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ASSET PURCHASE AGREEMENT
Dated as of June 18, 2001
By and among
AIRPORT SYSTEMS INTERNATIONAL, INC.,
a Kansas corporation,
ELECSYS CORPORATION,
a Kansas corporation,
and
ASI Newco, Inc.
a Delaware corporation
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TABLE OF CONTENTS
Page
ARTICLE I PURCHASE AND SALE OF ASSETS; ASSUMPTION OF LIABILITIES.............1
ARTICLE I PURCHASE AND SALE OF ASSETS; ASSUMPTION OF
LIABILITIES.................................................1
Section 1.1 Acquired Assets........................................1
1.1.1 Personal Property.............................1
1.1.2 Inventory.....................................1
1.1.3 Receivables...................................2
1.1.4 Certain Rights................................2
1.1.5 Contracts.....................................2
1.1.6 Real Estate...................................2
1.1.7 Business Records..............................2
1.1.8 Computer Software.............................2
1.1.9 Patents and Technology........................2
1.1.10 Trademarks and Copyrights.....................3
1.1.11 Permits.......................................3
1.1.12 Prepaid Charges...............................3
1.1.13 Claims........................................3
1.1.14 General.......................................3
Section 1.2 Excluded Assets........................................3
1.2.1 Tax Refunds...................................3
1.2.2 Certain Contracts.............................3
1.2.3 Leaseholds....................................3
1.2.4 Cash..........................................3
1.2.5 Corporate Records.............................4
1.2.6 Benefit Plans.................................4
1.2.8 Aircraft......................................4
Section 1.3 Assumed Liabilities....................................4
1.3.1 Contracts; Leases.............................4
1.3.2 Employment....................................4
1.3.3 Warranty Claims...............................4
1.3.4 Trade Payables................................4
1.3.5 Mortgage......................................5
Section 1.4 Excluded Liabilities...................................5
1.4.1 Infringement..................................5
1.4.2 Environmental Liabilities.....................5
1.4.3 Litigation....................................5
1.4.4 Employees.....................................6
1.4.5 Taxes.........................................6
1.4.6 Leases........................................6
1.4.7 Benefit Plans.................................6
1.4.8 Indebtedness..................................6
1.4.9 Contracts.....................................6
1.4.10 Trade Payables................................6
1.4.11 Contract Defaults.............................6
1.4.12 Stock Plans; Agreements.......................6
1.4.13 Other Excluded Liabilities....................7
ARTICLE II CLOSING; PURCHASE PRICE; ADJUSTMENT...............................7
Section 2.1 Closing................................................7
Section 2.2 Purchase Price; Closing Deliveries.....................7
2.2.1 Purchase Price................................7
2.2.2 Transfer of Title.............................7
2.2.3 Additional Agreements.........................7
2.2.4 Other Deliveries..............................8
Section 2.3 Allocation of Purchase Price...........................8
2.3.1 Asset Acquisition Statement...................8
2.3.2 Tax Returns...................................8
Section 2.4 Purchase Price Adjustment..............................8
2.4.1 April Net Asset Statement.....................8
2.4.2 Closing Net Asset Statement...................9
2.4.3 Objections and Resolution.....................9
2.4.5 Adjustment to Asset Acquisition Statement....10
Section 2.5 Sales and Use Tax.....................................10
ARTICLE III REPRESENTATIONS AND WARRANTIES OF SELLER AND ELECSYS............11
Section 3.1 Corporate Status and Authority of Seller..............11
Section 3.2 Corporate Status and Authority of Elecsys.............11
Section 3.3 No Conflicts, etc.....................................12
3.3.1 Charter Documents............................12
3.3.2 Governmental Consents........................12
Section 3.4 Financial Statements..................................12
3.4.1 Schedules....................................12
3.4.2 Reserves.....................................12
3.4.3 No Undisclosed Liabilities...................12
3.4.4 Forecast.....................................13
3.4.5 Absence of Changes...........................13
Section 3.5 Real Property.........................................14
3.5.1 Identification and Title.....................14
3.5.2 Condition....................................14
3.5.3 Adequacy.....................................14
3.5.4 Related Agreements...........................14
3.5.5 No Condemnation..............................14
3.5.6 Zoning.......................................14
3.5.7 Compliance...................................14
3.5.8 No Mechanics Liens...........................15
3.5.9 Utility Service..............................15
3.5.10 No Adverse Parties...........................15
3.5.11 Not a Foreign Party..........................15
3.5.12 Subdivision Compliance.......................15
3.5.13 Insurance....................................15
3.5.14 Taxes and Other Items........................15
Section 3.6 Personal Property.....................................15
3.6.1 Identification and Location..................15
3.6.2 Title........................................16
3.6.3 Condition....................................16
Section 3.7 Accounts Receivable...................................16
Section 3.8 Inventory.............................................16
Section 3.9 Intellectual Property.................................16
3.9.1 Patents and Know-How.........................16
3.9.2 Trademarks and Copyrights....................17
3.9.3 Computer Software............................17
3.9.4 General......................................17
Section 3.10 Material Contracts....................................18
3.10.1 Schedules....................................18
3.10.2 Full Force and Effect; No Defaults...........18
3.10.3 Review by Buyer..............................19
Section 3.11 Government Contract Matters...........................19
3.11.1 Government Contract Compliance...............19
3.11.2 Government Investigations....................19
3.11.3 Absence of Claims............................20
3.11.4 Eligibility; Systems Compliance..............20
3.11.5 Test and Inspection Results..................20
3.11.6 Government Furnished Equipment...............21
3.11.7 Not Subject to CAS...........................21
Section 3.12 Litigation and Investigation..........................21
3.12.1 General......................................21
3.12.2 This Transaction.............................21
Section 3.13 Taxes.................................................22
3.13.1 Tax Returns..................................22
3.13.2 Allocations..................................22
3.13.3 Non-deductible Payments......................22
3.13.4 Tax Liens....................................22
3.13.5 Independent Contractors......................22
Section 3.14 Employees; Compensation; Labor........................22
3.14.1 Employees and Compensation...................23
3.14.2 Certain Labor Matters........................23
3.14.3 Employee Benefit Plans; ERISA................23
Section 3.15 Compliance with Law...................................25
3.15.1 General......................................25
3.15.2 Permits......................................25
3.15.3 Export Control...............................26
3.15.4 FCPA.........................................26
3.15.5 Environmental Conditions and Compliance......26
Section 3.16 Bank Accounts and Powers..............................27
Section 3.17 Security Clearances...................................27
Section 3.18 Insurance.............................................27
Section 3.19 Warranties............................................27
Section 3.20 Brokers' Fees.........................................28
Section 3.21 Full Disclosure.......................................28
Section 3.22 Consents and Notices..................................28
Section 3.23 Bankruptcy............................................28
3.23.1 Court Approval...............................28
3.23.2 Finality.....................................28
3.23.3 Performance of Asset Purchase Agreement......28
3.23.4 Subsequent or Collateral Proceedings.........28
Section 3.24 Ownership of Assets...................................29
Section 3.25 Information Technology Systems........................29
ARTICLE IV REPRESENTATIONS AND WARRANTIES OF BUYER..........................29
Section 4.1 Corporate Status and Authority of Buyer...............29
Section 4.2 No Conflicts..........................................29
4.2.1 Charter Documents............................29
4.2.2 Governmental Consents........................30
Section 4.3 Litigation............................................30
Section 4.4 Sophisticated Buyer...................................30
Section 4.5 Brokers' Fees.........................................30
ARTICLE V COVENANTS.........................................................30
Section 5.1 General...............................................30
Section 5.2 Conduct of the Business...............................30
Section 5.3 No General Increases..................................31
Section 5.4 Contracts and Commitments.............................31
Section 5.5 Sale of Capital Assets................................32
Section 5.6 Preservation of Organization..........................32
Section 5.7 Access to Information.................................32
5.7.1 Access.......................................32
5.7.2 Confidentiality; Assignment of Benefit.......32
Section 5.8 Filings and Authorizations............................32
Section 5.9 Tax Matters...........................................33
5.9.1 Clearance Certificate........................33
5.9.2 Affidavit....................................33
5.9.3 Payment of Pre-Closing Taxes by Seller.......33
5.9.4 Payment of Post-Closing Taxes by Buyer.......33
Section 5.10 Financial Information.................................33
Section 5.11 Employees.............................................33
Section 5.12 Employee Benefit Matters..............................34
5.12.1 Welfare Plans................................34
5.12.2 Savings Plans................................34
5.12.3 Vacation and Holidays........................34
5.12.4 Other Employee Plans.........................34
5.12.5 Access to Information........................35
Section 5.13 Assignment of Contracts and Rights....................35
Section 5.14 Administration of Accounts............................35
5.14.1 In Trust For Buyer...........................35
5.14.2 In Trust For Seller..........................36
Section 5.15 Agreements Regarding Tax Matters......................36
5.15.1 Tax Returns..................................36
5.15.2 Sale.........................................36
Section 5.16 Utilities.............................................36
Section 5.17 Notice to Buyer.......................................36
Section 5.18 Further Assurances....................................37
Section 5.19 Public Announcements..................................37
Section 5.20 Updates to Schedules..................................37
Section 5.21 Exclusivity...........................................37
Section 5.22 Non-Compete...........................................37
5.22.1 Non-Compete..................................38
5.22.2 Remedies.....................................38
5.22.3 Severability.................................38
Section 5.23 No Defaults...........................................38
Section 5.24 Compliance With Laws..................................38
Section 5.25 Confidential Information..............................38
Section 5.26 Solicitation of Employees.............................39
Section 5.27 Notice to Seller......................................39
Section 5.28 Release of Liens on Assets under Credit Facilities....39
Section 5.29 Meeting of Shareholders...............................39
Section 5.30 Seller's Access to Information........................40
Section 5.31 Real Estate; Title Binder and Survey..................40
5.31.1 Title Binder.................................40
5.31.2 Survey.......................................41
5.31.3 Review of Title and Survey...................41
Section 5.32 Seller Name Change....................................41
Section 5.33 Consent of Mortgage Lender............................41
Section 5.34 Guaranty..............................................41
ARTICLE VI CONDITIONS PRECEDENT TO OBLIGATIONS OF BUYER.....................41
Section 6.1 Conditions............................................41
6.1.1 Representations and Warranties Accurate......42
6.1.2 Certificates.................................42
6.1.3 Consents.....................................42
6.1.4 No Injunction................................42
6.1.5 Disclosure Schedules.........................42
6.1.6 Legal Opinion................................42
6.1.7 Deliveries...................................42
6.1.8 Consent of Mortgage Lender...................42
6.1.9 Personal Property Moved from Bond Street
Facility.....................................42
6.1.10 Asset Acquisition Statement..................43
6.1.11 DCI Manufacturing Agreement..................43
6.1.12 FIRPTA Certificate...........................43
6.1.13 Extreme Adverse Effect.......................43
6.1.14 Authorizations...............................43
6.1.15 Bank Letter; Release of Liens................43
6.1.16 Elecsys Guaranty.............................43
6.1.17 Exon-Xxxxxx Act..............................43
Section 6.2 Waiver................................................43
ARTICLE VII CONDITIONS PRECEDENT TO OBLIGATIONS OF SELLER AND
ELECSYS....................................................43
Section 7.1 Conditions............................................43
7.1.1 Representations and Warranties Accurate......44
7.1.2 Officer's Certificate........................44
7.1.3 Consents.....................................44
7.1.4 No Injunction................................44
7.1.5 Legal Opinion................................44
7.1.6 Payment......................................44
7.1.7 DCI Manufacturing Agreement..................44
7.1.8 Letters of Credit and Surety Bonds...........44
7.1.9 Asset Acquisition Statement..................44
7.1.10 Escrow Agreement.............................44
7.1.11 Buyer's Parent Guaranty......................44
7.1.12 Exon-Xxxxxx Act..............................45
Section 7.2 Waiver................................................45
ARTICLE VIII INDEMNIFICATION................................................45
Section 8.1 Indemnity by Seller and Elecsys.......................45
8.1.1 Excluded Liabilities.........................45
8.1.2 Breach of Representation, Warranty, Etc......45
8.1.3 Guarantee Claims.............................45
8.1.4 Government Contract Claims...................46
Section 8.2 Indemnity by Buyer....................................46
8.2.1 Assumed Liabilities..........................46
8.2.2 Breach of Representation, Warranty, Etc......46
8.2.3 Certain Third Party Claims...................46
Section 8.3 Notification of Third Party Claims....................46
8.3.1 Timely Delivery of Claim Notice..............46
8.3.2 Late Delivery of Claim Notice................47
8.3.3 Paid or Settled Claims.......................47
Section 8.4 Defense of Claims.....................................47
Section 8.5 Access and Cooperation................................47
Section 8.6 Assessment of Claims..................................48
Section 8.7 Limits on Indemnification.............................48
8.7.1 Limitations on Indemnification for
Breach of Representations and Warranties.....48
8.7.2 No Limitations on Certain
Indemnification Claims.......................48
Section 8.8 Survival of Representations and Warranties............48
Section 8.9 After-Tax Nature of Indemnity Payments................49
Section 8.10 Contractual Right to Recover..........................49
ARTICLE IX TERMINATION......................................................50
Section 9.1 Termination Events....................................50
Section 9.2 Effect of Termination.................................50
ARTICLE X MISCELLANEOUS.....................................................50
Section 10.1 Remedies..............................................50
Section 10.2 Amendment.............................................51
Section 10.3 Entire Agreement......................................51
Section 10.4 Notices...............................................51
Section 10.5 Severability..........................................52
Section 10.6 Waiver; Survival......................................52
Section 10.7 Binding Effect; Assignment............................52
Section 10.8 No Third Party Beneficiaries..........................52
Section 10.9 Counterparts..........................................53
Section 10.10 Governing Law.........................................53
Section 10.11 Consent to Jurisdiction; Waiver of Jury Trial.........53
10.11.1 Consent to Jurisdiction......................53
10.11.2 Waiver of Punitive Damages and Jury Trial....53
Section 10.12 Interpretation and Construction of this Agreement.....54
APPENDIX A DEFINITIONS......................................................1
Exhibits
Exhibit A Form of Xxxx of Sale
Exhibit B Form of Certificate of Assumption
Exhibit C Form of Elecsys Guaranty
Exhibit D Form of Buyer's Parent Guaranty
Schedules
Schedule 1.1.5 Acquired Customer Contracts
Schedule 1.1.6 Owned Property
Schedule 1.3.4 Trade Payables
Schedule 2.4.1 April Net Asset Statement
Schedule 3.1 Qualifications to do Business
Schedule 3.3 Conflicts
Schedule 3.3.2 Government Consents
Schedule 3.4.1 Financial Statements
Schedule 3.4.2 Accruals and Reserves
Schedule 3.4.3 Undisclosed Liabilities
Schedule 3.4.4 Forecast
Schedule 3.4.5 Material Changes
Schedule 3.5.14 Owned Property Taxes Unpaid at Closing
Schedule 3.6.1 Personal Property
Schedule 3.6.2 Title to Personal Property
Schedule 3.6.3 Condition
Schedule 3.7 Accounts Receivable
Schedule 3.8 Inventory
Schedule 3.9.1 Patents and Licenses
Schedule 3.9.2 Trademarks and Licenses
Schedule 3.9.3 Computer Software
Schedule 3.9.4 Intellectual Property
Schedule 3.10.1 Material Contracts
Schedule 3.10.2 Defaults under Contracts
Schedule 3.11.1 Government Contract or Bid
Schedule 3.11.2 Government Investigations
Schedule 3.11.3 Absence of Claims
Schedule 3.11.4 Eligibility; Systems Compliance
Schedule 3.11.5 Test and Inspection Results
Schedule 3.11.6 Government Furnished Equipment
Schedule 3.11.7 Contracts Subject to CAS
Schedule 3.12.1 Litigation and Investigation
Schedule 3.13.1 Tax Returns
Schedule 3.13.4 Tax Liens
Schedule 3.14.1 List of Employees
Schedule 3.14.2 Labor Matters
Schedule 3.14.3 Employee Benefit Plans; ERISA
Schedule 3.14.3(h)Retiree Benefits
Schedule 3.15.2(a)Permits
Schedule 3.15.2(b)Products
Schedule 3.15.5(a)Environmental Conditions
Schedule 3.15.5(b)Noncompliance with Environmental Laws and Regulations
Schedule 3.15.5(c)Outstanding Actions, Suits, Claims, etc.
Schedule 3.15.5(d)Underground Tanks, Polychlorinated Biphenyls, and
Friable Structural Asbestos
Schedule 3.15.5(e)Disposals to Sites on the National Priorities List,
etc.
Schedule 3.16 Bank Accounts and Powers
Schedule 3.18 Insurance
Schedule 3.22 Consents
Schedule 3.24 Ownership of Assets
Schedule 4.2 No Conflicts
ASSET PURCHASE AGREEMENT
ASSET PURCHASE AGREEMENT, dated as of June 18, 2001 ("Agreement"), by and
among Airport Systems International, Inc., a Kansas Incorporation ("Seller"),
Elecsys Corporation, a Kansas Corporation and the direct parent of Seller
("Elecsys"), and ASI Newco, Inc., a Delaware corporation ("Buyer").
WITNESSETH:
WHEREAS, Seller is engaged in the business of designing, manufacturing,
selling and installing ground-based radio navigation and landing systems and
airfield lighting (the "Business");
WHEREAS, Buyer desires to acquire substantially all of the assets and is
willing to assume certain specified liabilities of the Business, and Seller is
willing to convey and assign the same, in each case upon the terms and
conditions hereinafter set forth; and
WHEREAS, capitalized terms not otherwise defined in this Agreement shall
have the meanings set forth in Appendix A hereto.
NOW THEREFORE, in consideration of the premises and the mutual
representations, warranties, covenants and agreements contained herein below,
the parties hereto hereby agree with legal and binding effect as follows:
ARTICLE I
PURCHASE AND SALE OF ASSETS;
ASSUMPTION OF LIABILITIES
Section 1.1 Acquired Assets. Seller hereby agrees to sell, assign,
transfer, convey and deliver to Buyer, and Buyer hereby agrees to purchase,
acquire and accept from Seller, all of the assets, properties, rights and
contracts used in or relating to the Business wherever located, other than the
Excluded Assets (collectively, the "Assets"), free and clear of all liens,
claims, charges, pledges, security interests, restrictions or other encumbrances
of any kind or nature (collectively, the "Liens") except those set forth in the
relevant schedules to this Agreement or otherwise specifically assumed pursuant
to this Agreement, including without limitation the following:
1.1.1 Personal Property. All machinery, equipment, computers, laboratory
and test equipment and apparatus, furniture, fixtures, furnishings, tools, dies,
vehicles, spare parts, office supplies and other tangible assets and properties
used in the Business (collectively, the "Personal Property");
1.1.2 Inventory. All materials, work in process and finished goods
inventories, supplies and spare parts, used in the Business (collectively, the
"Inventory");
1.1.3 Receivables. All accounts and notes receivable, unbilled revenues
and other billable items of cost arising from the sale of goods or materials
and/or the rendering of services in connection with the operation of the
Business, together with any unpaid interest accrued thereon from the respective
obligors, and any security or collateral therefor, (collectively, the
"Receivables");
1.1.4 Certain Rights. All rights of Seller under or pursuant to all
warranties, representations and guarantees made by suppliers, manufacturers and
contractors in connection with products or services purchased by Seller for the
Business or affecting the Personal Property or the Inventory;
1.1.5 Contracts. All rights of Seller under active contracts,
subcontracts, agreements, equipment leases, proposals, bids, quotations,
purchase orders and commitments, and sales orders and commitments of any kind,
whether written or oral, including confidentiality, licensing, distribution,
joint venture, teaming, partnership and limited liability company operating
agreements (the "Contracts"), including, without limitation, the list of all
active customer contracts for the sale of products or services set forth on
Schedule 1.1.5;
1.1.6 Real Estate. All real property (including fixtures) located at 00000
Xxxx 00xx Xxxxxx, Xxxxxxxx Xxxx, Xxxxxx, described in Schedule 1.1.6, including
all buildings, structures and improvements on the Land, including without
limitation, all mechanical systems, fixtures and equipment (including but not
limited to compressors, engines, elevators and escalators), electrical systems,
fixtures and equipment, heating, air conditioning and ventilation fixtures,
systems and equipment and plumbing fixtures, systems and equipment (the
"Improvements"), and all other rights, privileges and appurtenances owned by
Seller and in any way directly related to the Land or the Improvements (the
"Owned Property");
1.1.7 Business Records. All business and financial records, ledgers, sales
invoices, accounts and payroll records, files, books and documents including,
but not limited to, manuals, data, sales and advertising materials, customer
(including prospective customer) and supplier lists and reports, sales,
distribution and purchase correspondence, personnel files and records,
engineering drawings, notebooks and logbooks, and, with respect to the Owned
Property, all site plans, surveys, soil and substrata studies, architectural
renderings, plans and specifications, engineering plans and studies, floor
plans, landscape plans and other plans, diagrams or studies of any kind, if any,
which relate to the Owned Property, and all original and duplicate copies
thereof (but excluding certain business records relating solely to the Excluded
Assets or the Excluded Liabilities) (collectively, the "Business Records");
1.1.8 Computer Software. All right, title and interest of Seller in and to
the computer programs (including computer modeling programs, design and
operational software and computer source and object codes), computer data bases,
and related documentation, developed, under development or used or useful for
accounting, marketing, engineering, manufacturing or any other purpose in the
Business;
1.1.9 Patents and Technology. All right, title and interest of Seller in
and to patents, patent applications and inventions and all right, title and
interest of Seller in and to research and development, processes, trade secrets,
know-how, formulae, chip designs, mask works, inventions, and manufacturing,
engineering, quality control, testing, operational, logistical, maintenance and
other technical information and technology used in, useful to or otherwise
relating to the Business;
1.1.10 Trademarks and Copyrights. All right, title, interest and goodwill
of Seller in and to trademarks, trade names and service marks, and registrations
and applications for such trademarks, trade names and service marks, including,
without limitation, trademark registration number 1767955 (regarding the xxxx
"Airport Systems International, Inc. and design", hereinafter the "Registered
Trademark"), used by or relating to the Business and the products and services
associated therewith and all right, title and interest of Seller in and to
copyrights, and registrations and applications for copyrights;
1.1.11 Permits. To the extent legally assignable, all permits, consents,
approvals, certificates and authorizations issued by any governmental authority
for the operations of the Business or otherwise relating to the Assets
(collectively, the "Permits");
1.1.12 Prepaid Charges. All deferred and prepaid charges, recoverable
deposits, advances, expenses, sums and fees of Seller which relate to the
Business and Assumed Liabilities;
1.1.13 Claims. All claims, causes of action, rights of recovery and rights
of offset asserted by Seller or which could be asserted by Seller (whether known
or unknown) and relating to the Business, the Assets, or the Assumed
Liabilities; and
1.1.14 General. All other property, tangible or intangible, of every kind
and description, used or held for use primarily in connection with the Business,
whether or not reflected on the books and records of Seller or the Business,
other than the Excluded Assets.
Section 1.2 Excluded Assets. Notwithstanding anything to the contrary
contained in Section 1.1 herein, Seller is under no obligation to sell, assign,
transfer or convey (and does not hereby sell, assign, transfer or convey), and
Buyer is under no obligation to accept or purchase (and does not hereby accept
or purchase) any of the following assets, rights and properties of Seller (the
"Excluded Assets"):
1.2.1 Tax Refunds. Any refund of Taxes relating to the Business for
periods ending on or prior to the Closing Date, except any refund of Taxes that
are an Assumed Liability, if any;
1.2.2 Certain Contracts. Any inactive, completed, closed or terminated
contracts and orders and claims related thereto, and, at the option of Buyer on
a case by case basis, any customer contract that is not listed on Schedule
1.1.5;
1.2.3 Leaseholds. The leasehold with respect to the Bond Street Lease and
any other lease with respect to real property or facilities used by the
Business;
1.2.4 Cash. Cash and cash equivalents in the Business as of the close of
business on the Closing Date;
1.2.5 Corporate Records. Seller's corporate charter, stock record books,
corporate record books containing minutes of meetings of directors and
stockholders and other such records as have to do with Seller's organization or
stock capitalization;
1.2.6 Benefit Plans. The assets and rights under the retirement, welfare
or other employee benefit plans maintained by Seller;
1.2.7 DCI Assets. The assets, properties, rights or contracts owned by
DCI, Inc., a Kansas corporation and subsidiary of Elecsys, and not used
exclusively in the Business; and
1.2.8 Aircraft. A Beech Bonanza aircraft leased by Elecsys which has been
used in the Business.
