saleable quality.
(g) All acts, proceedings and things necessary and required by
law or any instrument to which Transferor is a party or by which
Transferor is bound to make this Xxxx of Sale and Assignment a valid,
binding and legal obligation of Transferor, have been done and taken
and have happened, and the execution and delivery of this Xxxx of Sale
and Assignment have in all respects been authorized in accordance with
law.
Transferor shall forever warrant and defend the sale, assignment,
transfer, conveyance and delivery of each and every item of the Assets to
Buyer and Buyer's successors and assigns, against each and every person
lawfully claiming the same. Possession of all of the Assets and any and
all instruments representing the same is being delivered to Buyer
concurrently with this Xxxx of Sale and Assignment.
Transferor hereby appoints Buyer as Transferor's attorney-in-fact to
demand, receive and collect for Buyer's own use and benefit all debts and
obligations owing to Transferor on the effective date hereof in connection
with the Assets. Transferor further authorizes Buyer to do all things
legally permissible that may be required to recover and collect such debts
and obligations and to use Transferor's name in any manner Buyer may deem
necessary for the collection and recovery of those debts and obligations,
but without cost, expense or damage to Transferor.
Buyer hereby assumes the performance and payment when due of all of
the terms, covenants and conditions imposed on Transferor under or in
connection with the Assigned Contracts identified in Exhibit III and all
permits, licenses and authorizations included in the Assets. Buyer agrees
to indemnify Transferor and hold Transferor harmless from and against any
and all of such terms, covenants and conditions.
This Xxxx of Sale and Assignment and Assumption of Liabilities shall
bind and inure to the benefit of Transferor and Buyer and their respective
successors and assigns.
This Xxxx of Sale and Assignment and Assumption of Liabilities shall
be governed by and construed and interpreted in accordance with the laws of
the State of California.
IN WITNESS WHEREOF, this Xxxx of Sale and Assignment and Assumption of
Liabilities has been duly executed by or on behalf of Transferor and Buyer
on this ____________, 2000, at ____________, California.
BUYER:
XXXXXXX STRONG-TIE COMPANY INC.
By
----------------------------------
Its
-----------------------------
By
----------------------------------
Its
-----------------------------
TRANSFEROR:
ANCHOR TIEDOWN SYSTEMS, INC.
By
----------------------------------
Its
-----------------------------
By
----------------------------------
Its
-----------------------------
EXHIBITS ATTACHED:
I Equipment
II Inventory
III Assigned Contracts and Code Approvals
IV Trade Names, Trademarks, Service Marks and Copyrights
V Patent Rights
VI Other Intangible Property
ADD ACKNOWLEDGMENTS
EXHIBIT B
PATENT ASSIGNMENTS
ASSIGNMENT OF PATENT RIGHTS
Patent No.
4,875,314
WHEREAS, Xxxxx X. Xxxxx of 000 XX 000xx, Xxxxx X, Xxxxxx, Xxxxxxxxxx
00000 ("X. Xxxxx") and Anchor Tiedown Systems, Inc., a Washington
corporation having its principal place of business at 000 XX 000xx, Xxxxx
X, Xxxxxx, Xxxxxxxxxx 00000 ("Anchor", and collectively with X. Xxxxx, the
"Assignor") have acquired and own exclusively a certain invention entitled
Connection System for Preventing Uplift of Shear Walls (the "Invention")
for which Letters Patent of the United States of America has issued on
October 24, 1989 and has been assigned patent number 4,875,314 (the
"Patent"); and
WHEREAS, Xxxxxxx Strong-Tie Company Inc., a California corporation
having its principal place of business at 0000 Xxxxxx Xxxxx, Xxxxx 000,
Xxxxxxxxxx, Xxxxxxxxxx 00000 ("Assignee") desires to acquire the exclusive
right, title and interest in and to the Invention and in and to the Patent
and any similar legal protection to be obtained therefor in the United
States of America, or its territorial possessions or in any and all foreign
countries;
WHEREAS, on March 1, 1993 and as amended on January 1, 1997, X. Xxxxx
and Xxxxxxx X. Xxxxxx ("X. Xxxxxx") entered into a License Agreement
("License Agreement") with Anchor giving Anchor the exclusive right to
license the Patent for a period of thirteen (13) years;
WHEREAS, on July 31, 1999, X. Xxxxxx entered into a Stock Redemption
and Separation Agreement with Anchor whereby, among other things, X. Xxxxxx
assigned all of his rights and obligations in the Patent and the License
Agreement to Anchor, effectively terminating half of the License Agreement
as Anchor became both licensor and licensee of fifty percent (50%) of the
Patent;
WHEREAS, Anchor, X. Xxxxx, Xxxxxx X. Xxxxxxxxxx, Xxxxxxx X. Xxxxxx and
Assignee have entered into an Asset Purchase Agreement ("Asset Purchase
Agreement"), whereby Assignee will obtain all rights and obligations of
Anchor under the License Agreement;
WHEREAS, in connection with the Asset Purchase Agreement and as a
consequence of this Assignment Agreement, Assignee will become the sole
licensor and licensee of the Patent, thereby nullifying the License
Agreement, as a party may not license a right to itself;
WHEREAS, the parties desire to assign the Patent and to acknowledge
the termination of the License Agreement;
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Assignor hereby sells,
assigns, transfers and sets over to Assignee and its successors and
assigns, full and exclusive right, title and interest in and to the
Invention and to the Patent or similar legal protection in the United
States and its territorial possessions and in all foreign countries, now
existing or that may be obtained for the Invention in addition to the
Patent, and to any continuation, division, renewal, substitute or reissue
thereof or any legal equivalent thereof in the United States or any foreign
country for the full term or terms for which the same may be granted,
including all priority rights under the International Convention.
Assignor hereby covenants that no assignment, sale, agreement or
encumbrance has been or will be made or entered into that would conflict
with this Assignment. Assignor further covenants that Assignee will, upon
request, be provided promptly with all pertinent facts and documents
relating to the Invention and the Patent and all legal equivalents as may
be known or accessible to Assignor, and that Assignor, at Assignee's
expense, will testify as to the same in any interference or litigation
relating thereto and will promptly execute and deliver to Assignee or its
legal representatives any and all papers, instruments or affidavits
required to apply for, obtain, maintain, issue and enforce the Invention,
the Patent and its equivalents in the United States or in any foreign
country, which may be necessary or desirable to carry out the purposes
thereof. Assignor authorizes Assignee to record this Assignment with the
United States Patent and Trademark Office without any further consent or
signature from Assignor.
Effective as of the Closing Date (as defined in the Asset Purchase
Agreement), X. Xxxxx and Anchor agree that the License Agreement, and all
rights and obligations thereunder, shall be terminated automatically and of
no further force or effect.
IN WITNESS WHEREOF, this Assignment of Patent Rights has been duly
executed and delivered by the undersigned on the dates set forth below
their respective signatures.
ASSIGNOR:
--------------------------------------
Xxxxx X. Xxxxx
Date: July 28, 2000
Anchor Tiedown, Inc.
By:
---------------------------------
Title:
------------------------------
Date: July 28, 2000
ASSIGNEE:
XXXXXXX STRONG-TIE COMPANY INC.
By:
---------------------------------
Title:
------------------------------
Date: July 28, 2000
Add Acknowledgements
ASSIGNMENT OF PATENT RIGHTS
Patent No.
5,180,268
WHEREAS, Anchor Tiedown System, Inc., a Washington corporation having
its principal place of business at 000 X.X. 000xx Xxxxxx, Xxxxxxxxxx 00000
("Assignor") has acquired and owns exclusively a certain invention entitled
Expansion Washer (the "Invention") for which Letters Patent of the United
States of America has issued on January 19, 1993 and has been assigned
patent number 5,180,268 (the "Patent"); and
WHEREAS, Xxxxxxx Strong-Tie Company Inc., a California corporation
having its principal place of business at 0000 Xxxxxx Xxxxx, Xxxxx 000,
Xxxxxxxxxx, Xxxxxxxxxx, 00000 ("Assignee") desires to acquire the exclusive
right, title and interest in and to the Invention and in and to the Patent
and any similar legal protection to be obtained therefor in the United
States of America, or its territorial possessions or in any and all foreign
countries;
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Assignor hereby sells,
assigns, transfers and sets over to Assignee and its successors and
assigns, full and exclusive right, title and interest in and to the
Invention and to the Patent or similar legal protection in the United
States and its territorial possessions and in all foreign countries, now
existing or that may be obtained for the Invention in addition to the
Patent, and to any continuation, division, renewal, substitute or reissue
thereof or any legal equivalent thereof in the United States or any foreign
country for the full term or terms for which the same may be granted,
including all priority rights under the International Convention.