Section 1.3 Assumed Liabilities. Buyer hereby agrees to assume, perform,
pay and discharge the following Liabilities of Seller relating to or arising out
of the operation, business and affairs of the Business or the Assets, in each
case to the extent such Liabilities do not otherwise give rise to the breach of
any representation or warranty of Seller or Elecsys contained in Article III of
this Agreement (collectively, the "Assumed Liabilities"):
1.3.1 Contracts; Leases. All Liabilities arising under the Contracts
(other than those contracts excluded pursuant to Section 1.2.2), but not
including any Liability for any breach thereof occurring on or prior to the
Closing Date or any Liabilities arising under any letters of credit or stand-by
letters of credit related to the Business;
1.3.2 Employment. All Liabilities to be undertaken by Buyer under Sections
5.11 and 5.12 herein in respect of employment or retention after the Closing
Date for those individuals who are actively employed by or otherwise working in
the Business as common law employees as of the Closing Date and who accept
employment with Buyer as of the Closing Date, or who are on vacation, other
authorized leave, leave under the Family and Medical Leave Act, illness absence
(but excluding those on short or long term disability), or military service
leave of absence from the Business and who accept employment with Buyer upon
such person returning from vacation or leave, (all such employees actively
employed and working in the Business as of the Closing Date who accept Buyer's
offer of employment, whether at Closing or otherwise, pursuant to Section 5.11
hereof, the "Hired Employees"); provided, however, in the case of Employees that
are on vacation or leave on the Closing Date, Seller shall retain and discharge
all Liabilities that accrue at any time prior to such Employee beginning active
employment with Buyer following the Closing Date to the extent such Liabilities
are not reflected in the Final Closing Net Asset Statement;
1.3.3 Warranty Claims. Any and all claims relating to warranty obligations
or services, with respect to any product or service sold or provided by the
Business on or prior to the Closing Date, whether or not such claims were
accrued, liquidated, contingent, or known or unknown to Seller or Elecsys at or
prior to the Closing, provided that the reserve for product warranties shall be
included on the Final Closing Net Asset Statement (the "Warranty Reserve");
1.3.4 Trade Payables. All trade accounts payable relating to the Business
as of the Closing Date that are listed on Schedule 1.3.4;
1.3.5 Mortgage. Any and all obligations of Seller under that certain
Mortgage and Security Agreement and Fixture Financing Statement, dated May 20,
1991, by and between Seller and Mutual Service Life Insurance Company, a
Minnesota Corporation (the "Mortgage") and that certain Promissory Note, dated
May 20, 1991, by and between Seller and Mutual Service Life Insurance Company
(the "Promissory Note"), related to the Owned Property, except for any and all
Losses under or in connection with either the Mortgage or the Promissory Note
relating to or arising from (i) any fee, penalty, or additional cost due to a
change in the current terms of either the Mortgage or the Promissory Note,
including, without limitation, any pre-payment penalty, change in interest rate
or exercise of any acceleration right, in connection with any action of Seller
or Elecsys on or prior to the Closing Date, (ii) any modifications to the terms
and conditions to the Mortgage or Promissory Note occurring prior to the Closing
Date or as a consequence of the transactions contemplated by this Agreement, or
(iii) the transactions contemplated by this Agreement;
1.3.6 Accrued and Reserved Liabilities. All Liabilities fully accrued and
reserved on the Final Closing Net Asset Statement as of the Closing Date as
listed on Schedule 3.4.2; and
1.3.7 Customer Down Payments. All customer down payments as of the Closing
Date that are listed on Schedule 3.10.1(f).
Section 1.4 Excluded Liabilities. Notwithstanding any provision hereof or
any schedule or exhibit hereto and regardless of any disclosure to the Buyer,
the Buyer shall not assume any Liabilities of Seller or Elecsys relating to or
arising out of the operation of the Business or the ownership of the Assets
prior to the Closing other than the Assumed Liabilities (the "Excluded
Liabilities"). Without limiting the generality of the foregoing, the following
liabilities and obligations will be deemed to be Excluded Liabilities:
1.4.1 Infringement. Any and all Liabilities and obligations relating to
the infringement or misappropriation of the intellectual property rights of
other persons or entities by Seller or Elecsys on or prior to the Closing Date;
1.4.2 Environmental Liabilities. Any and all Losses relating to the
conduct of the Business or the acts or omissions of Seller or Elecsys on or
prior to the Closing Date that are based upon, arise in connection with or
relate to any Environmental Laws, including, without limitation, any such Losses
that may be made or imposed by any Governmental Authority or any private party,
or that are based upon, arise in connection with or relate to any Environmental
Condition or the discharge of any substances into the air, ground or water
(whether or not such substance is regarded as hazardous or toxic as of the
Closing Date) or the presence of any substances from, on, at or in any parcels
of real property used by the Business, Seller or Elecsys, or the Personal
Property or Inventory at any time on or prior to the Closing Date;
1.4.3 Litigation. Any and all Proceedings whether of a civil or criminal
nature and whether known or unknown, arising out of any act or omission of
Seller or Elecsys, or any of their respective employees, officers, affiliates or
agents, or out of any event occurring at any time on or prior to the Closing
Date;
1.4.4 Employees. Any and all amounts and Liabilities claimed against
Buyer, Seller or Elecsys by, or on behalf of, any Employee, consultant or
temporary employee or former employee of Seller or Elecsys relating to, based
upon, arising from or in connection with such person's employment with Seller or
Elecsys or the termination of any such person's employment, employment or
consulting contract or other arrangement with any Person other than Buyer: (a)
before or as of the Closing Date, and (b) at any time, if such person does not
accept an offer of employment from Buyer made pursuant to Section 5.11 hereof.
In the case of Employees that are on vacation or leave on the Closing Date, all
Liabilities that accrue at any time prior to such Employee beginning active
employment with Buyer following the Closing Date to the extent such Liabilities
are not reflected in the Final Closing Net Asset Statement. All Liabilities with
respect to any Employees who are on short or long term disability as of the
Closing Date;
1.4.5 Taxes. Any and all Taxes arising out of the operation of the
Business or relating to the Assets with respect to any period ending on or prior
to the Closing Date, whether such period is recognized as a separate period by
any Taxing Authority, or is a notional part of any such period;
1.4.6 Leases. Any and all Liabilities arising under the Bond Street Lease
or any other lease with respect to real property or facilities used by the
Business;
1.4.7 Benefit Plans. Subject to Section 1.3.2, any and all Liabilities
under the retirement, welfare or other employee benefit plans related to the
Business;
1.4.8 Indebtedness. Any and all Liabilities of Seller or Elecsys, or any
of its affiliates, under any second mortgage in favor of Bank of America, letter
of credit or standby letter of credit or agreement or instrument of indebtedness
other than the Mortgage and Promissory Note related to the Owned Property,
provided that the Excluded Liabilities shall include any and all Losses under or
in connection with either the Mortgage or the Promissory Note (i) relating to
any fee, penalty, or additional cost due to a change in the current terms of
either the Mortgage or the Promissory Note, including, without limitation, any
pre-payment penalty, change in interest rate or exercise of any acceleration
right, in connection with any action of Seller or Elecsys on or prior to the
Closing Date, or (ii) relating to or arising from the transactions contemplated
by this Agreement;
1.4.9 Contracts. Any and all inactive, completed, closed or terminated
contracts and orders and claims related thereto, subject to Subsection 1.3.3;
1.4.10 Trade Payables. Any and all trade accounts payable other than those
set forth on Schedule 1.3.4;
1.4.11 Contract Defaults. Subject to Section 1.3.3 regarding Warranty
Claims, any and all Liabilities, costs and expenses incurred by Buyer as a
result of any breach of or default by Seller or Elecsys under any Contract to
the extent such breach or default occurred on or prior to the Closing Date;
1.4.12 Stock Plans; Agreements. Any and all obligations relating to any
stock option plan, restricted plan, stock purchase plan or stock incentive plan
of any kind entered into
or maintained by Seller or Elecsys, with respect to the Business, with or for
the benefit of any person, including employees, officers, directors and
consultants of Seller or Elecsys, with respect to the Business; and
1.4.13 Other Excluded Liabilities. Any and all other Liabilities not
expressly assumed by Buyer pursuant to this Agreement.
ARTICLE II
CLOSING; PURCHASE PRICE; ADJUSTMENT
Section 2.1 Closing. The closing of the transactions contemplated by this
Agreement (the "Closing") will take place at the offices of Xxxxxxx & Xxxxxx
LLP, 0000 Xxxxxxxxxxxx Xxxxxx, X.X., Xxxxxxxxxx, X.X. 00000 at 10:00 a.m. local
time on, the first business day after complete and final satisfaction or waiver
of the conditions set forth in Articles VI and VII herein, or at such place,
date and time as the parties may agree (the "Closing Date"). If such conditions
have not been completely and finally satisfied, or have not been waived by the
applicable party hereto, by 5:00 p.m. Eastern Daylight time on August 31, 2001,
then this Agreement shall terminate in accordance with the provisions of Article
IX and no party shall be obligated to close or consummate the transactions
contemplated hereby.
Section 2.2 Purchase Price; Closing Deliveries. In addition to the
assignment and transfer of the Assets in accordance with Section 1.1 herein, and
the assumption of the Assumed Liabilities in accordance with Section 1.3 herein,
the parties further agree as follows:
2.2.1 Purchase Price. As full payment for the Assets, Buyer shall assume
the Assumed Liabilities and pay to Seller an amount in cash equal to Seven
Million Seven Hundred Thousand Dollars ($7,700,000) (the "Purchase Price"). At
Closing, Buyer shall pay: (i) to Seller the Purchase Price minus $400,000 (the
"Escrowed Amount") in U.S. currency via wire transfer of immediately available
funds to the account designated by Seller in writing to Buyer prior to the
Closing Date, and (ii) to UMB Bank, N.A. (the "Escrow Agent"), the Escrowed
Amount in U.S. currency via wire transfer of immediately available funds to the
account designated by the Escrow Agent in writing to Buyer prior to the Closing
Date. The Purchase Price shall be subject to adjustment after Closing pursuant
to Section 2.4 hereof.
2.2.2 Transfer of Title. As of 11:59 p.m. on the Closing Date, title to
all of the Assets and risk of loss shall pass to Buyer, and Buyer shall assume
and be responsible for all Assumed Liabilities. At the Closing, Seller shall
deliver to Buyer an executed original of a Xxxx of Sale substantially in the
form of Exhibit A attached hereto (the "Xxxx of Sale") and Buyer shall deliver
to Seller an executed original of a Certificate of Assumption substantially in
the form of Exhibit B attached hereto (the "Certificate of Assumption").
2.2.3 Additional Agreements. At the Closing, Buyer, on the one hand, and
Seller or Elecsys, as the case may be, on the other, shall enter into the
following additional agreements and make the following additional deliveries:
(a) a trademark assignment (the "Trademark Assignment") assigning to Buyer
all of Seller's right, title and interest in the Registered Trademark;
(b) (i) a warranty deed to the Owned Property appropriate in form for the
conveyance of the fee simple interest in the Owned Property, (ii) a title
commitment and a pro forma title policy for the Owned Property from a title
company reasonably acceptable to Buyer (the "Title Company"), and (iii) such
other documents as may be necessary to transfer the Owned Property (collectively
the "Conveyance Documents");
(c) an escrow agreement in form and substance satisfactory to the parties
to hold the Escrowed Amount until distribution as set forth in such agreement
(the "Escrow Agreement");
(d) a guaranty substantially in the form of Exhibit C attached hereto
executed by Elecsys guarantying the performance of all obligations of Seller
under this Agreement (the "Elecsys Guaranty");
(e) a guaranty substantially in the form of Exhibit D attached hereto
executed by Buyer's Parent guarantying the performance of all obligations of
Buyer under this Agreement (the "Buyer's Parent Guaranty"); and
(f) original copies of all unexpired letters of credit issued in favor of
Seller (or Elecsys if related to the Business) together with all such Consents
and instruments of transfer as shall be necessary to give Buyer the exclusive
right and ability (without any further action on the part of Seller, Elecsys or
the issuers thereof) to present and draw upon such letters of credit in
accordance with the terms thereof.
2.2.4 Other Deliveries. At the Closing, Seller and Buyer shall cause to be
delivered the certificates and other documents respectively required to be
delivered pursuant to Articles I, VI and VII herein, and such other certificates
or instruments of title as one party may reasonably request of another to
consummate the transactions contemplated by this Agreement.
Section 2.3 Allocation of Purchase Price.
2.3.1 Asset Acquisition Statement. Not later than fifteen (15) days prior
to the Closing, Buyer shall propose to Seller a statement allocating the
aggregate amount of the consideration received (within the meaning of Code
Section 1060) among the Assets (the "Asset Acquisition Statement"). The Asset
Acquisition Statement shall be prepared in accordance with Code Section 1060 and
the regulations thereunder. Prior to Closing, the parties shall agree, in a
manner mutually acceptable to the parties, to a final Asset Acquisition
Statement, subject to revision only pursuant to Section 2.4.5 hereof or by
mutual agreement of the parties.
2.3.2 Tax Returns. All Income Tax Returns and reports filed by Buyer and
Seller, including Internal Revenue Service Form 8594, will be prepared
consistently with the allocation set forth in the Asset Acquisition
Statement, as revised and amended pursuant to Subsection 2.4.5 hereof.
Section 2.4 Purchase Price Adjustment.
2.4.1 April Net Asset Statement. Schedule 2.4.1 delivered hereunder sets
forth (i) a statement of the Assets and Assumed Liabilities as of April 30, 2001
(the "April Net Asset
Statement") which accurately reflects the Net Asset Value as of such date, and
(ii) a reconciliation of the April Net Asset Statement to the April Balance
Sheet delivered pursuant to Section 3.4.1(iii) hereof. The April Net Asset
Statement has been prepared in accordance with GAAP applied consistent with past
practice, except that (a) the line items for "LIFO Reserve" and "Overhead in
Inventory" are not reflected, and (b) footnotes and year end adjustments have
been omitted.
2.4.2 Closing Net Asset Statement. Within fifteen (15) days after the
Closing Date, Seller shall deliver to Buyer a statement of the Assets and
Assumed Liabilities as of the close of business at 5:30 PM on the Closing Date
(the "Closing Net Asset Statement") which reflects the Net Asset Value as of
such date. The Closing Net Asset Statement shall present accurately the
financial condition of the Assets and Assumed Liabilities as of the date thereof
and shall be prepared in accordance with GAAP applied consistent with past
practice and on a basis consistent with the April Net Asset Statement. Buyer and
its representatives and accountants shall have the right to participate in and
observe the process of the preparation of the Closing Net Asset Statement and
shall have such access as Buyer may reasonably request to any books, records,
work papers or other information that may be used or useful in preparing the
Closing Net Asset Statement and the calculation of the Final Closing Net Asset
Value (as defined below).
2.4.3 Objections and Resolution. Within sixty (60) days after receipt of
the Closing Net Asset Statement, Buyer shall either inform Seller in writing
that the Closing Net Asset Statement is acceptable or object to the Closing Net
Asset Statement in writing setting forth in reasonable detail a description of
Buyer's objections. If Buyer fails to deliver written objection to Seller within
such sixty-day period, or if Buyer informs Seller in writing that the closing
Net Asset Statement is acceptable, the Closing Net Asset Statement delivered by
Seller shall be deemed final (the "Final Closing Net Asset Statement") and the
Net Asset Value as of the Closing Date reflected thereon shall be the "Final
Closing Net Asset Value." If Buyer objects as provided above and if Seller does
not agree with Buyer's objections (it being agreed that the failure of Seller to
deliver written notice to Buyer of Seller's disagreement with Buyer's objection
within fifteen (15) days of receipt of such objection shall be deemed acceptance
by Seller) and such objections are not resolved on a mutually agreeable basis
within fifteen (15) days after delivery of notice to Buyer of Seller's
disagreement to Buyer's objection thereof, then a disagreement between Seller
and Buyer regarding the same shall be deemed to exist (the "Disagreement"). If a
Disagreement is deemed to exist, the Escrowed Amount shall be paid out or
retained, in whole or in part, pursuant to the terms of the next succeeding
sentence and the Escrow Agreement (which the parties hereto hereby covenant
shall be consistent with the terms of this Subsection 2.4.3). On the next
business day following the occurrence of the Disagreement, Buyer shall notify
the Escrow Agent of the Net Asset Value that Buyer asserts should be the Final
Closing Net Asset Value (the "Buyer's Asserted NAV") and, on the next succeeding
business day, the Escrow Agent shall (a) if Buyer's Asserted NAV is $6,046,000
or greater, pay to Seller the Escrowed Amount, or (b) if Buyer's Asserted NAV is
greater than $5,646,000 but less than $6,046,000, pay to Seller an amount equal
to the Buyer's Asserted NAV less $5,646,000 and retain the balance, or (c) if
Buyer's Asserted NAV is less than or equal to $5,646,000, retain the entire
Escrowed Amount. After giving effect to the previous sentence, the amount that
is retained in escrow shall be deemed to be the Escrowed Amount for purposes of
Subsection 2.4.4 below. Once a Disagreement is deemed to exist, Buyer and Seller
shall select
an independent auditing firm, which firm shall not be the regular auditing firm
of either Buyer or Seller, or, if Buyer and Seller cannot agree on the
independent auditing firm to be retained, Buyer and Seller shall each submit the
name of one independent auditing firm that is not the regular auditing firm of
such party and the independent auditing firm shall be selected by lot from those
two firms (by whichever method selected, the "Independent Accountants"). The
Independent Accountants shall resolve the Disagreement within thirty (30) days
after the mutual engagement of the Independent Accountants and their decision in
resolving the Disagreement shall be final and binding upon, and their fees,
costs and expenses shall be shared equally by, Seller and Buyer. Each party
hereto shall bear the fees, costs and expenses of its own accountants. Upon
resolution of any such Disagreement, the resulting Closing Net Asset Statement
shall be deemed the Final Closing Net Asset Statement and the Net Asset Value as
of the Closing Date reflected thereon shall be the Final Closing Net Asset
Value.
2.4.4 Final Adjustment. If the Final Closing Net Asset Value is greater
than $6,046,000 (the "Target Net Asset Value"), Buyer shall pay to Seller the
absolute difference between such two amounts, and the Escrow Agent shall pay to
Seller the Escrowed Amount. If the Final Closing Net Asset Value is equal to the
Target Net Asset Value, the Escrow Agent shall pay to Seller the Escrowed
Amount. If the Final Closing Net Assert Value is less than the Target Net Asset
Value and the difference is less than the Escrowed Amount, the absolute
difference between the Target Net Asset Value and the Final Closing Net Asset
Value shall be paid to Buyer by the Escrow Agent from the Escrowed Amount and
the remaining Escrowed Amount shall be paid by the Escrow Agent to Seller. If
the Target Net Asset Value exceeds the Final Closing Net Asset Value by $400,000
or more, the Escrow Agent shall pay to Buyer the Escrowed Amount and, in
addition, Seller shall pay to Buyer the amount by which the difference between
the Target Net Asset Value and the Final Closing Net Asset Value is in excess of
such Escrowed Amount paid to Buyer. The Purchase Price as adjusted pursuant to
this Section 2.4 is referred to herein as the "Final Purchase Price." Any
payment pursuant to this Section 2.4.4 shall be made by Buyer, Seller or the
Escrow Agent, as the case may be, within five (5) business days following the
final determination of the Final Closing Net Asset Value in accordance with this
Section 2.4 by bank wire transfer of immediately available funds to an account
designated in writing by Buyer or Seller, as the case may be, at least one (1)
day prior to such payment date.
2.4.5 Adjustment to Asset Acquisition Statement. Once a Final Closing Net
Asset Value is determined, the parties shall agree, in a manner mutually
acceptable to the parties, to a final revised Asset Acquisition Statement.
2.4.6 Fees of Escrow Agent. All fees and expenses of the Escrow Agent
shall be paid by Seller and Buyer shall have no liability therefor.
Section 2.5 Sales and Use Tax. Buyer and Seller shall cooperate in
preparing, signing and filing use and sales Tax Returns relating to the purchase
and sale of the Assets, and Seller shall pay and shall indemnify Buyer and hold
Buyer harmless from any and all sales, transfer, documentary, stamp, recording
and similar Taxes due with regard to such purchase and sale. Such Tax Returns
shall be prepared in a manner consistent with the Asset Acquisition Statement,
as revised and amended pursuant to Subsection 2.4.5 hereof.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF SELLER AND ELECSYS
Seller and Elecsys hereby jointly and severally represent and warrant to
Buyer, as of the date hereof and as of the Closing Date, as set forth below.
Section 3.1 Corporate Status and Authority of Seller. Seller (a) is a
corporation duly organized, validly existing and in good standing under the laws
of the State of Kansas and (b) has all requisite corporate power and authority
to conduct the Business as presently conducted and to own, lease or operate the
Assets, and (c) is duly qualified to do business in each jurisdiction in which
the nature of the Business and its current customer contracts or the location of
the Assets requires it to be so qualified, other than those jurisdictions in
which the failure to be so qualified is not, individually, or in the aggregate,
reasonably expected to have a Material Adverse Effect on the Business. Schedule
3.1 lists each jurisdiction in which Seller is qualified to transact business.
Seller has all requisite corporate power and authority to execute and deliver
this Agreement and the other agreements required to be delivered under this
Agreement, namely the Xxxx of Sale, the Certificate of Assumption
(acknowledgement only), the Trademark Assignment, and the Conveyance Documents
(collectively, the "Ancillary Agreements"), to perform its obligations hereunder
and thereunder and to consummate the transactions contemplated hereby and
thereby. The execution, delivery and performance by Seller of this Agreement and
the Ancillary Agreements to which it is a party have been duly authorized by the
Board of Directors of Seller and such Board authorization, along with the due
authorization of Elecsys, constitutes all necessary corporate action on the part
of Seller necessary to approve such execution, delivery and performance by
Seller. This Agreement has been and the Ancillary Agreements to which it is a
party will be duly executed and delivered by Seller and, once duly authorized by
Elecsys, will constitute the valid and binding obligations of Seller,
enforceable against Seller in accordance with their terms, except as such
enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or other Laws of general application referring to or
affecting the enforcement of creditors' rights or by general equitable
principles.
Section 3.2 Corporate Status and Authority of Elecsys. Elecsys is a
corporation duly incorporated, validly existing and in good standing under the
laws of the State of Kansas. Elecsys has all requisite corporate power and
authority to own, lease and operate its assets and to carry on its business as
now being conducted, and to execute and deliver this Agreement and the Elecsys
Guaranty, to perform its obligations hereunder and thereunder and to consummate
the transactions contemplated hereby and thereby. The execution, delivery and
performance by Elecsys of this Agreement and the Elecsys Guaranty have been duly
authorized by the Board of Directors of Elecsys and such Board authorization,
along with the due authorization of Elecsys's shareholders with respect to this
Agreement, which is expected to be sought within a reasonable amount of time
following the execution of this Agreement, constitutes all necessary corporate
action on the part of Elecsys necessary to approve such execution, delivery and
performance by Elecsys. Each of this Agreement and the Elecsys Guaranty has been
duly executed and delivered by Elecsys and, once this Agreement has been duly
authorized by Elecsys's shareholders, will constitute the valid and binding
obligations of Elecsys, enforceable against Elecsys in accordance with its
terms, except as such enforceability may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium or other Laws of general
application referring to or affecting the enforcement of creditors' rights or by
general equitable principles.
Section 3.3 No Conflicts, etc.. Except as set forth in Schedule 3.3:
3.3.1 Charter Documents. The execution, delivery and performance by Seller
and Elecsys of this Agreement and the Ancillary Agreements and the consummation
of the transactions contemplated hereby and thereby will not result in (a) any
conflict with or violation of the articles of incorporation or by-laws of
Seller, or of the articles of incorporation or by-laws of Elecsys, (b) any
breach or violation of or default under, or result in the creation or imposition
of any Liens under, any statute, regulation, judgment, order or decree, or any
mortgage, deed of trust, indenture, security agreement, pledge or any other
similar instrument to which Seller or Elecsys is a party or by which either of
them or their respective properties or assets are bound, or (c) any breach,
violation or termination of or default under any Material Contract.
3.3.2 Governmental Consents. Except as set forth on Schedule 3.3.2, no
consent, approval or authorization of or filing with any Governmental Authority
is required on the part of Seller or Elecsys in connection with the execution
and delivery of this Agreement and the Ancillary Agreements or the consummation
of the transactions contemplated hereby and thereby.
Section 3.4 Financial Statements.
3.4.1 Schedules. Schedule 3.4.1 sets forth (i) the audited consolidated
financial statements of Elecsys as at and for the twelve-month periods ended
April 30, 1999 and 2000, including a balance sheet and statements of income,
retained earnings and cash flow, (ii) unaudited consolidated financial
statements of Elecsys as at the end of and for each fiscal quarter ending after
January 31, 2000 and prior to the Closing Date, including a balance sheet and
statements of income, retained earnings and cash flow, and (iii) unaudited
financial statements of Seller as at and for the twelve-month period ended April
30, 2001, including a balance sheet (the "April Balance Sheet") and statements
of income, retained earnings and cash flow (the April Balance Sheet and such
statements collectively, the "Financial Statements"). The Financial Statements
present accurately the financial condition and the results of operations of
Seller as of the dates and for the periods indicated therein, and were prepared
in all material respects in accordance with GAAP applied consistent with past
practice (subject, in the case of unaudited Financial Statements, to year end
adjustments and the absence of notes).
3.4.2 Reserves. Set forth on Schedule 3.4.2 is a correct and complete list
of all accruals and reserves for product warranties and other liability reserves
maintained by Seller as of the date hereof and as of the Closing Date.
3.4.3 No Undisclosed Liabilities. Except as set forth on Schedule 3.4.3,
the Business has no Liabilities or obligations of any nature, secured or
unsecured (absolute, accrued, contingent or otherwise and whether due or to
become due), (i) of a nature required to be reflected on a balance sheet of
Seller prepared in accordance with GAAP which were not fully reflected or
reserved in the Financial Statements except those incurred since April 30, 2001
in
the ordinary course of business consistent with past practices, or (ii) to
Seller's Knowledge, of any other kind or nature, whether or not required to be
reflected on a balance sheet.
3.4.4 Forecast. Schedule 3.4.4 sets forth the business plan and forecast
for the Business for the fiscal year 2002. All projections contained in such
business plan and forecast were, when made or adopted by Seller and Seller's
management, made or adopted in good faith with a reasonable basis.
3.4.5 Absence of Changes. Other than as set forth on Schedule 3.4.5
delivered hereunder, since January 31, 2001, Elecsys, with respect to the
Business, and Seller, have conducted the operations of the Business and
maintained the assets of the Business and performed, paid and discharged the
Liabilities of the Business only in the ordinary course, consistent with past
practices and no events or conditions have occurred or been discovered that are,
individually or in the aggregate reasonably expected to have a Material Adverse
Effect on the Business. In addition, except as set forth on Schedule 3.4.5,
there has not been:
(a) Any increase in the rate or terms of compensation payable by Seller to
any of its officers or Employees, except increases occurring in the ordinary
course of business in accordance with their customary practices (which shall
include normal periodic performance reviews and related compensation and benefit
increases);
(b) Any material increase in the rate or terms of any bonus, insurance,
pension or other employee benefit plan, payment or arrangement made to, for or
with any of the officers or Employees of Seller, except increases occurring in
the ordinary course of business in accordance with their customary practices
(which shall include normal periodic performance reviews and related
compensation and benefit increases);
(c) Any loan to, or guarantee or assumption of any loan or obligation by
Seller on behalf of any officer or Employee of Seller except advances occurring
in the ordinary course of business in accordance with customary practices;
(d) Any entry into any agreement, commitment, or transaction (including
without limitation any borrowing, capital expenditure or capital financing or
any acquisition of the securities or assets of any other entity) by Seller,
except agreements, commitments or transactions contemplated by this Agreement or
entered into in the ordinary course of business;
(e) Any sale, lease, transfer or assignment of any of the assets of
Seller, tangible or intangible, other than retirement or other disposition of
assets or the sale of finished products and spare parts in the ordinary course
of the operation of the Business;
(f) Any acceleration, termination, cancellation or material modification
(by any party including Seller and Elecsys) of any agreement, contract, lease or
license (or series of related agreements, contracts, leases and licenses) either
involving more than $10,000 or outside the ordinary course of business to which
either Seller or Elecsys, with respect to the Business, is or was a party or by
which either of them is or was bound;
(g) Any delay or postponement by Seller of the payment of accounts payable
and other liabilities outside the ordinary course of business;
(h) Any cancellation, compromise, waiver or release by Seller of any right
or claim (or series of related rights and claims) either involving more than
$10,000 or outside the ordinary course of business; or
(i) Any change by Seller in its accounting methods, practices or
principles not otherwise required by any changes in GAAP.
Section 3.5 Real Property.
3.5.1 Identification and Title. Seller acknowledges that it owns the Owned
Property in fee simple subject to no easements, covenants, restrictions or
encumbrances whatsoever except for the Permitted Exceptions and agrees that it
will convey the Owned Property to Buyer at Closing in fee simple subject only to
the Permitted Exceptions.
3.5.2 Condition. To Seller's Knowledge, the Owned Property and all
buildings and fixtures appurtenant thereto are in good operating condition and
repair as is consistent with the uses with which Seller presently employs them,
subject to maintenance, repairs or replacements conducted or required in the
ordinary course of the operation of the Owned Property that would not
individually or in the aggregate have a Material Adverse Effect on the Business.
3.5.3 Adequacy. The Owned Property is adequate to enable Seller to conduct
the Business for one year following the Closing as contemplated by the business
plan and forecast set forth in Schedule 3.4.4.
3.5.4 Related Agreements. Seller has not entered into any contract,
arrangement or understanding with respect to the future ownership, acquisition,
development, use, occupancy, sublease, lease or operation of the Owned Property.
3.5.5 No Condemnation. To Seller's Knowledge, there is no pending
condemnation or similar proceeding affecting the Owned Property or any portion
thereof. Seller has not received any written notice, and has no actual
knowledge, that any such proceeding is contemplated.
3.5.6 Zoning. To Seller's Knowledge, the current ownership, operation, use
and occupancy of the Owned Property does not violate any zoning, building,
health, flood control, fire or other Law, ordinance, order or regulation or any
restrictive covenant. To Seller's Knowledge, there are no violations of any
federal, state, county or municipal law, ordinance, order, regulation or
requirement, affecting any portion of the Owned Property, and Seller has
received no written notice of any such violation from any Governmental
Authority.
3.5.7 Compliance. The Improvements located on the Owned Property
(including without limitation all mechanical, electric, water, air conditioning
and heating systems and appliances included therein) (i) are being occupied,
maintained and operated in compliance with all applicable Laws, regulations,
insurance requirements, contracts, leases, permits, licenses, ordinances,
restrictions, building set back lines, zoning regulations, covenants,
reservations and easements, and Seller has not received any notice, written or
verbal, claiming any violation of any of the same or requesting or requiring the
performance of any repairs, alterations or other
work in order to so comply, and (ii) all required certificates of occupancy have
been duly issued and remain outstanding and in effect with regard to the Owned
Property.
3.5.8 No Mechanics Liens. No work has been performed or is in progress by
Seller at and no materials have been furnished to the Owned Property or any
portion thereof, which might give rise to mechanic's, materialman's or other
liens against the Owned Property or any portion thereof.
3.5.9 Utility Service. There is sufficient utility service available to
the Owned Property (including without limitation, gas, electricity, water, sewer
capacity and telephone service) for the operations presently being conducted
thereon.
3.5.10 No Adverse Parties. There are no adverse parties in possession of
the Owned Property or of any part thereof and no parties are in possession
thereof except Seller and no party has been granted any license, lease, or other
right relating to the use or possession of the Owned Property.
3.5.11 Not a Foreign Party. Seller is not a foreign person selling
property as described in the Foreign Investment in Real Property Tax Act.
3.5.12 Subdivision Compliance. To Seller's Knowledge, Seller has complied
with all subdivision or lot split requirements necessary for Seller's conveyance
of the Owned Property to Buyer.
3.5.13 Insurance. The Owned Property is currently covered by fire and
extended coverage insurance for the full replacement value of the Owned
Property.
3.5.14 Taxes and Other Items. All ad valorem taxes, occupancy taxes, sales
taxes, use taxes and all other Taxes, excises and assessments, and all of the
bills, costs, expenses and other liabilities whatsoever attributable to the
Owned Property accrued or assessed to the date hereof have been paid in full, or
if not yet due and payable, then all unpaid amounts accrued or assessed shall be
paid as of the Closing Date, unless otherwise indicated on Schedule 3.5.14; and
in the case of any such taxes, excises and other assessments, all returns for
periods through the date hereof have been or will be filed before the same
become delinquent.
Section 3.6 Personal Property.
3.6.1 Identification and Location. All Personal Property owned or leased
by Seller that (i) in the case of any such owned property, has a net book value
as of April 30, 2001 of $500 or more or, if less, is material to the operations
of the Business, or (ii) in the case of any lease of Personal Property, requires
aggregate annual lease payments in excess of $15,000, are listed on Schedule
3.6.1 and such schedule indicates whether the Personal Property listed thereon
is owned or leased by Seller. Schedule 3.6.1 also sets forth the locations where
the Personal Property is situated including the nature of the Personal Property
at each such location. True and complete copies of each lease related to
Personal Property listed on Schedule 3.6.1 has been or, prior to Closing will
be, made available and delivered to Buyer.
3.6.2 Title. Except as set forth on Schedule 3.6.2, Seller now has, and on
the Closing Date will have, good and valid title to the Personal Property owned
by it and a good and valid leasehold interest in all Personal Property leased by
it, in each case free and clear of all Liens except for Permitted Liens.
3.6.3 Condition. To Seller's Knowledge, all Personal Property owned or
leased by Seller (i) is in good operating condition and repair, ordinary wear
and tear excepted (except for such items of Personal Property listed on Schedule
3.6.3 which have been fully depreciated and have no book value and as to which
Seller represents and warrants that if any such item or items failed to
function, such failure or failures to function would not individually or in the
aggregate have a Material Adverse Effect on the Business), (ii) is suitable for
the purposes for which it is presently being used and (iii) is sufficient to
conduct the Business immediately after the Closing in the manner in which it has
been conducted prior to Closing. Each item of Personal Property owned or used by
Seller immediately prior to the Closing will be owned or available for use by
Buyer immediately subsequent to Closing.
Section 3.7 Accounts Receivable. Schedule 3.7 sets forth a complete and
accurate list of the billed and unbilled Receivables. The billed and unbilled
Receivables reflected on the April Balance Sheet are, and the billed and
unbilled Receivables reflected on the Final Closing Net Asset Statement will be,
bona fide receivables, accounted for in accordance with GAAP and were or will be
collectible from customers in the ordinary course of business, subject to any
reserves for uncollectibility or doubtful accounts reflected on the April
Balance Sheet or the Final Closing Net Asset Statement, as the case may be. All
such billed and unbilled Receivables constitute amounts due with respect to
actual transactions in the ordinary course of the operation of the Business and
are free of rights of set-off and collectible from customers within 120 days of
the Closing Date, taking into account the amounts reflected in the doubtful
accounts reserve.
Section 3.8 Inventory. Schedule 3.8 sets forth a complete and accurate
list of the Inventory as of the date hereof and as of the Closing Date. All
Inventory reflected on the April Balance Sheet is, and all Inventory to be
transferred to Buyer at the Closing and reflected on the Final Closing Net Asset
Value Statement will be, of good and merchantable quality, saleable (in the case
of Inventory held for sale) or currently usable (in the case of other Inventory)
in the ordinary course of business, without xxxx-xxxxx, subject to any reserves
for non-conforming goods and obsolescence.
Section 3.9 Intellectual Property.
3.9.1 Patents and Know-How. Schedule 3.9.1 sets forth a complete and
accurate list of each patent and patent application, and each license or
licensing agreement, for each of the patents, patent applications, inventions,
formulas, confidential proprietary technical information, designs, schematics,
drawings, plans, data compilations, manuals, instructions, trade-secrets, rights
to know-how, processes, computer programs or use of technology, held or employed
by Seller (such patents, patent applications, licenses or licensing agreements
listed thereon hereinafter termed the "Patents and Licenses"). Except as set
forth on Schedule 3.9.1, Seller owns (or, in the cases of the Licenses, is a
party to the relevant agreements) free and clear of any Liens, all right, title
and interest in the Patents and Licenses with all rights to make, use, and sell
the property embodied in or described in the Patents and Licenses. All the
Licenses set
forth in Schedule 3.9.1 are valid, binding and enforceable in accordance with
their terms. To Seller's Knowledge, the use by Seller of the Patents and
Licenses does not conflict with, misappropriate, infringe upon or violate any
patent, patent license, patent application, or any pending application relating
thereto, or any trade secret, know-how, programs or processes of any other
person or entity.
3.9.2 Trademarks and Copyrights. Schedule 3.9.2 sets forth a complete and
accurate list of each trademark, trade name, trademark and trade name
registration or application, and copyright registration and application for
copyright registration, and each license or licensing agreement, for each
trademark and copyright held or employed by Seller (such trademarks, copyrights,
applications, and licenses or licensing agreements hereinafter termed the
"Trademarks and Licenses"). Except as set forth on Schedule 3.9.2, Seller owns,
(or, in the case of the Licenses, is a party to the relevant agreements) free
and clear of any Liens, all right, title and interest in the Trademarks and
Licenses with the rights to use and sell the property embodied in or described
in the Trademarks and Licenses and, in the case of the Registered Trademark, all
rights to use the property embodied therein. All the licenses set forth in
Schedule 3.9.2 are valid, binding and enforceable in accordance with their
terms. To Seller's Knowledge, the use by Seller of the Trademarks and Licenses
does not conflict with, infringe upon or violate any trademark, trade name,
trademark or trade name registration or application, copyright, copyright
registration or application, service xxxx, brand xxxx or brand name or any
pending application relating thereto, of any other person or entity.
3.9.3 Computer Software. Schedule 3.9.3 sets forth a list of all computer
software programs, computer data bases and related documentation and materials
which are used by Seller or are incorporated in any products sold or leased by
Seller to customers, other than any computer software programs, computer data
bases and related documentation and materials subject to "shrink wrap" licenses
(such computer software programs, data bases and related documentation and
materials hereinafter the "Computer Software"). Except as set forth on Schedule
3.9.3, Seller owns free and clear of any Liens, all right, title and interest in
the Computer Software, or has a valid license to use the Computer Software. To
Seller's Knowledge, the use by Seller of the Computer Software does not conflict
with, misappropriate or infringe upon the rights or ownership interests of any
other person.
3.9.4 General. No claims have been made or threatened against the Seller
or Elecsys that challenge or seek to deny the use of the property embodied in or
described in the Patents and Licenses and the Trademarks and Licenses or other
intellectual property used by Seller in connection with the Business, including
without limitation, any information, designs, schematics, drawings, plans, data
compilations, manuals, instructions, trade-secrets, rights to know-how,
processes, computer programs or technology (such property, collectively, the
"Intellectual Property"), by Seller or alleges that Seller is, or Elecsys was,
with respect to the Business, selling products or providing services in
violation of any patents, trademarks, or rights of another person. Neither
Elecsys nor any affiliate of Elecsys nor any other party except as disclosed on
Schedule 3.9.4 has any right to, make, use or sell any of the Intellectual
Property. The operation of the Business does not infringe upon the intellectual
property rights of third parties. The Intellectual Property is sufficient to
conduct the Business immediately after the Closing in the manner in which it has
been conducted prior to the Closing.
Section 3.10 Material Contracts.
3.10.1 Schedules. Schedule 3.10.1 lists all written agreements, contracts
and commitments of the types described below to which Seller or Elecsys in
connection with the Business is a party and which have not expired or been fully
performed in accordance with their terms (collectively, the "Material
Contracts"):
(a) Any employment, severance, agency, consulting, distribution or sales
representative (whether domestic or international) agreement;
(b) Any indemnity agreement, letter of credit, surety bond, performance
bond or other credit support instrument issued or caused to be issued for the
account of Seller;
(c) Any mortgage, loan or trust indenture, loan or credit agreement,
security agreement and other agreements and instruments relating to the
borrowing of money;
(d) Any agreement containing non-disclosure restrictions on Seller or any
covenant limiting the freedom of Seller in respect to the Business or any
persons employed in the Business to engage in any line of business or compete
with any Person or in any geographic area;
(e) Any agreement for the (i) pending sale or lease of any of the Assets,
or (ii) pending purchase or lease by Seller of any Assets of the type used in
the Business;
(f) Any agreement permitting a third party to offset payments which it
owes to Seller against payments owing by Seller to such third party;
(g) Any agreement relating to capital expenditures by Seller and involving
future payments which, together with future payments under all other agreements
relating to the same capital project, exceed $25,000;
(h) Any Intellectual Property license to receive or pay royalties;
(i) Any partnership, joint venture or limited liability company agreement
or any other arrangement involving the sharing of profits, liabilities or risks;
or
(j) Any other agreements, contracts and commitments that constitute part
of the Assets having a term of one (1) year or more which are not of a type
referred to in paragraphs (a) through (i) above that require payments or provide
for the receipt by Seller of more than $75,000, other than standing purchase
orders or basic ordering arrangements for materials and supplies to be used in
the ordinary course of business.
3.10.2 Full Force and Effect; No Defaults. All of the Material Contracts
are in full force and effect and are legal, valid, binding and enforceable
against Seller in accordance with their respective terms and, to the Knowledge
of Seller, the other parties thereto, except as such enforceability may be
limited by applicable bankruptcy, insolvency, reorganization, moratorium or
other Laws of general application referring to or affecting the enforcement of
creditors' rights, or by general equitable principles. Except as set forth in
Schedule 3.10.2, (i) there are no defaults or threatened defaults by Seller
under any Material Contract or, to Seller's
Knowledge, by any other party under any Material Contract, and (ii) the
execution and delivery of this Agreement and the consummation of the
transactions contemplated hereby will not require the consent of any other party
under any Material Contract.
3.10.3 Review by Buyer. Seller has made available to Buyer prior to the
date hereof complete and correct copies of all Material Contracts (and related
contract files or customer correspondence).
Section 3.11 Government Contract Matters.
3.11.1 Government Contract Compliance. Except as set forth in Schedule
3.11.1, with respect to each and every contract, agreement or subcontract with
or on behalf of the United States Government or any agency, department or
division thereof to which Seller is a party or to which Elecsys is or was a
party in connection with the Business (a "Government Contract") or bid or
proposal which, if accepted, would result in a Government Contract (a
"Government Bid"): (i) Seller or Elecsys, as the case may be, has complied with
all material terms and conditions of such Government Contract or Government Bid;
(ii) Seller or Elecsys, as the case may be, has complied with all requirements
of all material laws, regulations, standards or agreements pertaining to such
Government Contract or Government Bid, including without limitation, to the
extent applicable, the Cost Accounting Standards and the Truth in Negotiations
Act; (iii) all representations and certifications executed, acknowledged or set
forth in or pertaining to such Government Contract or Government Bid were
complete and correct as of their effective date and Seller or Elecsys, as the
case may be, has complied in all material respects with all such representations
and certifications; (iv) neither the United States Government nor any prime
contractor, subcontractor or other person has notified Seller or Elecsys, as the
case may be, either in writing or, to Seller's Knowledge, orally, that Seller or
Elecsys, as the case may be, has breached or violated any statute, regulation,
certification, representation, clause, provision or requirement pertaining to
such Government Contract or Government Bid; (v) no termination for convenience,
termination for default, cure notice or show cause notice is currently in effect
pertaining to such Government Contract or Government Bid; (vi) no material cost
incurred by Seller or Elecsys, as the case may be, pertaining to a Government
Contract or Government Bid has been formally questioned or challenged, is the
subject of any investigation or has been disallowed by the United States
Government; (vii) no money due to Seller or Elecsys, as the case may be,
pertaining to such Government Contract or Government Bid has been withheld or
set off nor has any claim been made to withhold or set off money and Seller or
Elecsys, as the case may be, is entitled to all progress payments received with
respect thereto; and (viii) each Government Contract to which Seller or Elecsys
in connection with the Business is a party is valid and subsisting.
3.11.2 Government Investigations. Except as set forth in Schedule 3.11.2,
since January 1, 1998 (i) neither Seller, Elecsys nor, to Seller's Knowledge,
any of the directors, officers or employees of Seller or Elecsys are or have
been under administrative, civil or criminal investigation, indictment or writ
of information by any United States Government entity or any audit or
investigation by any United States Government entity, with respect to any
alleged irregularity, misstatement or omission arising under or relating to any
Government Contract or Government Bid; and (ii) during the last seven years,
Seller and Elecsys have not conducted or initiated any internal investigation or
made a voluntary disclosure to the United States
Government, with respect to any alleged irregularity, misstatement or omission
arising under or relating to any Government Contract or Government Bid. Except
as set forth in Schedule 3.11.2, to the Knowledge of Seller, there exists no
irregularity, misstatement or omission arising under or relating to any
Government Contract or Government Bid that has led to any of the consequences
set forth in clause (i) or (ii) of the immediately preceding sentence or any
other damage, penalty assessment, recoupment of payment or disallowance of cost.
3.11.3 Absence of Claims. Except as set forth in Schedule 3.11.3, with
respect to Seller or Elecsys, to Seller's Knowledge, there exist (i) no
outstanding material claims against Seller or Elecsys, either by the United
States Government or by any prime contractor, subcontractor, vendor or other
third party, arising under or relating to any Government Contract; and (ii) no
material disputes between Seller or Elecsys and the United States Government
under the Contract Disputes Act or any other federal statute or otherwise, or
between Seller or Elecsys and any prime contractor, subcontractor or vendor
arising under or relating to any Government Contract. To the Seller's Knowledge,
except as set forth in Schedule 3.11.3, neither Seller nor Elecsys has any
interest in any pending or potential claim against the United States Government
or any prime contractor, subcontractor or vendor arising under or relating to
any Government Contract or Government Bid. Schedule 3.11.3 lists each Government
Contract which, to Seller's Knowledge, is currently under audit (other than
routine audits conducted in the ordinary course of business) by the United
States Government or any other person that is a party to such Government
Contract.
3.11.4 Eligibility; Systems Compliance. Except as set forth in Schedule
3.11.4, since January 1, 1998, neither Seller nor Elecsys or any of their
respective directors, officers, or employees have ever been debarred or
suspended from participation in the award of contracts with the United States
Department of Defense or any other United States Government entity or have been
denied award of a Government Contract on the basis of a determination of
nonresponsibility or ineligibility. To Seller's Knowledge, there exist no facts
or circumstances that would warrant the institution of suspension or debarment
proceedings or the finding of nonresponsibility or ineligibility on the part of
Seller or Elecsys with respect to any prior, subsisting or future Government
Contract or Government Bid. To Seller's Knowledge no payment has been made by
Seller or Elecsys, or by any Person on behalf of Seller or Elecsys, in
connection with any Government Contract in violation of applicable procurement
laws or regulations. Except as set forth in Schedule 3.11.4, the cost
accounting, materials management and procurement systems of Seller or Elecsys,
and the associated entries reflected in the Financial Statements, with respect
to the Government Contracts and the Government Bids are in compliance in all
material respects with all applicable laws and regulations.
3.11.5 Test and Inspection Results. Except as set forth in Schedule
3.11.5, to the Knowledge of Seller, all test and inspection results provided by
Seller or Elecsys to the United States Government pursuant to any Government
Contract or to any other Person pursuant to a Government Contract or as a part
of the delivery to the United States Government or to any other Person pursuant
to a Government Contract of any article, spare part, apparatus or any intangible
(including software and databases) which were designed, developed, engineered or
manufactured by Seller, Elecsys or any subcontractors of Seller or Elecsys, were
complete and correct in all material respects as of the date so provided. Except
as set forth in Schedule 3.11.5, Seller and Elecsys have provided all test and
inspection results to the United States Government or to any
other Person pursuant to a Government Contract as required by applicable law and
the terms of the applicable Government Contract.
3.11.6 Government Furnished Equipment. Schedule 3.11.6 identifies by
description or inventory number and contract all equipment and fixtures loaned,
bailed or otherwise furnished to or held by Seller or Elecsys (or by
subcontractors on behalf of Seller or Elecsys) by or on behalf of the United
States as of the date stated therein (said equipment and fixtures are herein
referred to as the "GFE"). Seller or Elecsys, as the case may be, has certified
to the United States Government in a timely manner that all GFE is in good
working order, reasonable wear and tear excepted, and otherwise meets the
requirements of the applicable contract. There are no outstanding loss, damage
or destruction reports that have been or should have been submitted to the
United States Government in respect of any GFE. To the Knowledge of Seller, in
respect of the GFE, Schedule 3.11.6 is accurate and complete as of the date
hereof, and if dated as of the Closing Date would contain only those additions
and omit only those deletions of equipment and fixtures that have occurred in
the ordinary course of business. The GFE is in the possession of ASI or Seller,
or a subcontractor of Seller or Elecsys, and is located at the place identified
in the list of GFE referred to in Schedule 3.11.6.
3.11.7 Not Subject to CAS. Except as set forth on Schedule 3.11.7, (i) all
Government Contracts are firm fixed price contracts that have been awarded
competitively or awarded pursuant to an option awarded at the time such original
contract was awarded, (ii) neither Seller nor Elecsys are subject to the Cost
Accounting Standards, (iii) no contract entered into by either Seller or Elecsys
is or has ever been subject to the Cost Accounting Standards, (iv) neither
Seller nor Elecsys currently have any forward price rate agreements, and (v) no
Government Contracts are covered by forward price rate agreements.
Section 3.12 Litigation and Investigation.
3.12.1 General. Except as set forth in Schedule 3.12.1 delivered
hereunder:
(a) Neither Seller nor Elecsys is subject to any unsatisfied monetary
judgment, order or decree that would affect Buyer's ability to conduct the
Business immediately after Closing as Seller presently conducts it;
(b) Neither Seller nor Elecsys has been served as a party in, or received
notice of, or to Seller's Knowledge been threatened with, any Proceeding,
whether civil or criminal, relating to the Business, the Assets or the Assumed
Liabilities; and
(c) Neither Seller nor Elecsys has received any written opinion or
memorandum or other written legal advice from legal counsel to the effect that
Seller is exposed, from a legal standpoint, to any liability or disadvantage
which may have a Material Adverse Effect on the Business.
3.12.2 This Transaction. There are no Proceedings pending, in effect, or,
to Seller's Knowledge, threatened, which are related to the transactions
contemplated by this Agreement or the Ancillary Agreements or any action taken
or to be taken by Seller or Elecsys pursuant to or in connection with this
Agreement.