Assignor hereby covenants that no assignment, sale, agreement or
encumbrance has been or will be made or entered into that would conflict
with this Assignment. Assignor further covenants that Assignee will, upon
request, be provided promptly with all pertinent facts and documents
relating to the Invention and the Patent and all legal equivalents as may
be known or accessible to Assignor, and that Assignor, at Assignee's
expense, will testify as to the same in any interference or litigation
relating thereto and will promptly execute and deliver to Assignee or its
legal representatives any and all papers, instruments or affidavits
required to apply for, obtain, maintain, issue and enforce the Invention,
the Patent and its equivalents in the United States or in any foreign
country, which may be necessary or desirable to carry out the purposes
thereof. Assignor authorizes Assignee to record this Assignment with the
United States Patent and Trademark Office without any further consent or
signature from Assignor.
IN WITNESS WHEREOF, this Assignment of Patent Rights has been duly
executed and delivered by the undersigned on the dates set forth below
their respective signatures.
ASSIGNOR:
ANCHOR TIEDOWN SYSTEMS, INC.
By:
---------------------------------
Date: July 28, 2000
ASSIGNEE:
XXXXXXX STRONG-TIE COMPANY INC.
By:
---------------------------------
Title:
------------------------------
Date: July 28, 2000
Add Acknowledgements
ASSIGNMENT OF PATENT RIGHTS
Patent No.
1,325,874
WHEREAS, Xxxxx X. Xxxxx of 000 XX 000xx, Xxxxx X, Xxxxxx, Xxxxxxxxxx
00000 ("X. Xxxxx") and Anchor Tiedown Systems, Inc., a Washington
corporation having its principal place of business at 000 XX 000xx, Xxxxx
X, Xxxxxx, Xxxxxxxxxx 00000 ("Anchor", and collectively with X. Xxxxx, the
"Assignor") have acquired and own exclusively a certain invention entitled
Structural Connection System (the "Invention") for which Letters Patent of
the Canadian Patent Office has issued on January 11, 1994 and has been
assigned patent number 1,325,874 (the "Patent"); and
WHEREAS, Xxxxxxx Strong-Tie Company Inc., a California corporation
having its principal place of business at 0000 Xxxxxx Xxxxx, Xxxxx 000,
Xxxxxxxxxx, Xxxxxxxxxx 00000 ("Assignee") desires to acquire the exclusive
right, title and interest in and to the Invention and in and to the Patent
and any similar legal protection to be obtained therefor in Canada or its
territorial possessions or in any and all foreign countries;
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Assignor hereby sells,
assigns, transfers and sets over to Assignee and its successors and
assigns, full and exclusive right, title and interest in and to the
Invention and to the Patent or similar legal protection in Canada and its
territorial possessions and in all foreign countries, now existing or that
may be obtained for the Invention in addition to the Patent, and to any
continuation, division, renewal, substitute or reissue thereof or any legal
equivalent thereof in Canada or any foreign country for the full term or
terms for which the same may be granted, including all priority rights
under the International Convention.
Assignor hereby covenants that no assignment, sale, agreement or
encumbrance has been or will be made or entered into that would conflict
with this Assignment. Assignor further covenants that Assignee will, upon
request, be provided promptly with all pertinent facts and documents
relating to the Invention and the Patent and all legal equivalents as may
be known or accessible to Assignor, and that Assignor, at Assignee's
expense, will testify as to the same in any interference or litigation
relating thereto and will promptly execute and deliver to Assignee or its
legal representatives any and all papers, instruments or affidavits
required to apply for, obtain, maintain, issue and enforce the Invention,
the Patent and its equivalents in Canada or in any foreign country, which
may be necessary or desirable to carry out the purposes thereof. Assignor
authorizes Assignee to record this Assignment with the Canadian Patent
Office without any further consent or signature from Assignor.
IN WITNESS WHEREOF, this Assignment of Patent Rights has been duly
executed and delivered by the undersigned on the dates set forth below
their respective signatures.
ASSIGNOR:
--------------------------------------
Xxxxx X. Xxxxx
Date: July 28, 2000
Anchor Tiedown, Inc.
By:
---------------------------------
Title:
------------------------------
Date: July 28, 2000
ASSIGNEE:
XXXXXXX STRONG-TIE COMPANY INC.
By:
---------------------------------
Title:
------------------------------
Date: July 28, 2000
Add Acknowledgements
EXHIBIT C
INTENTIONALLY OMITTED
EXHIBIT D
OPINION OF COUNSEL FOR SELLER AND THE SHAREHOLDERS
XXXXXX X. XXXXXXX
ATTORNEY AT LAW
0000 - 000xx Xxx. XX, Xxxxx X000
Xxxxxxxx, XX 00000
(000) 000-0000
Fax (000) 000-0000
Email xxxxxxxx@xxxxxxxxxx.xxx
July ___, 2000
Xxxxxxx Strong-Tie Company Inc.
0000 Xxxxxx Xxxxx, Xxxxx 000
P.O. Box 10789
Xxxxxxxxxx, Xxxxxxxxxx 00000
Re: Purchase of assets of Anchor Tiedown Systems, Inc.
Ladies and Gentlemen:
I am delivering this opinion to you pursuant to Section 3.1.12 of the
Asset Purchase Agreement (the "Asset Purchase Agreement"), dated as of July
___, 2000, by and among Anchor Tiedown Systems, Inc., a Washington
corporation ("Seller"), and Xxxxx X. Xxxxx, Xxxxxx X. Xxxxxxxxxx, Xxxxxxx
X. Xxxxxx and Xxxxxx X. Xxxxx and Xxxxx X. Xxxxx, husband and wife (the
"Shareholders"), on the one hand, and Xxxxxxx Strong-Tie Company Inc., a
California corporation ("Buyer"), on the other hand. Capitalized terms
used and not otherwise defined herein have the meanings respectively
ascribed to them in the Asset Purchase Agreement.
I have examined originals or copies of the following documents:
(i) the Articles of Incorporation of Seller;
(ii) the By-Laws of Seller;
(iii) certain records of proceedings and actions of the Shareholders
and the Board of Directors of Seller;
(iv) the Asset Purchase Agreement;
(v) the Xxxx of Sale;
(vi) the Patent Assignments;
(vii) the Consulting Agreements; and
(viii) certificates of public authorities, or certified copies of
documents supplied by them, as to certain information regarding
the formation, valid existence, and good standing of Seller.
With your permission I have, without independent investigation,
assumed (1) the authenticity of each document submitted to me as an
original, (2) the conformity to the original of each document submitted to
me as a copy and the authenticity of its original, (3) the genuineness of
all signatures, and (4) the legal capacity of natural persons. With your
permission, I have, without independent investigation, also assumed that
Buyer had the power to enter into and perform all documents to which it is
a party and the due authorization, execution and delivery of all such
documents by Buyer. With your permission, I have, without independent
investigation, also assumed that any certificate or representation on which
I have relied is authentic and accurate as to the factual matters.
Whenever my opinion herein with respect to the existence or absence of
facts is indicated to be based on my knowledge, it is intended to signify
that during the course of my representation of Seller, no information has
come to my attention which would give me actual knowledge of the existence
or absence of such facts. In addition, I have not undertaken any
independent investigation to determine the existence or absence of such
facts, other than a review of the documents listed above and the other
documents in my files relating specifically to Seller and the Shareholders.
Notwithstanding the foregoing, with your permission, I have not made or
undertaken to make any investigation with respect to the state of title,
authenticity, validity, or enforceability of the Intellectual Property and,
notwithstanding anything to the contrary that may be set forth herein, I
express no opinion with respect to such matters.
I have made such examination of the laws of the State of Washington
and applicable Federal law as I deemed relevant and necessary for the
purposes of this opinion letter. I am not admitted to practice in any
state other than the State of Washington. Accordingly, I express no
opinion as to the laws of any state or jurisdiction other than that of the
State of Washington and applicable Federal laws. Notwithstanding the
foregoing, with your permission, I have not made or undertaken to make any
examination of the Federal laws governing Intellectual Property, and,
notwithstanding anything to the contrary that may be set forth herein, I
express no opinion with respect to the Federal laws governing Intellectual
Property.
Based upon the foregoing and in reliance thereon, and subject to the
limitations, qualifications, and assumptions set forth herein, I am of the
opinion that:
(a) Seller is a corporation duly organized, validly existing and in
good standing under the laws of the State of Washington. The Seller is
duly qualified to conduct business and is in good standing as a foreign
corporation under the laws of the State of California and each other
jurisdiction where, by virtue of its business conducted therein, it is
required to be so qualified.
(b) The authorized capital stock of Seller consists of 50,000 shares
of common stock, of which 32,222 shares have been duly and validly issued
and are outstanding, fully paid, nonassessable and free of preemptive and
similar rights, except that (1) the holders of such shares have preemptive
rights as set forth in RCW 23B.06.300, and (2) 10,000 of such shares were
issued in exchange for promissory notes that have not been paid in full.
(c) Seller has all necessary power, authority and capacity to carry
on its business as now being conducted, to own its assets, to sell the
Assets to Buyer as contemplated in the Asset Purchase Agreement, to execute
and deliver the Asset Purchase Agreement, the Xxxx of Sale, the Patent
Assignments and the Consulting Agreements (collectively, the "Transaction
Documents") and all certificates, instruments and other documents
contemplated thereby and to perform its obligations thereunder.
(d) All necessary action and other proceedings required to be taken
by any or all of Seller and the Shareholders to authorize and carry out the
Transaction Documents have been duly and properly taken, and all
certificates, instruments and other documents contemplated thereby and to
consummate the transactions contemplated thereby have been duly and
properly executed and delivered.
(e) The Transaction Documents have been duly executed and delivered
by Seller and the Shareholders party thereto, respectively, and constitute
legal, valid and binding agreements of such Seller and the Shareholders,
enforceable against them in accordance with their respective terms, except
as such enforceability may be limited by bankruptcy, insolvency,
reorganization, arrangement, moratorium or other similar laws relating to
or affecting the rights of creditors generally and except for limitations
imposed by general principles of equity on the availability of equitable
remedies.
(f) The instruments and documents of transfer and conveyance executed
and delivered by Seller on or prior to the Closing Date are valid in
accordance with their terms and are effective to transfer and convey to
Buyer all of the Assets, free and clear of any Liens known to me, provided,
however, that I express no opinion with respect to the transfer of the
Intellectual Property.
(g) Except with respect to the Code Approvals as to which I express
no opinion, all waivers, approvals and consents of third parties required
for the transfer or conveyance to Buyer of any and all of the Assets have
been obtained, and all other actions and proceedings required by any
contract, agreement, commitment, lease or understanding known to me, or by
law, or by the Transaction Documents or any certificate, instrument or
other document contemplated thereby, to be taken by Seller, or any of the
Shareholders, at or prior to the closing under the Asset Purchase Agreement
and in connection with the transactions contemplated thereby or by any
certificate, instrument or document contemplated thereby, have been duly
and validly taken.
(h) To the best of my knowledge, except with respect to the Code
Approvals as to which I express no opinion, neither Seller nor any of the
Assets is subject to any charter provision or bylaw, or to any Lien,
indenture, lease, agreement or instrument known to me, or to any law, rule,
regulation, order, judgment or decree of public record, that would
interfere with consummation of the transactions contemplated by any of the
Transaction Documents or by any certificate, instrument or document
contemplated thereby.
(i) Except with respect to the Code Approvals as to which I express
no opinion, the execution and delivery by Seller and the Shareholders of
the Transaction Documents, the performance by each of them of its or his
respective obligations thereunder and its or his performance of,
fulfillment of and compliance with all of the terms and conditions thereof,
do not and will not conflict with, breach or result in a breach of the
terms, conditions or provisions of, or constitute a default under, result
in the creation of any Lien on any of its or his properties pursuant to,
give any third party the right to accelerate any obligation under, violate
or result in a violation of, or require any authorization, consent,
approval, exemption or other action by or notice to any person or any court
or administrative or governmental body or agency pursuant to, any Lien,
agreement, indenture or instrument known to me, or any law, statute, code,
ordinance, rule, regulation, order, judgment or decree of public record, to
or by which any of Seller and the Shareholders is a party, is subject or is
bound.
(j) Except as set forth in Schedule 5.1.15 of the Asset Purchase
Agreement, I have no knowledge of any litigation, proceeding or
governmental investigation pending or threatened against or relating to
Seller, any of the Assets or any of the transactions contemplated by the
Transaction Documents.
This opinion is solely for your benefit in connection with the
referenced transaction and may not be quoted or relied on by, nor copies be
delivered to, any other person, or used for any other purpose, without my
prior written consent.
Very truly yours,
Xxxxxx X. Xxxxxxx
EXHIBIT E
INDEPENDENT CONTRACTOR AGREEMENT
This Agreement is entered into as of July ___ 2000, by and between Xxxxxxx
Strong-Tie Company Inc., a California corporation ("Company") and Xxxxxxx
X. Xxxxxx ("Consultant") (collectively the "Parties").
1. Term of Agreement. This Agreement will become effective on the date
stated above, and will continue in effect until the Services provided for
in this Agreement have been fully performed or until this Agreement is
terminated as provided below.
2. Services of Consultant. Consultant agrees to perform the services
described in Appendix A attached to this Agreement, as further defined by
Company from time-to-time during the Term of this Agreement (the
"Services"). Consultant represents that he has the qualifications and
skills necessary to perform the Services under this Agreement, and that all
Services will be performed under this Agreement in a competent,
professional manner, without the advice or direction of the Company in
accordance with the standards of care, skill and diligence observed by
similar professionals performing such services. Consultant has discretion
for the manner in which the Services under this Agreement will be
performed, subject to Company's acceptance of the work performed.
Consultant will determine the method, details, and means of performing the
Services. Consultant may, at his own expense, use employees or other
subcontractors to perform the Services under this Agreement, but will honor
all reasonable requests by Company to remove and replace any employee or
subcontractor upon request by the Company.
3. Compensation and Reimbursement of Expenses. The Company shall pay
Consultant for the Services as set forth in Appendix A of this Agreement.
The Company will reimburse Consultant for all reasonable out-of-pocket
expenses approved in advance by the Company and supported by adequate
documentation for costs of travel and accommodations incurred as a result
of, and in the course of, performing Services for the Company ("Expenses").
Reimbursement to Consultant shall be made within thirty days after
Consultant submits an invoice to the Company, along with receipts for all
Expenses to be reimbursed. Consultant agrees to submit such invoices and
receipts within sixty days after the Expenses are incurred. Consultant
further agrees that the Company will not have any liability whatsoever for
any Services performed or Expenses incurred if Consultant fails to submit
an invoice and/or receipt to the Company within the sixty day period.
4. Relationship of the Parties. Consultant is entering into this
Agreement as, and shall continue to be, an independent contractor. Under
no circumstances shall Consultant become an employee, partner, agent or
principal of the Company while this Agreement is in effect. Subject to
Sections 7 and 11 of this Agreement, Consultant may represent, perform
services for, and contract with as many additional clients, persons or
companies as Consultant sees fit. Consultant understands and agrees that
Consultant is not entitled to the rights or benefits afforded to the
Company's employees, including disability or unemployment insurance,
worker's compensation, medical insurance, sick leave, or any other
employment benefit. Consultant is responsible for providing, at his own
expense, disability, worker's compensation, unemployment and other
insurance, as well as all licenses and permits usual or necessary for
Consultant and his employees and/or subcontractors to perform the Services.
5. Company's Cooperation. Company agrees to comply with all reasonable
requests for, and to provide access to, all documents and information
reasonably necessary to the performance of Consultant's duties under this
Agreement.
6. Consultant's Tax Obligations. Consultant is responsible for paying
when due all income taxes, including estimated taxes, incurred as a result
of the compensation paid by Company to Consultant. On request, Consultant
will provide the Company with proof of timely payment. Consultant agrees
to indemnify the Company for any claims, costs, losses, fees, penalties,
interest, or damages suffered by the Company resulting from Consultant's
failure to comply with this provision.
7. Confidentiality and Nondisclosure of Company Information.
(a) Confidential Information. As used in this Agreement,
Confidential Information means all information and materials of Company (or
any information or materials provided in confidence by a third party)
disclosed, directly or indirectly, either orally or in writing, to
Consultant, including all business and marketing plans, financial data,
compensation information, pricing and cost information, client and
prospective client lists and client and prospective client-related
information, product and software development information, systems
integration and technical information, know-how, programming, models,
strategies, analyses, databases, methods, techniques and processes.
Without limiting the generality of the foregoing, Confidential Information
includes all computer software, source code, object code, software
specifications, user interfaces, graphic displays, operating manuals, and
databases; information and materials relating to computer software,
features or enhancements now existing or under development or
consideration; and confidential customer, financial and business
information. Consultant acknowledges that information need not be labeled
as "confidential" to qualify as Confidential Information.
(b) Exclusion. Confidential Information does not include information
that Consultant can demonstrate: (i) is now or hereafter becomes, through
no act or failure to act on the part of Consultant, generally known or
widely available to the public; (ii) was known by Consultant prior to
receiving such information or materials from Company; or (iii) is
independently developed by Consultant without using, incorporating,
referencing, recreating or relying upon any of the Confidential
Information.
(c) Nondisclosure and Nonuse. Consultant acknowledges that while
performing Services for the Company Consultant will have access to and be
provided with Confidential Information. Consultant will at all times
during and after the term of this Agreement hold in strict confidence and
not directly or indirectly disclose or use, or assist or facilitate any
other person to disclose or use, any Confidential Information.
Notwithstanding the foregoing, Consultant understands that Consultant may
use Confidential Information only to the extent necessary to perform the
Services set forth in Exhibit A to this Agreement. If at any time
Consultant becomes aware of any possibility that Confidential Information
is at risk of being publicly disclosed, Consultant will immediately give
written Notice to the Company so that reasonable efforts can be made to
maintain the secrecy of the Confidential Information.