Section 3.13 Taxes.
3.13.1 Tax Returns. All Tax Returns required to be filed on or before the
Closing Date by Seller, Elecsys or any of their affiliates with respect to the
Assets or the Business with any Taxing Authority have been or will be filed in
accordance with all applicable laws, are in all material respects true, complete
and correct, and all Taxes that were shown to be due on such Tax Returns have
been or will be paid (either directly by Seller or indirectly through applicable
tax sharing arrangements) prior to their due dates; provided, however, that the
representations and warranties set forth in this Section 3.13 are made only to
the extent that Taxes (i) are or may become liens on the Assets or (ii) for
which Buyer is or may be liable in the capacity of transferee of the Assets.
Neither Seller nor Elecsys is currently the beneficiary of any extension of time
within which to file any Tax Return. Except as set forth on Schedule 3.13.1, no
claim has ever been made by a Taxing Authority in a jurisdiction where Seller
does not file Tax Returns that it is or may be subject to taxation by that
jurisdiction. Except as set forth on Schedule 3.13.1, no claim has ever been
made by a Taxing Authority in a jurisdiction where Elecsys does not file Tax
Returns that it is or may be subject to taxation by that jurisdiction.
3.13.2 Allocations. Seller is not a party to any Tax allocation or sharing
agreement with respect to the Business.
3.13.3 Non-deductible Payments. Seller with respect to the Business or the
Assets has not made any payments, is not obligated to make any payments and is
not a party to any agreement that could obligate it to make any future payments
that will not be fully deductible because of the limitations of Sections 162(m)
or 280G of the Code (for this purpose, without regard to Section 280G(b)(4)).
3.13.4 Tax Liens. Except as set forth on Schedule 3.13.4, none of the
Assets and none of the assets or properties of the Business (i) is subject to
any Lien arising in connection with any failure or alleged failure to pay any
Tax, (ii) secures any debt the interest on which is tax-exempt under Section
103(a) of the Code, (iii) is "tax-exempt use property" within the meaning of
Section 168(h) of the Code, (iv) is "tax exempt bond financed property" within
the meaning of Section 168(g)(5) of the Code, (v) is "limited use property"
within the meaning of Revenue Procedure 76-30, (vi) will be treated as owned by
any other person pursuant to the provisions of former Section 168(f)(8) of the
Code, (vii) is imported property covered by an Executive order described in Code
section 168(g)(6) or (viii) is tangible property that is used predominantly
outside the United States. The transactions contemplated by this Agreement are
not subject to tax withholding pursuant to the provisions of Section 3406 or
Subchapter A of Chapter 3 of the Code or any other provision of applicable law.
Seller is not a corporation other than a United States corporation within the
meaning of the Code.
3.13.5 Independent Contractors. No person should have been treated as an
employee for Tax purposes who (i) has been treated as an independent contractor
for Tax purposes, (ii) has provided services with respect to the Business, and
(iii) is likely to continue to provide services to the Business at any time
during the twelve-month period following the Closing Date.
Section 3.14 Employees; Compensation; Labor.
3.14.1 Employees and Compensation. Schedule 3.14.1 delivered hereunder
sets forth a complete and accurate list as of the date hereof of all individuals
who are employed by or otherwise working in the Business including any person on
leave (specifying any on either short or long term disability), and Seller shall
update such list prior to Closing and such updated list shall be deemed the
final and complete list of all such employees (the "Employees"). Schedule 3.14.1
correctly lists each Employee's present rate of compensation, date of hire, date
of birth, job title and whether such Employee is classified as an exempt or
non-exempt employee all as of the date of such Schedule. Seller has delivered or
made available to Buyer prior to the date of this Agreement complete and correct
copies of all written employment agreements covering any Employee.
3.14.2 Certain Labor Matters. Except as set forth on Schedule 3.14.2
delivered hereunder:
(a) No Employee has formally indicated his or her intention to cancel or
otherwise terminate his or her relationship with the Business or his or her
relationship with Buyer after Closing;
(b) There are no unions representing the interests of any of the Employees
and to the Knowledge of Seller, there are no such Employees seeking or
attempting to organize other union representation;
(c) There are no other agreements between Seller and any labor
organizations representing any of the Employees;
(d) There are neither pending nor, to the Knowledge of Seller, threatened
any strikes, work stoppages, work disruptions or employment disruptions by any
of the Employees;
(e) There are neither pending nor, to the Knowledge of Seller, threatened
any Proceedings between Seller and any of the Employees;
(f) With respect to the Business and the Employees, during the past three
(3) years each of Seller and Elecsys (i) has complied in all respects with all
Laws relating to the employment of labor, including any provisions thereof
relating to wages, hours, collective bargaining and the payment of social
security and similar Taxes, (ii) is not liable for any arrearages of wages or
any Taxes or penalties for failure to comply with any of the foregoing, (iii)
has not committed any material unfair labor practices, and (iv) has complied in
all material respects with all applicable provisions of the Occupational Safety
and Health Act of 1970 and regulations promulgated pursuant thereto, except in
each case as would not have a Material Adverse Effect on the Business; and
(g) To the Knowledge of Seller, none of the Employees, within the three
(3) year period prior to the date hereof, has filed any complaint relating to
the Business or employment of such Employee with any governmental or regulatory
authority or brought any action in law or in equity with respect thereto.
3.14.3 Employee Benefit Plans; ERISA. Schedule 3.14.3 delivered hereunder
accurately lists each employee benefit plan or arrangement maintained or
contributed to by Seller
or Elecsys which covers the Employees (each such Plan is hereinafter referred to
as a "Plan"), that (i) is either an "employee pension benefit plan" or "employee
welfare benefit plan" as such terms are defined in Section 3 of the Employee
Retirement Income Security Act of 1974, as amended, and the rules and
regulations promulgated thereunder ("ERISA") (each Plan that is an employee
pension benefit plan may hereinafter be referred to as a "Retirement Plan"), or
(ii) provides for any employment-related benefit, including, but not limited to,
health, medical, disability, life insurance or other welfare or fringe benefits,
retainer, consulting, severance benefits, supplemental unemployment benefits,
holiday, or vacation benefits, education benefits, benefits in the event of a
sale, merger or other change in the control, management or the ownership of the
Business, deferred compensation benefits, bonuses, stock options, stock
purchase, stock appreciations rights and other forms of stock-based or cash
compensation. Except as set forth on Schedule 3.14.3 and with respect to the
Business:
(a) Neither Seller nor Elecsys has ever contributed to a multi-employer
plan, as defined in Section 3(37) of ERISA, or other collectively bargained
employee benefit plan, which could result in any liability to Buyer as a result
of this transaction;
(b) Neither Seller, Elecsys, nor, to the Knowledge of Seller, any other
disqualified person or party in interest as defined in Section 4975(c)(2) of the
Code and Section 3(14) of ERISA, respectively, has engaged in any transaction in
connection with any Plan that reasonably could be expected to result in the
imposition of a penalty pursuant to Section 502(1) of ERISA, damages pursuant to
Section 409 of ERISA or a tax under Section 4975(e) of the Code which,
individually or in the aggregate, reasonably could be expected to have a
Material Adverse Effect upon the Business;
(c) All contributions to the Retirement Plans have been timely made and no
Retirement Plan has an "accumulated funding deficiency" within the meaning of
Section 412 of the Code and Section 302 of ERISA, whether or not waived;
(d) No Retirement Plan subject to Title IV of ERISA has incurred any
material liability under such title other than for the payment of premiums to
the Pension Benefit Guaranty Corporation ("PBGC"), all of which have been paid
when due;
(e) No Retirement Plan has been terminated; nor have there been any
"reportable events" (as that term is defined in Section 4043 of ERISA and the
regulations thereunder) which would present a risk that a Retirement Plan would
be terminated and that such termination would have a Material Adverse Effect on
the Business;
(f) Each Retirement Plan which is intended to qualify under Section 401 of
the Code is so qualified and has received a favorable determination letter from
the Internal Revenue Service that such Retirement Plan is qualified under
Section 401(a) of the Code, and the trusts maintained pursuant thereto are
exempt from federal income taxation under Section 501 of the Code. No event has
occurred with respect to any such Retirement Plan which could cause the loss of
such qualification or exemption or which could subject any such Retirement Plan
to tax under Section 511 of the Code;
(g) With respect to each employee benefit plan or arrangement listed on
Schedule 3.14.3, Seller has made available to Buyer the most recent copy (where
applicable) of (a) true, correct and complete copies of the plan document, (b)
the summary plan description, (c) the most recent determination letter, (d) Form
5500; (e) actuarial valuation report, (f) all insurance policies purchased by or
to provide benefits under any Plan, and (g) all contracts with third party
administrators, actuaries, investment managers, consultants and other
independent contractors;
(h) Schedule 3.14.3(h) contains a list of all retirees of Seller and their
dependents and beneficiaries that are receiving or are eligible for
post-retirement medical benefits. Except as set forth on Schedule 3.14.3(h),
Seller has no obligation to continue medical or other benefits after an Employee
or former employee separates from service with Seller, unless required to
continue coverage pursuant to Part 6 of Title I of ERISA or Section 4980B of the
Code;
(i) Each Plan that is a "group health plan" (as defined in Section 607(1)
of ERISA and Section 5000(b)(1) of the Code) is in compliance with the
requirements of Parts 6 and 7 of Title I of ERISA and of Section 4980B of the
Code, except where non-compliance reasonably could not be expected to have a
Material Adverse Effect on the Business;
(j) Neither Seller, Elecsys, nor, to Seller's Knowledge, any other
"fiduciary" (as that term is defined in Section 3(21) of ERISA) of any Plan
subject to ERISA has any liability for any breach of fiduciary duties under
ERISA which reasonably could be expected to have a Material Adverse Effect on
the Business; and
(k) All Plans are in full compliance with the relevant provisions of ERISA
and the Code, the regulations and published authorities thereunder, and all
other laws applicable with respect to all such Plans. Seller and Elecsys have
performed all of their obligations under all Plans. There is no Proceeding
pending or threatened against any Plan or arising out of any Plan, and no fact
exists which could give rise to any such Proceeding.
Section 3.15 Compliance with Law.
3.15.1 General. To Seller's Knowledge, Seller and Elecsys are not in
violation of any applicable Laws, rules or regulations relating to the Business,
the Assets or the Assumed Liabilities except for such violations, if any, which
would not have, in the aggregate, a Material Adverse Effect on the Business.
3.15.2 Permits.
(a) Schedule 3.15.2(a) accurately lists all of the Permits. Seller holds
all Permits that are necessary to conduct the Business as presently conducted
and to operate the Assets as they are presently operated, except as would not
have a Material Adverse Effect on the Business. No suspension, cancellation or
termination of any Permit is pending or, to Seller's Knowledge, threatened.
(b) Schedule 3.15.2(b) sets forth a complete list of all products sold by
Seller. Except as noted on Schedule 3.15.2(b), all products produced or sold in
connection with the
Business that require certification, approval or authorization by the Federal
Aviation Administration or the Federal Communications Commission for sale in the
United States have been so certified, approved or authorized and all such
certifications, approvals and authorizations are freely transferable by Seller
without the consent of the FAA or the FCC. No such certification, approval or
authorization has been withdrawn, conditioned, limited, cancelled or rescinded
and neither the FAA nor the FCC has threatened to withdraw, condition, limit,
cancel or rescind any such certification, approval or authorization.
3.15.3 Export Control. Seller has (a) all licenses for any pending export
transactions, (b) all licenses and clearances for the disclosure of information
to foreign persons, and (c) all registrations with United States governmental
entities with authority to implement applicable export control Laws that are
appropriate or required to permit it to conduct the Business as presently
conducted by Seller and Elecsys and to operate the Assets as they are presently
operated. To Seller's Knowledge, Seller is in compliance with all applicable
export control Laws.
3.15.4 FCPA. Neither Seller nor Elecsys nor, to the Knowledge of Seller,
any agent of Seller or Elecsys is in violation of the Foreign Corrupt Practices
Act, as amended, 15 U.S.C. xx.xx. 76m, 78dd-1, 78dd-2 and 78ff (the "FCPA").
There has never been a claim or charge under the FCPA made against Seller or
Elecsys and there has never been an investigation of Seller or Elecsys by any
Governmental Agency with respect to matters arising under the FCPA.
3.15.5 Environmental Conditions and Compliance.
(a) The information set forth on Schedule 3.15.5(a) constitutes all
information Known to Seller as to the Environmental Conditions on, under or at
the Owned Property, except those Environmental Conditions that have been cured
or remedied in all material respects, or would not be reasonably expected in the
aggregate to have a Material Adverse Effect on the Business. Each document
delivered pursuant to this Subsection 3.15.5(a) or identified on Schedule
3.15.5(a) discloses in reasonable detail all material information Known to
Seller regarding such Environmental Conditions.
(b) Except as set forth on Schedule 3.15.5(b), Seller is in compliance
with all applicable Environmental Laws. Except as set forth on Schedule
3.15.5(b), no notices by any Governmental Authority of any violation or alleged
violation of, non-compliance or alleged non-compliance with or any liability
under, any Environmental Law relating to the operations or properties of the
Business have been received by Seller or Elecsys, except for violations or
alleged violations, non-compliance or alleged non-compliance with, or any
liability under Environmental Laws which would not be reasonably expected in the
aggregate to have a Material Adverse Effect on the Business.
(c) Except as set forth on Schedule 3.15.5(c), there are no claims against
Seller or Elecsys or any of their respective officers or employees arising out
of or related to any Environmental Conditions nor Proceedings pending or, to
Seller's Knowledge, threatened, relating to compliance with or liability under
any Environmental Law affecting the Business, the Owned Property, except for
claims or proceedings that would not be reasonably expected in the aggregate to
have a Material Adverse Effect on the Business.
(d) Except as set forth on Schedule 3.15.5(d), none of the Owned Property
structures or fixtures appurtenant thereto, or any of the Personal Property, has
or contains to the Knowledge of the Seller (i) any underground tanks or storage
facilities for Hazardous Materials as defined by any Environmental Law, (ii) any
polychlorinated biphenyls ("PCB") or PCB-contaminated electrical equipment
except electric light ballasts, or (iii) any friable structural asbestos or
asbestos containing material.
(e) Except as set forth on Schedule 3.15.5(e), to Seller's Knowledge,
neither Seller nor Elecsys has disposed of or caused the disposal of any
Hazardous Materials generated, produced, or used by the Business to any site or
location appearing on the National Priorities List (40 C.F.R. Part 300), the
Comprehensive Environmental Response Compensation and Liability Information
System ("CERCLIS") or any analogous state list, promulgated by the U.S.
Environmental Protection Agency or any state agency or department.
Section 3.16 Bank Accounts and Powers. Schedule 3.16 lists each bank,
trust company, savings institution, brokerage firm, mutual fund or other
financial institution with which Seller has an account or safe deposit box that
holds any Assets that are being transferred to Buyer as part of the Business and
the names and identification of all persons authorized to draw thereon or to
have access thereto. Except as listed on Schedule 3.16, there is no power of
attorney related to any Asset or Assumed Liability to which Seller or Elecsys is
a party that will remain in effect following the Closing Date.
Section 3.17 Security Clearances. There are no security clearances held by
Seller, Elecsys or the Employees.
Section 3.18 Insurance. Schedule 3.18 contains a correct and complete list
of all policies of insurance maintained by Seller or Elecsys with respect to the
Business, including workers' compensation policies. All such policies are in
full force and effect on the date hereof and all premiums, assessments and other
charges required thereunder have been paid when due. No insurance company or
other person has mandated in an agreement binding on Seller or Elecsys a
requirement of continued insurance coverage that has not been complied with.
Also included on Schedule 3.18 is a list of all claims in excess of $10,000
currently pending under any of the policies set forth on Schedule 3.18. Neither
Seller nor Elecsys has received any notification of cancellation of any of such
insurance policies nor has any claim outstanding which could be expected to
cause a material increase in the insurance rates. To Seller's Knowledge, no
facts or circumstances exist that would relieve any insurer under any such
policies of their obligations to satisfy in full any claim of Seller or Elecsys
thereunder. Neither Seller nor Elecsys has received any notice that any of such
policies have been or will be cancelled or terminated.
Section 3.19 Warranties. Seller has hereto provided to Buyer true, correct
and complete copies of the standard forms of product warranties and guaranties
adopted by Seller and Elecsys in connection with the Business in respect of
goods and services sold by Seller and Elecsys in connection with the Business.
Seller reasonably believes that the accruals and reserves for product warranty
and other post-sale services identified on the April Balance Sheet and on
Schedule 3.4.2 were, and on the Final Closing Net Asset Statement will be,
adequate for
purposes of performing and discharging any post-sale or other warranty
obligations from and after the Closing Date.
Section 3.20 Brokers' Fees. Seller has no liability or obligation to pay
any fees or commissions to any broker, financial advisor, banker, finder or
agent with respect to the transactions contemplated by this Agreement, and no
such liability or obligation for any such fees or commission payable by Seller
or Elecsys shall be or become a liability of Buyer.
Section 3.21 Full Disclosure. No representation or warranty of Seller
contained in this Agreement and no Schedule delivered hereunder is false or
contains any untrue statement of fact. To Seller's Knowledge, there is no fact,
circumstance or condition (other than general global or U.S. economic facts,
circumstances or conditions) that, since January 1, 2001, has had or that could
reasonably be expected to have a Material Adverse Effect on the Business which
has not been set forth in this Agreement, the Schedules or the Exhibits.
Section 3.22 Consents and Notices. All statutory requirements,
authorizations, consents, approvals, acknowledgements and notices required to be
obtained or given by Seller or Elecsys from or to any Governmental Authority or
third party in connection with the sale of the Assets hereunder (the
"Consents"), including, without limitation, all Consents of any customer of
Seller or Elecsys under any Contract (including Contracts between Elecsys and
such customers), and all Consents from any bank or insurance company with
respect to any letter of credit, stand-by letter of credit or surety bond in
favor of Seller or Elecsys related to any of the Assets, are set forth on
Schedule 3.22, except for those for which the failure to obtain would not have a
Material Adverse Effect on the Business.
Section 3.23 Bankruptcy.
3.23.1 Court Approval. The Asset Purchase Agreement entered into as of May
20, 1991 (the "Asset Purchase Agreement"), by and between Airport Systems
International, Inc. (now known as Elecsys Corporation) and Aviation Systems,
Inc., a Kansas corporation ("Aviation Systems, Inc.") has been approved by the
Bankruptcy Court for the District of Kansas (the "Bankruptcy Court") in Case No.
00-00000-00 involving Aviation Systems, Inc. (the "Bankruptcy Proceeding")
without material variations from the text of the Asset Purchase Agreement.
3.23.2 Finality. The Bankruptcy Court order in the Bankruptcy Proceeding
has become final. To Seller's Knowledge, there have been no appeals concerning
the Bankruptcy Court's order in the Bankruptcy Proceeding itself or any issues
relating to it and no right to appeal persists in any party in interest in such
Bankruptcy Proceeding.
3.23.3 Performance of Asset Purchase Agreement. All obligations pursuant
to the Asset Purchase Agreement have been fully performed, including but not
limited to the issuance of preferred stock to the Export-Import Bank and the
redemption of such preferred stock by Seller.
3.23.4 Subsequent or Collateral Proceedings. To Seller's Knowledge, there
have been no subsequent or collateral proceedings relating to the Bankruptcy
Proceeding that could materially affect the terms of the court order approving
the Asset Purchase Agreement.
Section 3.24 Ownership of Assets. Except as reflected on Schedule 3.24,
Seller beneficially owns or leases all of the Assets as of the date hereof. As
of the Closing Date, Seller beneficially owns or leases all of the Assets and is
the transferee of the Registered Trademark as evidenced by filings in the United
States Patent and Trademark Office without exception or reference to Schedule
3.24 and the Assets are all of the assets necessary to conduct the Business
immediately after the Closing in the manner in which it has been conducted prior
to Closing.
Section 3.25 Information Technology Systems. In the operation of the
Business, Seller does not rely on Elecsys or any Affiliate of Elecsys for any
services or support with respect to any computer network, telecommunication or
other information technology systems and has no links with the computer network,
telecommunication or other information technology systems of Elecsys or any
Affiliate of Elecsys without which the Business could not be run as presently
conducted.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF BUYER
Buyer hereby represents and warrants to Seller and Elecsys, as of the date
hereof and as of the Closing Date, as set forth below:
Section 4.1 Corporate Status and Authority of Buyer. Buyer is a
corporation duly incorporated, validly existing and in good standing under the
laws of the State of Delaware. Buyer has all requisite corporate power and
authority to own, lease and operate its properties and to carry on its business
as now being conducted, and to execute and deliver this Agreement, and the
Ancillary Agreements to which it is a party, to perform its obligations
hereunder and thereunder and to consummate the transactions contemplated hereby
and thereby. The execution, delivery and performance by Buyer of this Agreement
and the Ancillary Agreements have been duly authorized by the Board of Directors
of Buyer, which constitutes all necessary corporate action on the part of Buyer
for such authorization. This Agreement has been, and the Ancillary Agreements
will be, duly executed and delivered by Buyer and constitute or will constitute
the valid and binding obligation of Buyer, enforceable against Buyer in
accordance with their terms, except as such enforceability may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium or other Laws of
general application referring to or affecting the enforcement of creditors'
rights, or by general equitable principles.
Section 4.2 No Conflicts. Except as set forth in Schedule 4.2:
4.2.1 Charter Documents. The execution, delivery and performance by Buyer
of this Agreement and the Ancillary Agreements and the consummation of the
transactions contemplated hereby and thereby will not result in (a) any conflict
with or violation of the charter documents of Buyer, or (b) any breach or
violation of or default under, or result in the creation or imposition of any
Lien under, any statute, regulation, judgment, order or decree, or any mortgage,
deed of trust, indenture, security agreement, pledge or any other similar
instrument to which Buyer is a party or by which Buyer or any of its properties
or assets are bound.
4.2.2 Governmental Consents. No consent, approval or authorization of or
filing with any Governmental Authority is required on the part of Buyer in
connection with the execution and delivery of this Agreement or the Ancillary
Agreements to which it is a party or the consummation of the transactions
contemplated hereby.
Section 4.3 Litigation. There are no Proceedings, nor any order, decree or
judgment, in progress, pending in effect, or, to the knowledge of Buyer,
threatened, which is related to the transactions contemplated by this Agreement
or any action taken or to be taken by Buyer pursuant to or in connection with
this Agreement.
Section 4.4 Sophisticated Buyer. Buyer acknowledges that Buyer is a
sophisticated purchaser, familiar with the industry and market of which the
Business is a part, and that Buyer has had an opportunity to ask questions of
Seller and Elecsys regarding the forecast set forth on Schedule 3.4.4 and that
Seller and Elecsys have provided Buyer with answers to such questions.
Section 4.5 Brokers' Fees. Buyer has no liability or obligation to pay any
fees or commissions to any broker, finder or agent with respect to the
transactions contemplated by this Agreement and no such liability or obligation
shall be or become a liability of Seller or Elecsys.
ARTICLE V
COVENANTS
Section 5.1 General. Each of the parties will use commercially reasonable
efforts to take all action and to do all things necessary, proper or advisable
to consummate and make effective the transactions contemplated by this Agreement
(including satisfying the closing conditions set forth in Articles VI and VII).
Section 5.2 Conduct of the Business. Except as otherwise further
restricted by this Agreement, during the period from the date of this Agreement
to the Closing, each of Seller and Elecsys agrees that:
(a) Seller will maintain the Personal Property used or held for use in
connection with the Business in good operating condition and repair.
(b) Seller will carry on the operations of the Business in the ordinary
course of business consistent with past practice.
(c) Seller will replenish the Inventory in the ordinary course of business
consistent with past practice for performance of the Contracts after the
Closing.
(d) Seller will pay when due the payables of the Business, including,
without limitation, all costs and expenses of operation and maintenance of the
Owned Property incurred or attributable to the period prior to the Closing, in
the ordinary course of business consistent with past practice.
(e) Seller will collect when due the Receivables of the Business in the
ordinary course of business consistent with past practice.
(f) Seller will not make or institute any methods of manufacture,
purchase, sale, lease, management, accounting or operation that are not in the
ordinary course of business or consistent with past practice.
(g) Seller will not declare or pay dividends or make other shareholder
distributions in stocks or property.
(h) Seller will not incur or refinance any indebtedness for borrowed
money, except for draws on any existing bank lines of credit in the ordinary
course of business consistent with past practice.
(i) Seller will manage or cause to be managed the Owned Property in the
ordinary course of business consistent with past practices and shall continue to
offer services and amenities in accordance with past practice.
(j) The Owned Property will be maintained in as good condition and state
of repair as that existing on the date of this Agreement, subject to ordinary
wear and tear.
(k) Neither Seller nor Elecsys will enter into any agreement with respect
to the operation or maintenance of any portion of the Owned Property that shall
survive the Closing without the prior written consent of Buyer.