8. Inventions and Original Works. Consultant agrees that all right,
title, and interest in and to any and all software, original works of
authorship, developments, concepts, improvements, designs, discoveries,
inventions, ideas, trademarks or trade secrets, whether or not patentable
or registrable under copyright or similar laws (collectively referred to as
"Inventions"), which Consultant may solely or jointly conceive or develop
or reduce to practice, or cause to be conceived or developed or reduced to
practice, during the term of this Agreement shall be and are hereby
assigned to the Company or its designee, except for any Inventions which:
(i) Consultant developed entirely on his own time without using the
Company's equipment, supplies, facilities, or Confidential Information;
(ii) are unrelated to the Company's business; and (iii) do not result from
any work Consultant performed for the Company. Consultant further agrees
to execute all documents and take all actions to vest title in Company and
to effect the assignment upon request and to obtain patents or copyrights
for any Inventions, including but not limited to: (i) providing, if
requested, all data, plans, specifications, descriptions, documentation,
and other information; (ii) requiring its Consultants to execute, if
requested, all applications, oaths, assignments and all other instruments
and papers which Company shall deem necessary; and (iii) assisting Company
in completing any applications or registrations relating to such
Inventions. Consultant acknowledges and agrees that the decision whether
or not to commercialize or market any Invention is within the Company's
sole discretion and that no royalty or other compensation of any kind will
be due to Consultant as a result of the Company's efforts to commercialize
or market any such Invention. Notwithstanding the foregoing, the Company
acknowledges that Consultant currently has a patent application on file
with the United States Patent and Trademark Office under filing number 09-
257,875 for a "Garage Door" invention which Invention shall not be subject
to this Section 8.
9. Returning Company Documents and Computer Files. Upon termination of
this Agreement, Consultant agrees to deliver to the Company (and not keep
in Consultant's possession, recreate, copy or deliver to anyone else) any
and all computer files, software, e-mail messages, notes, memoranda,
reports, records, data, spreadsheets, presentations, proposals, lists,
correspondence, specifications, drawings, blueprints, sketches, equipment,
devices, and any other materials, documents or property, including any
reproductions of all such items, belonging to, obtained by or prepared by
Consultant during the term of this Agreement or otherwise belonging to the
Company, its successors or assigns.
10. Non-Solicitation of Company Employees. During the term of this
Agreement and for a period of one year after the termination of this
Agreement for any reason, Consultant agrees that Consultant will not
solicit, induce, recruit or encourage directly or indirectly (nor will
Consultant direct, encourage or assist anyone else to solicit, induce,
recruit or encourage) any of the Company's employees to terminate their
employment with Company or to work elsewhere.
11. Non-Interference with Company's Prospective Business Relationships.
Consultant understands that performing the Services set forth in Exhibit A
to this Agreement may require Consultant to contact directly or otherwise
establish business relationships with individuals and entities that are
customers, vendors, business partners or clients of the Company, and that
Consultant may become aware of the identity of such persons and of the
Company's Confidential Information related to such persons. Consultant
understands that the Company has made efforts to maintain the secrecy and
confidentiality of such Confidential Information, which includes among
other things, proprietary and confidential technical, marketing, sales and
other business information about the Company's customers, vendors, business
partners and clients. Consultant understands and agrees that such
Confidential Information provides the Company with a competitive advantage
in establishing and maintaining existing and prospective business
relationships and that disclosure or use of such Confidential Information
would unfairly impair or interfere with the Company's ability to conduct
its business profitably and would result in irreparable harm to the
Company. Consultant agrees that during the term of this Agreement and for
a period of one year immediately following the termination of the Agreement
for any reason, Consultant will not directly or indirectly solicit or
divert, or attempt to solicit or divert, from the Company, any customers,
vendors, business partners or clients, nor will Consultant directly or
indirectly interfere with or assist any other person in interfering with
the existing or prospective contracts, arrangements, or business
relationships of the Company with its customers, vendors, business partners
and clients.
12. Intentionally Omitted.
13. Indemnity. Consultant agrees to indemnify, defend, and hold the
Company free and harmless from all claims, demands, losses, costs,
expenses, obligations, liabilities, damages, recoveries, and deficiencies,
including interest, penalties, attorneys' fees, and costs, that the Company
may incur or suffer as a result of or related to any willful misconduct,
negligence, breach or failure to perform any of the representations,
warranties or obligations contained in this Agreement.
14. Assignment. Neither this Agreement nor any duties or obligations
under this Agreement may be assigned by Consultant or Company without the
prior written consent of the other party.
15. Termination of Agreement.
(a) Expiration of Agreement. Unless otherwise terminated as provided
in this Agreement, this Agreement shall commence on the date hereof and
shall continue until the first anniversary of the date of this Agreement.
This Agreement may be renewed for a successive one year term, provided
Consultant requests renewal and the Company agrees to such renewal.
(b) Termination by Company. Notwithstanding any other provision of
this Agreement, the Company may terminate this Agreement at any time with
or without Cause (as defined herein) by giving fifteen (15) days' written
Notice to Consultant. In the event the Company terminates this Agreement
without Cause during the initial one year term, the Company shall pay
Consultant the remaining compensation due Consultant under this Agreement,
payable monthly within 10 days after the end of each month and not as a
lump sum. For the purpose of this Agreement, "Cause" means (i) conviction
of a misdemeanor involving moral turpitude or a felony, (ii) any insobriety
or substance abuse that in any way affects Consultant's ability to perform
services contemplated hereby, (iii) any unlawful or wrongful act, omission,
activity or conduct during or in connection with the performance of such
services, or (iv) any wilful failure or refusal by Consultant to perform
promptly and competently any services contemplated by this Agreement.
(c) Termination by Consultant. Except during the initial ninety (90)
day period of this Agreement, Consultant may terminate this Agreement,
effective not earlier than fifteen (15) days after the Company receives
Consultant's notice of such termination. On such termination by
Consultant, Consultant shall be entitled only to Consultant's fee hereunder
to the date of such termination, and shall not be entitled to any other
compensation, including, without limitation, any severance compensation.
(d) Termination Due to Disability. If, in the reasonable judgment of
Company, Consultant becomes unable to perform competently and efficiently
Consultant's duties hereunder because of any physical, mental or legal
disability (including sickness or an injunction or similar order or decree
of a court of competent jurisdiction preventing or severely impairing the
performance of Consultant's duties hereunder, Consultant shall be entitled
to Consultant's fee accrued as of the date of such termination as provided
herein until the total period of disability exceeds sixty consecutive days
or, whether or not continuous and whether or not the same disability,
exceeds an aggregate of 120 days in any twelve-month period. If the total
period of disability exceeds sixty consecutive days or an aggregate of 120
days in any twelve-month period, either Consultant or the Company may
terminate this Agreement by giving written notice to the other, effective
thirty days from receipt of such notice. On such termination, Consultant
shall only be entitled to Consultant's fee accrued as of the date of such
termination and shall not be entitled to any other compensation, including,
without limitation, any fee or severance compensation. Notwithstanding the
foregoing, the Company acknowledges that Consultant has a disability that
restricts his movement and limits Consultant's ability to be present in the
Company's place of business. This disability of Consultant will not serve
as a basis for terminating Consultant under this Section 15(c) as long as
Consultant continues to perform his normal duties in the same manner as he
is performing such duties as of the date of this Agreement.
16. General Provisions.
(a) Notices. Any Notice required or permitted hereunder shall be
given in writing and shall be deemed effectively given upon personal
delivery or three (3) days after mailing if mailed by registered or
certified mail with postage and fees prepaid, addressed to the other Party
at the address below, or at such other address as the other Party may
designate.
To: Company
0000 Xxxxxx Xxxxx, Xxxxx 000
P.O. Box 10789
Xxxxxxxxxx, Xxxxxxxxxx 00000
Facsimile No. 925-847-9114
Attention: Xx. Xxxxxxx X. Xxxxxxx
To: Consultant
Xxxxxxx X. Xxxxxx
00 Xxxxxxxxx Xxxxx
Xxxx, Xxxxxxxxxx 00000
With a copy to:
Xxxxxxx X. Xxxxxx
Xxxxxx & Xxxxxx
0000 Xxxxxxxxx Xxxxx, Xxxxx 000
Xxx Xxxxxx, Xxxxxxxxxx 00000
Facsimile No.: 000-000-0000
(b) Severability. The invalidity or unenforceability of any
provision, word, phrase, clause, sentence, paragraph or section hereof
shall in no way affect the validity or enforceability of any other
provision, word, phrase, clause, sentence, paragraph or section hereof, and
any such invalid or unenforceable provision that is overbroad in scope,
duration or coverage, shall be deemed narrowed to the broadest term
permitted by applicable law and shall be enforced as narrowed. If one or
more of the provisions in this Agreement are deemed invalid or
unenforceable, then the remaining provisions will continue in full force
and effect.
(c) Successors. This Agreement shall inure to the benefit of and
bind the Company and Consultant, and their respective successors, assigns,
heirs, legatees, devisees and personal representatives.
(d) Entire Agreement. This Agreement contains the entire agreement
of the Company and Consultant with respect to the subject matter contained
herein and supersedes all prior negotiations, correspondence,
understandings and agreements between them with respect to the subject
matter hereof, including any other Confidentiality Agreements, Independent
Contractor Agreements or similar agreements that may have previously been
executed by the parties.