(l) Seller will not, without the prior written consent of the Buyer: (i)
permit any structural modifications or additions to the Owned Property, or (ii)
sell or permit to be sold or otherwise dispose of any item or group of items
constituting a portion of the Owned Property.
(m) Seller and Elecsys will maintain the existing insurance coverage with
respect to the Owned Property from the date hereof through the Closing Date.
(n) Seller will not further encumber, or permit to be encumbered, with any
Lien the Owned Property in any manner that would survive the Closing without the
consent of Buyer.
Section 5.3 No General Increases. Other than in the ordinary course of its
business or in connection with customary and periodic performance reviews and
cost of living increases, Seller will not (i) grant any general or uniform
increase in the rates of pay of the Employees, nor grant any general or uniform
increase in the benefits under any bonus or pension plan or other contract or
commitment, or (ii) increase the compensation payable or to become payable to
officers, salaried Employees with a base salary in excess of $40,000 per year or
agents of the Business or increase any bonus, insurance, pension or other
benefit plan, payment or arrangement made to, for or with any such officers,
salaried Employees or agents. With respect to the Employees, Seller will not
create or adopt any new insurance, pension, welfare or other benefit plan or
arrangement.
Section 5.4 Contracts and Commitments. Other than in the ordinary course
of business and consistent with past practice, Seller will not enter into any
contract or commitment or engage in any transaction involving an amount in
excess of $25,000, including any contract, commitment or engagement with any
affiliate of Seller.
Section 5.5 Sale of Capital Assets. Other than in the ordinary course of
business and consistent with past practice, Seller will not sell or otherwise
dispose of any capital asset relating to the Business.
Section 5.6 Preservation of Organization. Seller will use commercially
reasonable efforts, subject to the restraints set forth in this Section 5.6, to
preserve the business organization of the Business intact, to preserve for Buyer
the present relationships of the Business with its suppliers, customers and
agents and to retain the present officers and Employees of the Seller other than
Xxxxx Xxxxx and Xxx Xxxxxx, provided that Seller shall not be under any
obligation to offer any payment or other inducement to any such officer or
Employee to secure their availability to Buyer.
Section 5.7 Access to Information.
5.7.1 Access. Between the date of this Agreement and the Closing Date,
Seller shall (i) give Buyer and its authorized representatives reasonable access
to all Business Records, contracts, offices and other facilities and properties
of the Business, (ii) coordinate, at the request of Buyer, opportunities for
Buyer, accompanied by representatives of Seller, to visit and interview
employees (for the purpose of securing continued employment) and those customers
of the Business identified from time to time by Buyer as key customers (for the
purpose of obtaining necessary novations and consents), and (iii) furnish Buyer
with such financial and operating data and other information with respect to the
Business, or the results of operations and properties of the Business as Buyer
may from time to time reasonably request; provided, however, that any such
inquiry shall be conducted after consultation with Seller and in such a manner
as not to interfere unreasonably with the business operations of Seller; and
provided, further, that Seller is under no obligation to disclose to Buyer any
information requested by Buyer, the disclosure of which is restricted by
contract except in strict compliance with the applicable contract. Buyer shall
keep the results of any customer contact confidential.
5.7.2 Confidentiality; Assignment of Benefit. At Closing, Buyer shall be
assigned the benefits of, with the right to bring an action in the name of
Seller or Elecsys, as the case may be, for the strict enforcement of, any other
confidentiality agreement that Seller or its agents or advisors may have entered
into with any third party in contemplation of a sale of all or any substantial
part of the Business.
Section 5.8 Filings and Authorizations. Seller and Buyer shall, unless
they mutually agree to the contrary, as promptly as practicable after the date
hereof, file or supply, or cause to be filed or supplied, or will make, or cause
to be made all such filings and submissions under Laws, rules and regulations
applicable to them, or to their subsidiaries and affiliates, as may be required
for it to consummate the transactions contemplated by this Agreement. The
parties hereto agree that Buyer, at its own expense, shall prepare and submit a
filing under the Exon-Xxxxxx Act and that Seller, at its own expense shall
cooperate and provide to Buyer all necessary information about Seller and the
Business with respect to such filing.
Section 5.9 Tax Matters.
5.9.1 Clearance Certificate. On or prior to the Closing Date, Seller will
provide Buyer, at Buyer's request, with all clearance certificates or similar
documents that may be required by any Taxing Authority (including, without
limitation, those required with respect to Kansas sales and income taxes) in
order to relieve Buyer of any obligation to withhold or escrow any portion of
the Purchase Price.
5.9.2 Affidavit. On or prior to the Closing Date, Seller will furnish to
Buyer an affidavit stating, under penalty of perjury, Seller's name, United
States taxpayer identification number and address, and that Seller is not a
foreign person for purposes of Section 1445(b)(2) of the Code (the "FIRPTA
Certificate").
5.9.3 Payment of Pre-Closing Taxes by Seller. Seller shall pay all Taxes
arising out of the operations of the Business (including, without limitation,
ownership of the Owned Property) with respect to transactions or periods (or
portions thereof) ending on or prior to the Closing Date which have not been
reflected on the Final Closing Net Asset Statement. Such obligations shall be
without regard to whether there was any breach of any representation or warranty
under Article III with respect to such Tax or any disclosures that may have been
made with respect to Article III or otherwise.
5.9.4 Payment of Post-Closing Taxes by Buyer. Buyer shall pay all Taxes
(other than the sales, transfer, documentary, stamp, recording and similar Taxes
referred to in Section 2.6) which are reflected on the Final Closing Net Asset
Statement (such Taxes so reflected shall not, for purposes of clarity, include
any Income Taxes of Seller), and all Taxes arising out of the operations of the
Business with respect to transactions or periods after the Closing Date.
Section 5.10 Financial Information. Seller shall deliver to Buyer, within
fifteen (15) days after the end of each monthly accounting period after the date
of this Agreement and prior to the Closing Date, copies of the regularly
prepared monthly unaudited balance sheets and statements of income and cash flow
of Seller and other operating information as may reasonably be requested by the
Buyer.
Section 5.11 Employees. Buyer shall make an offer of employment commencing
on the Closing Date to any Employee who is actively employed and working in the
Business immediately prior to the Closing Date, except for Xxxxx Xxxxx and Xxx
Xxxxxx. Buyer shall be under no obligation to make an offer of employment to any
Employee who is not actively at work on the Closing Date due to short-term or
long-term disability leave and layoff with recall rights. In the case of an
Employee on vacation, on authorized leave or illness absence, or on military
service leave of absence, such offer shall remain open until the Employee is
able or otherwise required to return to work. Each Employee shall be offered a
position similar to his or her position immediately prior to the Closing Date
(or if on vacation, authorized leave or illness absence, or military leave of
absence, immediately prior to the date such vacation, leave, illness or absence
commenced), at the same position and base salary or wage levels as those
provided by Seller immediately prior to the Closing Date. Notwithstanding the
foregoing, the Employees, other than those who have entered into employment
agreements with Buyer (if any), shall be
deemed employees at will of Buyer and nothing express or implied herein shall
obligate Buyer to provide continuing employment to any Employee for a period in
excess of one month following the Closing Date or, subject to the provisions of
Section 5.12, to continue in effect the present terms and conditions of
employment of any Employee.
Section 5.12 Employee Benefit Matters.
5.12.1 Welfare Plans. For purposes of this Agreement, "Welfare Plans"
means each "employee welfare plan" as such term is defined in Section 3(1) of
ERISA. Seller, Elecsys and Buyer will cooperate and use commercially reasonable
efforts to negotiate with all the insurance carriers that are providing, as of
the date hereof, the Welfare Plans to Seller to establish separate contracts
covering the Hired Employees for a period from the Closing Date through the
remainder of the annual term of such Welfare Plans on the same or similar terms
as are available on the date hereof. Buyer agrees that it will not provide any
financial incentives or other inducements to the Hired Employees to elect
continuation coverage under Seller's group health plan(s) pursuant to Part 6 of
Title I of ERISA and Section 4980 B of the Code.
5.12.2 Savings Plans. Buyer shall provide retirement benefits to Hired
Employees under a defined contribution plan that contains a cash or deferred
arrangement under Section 401(k) of the Code ("Savings Plan"). Buyer shall give
Hired Employees full credit for purposes of eligibility and vesting under
Buyer's Savings Plan for service credited to the Hired Employees under Seller's
Savings Plan. On or prior to the Closing Date, the Seller shall take all
necessary and appropriate actions such that the Employees shall be entitled to
receive a distribution from the Seller's Savings Plan in accordance with the
provisions of Section 401(k)(10) of the Code. Seller shall provide Employees
with the election to take a distribution in any form provided under the Seller's
Plan, including a direct rollover to the Buyer's Plan in accordance with Section
401(a)(31) or to make a voluntary transfer of their account balances under the
Seller's Plan to the Buyer's Plan, which voluntary transfer may include any
outstanding loan balance. Any assets transferred to the Buyer's Plan either as a
voluntary transfer or a direct rollover shall be in the form of cash or stock,
except that participant loan balances may be transferred in the form of notes.
5.12.3 Vacation and Holidays. Buyer shall have the liability and
obligation for any vacation of any Hired Employees (i) accrued and not taken
prior to the Closing Date, and (ii) reflected on the Final Closing Net Asset
Statement.
5.12.4 Other Employee Plans.
(a) Seller shall retain all obligations and liabilities under all Plans
listed in Schedule 3.14.3, including obligations relating to or arising under
Part 6 of Title I of ERISA and Section 4980B of the Code. Seller shall
indemnify, and defend Buyer for and hold Buyer harmless from and against, and
pay and reimburse Buyer for, any and all claims, losses, payments, audits, and
assessments relating to or arising out of any and all Plans listed in Schedule
3.14.3 and obligations under this Subsection 5.12.4(a).
(b) Seller shall retain financial liability (i) for expenses incurred by
the Employees but not reported as of the Closing Date respecting claims arising
under Seller's
medical plans and any other Welfare Plan, and (ii) for tuition and related
expenses incurred by Employees for educational programs commenced prior to the
Closing Date and which would be reimbursable pursuant to Seller's tuition
reimbursement program, if any.
5.12.5 Access to Information. Upon request of Buyer, Seller shall provide
Buyer reasonable access to data before and after the Closing (including computer
data and personnel records) regarding the dates of hire, benefits, compensation
and job description of Employees and such other information as Buyer shall
reasonably request. At the request of Buyer and upon reasonable scheduling
provided by Seller, Seller shall provide Buyer with reasonable opportunities to
enter into discussions with and to advise any of the Employees concerning the
terms of future employment of such individuals by Buyer and shall permit Buyer,
subject to the participation of Seller, reasonable access upon request to
Employees for such purpose. Seller shall not discourage any Employees from
accepting an offer of employment made by Buyer to such Employees. Buyer and
Seller shall cooperate in preparing and disbursing materials concerning the
transaction contemplated by this Agreement or the effect of the transaction upon
the Employees' employment or the terms or conditions of the Employees'
employment. Buyer and Seller shall provide each other with reasonable
opportunity to review any written materials and to attend any scheduled meetings
concerning the foregoing.
Section 5.13 Assignment of Contracts and Rights. Prior to Closing, Seller
and Elecsys will give notices to third parties of the transfer of the Assets
contemplated by this Agreement and will use commercially reasonable efforts to
obtain the Consents. After the Closing Date, Seller, Elecsys, with respect to
the Business, and Buyer will cooperate and will each use commercially reasonable
efforts to obtain any Consents that are not obtained prior to the Closing Date
and that are subject to Buyer's waiver, granted in its sole discretion, of the
relevant closing condition herein. Anything to the contrary notwithstanding,
this Agreement shall not operate to assign any Asset or Contract, or any claim,
right or benefit arising thereunder or resulting therefrom, if an attempted
assignment thereof, without the consent of a third party thereto, would
constitute a breach, default or other contravention thereof or in any way
adversely affect the rights of Seller or Buyer thereunder. In the event that a
Consent required to assign any Contract is not obtained on or prior to the
Closing Date, then, subject always to the terms of the applicable Contract and
to the extent permitted by law, the parties will use their best efforts to (i)
provide to Buyer the benefits of the applicable Contract to the extent related
to the Business, (ii) relieve Seller, or Elecsys, with respect to the Business,
to the extent possible, of the performance obligations of the applicable
Contracts, (iii) cooperate in any reasonable and lawful arrangement designed to
provide the benefits to Buyer, including entering into subcontracts for
performance, and (iv) enforce at the request of Buyer and for the account of
Buyer any rights of Seller or Elecsys, with respect to the Business, arising
from any such Contract (including the right to elect to terminate such Contract
in accordance with the terms thereof upon the request of Buyer).
Section 5.14 Administration of Accounts.
5.14.1 In Trust For Buyer. All payments and reimbursements made by any
third party in the name of or to Seller or Elecsys, in connection with the
Business, in connection with or arising out of the Assets and Assumed
Liabilities on or after the Closing Date shall be held by Seller or Elecsys, as
the case may be, in trust for the benefit of Buyer and, promptly upon receipt by
Seller or Elecsys, in connection with the Business, of any such payment or
reimbursements,
Seller or Elecsys, as the case may be, shall pay over to Buyer the amount of
such payment or reimbursement without right of set off, provided that any such
payment or reimbursement that is not paid by Seller or Elecsys, as the case may
be, within 30 days of receipt shall bear interest at a rate of 10% per annum
until it is paid, which interest, along with the principal amount of such
payment or reimbursement, shall be payable to Buyer on demand.
5.14.2 In Trust For Seller. All payments and reimbursements made by any
third party in the name of or to Buyer in connection with or arising out of the
Excluded Assets and Excluded Liabilities on or after the Closing Date shall be
held by Buyer in trust for the benefit of Seller and, promptly upon receipt by
Buyer of any such payment or reimbursement, Buyer shall pay over to Seller the
amount of such payment or reimbursement without right of set off, provided that
any such payment or reimbursement that is not paid by Buyer within 30 days of
receipt shall bear interest at a rate of 10% per annum until it is paid, which
interest, along with the principal amount of such payment or reimbursement,
shall be payable to Seller on demand.
Section 5.15 Agreements Regarding Tax Matters.
5.15.1 Tax Returns. Seller and Buyer will each provide the other party
with such assistance as may reasonably be requested in connection with the
preparation of any Tax Return, audit or other examination by any taxing
authority or judicial or administrative proceeding relating to liability for
Taxes, will each retain and provide to the other party all records and other
information that may be relevant to any such Tax Return, audit or examination,
proceeding or determination and will each provide the other party with any final
determination of any such audit or examination, proceeding or determination that
affects any amount required to be shown on any Tax Return of the other party for
any period. Without limiting the generality of the foregoing, each of Buyer and
Seller will retain, until the expiration of the applicable statutes of
limitation (including any extensions thereof) copies of all Tax Returns,
supporting work schedules and other records relating to tax periods or portions
thereof ending on or prior to the Closing Date.
5.15.2 Sale. Buyer and Seller agree that the transactions contemplated by
this Agreement constitute a sale of a trade or business within the meaning of
Section 41(f)(3) of the Code. Seller will provide to Buyer upon request all
information necessary in order to permit Buyer to apply the provisions of
Section 41(f)(3)(A) of the Code.
Section 5.16 Utilities. Buyer shall be responsible for all electric, gas,
telephone, water, sewer and similar utility charges relating to the Business
beginning on the Closing Date, and, with Seller's assistance, shall make such
arrangements with the utility service providers prior to the Closing for Buyer
to be charged directly for utility services beginning on such date. Seller shall
be responsible for all electric, gas, telephone, water, sewer and similar
utility charges relating to the Business prior to the Closing Date to the extent
not reserved or reflected as an Assumed Liability on the Final Closing Net Asset
Statement.
Section 5.17 Notice to Buyer. Throughout the period between the date of
this Agreement and the Closing, Seller shall promptly notify Buyer in writing of
the occurrence of any event or development that comes to Seller's Knowledge
which has had or could reasonably be expected to have a Material Adverse Effect
on the Business, or any item or matter which
would constitute a breach of the representations and warranties of Seller
contained in this Agreement or affecting the ability of the parties to
consummate the transaction contemplated by this Agreement. No such notice will
be deemed to have amended such Schedules, to have qualified the representations
and warranties contained herein and to have cured any misrepresentations or
breach of warranty that otherwise might have existed hereunder by reason of such
event or development.
Section 5.18 Further Assurances. From time to time after the Closing, the
parties agree that each shall, at their own expense, execute and deliver, or
cause to be executed and delivered, such documents and instruments of title as
may be reasonably requested by the other in order more effectively to consummate
the transactions contemplated by this Agreement.
Section 5.19 Public Announcements. All press releases, filings and other
public announcements concerning the transactions contemplated hereby will be
subject to review and approval by Seller or Buyer, as the case may be, such
approval not to be unreasonably withheld. Such approval shall not be required if
the party issuing such release, filing or public announcement reasonably
believes, based on advice of counsel, that it is required by law to do so, but
in any such case, all reasonable efforts shall be made to consult with the other
party in advance of such release, filing or announcement and to provide the
other party with the content thereof, the reasons the release, filing or
announcement is required by Law and the time and place that such release, filing
or announcement will be made.
Section 5.20 Updates to Schedules. No later than two (2) business days
prior to the scheduled Closing Date, Seller and Elecsys shall amend or
supplement the Schedules delivered hereunder with respect to any matter which is
necessary to complete, update, or correct any information contained therein in
order to make the statements, representations and warranties contained in this
Agreement true and correct on the Closing Date or on a date as close to the
Closing Date as is practical. As of the Closing Date, the representations and
warranties made by the Seller or Elecsys under this Agreement shall be read with
reference to the amended Schedules, and Buyer agrees that, to the extent of any
liability of Seller or Elecsys arising pursuant to a representation made herein,
the accuracy of the representations and warranties made by Seller or Elecsys
under this Agreement as of the Closing Date shall be evaluated after taking into
consideration the amended Schedules.
Section 5.21 Exclusivity. From and after the date hereof unless and until
this Agreement shall have been terminated in accordance with its terms, Seller
will not (i) directly or indirectly solicit any Person, other than Buyer or any
of its Affiliates, involving the possible acquisition of the Business or any of
the Assets, (ii) subject to the obligations of the Board of Directors of Elecsys
to exercise its fiduciary duties, enter into discussions with any Person, other
than Buyer or any of its Affiliates, involving the possible acquisition of the
Business or any of the Assets, or (iii) subject to the obligations of the Board
of Directors of Elecsys to exercise its fiduciary duties, enter into any
transaction with any Person, other than Buyer or any of its Affiliates,
involving the possible acquisition of the Business, the Assets or the capital
stock of Seller. Seller will notify Buyer promptly if any person makes any
proposal, offer, inquiry or contact with respect to any of the foregoing.
Section 5.22 Non-Compete.
5.22.1 Non-Compete. Except for the manufacturing agreement between DCI and
ASI contemplated by Sections 6.1.11 and 7.1.7 hereof, for a period of five (5)
years commencing on the Closing Date, Seller and Seller's Affiliates, and for a
period of three (3) years commencing on the Closing Date, Seller's directors and
Elecsys's officers and directors, shall not directly or indirectly, in any area
of the world, enter into, engage in, represent, furnish services to, or have any
interest in any business engaged in development, manufacture, marketing, sale,
maintenance or servicing of the products of the same general type as have been
developed, manufactured, marketed, sold, maintained or serviced in connection
with the Business either by Seller or Elecsys during the five (5) year period
ending on the Closing Date; provided, however, that Seller and Elecsys, their
officers or directors, and any of their Affiliates may acquire for passive
investment purposes any securities issued by entities which compete with the
Business so long as such equity securities constitute less than 5% of the voting
power represented by all outstanding equity securities of any such entity.
5.22.2 Remedies. Each of Seller and Elecsys acknowledges that in the event
of its or its affiliates' breach of the covenants contained in this Section
5.22, money damages would be an inadequate remedy. Accordingly, without
prejudice to the rights of Buyer also to seek such damages or other remedies
available to it, Buyer may seek, and neither Seller nor Elecsys shall contest,
the appropriateness of the availability of injunctive or other equitable relief
in any proceeding that Buyer may bring to enforce the covenants contained in
this Section 5.22 in its express and explicit terms. No waiver of any breach of
the covenants contained in this Section 5.22 shall be implied from forbearance
or failure of Buyer to take action in respect thereof.
5.22.3 Severability. The parties agree that, if any provision of this
Section 5.22 should be adjudicated to be invalid or unenforceable, such
provision shall be deemed deleted here from with respect, and only with respect,
to the operation of such provision in the particular jurisdiction in which such
adjudication was made. To the extent any such provision may be valid and
enforceable in such jurisdiction by limitations on the scope of the activities,
geographical area or time period covered, the parties agree that such provision
instead shall be deemed limited to the extent, and only to the extent, necessary
to make such provision enforceable to the fullest extent permissible under the
laws and public policies in such jurisdiction.
Section 5.23 No Defaults. Seller will not commit or omit to take any act
that will cause a termination of or breach or default under any contract,
commitment or obligation to which Seller is a party or by which its assets are
bound, including the Contracts identified on Schedule 3.10.1, that could
reasonably be expected to have a Material Adverse Effect on the Business.
Section 5.24 Compliance With Laws. Seller will use commercially reasonable
efforts to comply in the operation of the Business in all material respects with
all Laws and regulations applicable to the Business or the Assets or as may be
required for the valid and effective transfer to Buyer of the Assets.
Section 5.25 Confidential Information. For a period of five (5) years
after the Closing Date, Seller and its Affiliates will treat and hold as such,
and will not use for the benefit of themselves or others, any confidential
information concerning the operations or affairs of the Business. In the event
Seller or any of its Affiliates is requested or required (by oral request or
written request for information or documents in any legal proceeding,
interrogatory, subpoena, civil investigative demand or similar process) to
disclose any such confidential information, then Seller will notify Buyer
promptly in writing of the request or requirement so that Buyer may seek an
appropriate protective order or waive compliance with this Section 5.25. If, in
the absence of a protective order or receipt of a waiver hereunder, Seller or
any of its affiliates is, on the advice of counsel, compelled by a court of
competent jurisdiction to disclose any confidential information concerning the
operations or affairs of the Business to any governmental entity, then Seller or
such affiliate may disclose such confidential information to such governmental
entity; provided, that Seller or such affiliate will use reasonable efforts to
obtain at the request and expense of Buyer an order or other assurance that
confidential treatment will be accorded to such confidential information. The
provisions of this Section 5.25 will not be deemed to prohibit the use of
confidential information concerning the operations or affairs of the Business by
Seller to the extent reasonably required to prepare any required Tax Returns or
financial statements or in connection with routine governmental audits of
corporate overhead expenses.
Section 5.26 Solicitation of Employees. For a period of five (5) years
from the date hereof, neither of Seller or Elecsys will cause or permit any of
its affiliates, officers or directors to, solicit the employment of, offer
employment to or hire any executive, managerial, professional, technical or
engineering employee employed by Buyer in the Business; provided, however, that
the foregoing shall not apply to responses to or follow-up hiring in respect of
general solicitations or advertisements for job positions not specifically
directed to employees of the Business.
Section 5.27 Notice to Seller. Buyer agrees to notify Seller in writing,
promptly upon Buyer's or its authorized representatives' discovery, of any
information received by Buyer prior to the Closing Date relating to the Assets,
the Assumed Liabilities or the conduct of the Business which to the belief of
Buyer constitutes (or would constitute) or indicates (or would indicate) a
breach of any representation, warranty or covenant made by Seller herein.
Section 5.28 Release of Liens on Assets under Credit Facilities. At or
prior to the Closing, Seller and Elecsys shall cause Bank of America to release
all Liens held by Bank of America on any and all of the Assets, whether owned at
that time by Seller or Elecsys. In addition, Seller and Elecsys shall cause Bank
of America to deliver to Buyer a letter stating that Bank of America has no Lien
on any of the Assets or any claim against Buyer for payment of any indebtedness
(the "Bank Letter"), which Bank Letter shall be delivered to Buyer at the
Closing.
Section 5.29 Meeting of Shareholders. Elecsys shall take all action
necessary to call and hold a meeting of its shareholders at the earliest
practicable date after the date hereof, but in any event no later than August
30, 2001, for its shareholders to consider the transactions contemplated hereby.
Subject to their obligation to exercise their fiduciary duties, including those
as Directors of Elecsys, the Board of Directors of Elecsys shall inform all the
shareholders of Elecsys in the proxy materials relating to the meeting that, as
of the time such proxy materials are mailed to shareholders, each of the
Directors then presently intends to vote the shares of Elecsys which he
beneficially owns in favor of approving this Agreement. Subject to their
obligation to exercise their fiduciary duties, including those as Directors of
Elecsys, the Directors
will recommend to the other shareholders of Elecsys that they also vote their
shares for such approval.
Section 5.30 Seller's Access to Information. At the request of Seller
(such request to be made in writing upon not less than one (1) business day's
notice), Buyer agrees to allow Seller or its independent accountants and counsel
reasonable access during normal business hours to: (A) Employees and (B) all
Business Records (except for any Intellectual Property), provided, in either
case, that such access is reasonably related to any: (i) tax audit related to
the Seller, (ii) preparation of any Tax Return of Seller or Elecsys, (iii)
preparation by Elecsys for filings required to be made by Elecsys with the
Securities and Exchange Commission, (iv) preparation of the Closing Net Asset
Statement or (v) litigation to which Seller or Elecsys is a party. Seller shall
conduct any related interviews with Employees or reviews of such documents
pursuant to this Section 5.30 in a manner that shall not unreasonably interfere
with the Business's normal operations. All information disclosed during the
course of such interviews or reviews shall be deemed to be confidential
information for the purposes of Section 5.25 hereof and the Confidentiality
Agreement and Seller agrees to cause its independent accountants and counsel to
agree to observe and be bound by Seller's obligations under Section 5.25 hereof
and the Confidentiality Agreement as though a party hereto and thereto.
Section 5.31 Real Estate; Title Binder and Survey. The parties hereto
agree that they shall perform and comply with all the requirements of the
subsections of this Section 5.31 (within the time periods specified therein)
prior to Closing.
5.31.1 Title Binder. Seller shall, as soon as possible, and not later than
ten (10) days from the date hereof, cause to be furnished to Buyer, a current
ALTA Commitment for an Extended Coverage ALTA Owners Policy of Title Insurance
("Title Binder") issued by the Title Company, together with copies of all
documents identified on the Title Binder as exceptions to the title. The Title
Binder shall describe the Land identically with the Survey (as hereinafter
defined), name Buyer as the party to be insured thereunder and commit to insure
the Buyer with indefeasible, good and marketable title in the full amount of the
Purchase Price allocated to the Owned Property pursuant to the Asset Acquisition
Statement. The Title Binder shall list and identify by reference to volume and
page, where recorded, all easements, rights-of-way and other instruments or
matters affecting title to the Owned Property. Seller shall pay for the Title
Binder and the Buyer's title policy. Seller shall pay for any endorsements to
the title policy. With regard to the standard printed exceptions and other
common exceptions generally included in Title Binders, (a) there shall be no
exception in Buyer's title policy for "any lien, or right to a lien, for
services, or material heretofore or hereafter furnished, imposed by law and not
shown by the public records," (b) the exception in Buyer's title policy for ad
valorem taxes or special assessments shall reflect only taxes and special
assessments for the current year and shall be annotated "Not yet due and
payable," (c) the exception in Buyer's title policy for survey or
"encroachments, overlaps, boundary line disputes, and other matters which would
be disclosed by an accurate survey and inspection of the premises" shall be
deleted, (d) there shall be no exception in Buyer's title policy for "easements
or claims of easements not shown by the public records" or the like, and (e)
there shall be no exception in Buyer's title policy for "rights of parties in
possession not shown by the public records."
5.31.2 Survey. Seller shall as soon as possible and not later than two (2)
business days from the date hereof, order be prepared and within no more than
forty (40) days from the date hereof furnish to Buyer and the Title Company a
current ALTA survey ("Survey") of the Owned Property, prepared by a registered
public surveyor in all respects reasonably acceptable to Buyer and to the Title
Company for purposes of issuing a title policy without survey exceptions.
5.31.3 Review of Title and Survey. No later than ten (10) days after Buyer
receives both the Title Binder and Survey, Buyer shall notify Seller of any
objections Buyer has to any matters shown or referred to in the Title Binder or
the Survey that impair the marketability of the Owned Property. Any title
encumbrances or exceptions that are set forth in the Title Binder or the Survey
and to which Buyer does not object shall be deemed to be permitted exceptions to
the status of Seller's title ("Permitted Exceptions"). None of the exceptions
prohibited in Section 5.31.1 hereof shall be Permitted Exceptions. With regard
to items to which Buyer does object, Seller shall have five (5) days after
receipt of Buyer's objections in which to cure all Buyer's objections. If Seller
is unable to cure such objections within said five-day period, Buyer may at
Buyer's option waive the objections not cured (in which event such waived
objections will be Permitted Exceptions), or terminate this Agreement by notice
to Seller within five (5) business days after the earlier to occur of expiration
of said cure period or written notice from Seller that Seller is unable to cure
all of such objections. If Buyer fails to deliver a written termination notice
within such five-day period, Buyer will be deemed to have waived such
objections.
Section 5.32 Seller Name Change. From and after the Closing Date, Seller
shall cease all use of the name "Airport Systems International, Inc." or any
other confusingly similar name and the Registered Trademark. Within two (2)
business days after the Closing Date, Seller shall change its corporate name to
a name other than "Airport Systems International, Inc." or a confusingly similar
name.
Section 5.33 Consent of Mortgage Lender. Seller shall cause Mutual Service
Life Insurance Company to provide its written, unqualified consent to the
assumption of the Promissory Note and the Mortgage by Buyer on terms acceptable
to Buyer, which consent shall be delivered to Buyer at least two (2) days prior
to Closing.
Section 5.34 Guaranty. Concurrent with the execution and delivery of this
Agreement, Elecsys shall execute and deliver to Buyer the Elecsys Guaranty in
the form attached hereto as Exhibit C and Buyer shall cause Buyer's Parent to
execute and deliver to Seller and Elecsys the Buyer's Parent Guaranty in the
form attached hereto as Exhibit D.
ARTICLE VI
CONDITIONS PRECEDENT TO OBLIGATIONS OF BUYER
Section 6.1 Conditions. The obligations of Buyer under this Agreement to
perform Articles I and II herein and to close and consummate the transactions
contemplated hereby shall be subject to the fulfillment, to its reasonable
satisfaction, on or prior to the Closing Date, of each of the following
conditions precedent:
6.1.1 Representations and Warranties Accurate. The representations and
warranties contained in Article III shall be true and correct as of the date
hereof and, except to the extent such representations and warranties relate
solely to an earlier date, as of the Closing Date as though made on and as of
the Closing Date, provided, however, that if any such representation and
warranty is not qualified by a standard of materiality, such representation and
warranty need only be true and correct in all material respects. Each of Seller
and Elecsys shall have duly performed and complied in all material respects with
all agreements, covenants and conditions contained herein required by this
Agreement to be performed or complied with by it prior to or on the Closing
Date.
6.1.2 Certificates. Buyer shall have received from each of Seller and
Elecsys a certificate, dated the Closing Date and signed on behalf of each of
Seller and Elecsys by a duly authorized officer, as to the fulfillment of the
conditions set forth in Subsection 6.1.1, 6.1.9 and 6.1.14.
6.1.3 Consents. All Consents shall have been fulfilled, filed, occurred or
been obtained and delivered to the parties hereto, other than such Consents
which, if not obtained, are not reasonably expected to have a Material Adverse
Effect on the Business.
6.1.4 No Injunction. There shall not be in effect any injunction or other
order or any statute, ruling or law issued by a court of competent jurisdiction
or Governmental Authority restraining, enjoining or prohibiting, and there shall
not be any action or Proceeding by any Governmental Authority or third Person
pending before any court of competent jurisdiction or threatened in writing to
restrain, enjoin or prohibit the consummation of, or challenge the validity or
legality of, the transactions contemplated by this Agreement or that have a
Material Adverse Effect on the Business.
6.1.5 Disclosure Schedules. Buyer shall have received and reviewed the
Schedules referenced herein, and any updates or amendments thereto, and the
effect of any change to any Schedule delivered on the date hereof, together with
any matter disclosed in any Schedule not required to be delivered on the date
hereof but which is required to be delivered on or prior to the Closing Date,
shall not result in an Extreme Adverse Effect on Seller.
6.1.6 Legal Opinion. Buyer shall have received the opinion of Xxxxxxxxx
Xxxxxxx Xxxxx Xxxxxx LLP, Legal Counsel to Seller, dated the Closing Date, in
form and substance reasonably satisfactory to Buyer.
6.1.7 Deliveries. Each of Seller and Elecsys shall have delivered or
caused to be delivered documents, agreements and other items required to be
delivered by it at or prior to the Closing pursuant to this Agreement, including
without limitation the Ancillary Agreements to be entered into by Seller or
Elecsys, as the case may be, pursuant to Subsection 2.2.3.
6.1.8 Consent of Mortgage Lender. The written, unqualified consent of
Mutual Service Life Insurance Company to the assumption of the Promissory Note
and the Mortgage by Buyer on terms acceptable to Buyer shall have been delivered
to Buyer.
6.1.9 Personal Property Moved from Bond Street Facility. All Personal
Property of Seller shall have been transferred from the facility located on the
real property
subject to the Bond Street Lease to Seller's facility located at
00000 00xx Xxxxxx, Xxxxxxxx Xxxx, Xxxxxx for storage.
6.1.10 Asset Acquisition Statement. The parties shall have agreed upon the
Asset Acquisition Statement as contemplated in Section 2.3.1.
6.1.11 DCI Manufacturing Agreement. Buyer and DCI shall have entered into
a manufacturing agreement for the manufacture of circuit boards by DCI for Buyer
in form and substance satisfactory to Elecsys and Buyer, which agreement shall
state that all intellectual property, formulas, technical information, designs,
schematics, drawings, plans, trade-secrets, know-how, manufacturing processes
(and any modifications to same whether done by DCI, Seller or Buyer) with
respect to such circuit boards are and will remain the exclusive property of
Buyer.
6.1.12 FIRPTA Certificate. Buyer shall have received from Seller the
FIRPTA Certificate dated not more than thirty (30) days prior to the Closing.
6.1.13 Extreme Adverse Effect. Since April 30, 2001, there shall have
been no change that has or has had an Extreme Adverse Effect on ASI.
6.1.14 Authorizations. Buyer shall have received by valid assignment from
Seller all Permits reasonably required by Buyer to operate the Business
substantially as presently conducted.
6.1.15 Bank Letter; Release of Liens. Buyer shall have received (a) the
Bank Letter, and (b) all UCC-3 termination statements, in form and substance
acceptable to Buyer, necessary to release all Liens over the Assets executed, in
each case by the appropriate secured party and ready to be duly filed and
recorded in the appropriate recording offices.
6.1.16 Elecsys Guaranty. Buyer shall have received from Seller an executed
Elecsys Guaranty.
6.1.17 Exon-Xxxxxx Act. The review period (and any extensions thereof)
with respect to the filing made under the Exon-Xxxxxx Act shall have terminated
or a favorable ruling shall have been obtained, whichever occurs earlier.
Section 6.2 Waiver. Buyer may, at its sole discretion, waive in writing
fulfillment of any or all the conditions set forth in Section 6.1 of this
Agreement.
ARTICLE VII
CONDITIONS PRECEDENT TO OBLIGATIONS OF SELLER AND ELECSYS
Section 7.1 Conditions. The obligations of Seller and Elecsys under this
Agreement to perform Articles I and II herein and to close and consummate the
transactions contemplated hereby shall be subject to the fulfillment, to their
reasonable satisfaction, on or prior to the Closing Date, of each of the
following conditions precedent:
7.1.1 Representations and Warranties Accurate. The representations and
warranties contained in Article IV shall be true and correct as of the date
hereof and as of the Closing Date as though made on and as of the Closing Date.
Buyer shall have duly performed and complied in all material respects with all
agreements contained herein required to be performed or complied with by it at
or prior to the Closing.
7.1.2 Officer's Certificate. Buyer shall have delivered to Seller a
certificate, dated the Closing Date and signed by a duly authorized officer, as
to the fulfillment of the conditions set forth in Subsection 7.1.1.
7.1.3 Consents. All Consents shall have been fulfilled, filed, occurred or
been obtained and delivered to the parties hereto, other than such Consents
which, if not obtained, are not reasonably expected to have a Material Adverse
Effect on the Business.
7.1.4 No Injunction. There shall not be in effect any injunction or other
order or any statute, ruling or law issued by a court of competent jurisdiction
or Governmental Authority restraining, enjoining or prohibiting, and there shall
not be any action or Proceeding by any Governmental Authority or third Person
pending before any court of competent jurisdiction or threatened in writing to
restrain, enjoin or prohibit the consummation of, or challenge the validity or
legality of, the transactions contemplated by this Agreement.
7.1.5 Legal Opinion. Seller shall have received the opinion of Xxxxxxx &
Xxxxxx LLP, Legal Counsel to Buyer, dated the Closing Date, in form and
substance reasonably satisfactory to Seller.
7.1.6 Payment. Seller shall have received payment of the Purchase Price
less the Escrowed Amount, which shall have been received by the Escrow Agent.
7.1.7 DCI Manufacturing Agreement. Buyer and DCI shall have entered into a
manufacturing agreement for the manufacture of circuit boards by DCI for Buyer
in form and substance satisfactory to Elecsys and Buyer, which agreement shall
state that all intellectual property, formulas, technical information, designs,
schematics, drawings, plans, trade-secrets, know-how, manufacturing processes
(and any modifications to same whether done by DCI, Seller or Buyer) with
respect to such circuit boards are and will remain the exclusive property of
Buyer.
7.1.8 Letters of Credit and Surety Bonds. Buyer shall have replaced,
assumed or provided credit support for, all outstanding letters of credit and
surety bonds that are required under all outstanding customer contracts in
connection with the Business.
7.1.9 Asset Acquisition Statement. The parties shall have agreed on the
Asset Acquisition Statement as contemplated by Section 2.3.1.
7.1.10 Escrow Agreement. Seller shall have received from Buyer an executed
Escrow Agreement.
7.1.11 Buyer's Parent Guaranty. Seller shall have received from Buyer an
executed Buyer's Parent Guaranty.
7.1.12 Exon-Xxxxxx Act. The review period (and any extensions thereof)
with respect to the filing made under the Exon-Xxxxxx Act shall have terminated
or a favorable ruling shall have been obtained, whichever occurs earlier.
Section 7.2 Waiver. Seller may, at its sole discretion, waive in writing
fulfillment of any or all of the conditions set forth in Section 7.1 of this
Agreement.
ARTICLE VIII
INDEMNIFICATION
Section 8.1 Indemnity by Seller and Elecsys. From and after the Closing,
Seller and Elecsys shall jointly and severally indemnify, defend and hold
harmless Buyer and each of its Affiliates, and their respective directors,
officers, employees, agents and representatives (each of whom may be an
Indemnitee pursuant to this Section 8.1) (collectively, the "Buyer Indemnitees")
from and against, and pay and reimburse each such Buyer Indemnitee for, whether
or not any of the following Losses arise out of any Third Party Claim, the
following:
8.1.1 Excluded Liabilities. Any and all Losses in respect of the Excluded
Liabilities.
8.1.2 Breach of Representation, Warranty, Etc.. Any and all Losses which
may be asserted against such Buyer Indemnitee or which such Buyer Indemnitee may
incur or suffer and which arise out of, result from or relate to:
(a) any untrue representation or breach of warranty of Seller or Elecsys
in this Agreement; or
(b) any default or breach of any covenant or agreement on the part of
Seller or Elecsys under this Agreement.
8.1.3 Guarantee Claims. Any and all Losses which may be asserted against
such Buyer Indemnitee or which such Buyer Indemnitee may incur or suffer and
which arise out of, result from or relate to:
(a) any Warranty Claim that exceeds in the aggregate $60,000; or
(b) any Performance Bond Claim (the indemnity provided under this
Subsection 8.1.3(b) takes precedence over that provided by Buyer in Subsection
8.2.1 hereof).
In the event Buyer receives notice of a Warranty Claim or Performance Bond Claim
(collectively the "Guarantee Claims") satisfying the conditions of this Section
8.1.3, Buyer shall promptly notify Seller in writing of such claim, but in no
event later than forty-five (45) days following receipt of such notice. Buyer
shall attempt to resolve the Guarantee Claim, provided, however, that Buyer
shall receive the prior written consent of Seller regarding the terms and
conditions of any proposed resolution by Buyer of a Guarantee Claim before Buyer
submits such resolution, which consent shall not be unreasonably withheld. Buyer
shall provide Seller with all
correspondence and other documentation received from, or produced by, Buyer or
any third party pursuant to resolution of the Guarantee Claim.
8.1.4 Government Contract Claims. Any and all Losses that may be asserted
against Buyer Indemnitee or that such Buyer Indemnitee may incur or suffer and
that arise out of, result from or relate to any claim, penalty or enforcement
action by any person including any government with respect to a Government
Contract or Government Bid, but only to the extent that such claim relates to a
product (or portion thereof) manufactured (to the extent not modified in any way
by Buyer) or sold, a service (or portion thereof) provided, or an accounting
method or entry used or made by Seller or Elecsys pursuant to such Government
Contract or Government Bid, or pursuant to any sub-contract under such
Government Contract or Government Bid, on or prior to the Closing Date.
Section 8.2 Indemnity by Buyer. From and after the Closing, Buyer shall
indemnify, defend and hold harmless Seller, Elecsys and their Affiliates and
their respective directors, officers, employees, agents and representatives
(each of whom may be an Indemnitee pursuant to this Section 8.2) (collectively,
the "Seller Indemnitees") from and against, and pay and reimburse each such
Seller Indemnitee for, whether or not in the case of Subsections 8.2.1 or 8.2.2
any of the Losses described therein arise out of any Third Party Claim, the
following:
8.2.1 Assumed Liabilities. Subject to Subsection 8.1.3(b) hereof, any and
all Losses in respect of the Assumed Liabilities.
8.2.2 Breach of Representation, Warranty, Etc.. Any and all Losses which
may be asserted against any such Seller Indemnitee or which any such Seller
Indemnitee shall incur or suffer and which arise out of, result from or relate
to:
(a) any untrue representation or breach of warranty of Buyer in this
Agreement; or
(b) any default or breach of any covenant or agreement on the part of
Buyer under this Agreement.
8.2.3 Certain Third Party Claims. Any Third Party Claim that both (i)
results solely from actions or omissions of Buyer occurring after the Closing
Date and (ii) relates to the Business or the Assets, other than any Third Party
Claim subject to the indemnity of Section 8.1.
Section 8.3 Notification of Third Party Claims. In no case shall any
Indemnitor under this Agreement be liable for any Third Party Claim against any
Indemnitee unless the Indemnitee shall have delivered to the Indemnitor a Claim
Notice and the following conditions are satisfied:
8.3.1 Timely Delivery of Claim Notice. Except as provided in Subsections
8.3.2 or 8.3.3, no right to indemnification under this Article VIII for a Third
Party Claim shall be available to an Indemnitee unless the Indemnitee shall have
delivered to the Indemnitor, not later than forty-five (45) days following the
date on which the Indemnitee shall have received written notice from the third
party of such Third Party Claim, a notice in writing describing in reasonable
detail the facts giving rise to such Third Party Claim and stating that the
Indemnitee intends to seek indemnification for such Third Party Claim from the
Indemnitor pursuant to this Article VIII (such notice, a "Claim Notice").
8.3.2 Late Delivery of Claim Notice. If a Claim Notice is not given by the
Indemnitee within forty-five (45) days of receipt of such Third Party Claim as
provided in Subsection 8.3.1 hereof, the Indemnitee shall be entitled to be
indemnified under this Article VIII, except to the extent that the Indemnitor
can establish that the Indemnitor has been prejudiced by such time elapsed.
8.3.3 Paid or Settled Claims. If a Claim Notice is not given by the
Indemnitee prior to the payment or settlement of a Third Party Claim, the
Indemnitee shall be entitled to be indemnified under this Article VIII except to
the extent that the Indemnitor can establish that the Indemnitor has been
prejudiced by such payment or settlement.
Section 8.4 Defense of Claims. This section sets forth, among other
things, those circumstances in which the Indemnitor shall have the right to
assume and control the defense of an indemnified Third Party Claim and those in
which the Indemnitee shall have such right. Upon receipt of a Claim Notice from
an Indemnitee with respect to any Third Party Claim, the Indemnitor shall have
the right to assume and control the defense thereof (and any related settlement
negotiations) with counsel selected by the Indemnitor and reasonably
satisfactory to such Indemnitee (the "Indemnitor's Counsel"). The Indemnitee
shall cooperate in all reasonable respects in such defense. The Indemnitee shall
have the right to employ separate counsel at such Indemnitee's expense in any
action or claim and to participate in the defense thereof, including, without
limitation, in any situation in which one or more defenses or one or more
counterclaims available to the Indemnitee conflict with one or more defenses or
one or more counterclaims available to the Indemnitor.
Anything to the contrary in this Section 8.4 notwithstanding, the
Indemnitor shall not be entitled to control the defense of such Third Party
Claim (but shall be entitled to participate at its own expense in the defense
thereof) and the Indemnitee shall have the right to assume and control the
defense or settlement thereof with counsel of its own choosing reasonably
satisfactory to the Indemnitor (reasonable fees and expenses of such counsel
being at the expense of the Indemnitor), if: (i) the Indemnitor does not notify
the Indemnitee within thirty (30) days after receipt of the Claim Notice of its
intention to assume the defense of such Third Party Claim, (ii) such Third Party
Claim seeks an order, injunction, non-monetary or other equitable relief against
the Indemnitee which, if successful, could result in a Material Adverse Effect
upon the business, financial condition, results of operations or assets of the
Indemnitee, or (iii) the Indemnitor does not, or is unable to, fund the defense
of such Third Party Claim in the manner requested by Indemnitor's Counsel. With
respect to any settlement of such Third Party Claim, the Indemnitee shall send a
written notice to the Indemnitor of any proposed settlement of any such claim,
which settlement the Indemnitor may reject, in its reasonable judgment, within
thirty (30) days of receipt of such settlement. Failure to reject such notice
within such thirty-day period shall be deemed an acceptance of such notice and
proposed settlement.
Section 8.5 Access and Cooperation. After the Closing Date, Buyer, on the
one hand, and Seller and Elecsys, on the other hand, shall (a) each cooperate
fully with the other as to all Third Party Claims, shall make available to the
other, as reasonably requested, all information,
records and documents relating to all Third Party Claims and shall preserve all
such information, records and documents until the termination of any Third Party
Claim, and (b) make available to the other, as reasonably requested and at the
reasonable cost and expense of the requesting party, personnel (including
technical and scientific), agents and other representatives who are responsible
for preparing or maintaining information, records or other documents, or who may
have particular knowledge with respect to any Third Party Claim.
Section 8.6 Assessment of Claims. In the event that any of the Losses for
which an Indemnitor is or is allegedly responsible pursuant to Sections 8.1 or
8.2 are recoverable or potentially recoverable against any third party at the
time when payment is due hereunder, following payment by the Indemnitor to the
Indemnitee for such Losses the Indemnitee shall assign any and all rights that
it may have to recover such Losses to the Indemnitor, or, if such rights are not
assignable under applicable law or otherwise, the Indemnitee shall attempt in
good faith to collect any and all Losses on account thereof from such third
party for the benefit of, and at the expense and direction of, the Indemnitor.
Section 8.7 Limits on Indemnification.
8.7.1 Limitations on Indemnification for Breach of Representations and
Warranties. Buyer Indemnitees shall not be entitled to seek payment under
Subsection 8.1.2(a), and Seller Indemnitees shall not be entitled to seek
payment under Subsection 8.2.2(a), in respect of any specific indemnified Loss
or Third Party Claim arising from a breach of a representation or warranty until
the aggregate total of such Losses and Third Party Claims under such Subsection
8.1.2(a), or Subsection 8.2.2(a), as applicable, is equal to or exceeds $200,000
(the "Threshold Amount"), and then the Indemnitee(s) may seek payment and
indemnity from the Indemnitor for the full amount of the Loss or Third Party
Claim; provided, however, that neither the Buyer Indemnitees, with respect to
Subsection 8.1.2(a), nor the Seller Indemnitees, with respect to Subsection
8.2.2(a), shall be entitled to seek payment thereunder to the extent the
aggregate total of such Losses and Third Party Claims exceeds $4,000,000 (the
"Cap"), and, provided, further that the obligations of each of Seller and
Elecsys to pay and indemnify the Buyer Indemnitees pursuant to Section 8.1.2(a)
hereof on account of a breach by Seller or Elecsys of the representations and
warranties made pursuant to Subsections 3.5.1, 3.6.2, 3.15.2 and 3.15.5 hereof
shall not be subject to or reduced by the Threshold Amount or the Cap.
8.7.2 No Limitations on Certain Indemnification Claims. The Buyer
Indemnitees may seek payment and full and complete indemnity from Seller and
Elecsys in respect of any and all Losses or Third Party Claims under Subsections
8.1.1, 8.1.2(b), 8.1.3 and 8.1.4, and the Seller Indemnitees may seek payment
and full and complete indemnity from Buyer in respect of any and all Losses or
Third Party Claims under Subsections 8.2.1 and 8.2.2(b) and such indemnity shall
not be subject to the Threshold Amount or the Cap.