(e) Governing Law and Forum Selection. This Agreement shall be
construed and interpreted according to the laws of the State of California
not including, however, rules relating to choice or conflicts of law. Any
dispute arising out of or relating in any way to the subject matter of this
Agreement shall solely be venued in San Francisco, California, and the
parties hereby irrevocably submit to the jurisdiction and venue of a court
in San Francisco, California, having subject matter jurisdiction.
(f) Survival. All agreements, representations, warranties and
acknowledgments contained in Sections 6, 7, 8, 9, 10, 11 and 13 shall
survive any termination of this Agreement.
(g) Written Modifications. This Agreement may only be amended with
the written consent of the parties, and no oral waiver or amendment shall
be effective under any circumstances whatsoever.
(h) Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original and all of which
together shall constitute one and the same instrument.
THE DULY AUTHORIZED REPRESENTATIVES OF THE PARTIES ACKNOWLEDGE AND AGREE
THAT THEY HAVE CAREFULLY READ AND UNDERSTAND ALL OF THE FOREGOING AND HAVE
EXECUTED THIS AGREEMENT EFFECTIVE AS OF THE DATE FIRST WRITTEN ABOVE.
CONSULTANT:
--------------------------------------
COMPANY
XXXXXXX STRONG-TIE COMPANY INC.
By
----------------------------------
Its
-----------------------------
APPENDIX A
1. Description of Services. Consultant will provide technical expertise
in the areas of:
Technical sales, marketing and field problem resolution of "MBR" type
of rod hold down systems.
2. Contractor's Qualifications. Consultant represents and warrants that
Consultant has the following required qualifications:
Twenty years experience in sales marketing and filed problem solving
of rod hold down systems.
3. Rates. Company shall pay Consultant $7,000 per month for the Services
satisfactorily performed by Consultant, pursuant to the terms and
conditions set forth in this Agreement.
INDEPENDENT CONTRACTOR AGREEMENT
This Agreement is entered into as of July ___ 2000, by and between
Xxxxxxx Strong-Tie Company Inc., a California corporation ("Company") and
Xxxxxx X. Xxxxxxxxxx ("Consultant") (collectively the "Parties").
1. Term of Agreement. This Agreement will become effective on the date
stated above, and will continue in effect until the Services provided for
in this Agreement have been fully performed or until this Agreement is
terminated as provided below.
2. Services of Consultant. Consultant agrees to perform the services
described in Appendix A attached to this Agreement, as further defined by
Company from time-to-time during the Term of this Agreement (the
"Services"). Consultant represents that he has the qualifications and
skills necessary to perform the Services under this Agreement, and that all
Services will be performed under this Agreement in a competent,
professional manner, without the advice or direction of the Company in
accordance with the standards of care, skill and diligence observed by
similar professionals performing such services. Consultant has discretion
for the manner in which the Services under this Agreement will be
performed, subject to Company's acceptance of the work performed.
Consultant will determine the method, details, and means of performing the
Services. Consultant may, at his own expense, use employees or other
subcontractors to perform the Services under this Agreement, but will honor
all reasonable requests by Company to remove and replace any employee or
subcontractor upon request by the Company.
3. Compensation and Reimbursement of Expenses. The Company shall pay
Consultant for the Services as set forth in Appendix A of this Agreement.
The Company will reimburse Consultant for all reasonable out-of-pocket
expenses approved in advance by the Company and supported by adequate
documentation for costs of travel and accommodations incurred as a result
of, and in the course of, performing Services for the Company ("Expenses").
Reimbursement to Consultant shall be made within thirty days after
Consultant submits an invoice to the Company, along with receipts for all
Expenses to be reimbursed. Consultant agrees to submit such invoices and
receipts within sixty days after the Expenses are incurred. Consultant
further agrees that the Company will not have any liability whatsoever for
any Services performed or Expenses incurred if Consultant fails to submit
an invoice and/or receipt to the Company within the sixty day period.
4. Relationship of the Parties. Consultant is entering into this
Agreement as, and shall continue to be, an independent contractor. Under
no circumstances shall Consultant become an employee, partner, agent or
principal of the Company while this Agreement is in effect. Subject to
Sections 7 and 11 of this Agreement, Consultant may represent, perform
services for, and contract with as many additional clients, persons or
companies as Consultant sees fit. Consultant understands and agrees that
Consultant is not entitled to the rights or benefits afforded to the
Company's employees, including disability or unemployment insurance,
worker's compensation, medical insurance, sick leave, or any other
employment benefit. Consultant is responsible for providing, at his own
expense, disability, worker's compensation, unemployment and other
insurance, as well as all licenses and permits usual or necessary for
Consultant and his employees and/or subcontractors to perform the Services.
5. Company's Cooperation. Company agrees to comply with all reasonable
requests for, and to provide access to, all documents and information
reasonably necessary to the performance of Consultant's duties under this
Agreement.
6. Consultant's Tax Obligations. Consultant is responsible for paying
when due all income taxes, including estimated taxes, incurred as a result
of the compensation paid by Company to Consultant. On request, Consultant
will provide the Company with proof of timely payment. Consultant agrees
to indemnify the Company for any claims, costs, losses, fees, penalties,
interest, or damages suffered by the Company resulting from Consultant's
failure to comply with this provision.
7. Confidentiality and Nondisclosure of Company Information.
(a) Confidential Information. As used in this Agreement,
Confidential Information means all information and materials of Company (or
any information or materials provided in confidence by a third party)
disclosed, directly or indirectly, either orally or in writing, to
Consultant, including all business and marketing plans, financial data,
compensation information, pricing and cost information, client and
prospective client lists and client and prospective client-related
information, product and software development information, systems
integration and technical information, know-how, programming, models,
strategies, analyses, databases, methods, techniques and processes.
Without limiting the generality of the foregoing, Confidential Information
includes all computer software, source code, object code, software
specifications, user interfaces, graphic displays, operating manuals, and
databases; information and materials relating to computer software,
features or enhancements now existing or under development or
consideration; and confidential customer, financial and business
information. Consultant acknowledges that information need not be labeled
as "confidential" to qualify as Confidential Information.
(b) Exclusion. Confidential Information does not include information
that Consultant can demonstrate: (i) is now or hereafter becomes, through
no act or failure to act on the part of Consultant, generally known or
widely available to the public; (ii) was known by Consultant prior to
receiving such information or materials from Company; or (iii) is
independently developed by Consultant without using, incorporating,
referencing, recreating or relying upon any of the Confidential
Information.
(c) Nondisclosure and Nonuse. Consultant acknowledges that while
performing Services for the Company Consultant will have access to and be
provided with Confidential Information. Consultant will at all times
during and after the term of this Agreement hold in strict confidence and
not directly or indirectly disclose or use, or assist or facilitate any
other person to disclose or use, any Confidential Information.
Notwithstanding the foregoing, Consultant understands that Consultant may
use Confidential Information only to the extent necessary to perform the
Services set forth in Exhibit A to this Agreement. If at any time
Consultant becomes aware of any possibility that Confidential Information
is at risk of being publicly disclosed, Consultant will immediately give
written Notice to the Company so that reasonable efforts can be made to
maintain the secrecy of the Confidential Information.
8. Inventions and Original Works. Consultant agrees that all right,
title, and interest in and to any and all software, original works of
authorship, developments, concepts, improvements, designs, discoveries,
inventions, ideas, trademarks or trade secrets, whether or not patentable
or registrable under copyright or similar laws (collectively referred to as
"Inventions"), which Consultant may solely or jointly conceive or develop
or reduce to practice, or cause to be conceived or developed or reduced to
practice, during the term of this Agreement shall be and are hereby
assigned to the Company or its designee, except for any Inventions which:
(i) Consultant developed entirely on its own time without using the
Company's equipment, supplies, facilities, or Confidential Information;
(ii) are unrelated to the Company's business; and (iii) do not result from
any work Consultant performed for the Company. Consultant further agrees
to execute all documents and take all actions to vest title in Company and
to effect the assignment upon request and to obtain patents or copyrights
for any Inventions, including but not limited to: (i) providing, if
requested, all data, plans, specifications, descriptions, documentation,
and other information; (ii) requiring its Consultants to execute, if
requested, all applications, oaths, assignments and all other instruments
and papers which Company shall deem necessary; and (iii) assisting Company
in completing any applications or registrations relating to such
Inventions. Consultant acknowledges and agrees that the decision whether
or not to commercialize or market any Invention is within the Company's
sole discretion and that no royalty or other compensation of any kind will
be due to Consultant as a result of the Company's efforts to commercialize
or market any such Invention. Notwithstanding the foregoing, the Company
acknowledges that Consultant currently has a patent application on file
with the United States Patent and Trademark Office under filing number 09-
257,875 for a "Garage Door" invention which Invention shall not be subject
to this Section 8.
9. Returning Company Documents and Computer Files. Upon termination of
this Agreement, Consultant agrees to deliver to the Company (and not keep
in Consultant's possession, recreate, copy or deliver to anyone else) any
and all computer files, software, e-mail messages, notes, memoranda,
reports, records, data, spreadsheets, presentations, proposals, lists,
correspondence, specifications, drawings, blueprints, sketches, equipment,
devices, and any other materials, documents or property, including any
reproductions of all such items, belonging to, obtained by or prepared by
Consultant during the term of this Agreement or otherwise belonging to the
Company, its successors or assigns.