Section 8.8 Survival of Representations and Warranties. All
representations and warranties of the parties contained in this Agreement shall
survive the Closing hereunder and continue in full
force and effect thereafter, regardless of any investigation made or to be made
by or on behalf of any party hereto, for a period of fifteen (15) months
following the Closing Date, except for the representations and warranties (a) of
Seller and Elecsys provided for (i) in Sections 3.13, 3.14.3 and 3.15.5, which
shall survive the Closing hereunder and continue in full force and effect
thereafter, regardless of any investigation made or to be made by or on behalf
of any party hereto, for a period ending sixty (60) days after the expiration of
the relevant statutes of limitations, including with respect to representations
and warranties regarding Taxes, any extension or waiver thereof regarding the
filing of Tax Returns and the payment of Taxes, and (ii) in Sections 3.1, 3.2,
3.3.1, 3.6.2 and 3.20, which shall survive the Closing hereunder and continue in
full force and effect thereafter, regardless of any investigation made or to be
made by or on behalf of any party hereto, without end or termination, and (b) of
Buyer provided for in Sections 4.1, 4.2.1 and 4.5, which shall survive the
Closing hereunder and continue in full force and effect thereafter, regardless
of any investigation made or to be made by or on behalf of any party hereto,
without end or termination. Except as set forth in this Section 8.8, after the
end of such period, an Indemnitor's obligation to an Indemnitee under this
Article VIII with respect to such representations and warranties shall expire
except with respect to a matter set forth in a Claim Notice theretofore
delivered by an Indemnitee. It is further agreed that each Buyer Indemnitee's
rights to indemnification set forth in Subsections 8.1.1, 8.1.2(b), 8.1.3 and
8.1.4, and each Seller Indemnitee's rights to indemnification set forth in
Subsections 8.2.1 and 8.2.2(b), shall remain in full force and effect
indefinitely.
Section 8.9 After-Tax Nature of Indemnity Payments. Any payment or
indemnity required to be made pursuant to Sections 8.1 or 8.2 hereof shall
include any amount necessary to hold the Indemnitee harmless on an after-tax
basis from all Taxes required to be paid with respect to the receipt of such
payment or indemnity (after taking into account any reduction in Taxes realized
by the Indemnitee as a result of the Loss giving rise to the payment or
indemnity). In determining the amount necessary to be added to any payment or
indemnity in order to accomplish the foregoing, the parties hereto agree (a) to
treat all Taxes required to be paid by, and all reductions in Tax realized by
any Indemnitee, as if such Indemnitee were subject to tax at the highest
marginal tax rates (for both federal and state, as determined on a combined
basis) applicable to such Indemnitee and (b) to treat any indemnification
payments made to Buyer pursuant to this Agreement as an adjustment to the Final
Purchase Price, unless either party receives a written opinion, reasonably
satisfactory in form and substance to the other party, of a law firm with
appropriate experience and expertise to the effect that it is not or is not
likely to be permissible to treat such payments in that manner on a federal,
state or local income tax return.
Section 8.10 Contractual Right to Recover. Buyer shall have the right to
seek indemnity under this Article VIII on behalf of any person included within
the definition of Buyer Indemnitee with respect to any Loss for which such Buyer
Indemnitee shall be entitled to indemnification hereunder, and to the extent any
amount shall be owing to any Buyer Indemnitee in respect of any Loss for which
such Buyer Indemnitee is entitled to be indemnified in accordance with the
provisions hereof, Seller and Elecsys shall pay over to Buyer such amount, on
behalf of such Buyer Indemnitee, in accordance with the provisions of this
Article VIII. Seller or Elecsys shall have the right to seek indemnity under
this Article VIII on behalf of any person included within the definition of
Seller Indemnitee with respect to any Loss for which such Seller Indemnitee
shall be entitled to indemnification hereunder, and to the extent any amount
shall be owing to any Seller Indemnitee in respect of any Loss for which such
Seller Indemnitee is entitled to be indemnified in accordance with the
provisions hereof, Buyer shall pay over to Seller or Elecsys, as the case may
be, such amount, on behalf of such Seller Indemnitee, in accordance with the
provisions of this Article VIII. Full payment by Seller or Elecsys to Buyer for
an indemnity claim of a Buyer Indemnitee shall be deemed to fully
discharge the indemnity obligation with respect to such claim. Full payment by
Buyer to Seller or Elecsys for an indemnity claim of a Seller Indemnitee shall
be deemed to fully discharge the indemnity obligation with respect to such
claim.
ARTICLE IX
TERMINATION
Section 9.1 Termination Events. Subject to the provisions of Section 9.2
herein, this Agreement may, by written notice given at or prior to the Closing
in the manner hereinafter provided, be terminated and abandoned only as follows:
(a) By Seller or Buyer upon written notice if a material default or breach
shall be made by the other, with respect to the due and timely performance of
any of their respective covenants and agreements contained herein, or with
respect to the due compliance with any of their respective representations and
warranties contained in Article III or IV, as applicable, and such default
cannot be cured prior to Closing and has not been waived;
(b) By mutual written consent of Seller and Buyer;
(c) Without further action of the parties, if the Closing shall not have
occurred by close of business on August 31, 2001; or
(d) By Buyer in the event of a casualty or condemnation of the Owned
Property that has an Extreme Adverse Effect on the value of the Owned Property
or by Buyer pursuant to Subsection 5.31.3 hereof.
Section 9.2 Effect of Termination. In the event this Agreement is
terminated pursuant to Section 9.1, all further rights and obligations of the
parties hereunder shall terminate, except that the obligations set forth in the
Confidentiality Agreement shall survive; it being specifically agreed that, if
this Agreement is so terminated by either Buyer or Seller, because one or more
of the conditions to such party's obligations hereunder is not satisfied as a
result of the other such party's failure to comply with its obligations under
this Agreement, it is expressly agreed and understood that the rights of the
terminating party to pursue all legal remedies for breach of contract and
damages shall survive such termination and the breaching party shall be fully
liable for any and all damages, costs and expenses sustained or incurred by the
terminating party as a result of such breach.
Section 9.3 Fees and Expenses. Except as otherwise provided in Section 9.2
hereof, each party shall be responsible for its own costs, fees and expenses,
including fees and expenses of its accountants, investment advisors and counsel.
ARTICLE X
MISCELLANEOUS
Section 10.1 Remedies. The remedies expressly set forth in this Agreement
following the Closing with respect to any breach of any representation or
warranty herein contained, are the
sole and exclusive remedies for any such breach, and are intended to be
non-cumulative with respect to any other remedies which would otherwise have
been available in common law or by statute. No party shall have the right after
the Closing to assert any cause of action or make any claim to recover or seek
any relief on any basis other than as expressly provided under this Agreement;
provided, however, that nothing contained in this Agreement shall constitute a
waiver by or limitation on any party hereto to institute any cause of action
(whether in law or in equity) against the other for (i) fraud, bad faith or
intentional misrepresentation or (ii) specific performance under applicable law
(including injunction, declarative or otherwise) or (iii) breach of any covenant
contained herein.
Section 10.2 Amendment. This Agreement shall not be amended or modified
except by a writing duly executed by each of the parties hereto.
Section 10.3 Entire Agreement. This Agreement, including the Exhibits and
Schedules hereto, and the Confidentiality Agreement, contain all of the terms,
conditions and representations and warranties agreed upon by the parties
relating to the subject matter of this Agreement and supersede all prior and
contemporaneous agreements, negotiations, correspondence, undertakings and
communications of the parties, oral or written, respecting such subject matter.
Section 10.4 Notices. All notices, requests, demands and other
communications made in connection with this Agreement shall be in writing and
shall be deemed to have been duly given (i) on the date of delivery, if
personally delivered to the persons identified below, (ii) three (3) days after
mailing if mailed by certified or registered mail, postage prepaid, return
receipt requested, or (iii) upon receipt, if sent by facsimile and receipt
thereof is confirmed by telephone and a copy thereof is sent by the method
specified in clause (ii) of this Section 10.4, addressed as follows:
If to Seller:
Airport Systems International, Inc.
00000 X. 000xx Xxxxxx
Xxxxxx, Xxxxxx 00000
Attention: Xxxxx X. Xxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
with a copy to:
Xxxxx Xxxxxx, Esquire
Xxxxxxxxx Xxxxxxx Xxxxx Xxxxxx LLP
0000 Xxxx Xxxxxx, Xxxxx 0000
Xxxxxx Xxxx, Xxxxxxxx 00000
Telephone (000) 000-0000
Facsimile: (000) 000-0000
If to Buyer:
ASI Newco, Inc.
c/o Xxxxx X. Xxxxxxx, Esquire
Xxxxxxx & Xxxxxx LLP
0000 Xxxxxxxxxxxx Xxxxxx, X.X.
Xxxxxxxxxx, X.X. 00000-0000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
with a copy to:
Xxxxx X. Xxxxxxx, Esquire
Xxxxxxx & Xxxxxx LLP
0000 Xxxxxxxxxxxx Xxxxxx, X.X.
Xxxxxxxxxx, X.X. 00000-0000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Such addresses may be changed, from time to time, by means of a notice given in
the manner provided in this Section 10.4. Copies delivered to outside counsel
shall not constitute notice.
Section 10.5 Severability. Subject to the specific provisions of
Subsection 5.22.3, if any provision of this Agreement is held to be
unenforceable for any reason, it shall be adjusted rather than voided, if
possible and to the extent permitted by applicable law, in order to achieve the
intent of the parties to this Agreement to the extent possible. In any event,
all other provisions of this Agreement shall be deemed valid and enforceable to
the full extent possible.
Section 10.6 Waiver; Survival. Waiver of any term or condition of this
Agreement by any of the respective parties shall only be effective if in writing
and shall not be construed as a waiver of any subsequent breach or failure of
the same term or condition, or a waiver of any other term or condition, of this
Agreement. Except as otherwise specifically provided herein, the rights and
obligations of the parties contained herein shall survive the Closing.
Section 10.7 Binding Effect; Assignment. No party to this Agreement may
assign or delegate, by operation of law or otherwise, all or any portion of its
rights, obligations or liabilities under this Agreement without the prior
written consent of the other parties to this Agreement, which they may withhold
in their absolute discretion; provided, however, that Buyer may assign any or
all of its rights under this Agreement to an Affiliate of Buyer, provided,
however, that such assignment by Buyer shall not relieve Buyer of any of its
obligations set forth in this Agreement. This Agreement shall, when executed and
delivered by each of the parties hereto, be binding upon and for the benefit of
each party and their respective successors and permitted assigns.
Section 10.8 No Third Party Beneficiaries. There are no third party
beneficiaries to this Agreement and nothing herein shall confer any rights upon
any person or entity which is not a party to this Agreement.
Section 10.9 Counterparts. This Agreement may be signed in any number of
counterparts with the same effect as if the signatures to each counterpart were
upon a single instrument, and all such counterparts together shall be deemed an
original of this Agreement.
Section 10.10 GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT GIVING
EFFECT TO ITS CONFLICTS OF LAWS PRINCIPLES.
Section 10.11 Consent to Jurisdiction; Waiver of Jury Trial.
10.11.1 Consent to Jurisdiction.
(a) Each of the parties hereto hereby irrevocably and unconditionally
submits, for itself and its property, to the exclusive jurisdiction of any court
sitting in the District of Columbia and any appellate court from any thereof, in
any action or proceeding arising out of or relating to this Agreement or the
transactions contemplated hereby or for recognition or enforcement of any
judgment relating thereto, and each of the parties hereto hereby irrevocably and
unconditionally agrees that all claims in respect of any such action or
proceeding may be heard and determined in such court. Each of the parties hereto
agrees that a final, non-appealable judgment in any such action or proceeding
shall be conclusive and may be enforced in other jurisdictions by suit on the
judgment in any other manner provided by law.
(b) Each of the parties hereto hereby irrevocably and unconditionally
waives, to the fullest extent it may legally and effectively do so, any
objection which it may now or hereafter have to the laying of venue of any suit,
action or proceeding arising out of or relating to this Agreement or the
transactions contemplated hereby in any court sitting in the District of
Columbia. Each of the parties hereto hereby irrevocably and unconditionally
waives, to the fullest extent permitted by law, the defense of any inconvenient
forum to the maintenance of such action or proceeding in any such court.
(c) Each of the parties hereto irrevocably consents to service of process
in the manner provided for notices in Section 10.4 hereof. Notwithstanding the
foregoing, each of the parties hereto shall have the right to serve process in
any other manner permitted by law.
10.11.2 Waiver of Punitive Damages and Jury Trial.
(a) THE PARTIES TO THIS AGREEMENT EXPRESSLY WAIVE AND FOREGO ANY RIGHT TO
RECOVER PUNITIVE, EXEMPLARY, CONSEQUENTIAL OR SIMILAR DAMAGES IN ANY LAWSUIT,
LITIGATION, ARBITRATION OR PROCEEDING ARISING OUT OF OR RESULTING FROM ANY
CONTROVERSY OR CLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE
TRANSACTIONS CONTEMPLATED HEREBY.
(b) EACH PARTY HERETO ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY WHICH
MAY ARISE UNDER THIS AGREEMENT IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT
ISSUES, AND THEREFORE IT HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT
IT MAY HAVE TO A
TRIAL BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF
OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
(c) EACH PARTY HERETO CERTIFIES AND ACKNOWLEDGES THAT (I) NO
REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY
OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK
TO ENFORCE THE WAIVERS SET FORTH IN CLAUSE (a) OF THIS SECTION 10.11.2, (II) IT
UNDERSTANDS AND HAS CONSIDERED THE IMPLICATIONS OF SUCH WAIVERS, (III) IT MAKES
SUCH WAIVERS VOLUNTARILY, AND (IV) IT HAS BEEN INDUCED TO ENTER INTO THIS
AGREEMENT BY, AMONG OTHER THINGS, THE WAIVERS AND CERTIFICATIONS IN SUCH
SECTION.
Section 10.12 Interpretation and Construction of this Agreement. Whenever
the context may require, any pronoun shall include the corresponding masculine,
feminine or neuter form. The words "include," "includes" and "including" shall
be deemed to be followed by the phrase "without limitation." The headings
contained in this Agreement are inserted for convenience only and shall not
constitute a part hereof. All references herein to Articles and Sections (other
than references to Sections of the Code) shall be deemed to be references to
Articles and Sections of this Agreement unless the context shall otherwise
require. Unless the context shall otherwise require or provide, any reference to
any agreement or other instrument or statute or regulation is to such agreement,
instrument, statute or regulation as amended and supplemented from time to time
(and, in the case of a statute or regulation, to any successor provision);
provided, however, that no covenant herein shall be deemed to have been breached
because of a change in law or regulation issued subsequent to the completion of
the action or conduct which is the subject of the covenant. This Agreement shall
be construed in accordance with its fair meaning and shall not be construed
strictly against any party. References in this Agreement to any Article shall
include all Sections, Subsections, Paragraphs in such Article; references in
this Agreement to any Section shall include all Subsections and Paragraphs in
such Section; and references in this Agreement to any Subsection shall include
all Paragraphs in such Subsection.
IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Agreement with legal and binding effect as of the date and year first above
written.
AIRPORT SYSTEMS INTERNATIONAL, INC.
By:
Name:
Title:
ELECSYS CORPORATION
By:
Name:
Title:
ASI NEWCO, INC.
By:
Name: Xxxxxx Xxxxx
Title: President
APPENDIX A
DEFINITIONS
Unless the context otherwise requires, the following terms shall have the
following meanings for all purposes of this Agreement and shall be equally
applicable to both the singular and the plural forms of the terms herein
defined. Certain terms defined in the text of this Agreement similarly shall
have the meanings therein given for all purposes of this Agreement:
"Affiliate" shall mean, with respect to any specified Person, any other
Person which, directly or indirectly, is in control of, is controlled by, or is
under common control with, such specified Person, where "control" as used with
respect to any Person shall mean the power to direct the business and affairs of
such Person, as evidenced by equity ownership of twenty-five percent (25%) or
greater, or by agreement or otherwise (excluding, in the case of Seller, any
broker-dealer that may have beneficial ownership of more than 25% of the
outstanding common stock of Seller, but who, from time to time, expressly
disclaims beneficial ownership of all securities held by it in customer
accounts).
"Agreement", "this Agreement", "herein", "hereunder",
"hereof", "hereby" or other like words mean this Asset Purchase and Sale
Agreement as originally executed or as modified or amended from time to time
pursuant to the applicable provisions hereof.
"April Balance Sheet" shall have the meaning specified in Subsection 3.4.1
hereof.
"April Net Asset Statement" shall have the meaning specified in Subsection
2.4.1 hereof.
"Ancillary Agreements" shall have the meaning specified in Section 3.1
hereof.
"Asset Acquisition Statement" shall have the meaning specified in
Subsection 2.3.1 hereof.
"Asset Purchase Agreement" shall have the meaning specified in
Subsection 3.23.1 hereof.
"Assets" shall have the meaning specified in Section 1.1 hereof.
"Assumed Liabilities" shall have the meaning specified in Section 1.3
hereof.
"Aviation Systems, Inc." shall have the meaning specified in Subsection
3.23.1 hereof.
"Bank Letter" shall have the meaning specified in Section 5.28 hereof.
"Bankruptcy Court" shall have the meaning specified in Subsection 3.23.1
hereof.
"Bankruptcy Proceeding" shall have the meaning specified in Subsection
3.23.1 hereof.
"Xxxx of Sale" shall have the meaning specified in Subsection 2.2.2
hereof.
"Bond Street Lease" shall mean that certain Lease Agreement, dated
September 16, 1994, between State of California Public Employees' Retirement
System and Airport Systems International, Inc. (now known as Elecsys
Corporation) regarding certain real property located at 0000 Xxxx Xxxxxx,
Xxxxxxxx Xxxx, Xxxxxx 00000.
"Business" shall have the meaning specified in the first whereas clause
hereof.
"Business Records" shall have the meaning specified in Subsection 1.1.7
hereof.
"Buyer" shall have the meaning specified in the preamble hereof.
"Buyer Indemnitees" shall have the meaning specified in Section 8.1
hereof.
"Buyer's Parent" shall mean Xxxxxx Xxxxxxx Systems Limited, a company
incorporated in England and Wales.
"Cap" shall have the meaning specified in Subsection 8.7.1 hereof.
"CERCLA" shall mean the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980, 42 X.X.X.xx.xx. 9601 et. seq., as
amended.
"CERCLIS" shall have the meaning specified in Subsection 3.15.5(e) hereof.
"Certificate of Assumption" shall have the meaning specified in
Subsection 2.2.2 hereof.
"Claim Notice" shall have the meaning specified in Subsection 8.3.1
hereof.
"Closing" shall have the meaning specified in Section 2.1 hereof.
"Closing Date" shall have the meaning specified in Section 2.1 hereof.
"Closing Net Asset Statement" shall have the meaning specified in
Subsection 2.4.2 hereof.
"Code" means the Internal Revenue Code of 1986, as amended.
"Computer Software" shall have the meaning specified in Subsection 3.9.3
hereof.
"Confidentiality Agreement" shall mean that certain Confidentiality
Agreement entered into between Buyer and Seller dated December 7, 2000.
"Consents" shall have the meaning specified in Section 3.22 hereof.
"Contracts" shall have the meaning specified in Subsection 1.1.5 hereof.
"Conveyance Documents" shall have the meaning specified in Subsection
2.2.3(b) hereof.
"DCI" shall mean DCI, Inc., a Kansas corporation, wholly-owned by
Elecsys.
"Elecsys" shall have the meaning specified in the preamble hereof.
"Employees" shall have the meaning specified in Subsection 3.14.1 hereof.
"Environmental Conditions" shall mean the presence of Hazardous
Materials that could reasonably be expected to cause the incurrence of
reporting, removal, remediation, or similar obligations, or civil or criminal
penalties or fines, under any Environmental Law or other liability for personal
injury or property damage arising out of such conditions.
"Environmental Laws" shall mean any federal, state or local Laws enacted
for the protection of human health, natural resources or the environment
(including without limitation CERCLA; the Resource Conservation and Recovery Act
of 1976, 42 X.X.X.xx. 6901 et. seq., as amended; the Clean Air Act, 42 X.X.X.xx.
7401 et. seq., as amended; the Clean Water Act, 33 X.X.X.xx. 1251 et. seq., as
amended; the Safe Drinking Water Act, 42 U.S.C. xx.xx. 300f et. seq., as
amended; the Toxic Substances Control Act, 15 X.X.X.xx.xx. 2601 et. seq., as
amended, and the Emergency Planning and Community Right-to-Know Act, 42
X.X.X.xx. 1101 et. seq., as amended), now or hereafter in effect, including any
plan, permit, license, regulation, order, judgment, injunction, notice or demand
letter issued, entered, promulgated or approved by any Governmental Authority
pursuant to such federal, state or local Laws.
"ERISA" shall have the meaning specified in Subsection 3.14.3 hereof
"Excluded Assets" shall have the meaning specified in Section 1.2 hereof.
"Excluded Liabilities" shall have the meaning specified in Section 1.4
hereof.
"Exon-Xxxxxx Act" shall mean Section 2170 of the Defense Production Act of
1950, which was added pursuant to Section 5021 of the Omnibus Trade and
Competitiveness Act of 1988, more commonly known as the Exon-Xxxxxx Amendment.
"Export-Import Bank" shall mean the Export-Import Bank of the United
States, an independent agency of the federal government.
"Extreme Adverse Effect" shall mean, with respect to any Person, the Owned
Property or the Business, changes in the business, assets, financial condition
or results of operations of such Person, the Owned Property or the Business
resulting in a loss therefrom in excess of $250,000.
"FCPA" shall have the meaning specified in Subsection 3.15.4 hereof.
"Final Closing Net Asset Statement" shall have the meaning specified in
Subsection 2.4.3 hereof.
"Final Closing Net Asset Value" shall have the meaning specified in
Section 2.4.4 hereof.
"Final Purchase Price" shall have the meaning specified in Section 2.4.4
hereof.
"Financial Statements" shall have the meaning specified in Subsection
3.4.1 hereof.
"FIRPTA Certificate" shall have the meaning specified in Subsection 5.9.2
hereof.
"GAAP" shall mean generally accepted accounting principles as defined in
the United States, consistently applied.
"GFE" shall have the meaning specified in Subsection 3.11.6 hereof.
"Government Bid" shall have the meaning specified in Subsection 3.11.1
hereof.
"Government Contract" shall have the meaning specified in Subsection
3.11.1 hereof.
"Governmental Authority" shall mean any federal, state, local or foreign
court, tribunal, legislative, administrative or regulatory authority or agency.
"Guarantee Claims" shall have the meaning specified in Subsection 8.1.3
hereof.
"Hazardous Materials" shall mean any wastes, substances, radiation or
toxic materials (whether solids, liquids or gases) (a) which are hazardous,
toxic, infectious, explosive, radioactive, carcinogenic or mutagenic; (b) which
are defined as "pollutants", "contaminants", "hazardous materials", "hazardous
wastes", "hazardous substances", "toxic substances", "radioactive materials",
"solid wastes" or other similar designations in, or otherwise subject to
regulation under, any Environmental Laws; (c) the presence of which on, above or
under any real property, whether owned or leased, cause or threaten to cause a
nuisance pursuant to applicable statutory or common law upon such real property
or to adjacent properties; (d) without limitation, which contain
polychlorinated biphenyls (PCBs), asbestos and
asbestos-containing materials, lead-based paints, urea-formaldehyde foam
insulation, and petroleum or petroleum products (including, without
limitation, crude oil or any fraction thereof); or (e) which pose a hazard to
natural resources, human health or safety, industrial hygiene or the
environment.
"Hired Employees" shall have the meaning specified in Subsection 1.3.2
hereof.
"Improvements" shall have the meaning specified in Schedule 3.5.1 hereof.
"Income Taxes shall mean all foreign or U.S. federal, state, local or
municipal net income, alternative or add-on minimum, gross income, adjusted
gross income, profits or excess profits, or gross receipts taxes.
"Indemnitee" shall mean any Person which may be entitled to seek
indemnification pursuant to the provisions of Sections 8.1 or 8.2 hereof.
"Indemnitor" shall mean any Person which may be obligated to provide
indemnification pursuant to Sections 8.1 or 8.2 hereof.
"Indemnitor's Counsel" shall have the meaning specified in Section 8.4
hereof.
"Independent Accountants" shall have the meaning specified in Subsection
2.4.3 hereof.
"Intellectual Property" shall have the meaning specified in Subsection
3.9.4 hereof.
"Inventory" shall have the meaning specified in Subsection 1.1.2 hereof.
"Knowledge of Seller", "Seller's Knowledge" or "Known to Seller" or other
like words means the actual knowledge of Xxxx Xxxxxxxxx, Xxxx Xxxxx, Xxxxxx
XxXxxxxxxx, Xxxxx Xxx, Xxx Xxxxxxx, Xxxx Xxxxxxx, Xxxx Brand, Xxx Xxxx, Xxxxxx
Xxxxxxxx, Xxxx Xxxxxx, Xxxxx Xxxxxxx, Xxxxx Xxxxx, Xxx Xxxxxx, each member of
the Board of Directors of Seller, and each member of the Board of Directors of
Elecsys, and that knowledge that should have been obtained by such person after
making such due inquiry and exercising the due diligence that a prudent business
person in a similar circumstance should have made or exercised.
"Land" shall have the meaning specified in Schedule 1.1.6 hereof.
"Laws" shall mean any law, statute, code, treaty, rule, directive, plan,
regulation, promulgation, decree, ruling, injunction or order of any
Governmental Authority, or any common law principle, doctrine or judgment.
"Liability" or "Liabilities" shall mean any liability, obligation, loss or
contingency, whether known or unknown, asserted or unasserted, absolute or
conditional, accrued or unaccrued, liquidated or unliquidated, and whether due
or to become due, regardless of when asserted or arising.