10. Non-Solicitation of Company Employees. During the term of this
Agreement and for a period of one year after the termination of this
Agreement for any reason, Consultant agrees that Consultant will not
solicit, induce, recruit or encourage directly or indirectly (nor will
Consultant direct, encourage or assist anyone else to solicit, induce,
recruit or encourage) any of the Company's employees to terminate their
employment with Company or to work elsewhere.
11. Non-Interference with Company's Prospective Business Relationships.
Consultant understands that performing the Services set forth in Exhibit A
to this Agreement may require Consultant to contact directly or otherwise
establish business relationships with individuals and entities that are
customers, vendors, business partners or clients of the Company, and that
Consultant may become aware of the identity of such persons and of the
Company's Confidential Information related to such persons. Consultant
understands that the Company has made efforts to maintain the secrecy and
confidentiality of such Confidential Information, which includes among
other things, proprietary and confidential technical, marketing, sales and
other business information about the Company's customers, vendors, business
partners and clients. Consultant understands and agrees that such
Confidential Information provides the Company with a competitive advantage
in establishing and maintaining existing and prospective business
relationships and that disclosure or use of such Confidential Information
would unfairly impair or interfere with the Company's ability to conduct
its business profitably and would result in irreparable harm to the
Company. Consultant agrees that during the term of this Agreement and for
a period of one year immediately following the termination of the Agreement
for any reason, Consultant will not directly or indirectly solicit or
divert, or attempt to solicit or divert, from the Company, any customers,
vendors, business partners or clients, nor will Consultant directly or
indirectly interfere with or assist any other person in interfering with
the existing or prospective contracts, arrangements, or business
relationships of the Company with its customers, vendors, business partners
and clients.
12. Intentionally Omitted.
13. Indemnity. Consultant agrees to indemnify, defend, and hold the
Company free and harmless from all claims, demands, losses, costs,
expenses, obligations, liabilities, damages, recoveries, and deficiencies,
including interest, penalties, attorneys' fees, and costs, that the Company
may incur or suffer as a result of or related to any willful misconduct,
negligence, breach or failure to perform any of the representations,
warranties or obligations contained in this Agreement.
14. Assignment. Neither this Agreement nor any duties or obligations
under this Agreement may be assigned by Consultant or Company without the
prior written consent of the other party.
15. Termination of Agreement.
(a) Expiration of Agreement. Unless otherwise terminated as provided
in this Agreement, this Agreement shall commence on the date hereof and
shall continue until the first anniversary of the date of this Agreement.
This Agreement may be renewed for a successive one year term, provided
Consultant requests renewal and the Company agrees to such renewal.
(b) Termination by Company. Notwithstanding any other provision of
this Agreement, the Company may terminate this Agreement at any time with
or without Cause (as defined herein) by giving fifteen (15) days' written
Notice to Consultant. In the event the Company terminates this Agreement
without Cause during the initial one year term, the Company shall pay
Consultant the remaining compensation due Consultant under this Agreement,
payable monthly within 10 days after the end of each month and not as a
lump sum. For the purpose of this Agreement, "Cause" means (i) conviction
of a misdemeanor involving moral turpitude or a felony, (ii) any insobriety
or substance abuse that in any way affects Consultant's ability to perform
services contemplated hereby, (iii) any unlawful or wrongful act, omission,
activity or conduct during or in connection with the performance of such
services, or (iv) any wilful failure or refusal by Consultant to perform
promptly and competently any services contemplated by this Agreement.
(c) Termination by Consultant. Except during the initial ninety (90)
day period of this Agreement, Consultant may terminate this Agreement,
effective not earlier than fifteen (15) days after the Company receives
Consultant's notice of such termination. On such termination by
Consultant, Consultant shall be entitled only to Consultant's fee hereunder
to the date of such termination, and shall not be entitled to any other
compensation, including, without limitation, any severance compensation.
16. General Provisions.
(a) Notices. Any Notice required or permitted hereunder shall be
given in writing and shall be deemed effectively given upon personal
delivery or three (3) days after mailing if mailed by registered or
certified mail with postage and fees prepaid, addressed to the other Party
at the address below, or at such other address as the other Party may
designate.
To: Company
0000 Xxxxxx Xxxxx, Xxxxx 000
P.O. Box 10789
Xxxxxxxxxx, Xxxxxxxxxx 00000
Facsimile No. 925-847-9114
Attention: Xx. Xxxxxxx X. Xxxxxxx
To: Consultant
Xxxxxx X. Xxxxxxxxxx
Xxx Xxxxxxxxx Xxx
Xxxx Xxxxxx, Xxxxxxxxxx 00000
With a copy to:
Xxxxxxx X. Xxxxxx
Xxxxxx & Xxxxxx
0000 Xxxxxxxxx Xxxxx, Xxxxx 000
Xxx Xxxxxx, Xxxxxxxxxx 00000
Facsimile No.: 000-000-0000
(b) Severability. The invalidity or unenforceability of any
provision, word, phrase, clause, sentence, paragraph or section hereof
shall in no way affect the validity or enforceability of any other
provision, word, phrase, clause, sentence, paragraph or section hereof, and
any such invalid or unenforceable provision that is overbroad in scope,
duration or coverage, shall be deemed narrowed to the broadest term
permitted by applicable law and shall be enforced as narrowed. If one or
more of the provisions in this Agreement are deemed invalid or
unenforceable, then the remaining provisions will continue in full force
and effect.
(c) Successors. This Agreement shall inure to the benefit of and
bind the Company and Consultant, and their respective successors, assigns,
heirs, legatees, devisees and personal representatives.
(d) Entire Agreement. This Agreement contains the entire agreement
of the Company and Consultant with respect to the subject matter contained
herein and supersedes all prior negotiations, correspondence,
understandings and agreements between them with respect to the subject
matter hereof, including any other Confidentiality Agreements, Independent
Contractor Agreements or similar agreements that may have previously been
executed by the parties.
(e) Governing Law and Forum Selection. This Agreement shall be
construed and interpreted according to the laws of the State of California
not including, however, rules relating to choice or conflicts of law. Any
dispute arising out of or relating in any way to the subject matter of this
Agreement shall solely be venued in San Francisco, California, and the
parties hereby irrevocably submit to the jurisdiction and venue of a court
in San Francisco, California, having subject matter jurisdiction.
(f) Survival. All agreements, representations, warranties and
acknowledgments contained in Sections 6, 7, 8, 9, 10, 11 and 13 shall
survive any termination of this Agreement.
(g) Written Modifications. This Agreement may only be amended with
the written consent of the parties, and no oral waiver or amendment shall
be effective under any circumstances whatsoever.
(h) Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original and all of which
together shall constitute one and the same instrument.
THE DULY AUTHORIZED REPRESENTATIVES OF THE PARTIES ACKNOWLEDGE AND AGREE
THAT THEY HAVE CAREFULLY READ AND UNDERSTAND ALL OF THE FOREGOING AND HAVE
EXECUTED THIS AGREEMENT EFFECTIVE AS OF THE DATE FIRST WRITTEN ABOVE.
CONSULTANT:
--------------------------------------
COMPANY
XXXXXXX STRONG-TIE COMPANY INC.
By
----------------------------------
Its
-----------------------------
APPENDIX A
1. Description of Services. Consultant will provide technical expertise
in the areas of:
Engineering applications and structural evaluation of applications of
the "MBR" type of rod hold down systems.
2. Contractor's Qualifications. Consultant represents and warrants that
Consultant has the following required qualifications:
Thirty years direct experience in design, manufacture and installation
of rod hold down systems.
3. Rates. Company shall pay Consultant $10,000 per month for the
Services satisfactorily performed by Consultant, pursuant to the terms and
conditions set forth in this Agreement.
CONSULTING AGREEMENT
THIS CONSULTING AGREEMENT (this "Agreement") is made this ___ day of
July, 2000, between Anchor Tiedown Systems, Inc., a Washington corporation
("Consultant") and Xxxxxxx Strong-Tie Company Inc., a California
corporation ("Xxxxxxx").
W I T N E S S E T H:
WHEREAS, Consultant provides management and support services to
businesses involved in the design, manufacture, sales, distributing and
marketing of non-wooden structural assemblies used in building
construction;
WHEREAS, pursuant to an Asset Purchase Agreement dated as of July ___,
2000, by and among Xxxxxxx, Consultant, Xxxxx X. Xxxxx, Xxxxxx X.
Xxxxxxxxxx, Xxxxxxx X. Xxxxxx and Xxxxxx X. Xxxxx and Xxxxx X. Xxxxx (the
"Purchase Agreement"), Xxxxxxx has agreed to acquire certain Assets (as
defined in the Purchase Agreement) of Consultant.
WHEREAS, as an inducement for Xxxxxxx to consummate the purchase of
the Assets from Consultant as set forth in the Purchase Agreement,
Consultant has agreed to be retained by Xxxxxxx as a consultant to the
extent set forth in this Agreement;
WHEREAS, in connection with the Purchase Agreement, Consultant has
agreed to change its name within ten (10) days of the Closing Date (as
defined in the Purchase Agreement) and to assign the rights to Consultant's
name to Xxxxxxx, and the parties desire that this Consulting Agreement
survive such name change;
WHEREAS, Xxxxxxx desires to obtain the consulting services of
Consultant subject to the terms and conditions contained herein; and
WHEREAS, in serving as a consultant of Xxxxxxx, Consultant will
participate in the use and development of confidential proprietary
information about Xxxxxxx, and the methods used by Xxxxxxx in competition
with other companies, as to which Xxxxxxx desires to protect fully its
rights.
NOW, THEREFORE, in consideration of the premises and the mutual
covenants and agreements herein set forth, the parties hereto agree as
follows:
1. Consulting Services.
1.1 Consultant shall provide management and office support
services to Xxxxxxx and such other services as may be agreed to from time
to time by the parties. During the three month term of this Consulting
Agreement, these services shall be provided from the Consultant's Mill
Valley and Concord locations, unless the parties otherwise so agree. In
addition to the foregoing, the Key Employee (as defined in Section 1.2)
shall have such duties and powers as are more specifically set forth in
Appendix A attached hereto. During the term hereof, Consultant shall
devote its best efforts and attention, on a full-time basis, to the
performance of the duties required of Consultant. Xxxxxxx and Consultant
intend to act and perform as independent entities, and the provisions
hereof are not intended to create any partnership, joint venture, agency or
employment relationship between the parties. Each party shall be solely
responsible for and shall comply with all state and federal laws pertaining
to employment taxes, income withholding, unemployment compensation
contributions and other employment related statutes applicable to that
party.
1.2 All services rendered hereunder shall be provided by the Key
Employee and the employees of Consultant listed on Appendix B attached
hereto and at the employees shall be compensated at the rates specified for
each employee on Appendix B, including the Key Employee and others that may
be mutually agreed to by the parties. The Key Employee is Xxxxx X. Xxxxx,
and Xxxxxxx and Consultant each agree that the Key Employee is essential to
the provision of the services to be provided by Consultant pursuant to this
Agreement.
2. Service Fee. As compensation for services rendered by Consultant
hereunder, Consultant shall receive a monthly service fee of $25,160 per
month which fee shall be payable in arrears in monthly installments. In
the event one or more employees or the Key Employee terminates employment
with Consultant during a calendar month, the service fee shall be reduced
proportionately by the total costs of such employee or Key Employee as
listed on Appendix B for that month and for each month thereafter taking
into account the number of days such employee or Key Employee provided
services to the Consultant during such month.
In addition to the monthly service fee above, Xxxxxxx agrees to
reimburse the Key Employee for all reasonable travel expenses within
fifteen (15) days after the Key Employee submits an invoice to Xxxxxxx,
along with receipts for all travel expenses to be reimbursed. The Key
Employee shall submit such invoices and receipts within thirty (30) days
after the travel expenses are incurred. Xxxxxxx will not have any
liability whatsoever for any travel expenses incurred if the Key Employee
fails to submit an invoice and/or receipt to Xxxxxxx within the thirty (30)
day period.
3. Confidential Information and Trade Secrets.
3.1 Consultant recognizes that Consultant's position with Xxxxxxx
requires considerable responsibility and trust, and, in reliance on
Consultant's loyalty, Xxxxxxx may entrust Consultant and its employees,
including the Key Employee, with highly sensitive confidential, restricted
and proprietary information involving Trade Secrets and Confidential
Information (as such terms are hereinafter defined).
3.2 For purposes of this Agreement, a "Trade Secret" is any
scientific or technical information, design, process, procedure, formula or
improvement that is valuable and not known to competitors of Xxxxxxx.
"Confidential Information" is any data or information, other than Trade
Secrets, that is important, competitively sensitive, and not generally
known by the public, including, but not limited to, Xxxxxxx'x business
plans, business prospects, customer lists, training manuals, product
development plans, bidding and pricing procedures, market strategies,
internal performance statistics, financial data, confidential personnel
information concerning employees of Xxxxxxx, supplier data, operational or
administrative plans, policy manuals, and terms and conditions of contracts
and agreements. The terms "Trade Secret" and "Confidential Information"
shall not apply to (i) information which is received by Consultant from a
third party with no restriction on disclosure, (ii) information which is
required to be disclosed by any applicable law; (iii) any data or
information which Consultant can prove is known to others in the industry
or is readily ascertainable with reasonable effort, (iv) any information
which becomes generally known to the public or the industry after the date
hereof through no wrongful act of Consultant, its employees or its Key
Employee, or (v) any data or information Consultant can prove it, its
employees or its Key Employee possessed or knew prior to the date such
individuals became employees of Consultant.
3.3 Except as required to perform Consultant's duties hereunder,
Consultant will not, and will cause the employees and the Key Employee not
to, use or disclose any Trade Secrets or Confidential Information of
Xxxxxxx during the term of this Agreement, whether pursuant to this
Agreement or otherwise, at any time after the termination or expiration of
this Agreement or prior to such time as they cease to be Trade Secrets or
Confidential Information through no intentional or negligent act or failure
to act by Consultant, the employees or the Key Employee in violation of
this Agreement or otherwise.
3.4 Upon the request of Xxxxxxx, in any event, upon the
termination of this Agreement, Consultant will, and will cause the
employees and the Key Employee, either upon termination of this Agreement
or upon termination of an employee's or the Key Employee's employment, to
surrender to Xxxxxxx, as applicable, all memoranda, notes, records, manuals
or other documents pertaining to Xxxxxxx'x business or Consultant's,
employee's or the Key Employee's services hereunder (including all copies
thereof). Consultant will also, and will cause the employees and the Key
Employee to, leave with Xxxxxxx all materials involving any Trade Secrets
or Confidential Information of Xxxxxxx. All such information and
materials, whether or not made or developed by Consultant, the employees or
the Key Employee, shall be the sole and exclusive property of Xxxxxxx, and
Consultant hereby assigns, and will cause the employees and/or the Key
Employee to assign, to Xxxxxxx all of Consultant's, the employees and the
Key Employee's right, title and interest in and to any and all of such
information and materials.
4. Specific Enforcement. Consultant specifically acknowledges and
agrees, and will cause the Key Employee to acknowledge and agree, that the
restrictions set forth in Section 3 hereof are reasonable and necessary to
protect the legitimate interests of Xxxxxxx and that Xxxxxxx would not have
entered into this Agreement in the absence of such restrictions.
Consultant further acknowledges and agrees, and will cause the Key Employee
to acknowledge and agree, that any violation of the provisions of Section 3
hereof will result in irreparable injury to Xxxxxxx, that the remedy at law
for any violation or threatened violation of such Section will be
inadequate and that in the event of any such breach, Xxxxxxx, in addition
to any other remedies or damages available to it at law or in equity, shall
be entitled to temporary injunctive relief before trial from any court of
competent jurisdiction as a matter of course and to permanent injunctive
relief without the necessity of proving actual damages.
5. Term. This Agreement shall be effective on July ___, 2000 and
continue for an initial period of three months from such date, unless
sooner terminated by either party in the manner set forth herein. On the
expiration of the initial term hereof, this Agreement shall be
automatically renewed on a month to month basis until written notice of
termination is given by either party at least thirty days prior to such
termination. The date upon which this Agreement and Consultant's service
hereunder shall terminate, whether pursuant to the terms of this Section or
pursuant to any other provision of this Agreement, shall hereafter be
referred to as the "Termination Date."
6. Termination by Consultant. Consultant may terminate this
Agreement with or without cause at any time upon delivery of a written
notice of termination to Xxxxxxx at least thirty days prior to the
Termination Date. In the event that Consultant terminates this Agreement,
Consultant shall have no further rights or obligations hereunder, except as
set forth in Section 3 above. Xxxxxxx shall have no further obligation to
Consultant except for Xxxxxxx'x obligation under Section 2 hereof for
unpaid service fees that have accrued but have not been paid as of the
Termination Date. The foregoing shall not limit or waive other claims or
remedies available to Consultant.
7. Termination by Xxxxxxx. Xxxxxxx shall have the right at any time
to terminate Consultant's service hereunder immediately with or without
cause upon delivery of a written notice of termination to the Consultant at
least thirty days prior to the Termination Date. In the event that Xxxxxxx
terminates this Agreement, Xxxxxxx shall have no further rights or
obligations hereunder, except as set forth in Section 3 above. In the
event Consultant's service is terminated in accordance with this Section,
Xxxxxxx shall have no further obligation to make any payments to Consultant
hereunder except for unpaid service fees that have accrued but have not
been paid as of the Termination Date. The foregoing shall not limit or
waive any remedies or relief available to Xxxxxxx.
8. Assignment.
8.1 Consultant agrees that it will not assign, transfer or
convey, pledge or encumber this Agreement or its right, title or interest
therein, without the consent in writing of Xxxxxxx. The parties agree that
Consultant may change its name and such name change will not be considered
an assignment or transfer under this Section 8.1.
8.2 This Agreement is assignable by Xxxxxxx to any affiliate of
Xxxxxxx, although any such assignment shall not relieve Xxxxxxx of the
obligations imposed upon it hereunder unless the assignee of this Agreement
assumes Xxxxxxx'x obligations hereunder.
9. Notices. Any notice or other communications under this Agreement
shall be in writing, signed by the party making the same, and shall be
delivered personally or sent by certified mail, postage prepaid, return
receipt requested or sent by a nationally recognized overnight courier or
delivery service, addressed as follows:
(a) If to Consultant: Merlin Holding Company
000 X.X. 000xx Xx., Xxxxx X
Xxxxxx, XX 00000
Facsimile No. (000) 000-0000
Attention: Xxxxx X. Xxxxx
with a copy to: Xxxxxx Xxxxxxx, Esq., Attorney at Law
0000 - 000xx Xxxxxx Xxxxxxxxx, Xxxxx X000
Xxxxxxxx, XX 00000
Facsimile No. (000) 000-0000
or to such other address as may be furnished by Consultant to Xxxxxxx in
writing.
(b) If to Xxxxxxx: 0000 Xxxxxx Xxxxx, Xxxxx 000
P.O. Box 10789
Xxxxxxxxxx, Xxxxxxxxxx 00000
Facsimile No. 925-847-9114
Attention: Xx. Xxxxxxx X. Xxxxxxx
With a copy to: Shartsis, Xxxxxx & Xxxxxxxx LLP
Xxx Xxxxxxxx Xxxxx, 00xx Xxxxx
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Facsimile No. 000-000-0000
Attention: Xxxxxxx X. Xxxxxx, Esq.
or to such other address as may be furnished by Xxxxxxx to Consultant. All
such notices shall be deemed given on the date personally delivered, mailed
or couriered.
10. Governing Law. This Agreement shall be interpreted and enforced
in accordance with the laws of the State of Washington.
11. Severability. Whenever possible, each provision of this Agreement
shall be interpreted in such manner as to be effective and valid, but if
any one or more of the provisions contained in this Agreement shall be
invalid, illegal or unenforceable in any respect for any reason, the
validity, legality and enforceability for any such provisions in every
other respect and of the remaining provisions of this Agreement shall not
be in any way impaired.
12. Modification. No waiver or modification of this Agreement or of
any covenant, condition, or limitation herein contained shall be valid
unless in writing and duly executed by the party to be charged therewith
and no evidence of any waiver or modification shall be offered or received
in evidence of any proceeding, arbitration or litigation between the
parties hereunder, unless such waiver or modification is in writing, duly
executed as aforesaid and the parties further agree that the provisions of
this section may not be waived except as herein set forth.
13. Entire Agreement. This Agreement contains the entire agreement of
the parties hereto with respect to the subject matter contained herein.
There are no representations, restrictions, promises, covenants or
undertakings, other than those expressly set forth herein. This Agreement
supersedes all prior agreements and understandings between the parties with
respect to such subject matter. This Agreement may not be changed except
by a writing executed by the parties.
[Remainder of page intentionally left blank.]
IN WITNESS WHEREOF, the undersigned have executed this Consulting
Agreement on the day and year first above written.
Anchor Tiedown Systems, Inc., a Washington corporation
By:
------------------------------------
Its:
-----------------------------------
Xxxxxxx Strong-Tie Company Inc.,
a California corporation
By:
------------------------------------
Xxxxxxx X. Xxxxxxx, Chief Financial Officer
APPENDIX A
Key Employee's Duties
Administrative supervision of employees, consultants and agents of
Consultant, including the provision of services in connection with the
transition of the Assets (as defined in the Purchase Agreement) from
Consultant to Company.
APPENDIX B
Employees of Consultant
TOTAL
NAME LOCATION POSITION SALARY COSTS*
--------------- ------------- ------------------- ---------- ----------
Xxxx Xxxxxx Santa Clarita Outside Sales $6,000/mo. $9,030/mo.
Xxxx Xxxxxx Mill Valley Administration $3,250/mo. $3,890/mo.
Xxxx Xxxxxxxxxx Mill Valley Computer Design $3,000/mo. $3,600/mo.
Xxx Xxxx Mill Valley Takeoffs/Field
Inspection $4,200/mo. $4,980/mo.
Xxxx Xxxxxx Concord Warehouse $2,800/mo. $3,370/mo.
Xxxxx Xxxxxx Concord Part-Time Assistant $ 250/mo. $ 290/mo.
Xxx Xxxxx Burien Administrative **
Xxxxxx XxXxxxxx Burien Administrative **
* Total costs include employee benefits and medical costs.
** Salaries are included in the fee paid under Section 4.25 of the
Purchase Agreement for the Burien Location (as defined in the Asset
Purchase Agreement).
EXHIBIT F
GENERAL RELEASE
This GENERAL RELEASE (this "Release") is given as of July ___, 2000,
by Xxxxxxx X. Xxxxxx ("X. Xxxxxx") in favor of Anchor Tiedown Systems, Inc.
a Washington corporation ("Corporation"), and Xxxxxxx Strong-Tie Company
Inc., a California corporation ("Xxxxxxx").
Recitals
A. Pursuant to that certain Asset Purchase Agreement (the
"Agreement") dated July ___, 2000, by and among Xxxxxxx, the Corporation,
Xxxxx X. Xxxxx, Xxxxxx X. Xxxxxxxxxx, Xxxxxxx X. Xxxxxx and Xxxxxx X. Xxxxx
and Xxxxx X. Xxxxx, husband and wife, Xxxxxxx agreed to purchase the Assets
(as defined in the Agreement) of the Corporation from the Corporation.
B. Pursuant to a Stock Redemption and Separation Agreement dated July
31, 1999, between X. Xxxxxx and the Corporation (the "Redemption
Agreement"), the undersigned agreed to resign as a director and officer of
the Corporation and the Corporation agreed to pay X. Xxxxxx over the course
of forty-eight months for, among other things, X. Xxxxxx'x interest in
Patent No. 4,875,314 and X. Xxxxxx'x stock in the Corporation.
C. In connection with the Agreement, the Corporation has agreed to
pay to X. Xxxxxx $317,215 in discharge of the Corporation's obligations
under the Redemption Agreement.
D. Capitalized terms used and not otherwise defined herein have the
meanings respectively ascribed to such terms in the Agreement.
NOW THEREFORE, in consideration of the foregoing and as a material
inducement to Xxxxxxx and the Corporation to consummate the transactions
contemplated by the Agreement, X. Xxxxxx agrees as follows:
1. General Release. For himself and his heirs, executors,
administrators, assigns, agents, employees, successors, predecessors and
affiliates, X. Xxxxxx hereby forever releases, acquits and discharges the
Corporation and Xxxxxxx and their respective heirs, executors,
administrators, assigns, officers, directors, stockholders, agents,
employees, attorneys, accountants, successors, predecessors, subsidiaries,
divisions and affiliates, from any and all claims, disputes, demands,
contracts, commitments, undertakings, arrangements, debts, duties,
agreements, actions, causes of action, obligations, damages and
liabilities, of every kind and nature whatsoever, whether known or unknown,
whether existing, claimed to exist, suspected to exist or which can ever
hereafter exist, patent or latent, accrued or contingent or fixed, by
reason of any dispute, disagreement, act, event, occurrence, omission,
claim, right or other matter or thing whatsoever, arising out of or
relating to or in any way connected with the Redemption Agreement, the
Agreement or the consummation of any of the transaction contemplated
thereby.
2. California Civil Code. X. Xxxxxx hereby waives and relinquishes
all rights and benefits afforded by Section 1542 of the California Civil
Code, which states as follows:
"A general release does not extend to claims to which the
creditor does not know or suspect to exist in his favor at
the time of executing the release, which if known by him must
have materially affected his settlement with the debtor."
X. Xxxxxx understands and acknowledges the significance and consequence
of this waiver of Section 1542 and nevertheless elects to, and does,
release those claims described in this Release, known or unknown, that
he may have now or in the future arising out of or relating to any event
arising on or prior to the date hereof.
4. Miscellaneous.
(a) Successors and Assigns. This Release shall be binding in all
respects on X. Xxxxxx and his heirs, successors and assigns and shall inure
to the benefit of the Corporation, Xxxxxxx and their respective successors
and assigns.
(b) Governing Law. This Release shall be governed by and
construed and interpreted in accordance with the laws of the State of
California.
(c) Severability. In the event that a court of competent
jurisdiction enters a final judgment holding invalid any material provision
of this Release, the remainder of this Release shall be fully enforceable.
(d) Fees and Costs. In any action to enforce, interpret or seek
damages for violation of this Release, the prevailing party shall recover
all attorneys' fees, litigation expenses and court costs.
IN WITNESS WHEREOF, the undersigned party has executed and delivered
this Release as of the day and year first set forth above.
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Xxxxxxx X. Xxxxxx