"Liens" shall have the meaning specified in Section 1.1 hereof.
"Loss" or "Losses" shall mean any and all losses, costs, Liabilities,
damages, demands, penalties, fines, settlements, response,
remedial, reclamation, investigation or inspection costs, reasonable expenses
(whether or not known or asserted prior to the date hereof), including, without
limitation, interest on any amount payable to a third party as a result of the
foregoing, Liabilities on account of Taxes (including interest and penalties
thereon) and any legal, accounting, auditing, consulting, or other expenses
reasonably incurred in connection with investigating or defending any claims,
actions or Proceedings, whether or not resulting in any Liability; provided,
however, that the term "Losses" shall not be deemed to include lost profits,
opportunity costs, any other consequential damages or punitive damages except to
the extent any such lost profits, opportunity costs, consequential damages
or punitive damages are suffered by an Indemnitee in connection with a Third
Party Claim for which indemnification shall be required hereunder.
"Material Adverse Effect" shall mean, with respect to any Person or the
Business, changes in the business, assets, financial condition or results of
operations of such Person or the Business resulting in a loss therefrom in
excess of $75,000.
"Material Contracts" shall have the meaning specified in Subsection 3.10.1
hereof.
"Mortgage" shall have the meaning specified in Subsection 1.3.5 hereof.
"Net Asset Value" shall mean the aggregate value of the Assets less (i)
the amount of the Assumed Liabilities, and (ii) any value attributable to
goodwill, going concern value or similar intangible assets that might be
included in the Assets.
"Owned Property" shall have the meaning specified in Subsection 1.1.6
hereof.
"Patents and Licenses" shall have the meaning specified in Subsection
3.9.1 hereof.
"PBGC" shall have the meaning specified in Subsection 3.14.3(d) hereof.
"PCB" shall have the meaning specified in Subsection 3.15.5(d) hereof.
"Performance Bond Claim" shall mean a claim or draw against any letter of
credit or surety bond issued for the account of Seller or Elecsys as a guarantee
of performance or payment by Seller or Elecsys under any customer contract
related to the Business that remains in effect as of the Closing Date, but only
to the extent that such claim or draw relates to an act or omission by Seller or
Elecsys, including, without limitation, a failure to deliver a product, perform
a service or pay for materials or labor related to a contract in connection with
which the letter of credit or surety bond was issued, on or prior to the Closing
Date.
"Permits" shall have the meaning specified in Subsection 1.1.11 hereof.
"Permitted Exceptions" shall have the meaning specified in Subsection
5.32.3 hereof.
"Permitted Liens" shall mean (a) Liens for taxes and assessments or
governmental charges not yet due or which are being contested in good faith and
by appropriate proceedings as to which adequate reserves exist (to the extent
such reserves are required by GAAP), (b) Liens reflected in the Financial
Statements, (c) Liens to be discharged at or prior to Closing.
"Person" shall mean any corporation, partnership (whether general, limited
or otherwise), limited liability company, trust, association,
unincorporated organization, governmental entity, agency or branch or
department thereof, or any other legal entity, or any natural person.
"Personal Property" shall have the meaning specified in Subsection 1.1.1
hereof.
"Plan" shall have the meaning specified in Subsection 3.14.3 hereof.
"Proceeding" shall mean any action, suit, claim, investigation (which, for
the avoidance of doubt, shall not include any audit) or proceeding, whether
involving a court of law, administrative body, governmental agency, arbitrator,
or alternative dispute resolution mechanism.
"Promissory Note" shall have the meaning specified in Subsection 1.3.5
hereof.
"Purchase Price" shall have the meaning specified in Subsection 2.2.1
hereof.
"Receivables" shall have the meaning specified in Subsection 1.1.3 hereof.
"Retained Amount" shall have the meaning specified in Subsection 2.2.1
hereof.
"Registered Trademark" shall have the meaning specified in Subsection
1.1.10 hereof.
"Retirement Plan" shall have the meaning specified in Subsection 3.14.3
hereof.
"Savings Plan" shall have the meaning specified in Subsection 5.12.2
hereof.
"Securities Act" shall mean the Securities Act of 1933, as amended, and
the rules, regulations and forms promulgated thereunder.
"Seller" shall have the meaning specified in the preamble hereof.
"Seller Indemnitees" shall have the meaning specified in Section 8.2
hereof.
"Survey" shall have the meaning specified in Subsection 5.32.2 hereof.
"Target Net Asset Value" shall have the meaning specified in Subsection
2.4.4 hereof.
"Taxes" or "Tax" (and, with correlative meanings, "Taxable" or
"Taxing") shall mean, with respect to any Person, (a) all Income Taxes and all
sales, use, ad valorem, transfer, franchise, license, withholding, backup
withholding, payroll, employment (including employee withholding or employer
payroll, FICA, or FUTA), environmental, excise, severance, stamp, occupation,
premium, prohibited transaction, property, value-added or any other taxes,
customs, tariffs, imposts, levies, duties, government fees or other like
assessments or charges of any kind whatsoever, together with any interest or
penalty, addition to tax or additional amount related thereto, and (b) any
liability for the payment of any amount of the type described in the immediately
preceding clause (a) as a result of (i) being a transferee (within the meaning
of section 6901 of the Code) of another Person, or (ii) being a member of an
affiliated or combined group.
"Tax Returns" shall mean all federal, state, local, provincial and foreign
returns, declarations, claims for refunds, forms, statements, reports,
schedules, information returns or similar statements or documents, and any
amendments thereof (including, without limitation, any related or supporting
information or schedule attached thereto) required to be filed with any Taxing
Authority in connection with the determination, assessment or collection of any
Tax or Taxes or the administration of any Laws or administrative requirements
relating to Taxes.
"Taxing Authority" shall mean any government or subdivision, agency,
commission or authority thereof, or any quasi-governmental or private body
having jurisdiction over the assessment, determination, collection or other
imposition of Taxes.
"Third Party Claims" shall mean any and all Losses which arise out of or
result from (a) any claims or actions asserted against an Indemnitee by any
Person not a party hereto, (b) any rights of any Person not a party hereto
asserted against an Indemnitee, or (c) any Liabilities of, or amounts payable
by, an Indemnitee to any Person not a party hereto arising out of subclauses (a)
or (b), including without limitation, claims or actions asserted against an
Indemnitee by any Governmental Authority on account of Taxes; provided, however,
that the term "Person" as used for purposes of this definition of Third Party
Claims shall be deemed to exclude any Affiliate, partner, director or officer of
any party hereto.
"Threshold Amount" shall have the meaning specified in Subsection 8.7.1
hereof.
"Title Binder" shall have the meaning specified in Subsection 5.32.1
hereof.
"Title Company" shall have the meaning specified in Subsection 2.2.3(b)
hereof.
"Trademark and Licenses" shall have the meaning specified in Subsection
3.9.2 hereof.
"Trademark Assignment" shall have the meaning specified in Subsection
2.2.3(a) hereof.
"Warranty Claim" shall mean a claim by any party pursuant to any warranty
that (i) remains in effect as of the Closing Date and (ii) was originally issued
by Seller or Elecsys in connection with any product designed, manufactured or
sold, or any service provided, by Seller or Elecsys, but only to the extent that
such claim relates to a warranty that was originally issued for a product
(or portion thereof) designed, manufactured or sold, or a service (or
portion thereof) provided, by Seller or Elecsys on or prior to the Closing Date.
"Warranty Reserve" shall have the meaning specified in Subsection 1.3.3
hereof.
"Welfare Plans" shall have the meaning specified in Subsection 5.12.1
hereof.
EXHIBIT A
Form of Xxxx of Sale
EXHIBIT B
Form of Certificate of Assumption
EXHIBIT C
Form of Elecsys Guaranty
ELECSYS CORPORATION GUARANTY
THIS GUARANTY AGREEMENT (this "Guaranty"), dated as of June 18, 2001, is
made by ELECSYS CORPORATION, a Kansas corporation ("Guarantor"), in favor of ASI
NEWCO, INC., a Delaware corporation ("Buyer"), in connection with that certain
Asset Purchase Agreement (the "Agreement") dated June 18, 2001 among AIRPORT
SYSTEMS INTERNATIONAL, INC., a Kansas corporation ("Seller"), Guarantor and
Buyer (as amended, supplemented, or otherwise modified from time to time, the
"Agreement").
RECITALS:
WHEREAS, in order to induce Buyer to enter into the Agreement, Guarantor
has agreed, subject to the terms and conditions contained in this Guaranty, to
guarantee the performance of all obligations of Seller under the Agreement,
including without limitation, its indemnification obligations pursuant to
Article VIII thereof ("Obligations") and to execute and deliver this Guaranty;
and
WHEREAS, Guarantor will benefit, directly or indirectly, from the sale by
Seller to Buyer of the Assets and the assumption by Buyer of the Assumed
Liabilities (each as defined in the Agreement).
NOW, THEREFORE, in consideration of the foregoing, and intending to be
legally bound hereby, Guarantor agrees as follows:
Section 1. Unconditional Guaranty.
(a) Guarantor fully, irrevocably and unconditionally guarantees
performance (including the payment of money) of the Obligations. Guarantor is
hereby made fully responsible for the acts and omissions of the Seller that
constitute a breach of the Agreement. This Guaranty shall be a full,
unconditional, irrevocable, absolute and continuing guaranty of performance
(including the payment of money) and not a guaranty of collection, and Guarantor
shall remain liable on its obligations hereunder until the payment and
performance in full of the Obligations.
(b) Except as provided in Section l(f) below, Guarantor's guaranty and
responsibility shall not be discharged, released, diminished, or impaired in
whole or in part by any setoff, counterclaim, defense, act or occurrence which
Guarantor may have against Buyer as a result or arising out of the Agreement or
any other transaction.
(c) The Obligations of Guarantor hereunder shall not be released,
discharged, diminished or impaired by (i) the renewal, extension, modification
or alteration by Seller and Buyer, with or without the knowledge or consent of
Guarantor, of the Agreement or of any liability or obligation of Seller
thereunder or of any document or instrument under which the Obligations arise,
(ii) any forbearance or compromise granted to Seller by Buyer when dealing with
Seller except to the extent of such forbearance or compromise, (iii) any change
in corporate structure or ownership of Seller or the bankruptcy, insolvency,
liquidation, receivership, dissolution, winding-up or termination of Seller or
the fact that at any xxxx Xxxxxx does not exist, (iv) the inaccuracy of any of
the representations and warranties of Seller under the Agreement,
(v) any neglect, delay, omission, failure or refusal of Buyer to take or
prosecute any action in connection with the Agreement, (vi) the full or partial
release of Seller from any liability or obligation, except that Guarantor shall
be released pro tanto to the extent Buyer expressly releases Seller from
liability with respect to the Obligations, or (vii) any other circumstance
relating to the Obligations that might otherwise constitute a legal or equitable
discharge of or defense to the Guarantor not available to Seller with respect to
the Obligations.
(d) Guarantor waives notice of (i) acceptance of this Guaranty, (ii) the
creation, renewal, extension, modification, alteration or existence of any
liability or obligation of Seller constituting part of the Obligations, and
(iii) any breach of or default in the liabilities or obligations of Seller.
(e) If Seller fails to perform the Obligations, in whole or in part, when
such Obligations are due, Guarantor shall promptly perform such Obligations
(including payment of any amount due to Buyer upon demand in lawful money of the
United States). Buyer may enforce Guarantor's obligations under this Guaranty
without first suing Seller or joining Seller in any suit against Guarantor, or
enforcing any rights and remedies against Seller, or otherwise pursuing or
asserting any claims or rights against Seller or any other person or entity or
any of its or their property which may also be liable with respect to the
matters for which Guarantor is liable under this Section 1.
(f) Guarantor reserves the right to assert defenses which Seller may have
to payment or performance of any Obligation, other than defenses that Seller may
possess relating to (i) lack of validity or enforceability of the Agreement
against Seller arising from Seller's defective incorporation or lack of
qualification to do business in any applicable jurisdiction, (ii) Seller's lack
of corporate authority to enter into or perform the Agreement, or (iii) the
termination of existence, dissolution, liquidation, insolvency, bankruptcy,
receivership, or other reorganization of Seller.
Section 2. Preference. If any payment to Buyer by (i) Seller, or (ii)
Guarantor in the event of Seller's bankruptcy, is held to constitute a
preference under any applicable bankruptcy laws, or if under applicable
bankruptcy, insolvency, reorganization, fraudulent transfer, moratorium or other
similar laws of general application with respect to creditors, Buyer shall be
required to refund part or all of any payment by Seller, or Guarantor in the
event of Seller's bankruptcy, or to pay the amount thereof to any other party,
then any such payment to Buyer by Seller or Guarantor shall not constitute a
release from Guarantor's liability hereunder, and Guarantor's liability
hereunder shall be reinstated to the extent of such payment.
Section 3. Reinstatement. This Guaranty shall continue to be effective, or
be reinstated, as the case may be, if at any time payment, or any part thereof,
of any of the Obligations is rescinded or must otherwise be restored or returned
by Buyer upon the insolvency, bankruptcy, dissolution, liquidation or
reorganization of Seller, or upon or as a result of the appointment of a
receiver, intervenor or conservator of, or trustee or similar officer for,
Seller or any substantial part of its property, or otherwise, all as though such
payments had not been made.
Section 4. Representation as to Benefit. Guarantor warrants and represents
for and as to itself that it has received, or will receive, direct or indirect
benefit from the making of this Guaranty.
Section 5. Representations and Warranties of Guarantor. Guarantor hereby
represents and warrants to Buyer as follows:
(a) Organization. Guarantor is a corporation duly organized, validly
existing and in good standing under the laws of the jurisdiction of its
incorporation and has the requisite corporate power to carry on its business as
it is now being conducted.
(b) Authority Relative to this Guaranty. Guarantor has full corporate
power and authority to execute and deliver this Guaranty and to consummate the
transactions contemplated hereby. The execution and delivery by Guarantor of
this Guaranty and the consummation by Guarantor of the transactions and
performance of the terms and conditions contemplated hereby have been duly and
validly authorized by the Board of Directors of Guarantor, and no other
corporate proceedings on the part of Guarantor are necessary to authorize this
Guaranty or consummate the transactions so contemplated. This Guaranty has been
duly and validly executed and delivered by Guarantor, and this Guaranty
constitutes a valid and binding agreement of Guarantor, enforceable against
Guarantor in accordance with its terms, subject to (i) applicable bankruptcy,
insolvency, reorganization, moratorium and other similar laws of general
application with respect to creditors, (ii) general principles of equity, and
(iii) the power of a court to deny enforcement or remedies generally based upon
public policy.
(c) Consents and Approvals, No Violation. Neither the execution and
delivery by Guarantor of this Guaranty nor the performance of its obligations
under the Guaranty contemplated hereby do or will (i) conflict with or result in
any breach of any provision of the certificate of incorporation or bylaws (or
other similar governing documents) of Guarantor, (ii) require any consent,
approval, authorization or permit of, or filing with or notification to, any
governmental or regulatory authority, except where it is reasonably expected
that the failure to obtain such consent, approval, authorization or permit, or
to make such filing or notification, would not have an adverse effect on the
ability of Guarantor to perform its obligations under this Guaranty and would
not prevent or delay in any material respect such performance, (iii) result in a
default (or give rise to any rights of termination, cancellation or
acceleration) under any of the terms, conditions or provisions of any note,
license, agreement or other instrument or obligation to which Guarantor is a
party or by which Guarantor or any of its assets may be bound, except for such
defaults (or rights of termination, cancellation or acceleration) as to which
requisite waivers or consents have been obtained or which, in the aggregate,
would not have an adverse effect on the ability of Guarantor to perform its
obligations under this Guaranty and would not prevent or delay in any material
respect such performance, or (iv) violate any order, writ, injunction, decree,
statute, rule or regulation applicable to Guarantor, or any of its assets,
except for violations which would not in the aggregate have an adverse effect on
the ability of Guarantor to perform its obligations under this Guaranty and
would not prevent or delay in any material respect such performance.
(d) Litigation; Claims. As of the date hereof there is no claim, action,
proceeding or investigation pending or, to the knowledge of Guarantor,
threatened against Guarantor before
any court or governmental or regulatory authority or body that would prevent or
delay in any material respect the performance by Guarantor of this Guaranty.
Guarantor is not subject to any judgment or outstanding order, writ, injunction
or decree that would have an adverse effect on its ability to perform its
obligations under this Guaranty and that would prevent or delay in any material
respect the performance by Guarantor of this Guaranty.
Section 6. Costs and Expenses. Each party agrees to pay to the prevailing
party, upon demand, all reasonable costs and expenses, including reasonable
attorneys' fees, that may be incurred by the prevailing party in enforcing or
defending its rights under this Guaranty.
Section 7. Governing Law; Consent to Jurisdiction; Waiver of Punitive
Damages and Jury Trial.
(a) THIS GUARANTY SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF NEW YORK WITHOUT GIVING EFFECT TO ITS CONFLICTS OF LAWS
PRINICPLES.
(b) Each of the parties hereto hereby irrevocably and unconditionally
submits, for itself and its property, to the exclusive jurisdiction of any court
sitting in the District of Columbia and any appellate court from any thereof, in
any action or proceeding arising out of or relating to this Guaranty or the
transactions contemplated hereby or for recognition or enforcement of any
judgment relating thereto, and each of the parties hereto hereby irrevocably and
unconditionally agrees that all claims in respect of any such action or
proceeding may be heard and determined in such court. Each of the parties hereto
agrees that a final, non-appealable judgment in any such action or proceeding
shall be conclusive and may be enforced in other jurisdictions by suit on the
judgment in any other manner provided by law.
(c) Each of the parties hereto hereby irrevocably and unconditionally
waives, to the fullest extent it may legally and effectively do so, any
objection which it may now or hereafter have to the laying of venue of any suit,
action or proceeding arising out of or relating to this Guaranty or the
transactions contemplated hereby in any court sitting in the District of
Columbia. Each of the parties hereto hereby irrevocably and unconditionally
waives, to the fullest extent permitted by law, the defense of any inconvenient
forum to the maintenance of such action or proceeding in any such court.
(d) Each of the parties hereto irrevocably consents to service of process
in the manner provided for notices in Section 10 hereof. Notwithstanding the
foregoing, each of the parties hereto shall have the right to serve process in
any other manner permitted by law.
(e) THE PARTIES TO THIS GUARANTY EXPRESSLY WAIVE AND FOREGO ANY RIGHT TO
RECOVER PUNITIVE, EXEMPLARY, CONSEQUENTIAL OR SIMILAR DAMAGES IN ANY LAWSUIT,
LITIGATION, ARBITRATION OR PROCEEDING ARISING OUT OF OR RESULTING FROM ANY
CONTROVERSY OR CLAIM ARISING OUT OF OR RELATING TO THIS GUARANTY OR THE
TRANSACTIONS CONTEMPLATED HEREBY.
(f) EACH PARTY HERETO ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY WHICH
MAY ARISE UNDER THIS GUARANTY IS LIKELY TO
INVOLVE COMPLICATED AND DIFFICULT ISSUES, AND THEREFORE IT HEREBY IRREVOCABLY
AND UNCONDITIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT
OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS
GUARANTY OR THE TRANSACTIONS CONTEMPLATED HEREBY.
(g) EACH PARTY HERETO CERTIFIES AND ACKNOWLEDGES THAT (I) NO
REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY
OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK
TO ENFORCE THE WAIVERS SET FORTH IN CLAUSE (a) OF THIS SECTION 7, (II) IT
UNDERSTANDS AND HAS CONSIDERED THE IMPLICATIONS OF SUCH WAIVERS, (III) IT MAKES
SUCH WAIVERS VOLUNTARILY, AND (IV) IT HAS BEEN INDUCED TO ENTER INTO THIS
GUARANTY BY, AMONG OTHER THINGS, THE WAIVERS AND CERTIFICATIONS IN SUCH SECTION.
Section 8. Benefit. This Guaranty shall inure to the benefit of Buyer and
its successors and assigns, and shall be binding upon Guarantor and its
successors and assigns; provided, however, that (i) neither Buyer nor Guarantor
shall assign (including by operation of law) its rights or obligations under
this Guaranty without the prior written consent of the other, except that Buyer
may assign its rights or obligations under this Guaranty to an affiliate or by
operation of law, (ii) no assignment or other transfer by, through or under
Buyer shall operate to increase Guarantor's obligations hereunder, and (iii)
Guarantor shall be fully protected in making and shall receive full credit for
any payments or other performance made by it to Buyer or its successors and
assigns with respect to the Obligations prior to the time Guarantor receives
written notice of such assignment or succession.
Section 9. Continuing Guaranty. Subject to the terms, conditions and
limitations hereof, this Guaranty is a continuing guaranty and shall remain in
full force and effect and be binding upon Guarantor until the Obligations have
been satisfied in full.
Section 10. Notices. Any notice, demand or other communication required or
permitted under this Guaranty shall be in writing and given by hand delivery,
facsimile, overnight courier, or registered or certified United States mail,
return receipt requested. All notices shall be properly addressed to the
recipient, with all postage and other charges being paid by the party giving
notice. Notices shall be effective when actually received by the party being
notified. The addresses of the parties for purposes of notice are as follows:
If to Guarantor:
Elecsys Corporation
00000 X. 000xx Xxxxxx
Xxxxxx, Xxxxxx 00000
Attention: Xxxxx X. Xxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
with a copy to:
Xxxxx Xxxxxx, Esquire
Xxxxxxxxx Xxxxxxx Xxxxx Xxxxxx LLP
0000 Xxxx Xxxxxx, Xxxxx 0000
Xxxxxx Xxxx, Xxxxxxxx 00000
Telephone (000) 000-0000
Facsimile: (000) 000-0000
If to Buyer:
ASI Newco, Inc.
c/o Xxxxx X. Xxxxxxx, Esquire
Xxxxxxx & Xxxxxx LLP
0000 Xxxxxxxxxxxx Xxxxxx, X.X.
Xxxxxxxxxx, X.X. 00000-0000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
with a copy to:
Xxxxx X. Xxxxxxx, Esquire
Xxxxxxx & Xxxxxx LLP
0000 Xxxxxxxxxxxx Xxxxxx, X.X.
Xxxxxxxxxx, X.X. 00000-0000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Either party may change its address by giving ten (10) days advance
written notice to the other party.
Section 11. Interpretation. Capitalized terms used herein without
definition herein have the meanings given to them in the Agreement.
Section 12. Subrogation. Upon payment of all of the Obligations owing to
Buyer, Guarantor shall be subrogated to the rights of Buyer against Seller, and
Buyer agrees to take, at Guarantor's expense, such steps as Guarantor may
reasonably request to implement such subrogation.
IN WITNESS WHEREOF, the undersigned has executed this Guaranty as of the
date and year first above written.
GUARANTOR:
ELECSYS CORPORATION
By:
Name:----------------------------
Title:
BUYER:
ASI NEWCO, INC.
By:
Name:-------------------------
Title:
EXHIBIT D
Form of Buyer's Parent Guaranty
XXXXXX XXXXXXX SYSTEMS LIMITED GUARANTY
THIS GUARANTY AGREEMENT (this "Guaranty"), dated as of June 18, 2001, is
made by XXXXXX XXXXXXX SYSTEMS LIMITED, a company incorporated in England and
Wales ("Guarantor"), in favor of AIRPORT SYSTEMS INTERNATIONAL, INC., a Kansas
corporation ("Seller") and ELECSYS CORPORATION, a Kansas corporation
("Elecsys"), in connection with that certain Asset Purchase Agreement (the
"Agreement") dated June 18, 2001 among Seller, Elecsys and ASI NEWCO, INC., a
Delaware corporation ("Buyer"), (as amended, supplemented, or otherwise modified
from time to time, the "Agreement").
RECITALS:
WHEREAS, in order to induce Seller and Elecsys to enter into the
Agreement, Guarantor has agreed, subject to the terms and conditions contained
in this Guaranty, to guarantee the performance of all obligations of Buyer under
the Agreement, including without limitation, its indemnification obligations
pursuant to Article VIII thereof ("Obligations") and to execute and deliver this
Guaranty; and
WHEREAS, Guarantor will benefit, directly or indirectly, from the sale by
Seller to Buyer of the Assets and the retention by Seller of the Excluded
Liabilities (each as defined in the Agreement).
NOW, THEREFORE, in consideration of the foregoing, and intending to be
legally bound hereby, Guarantor agrees as follows:
Section 1. Unconditional Guaranty.
(a) Guarantor fully, irrevocably and unconditionally guarantees
performance (including the payment of money) of the Obligations. Guarantor is
hereby made fully responsible for the acts and omissions of the Buyer that
constitute a breach of the Agreement. This Guaranty shall be a full,
unconditional, irrevocable, absolute and continuing guaranty of performance
(including the payment of money) and not a guaranty of collection, and Guarantor
shall remain liable on its obligations hereunder until the payment and
performance in full of the Obligations.
(b) Except as provided in Section l(f) below, Guarantor's guaranty and
responsibility shall not be discharged, released, diminished, or impaired in
whole or in part by any setoff, counterclaim, defense, act or occurrence which
Guarantor may have against Seller or Elecsys as a result or arising out of the
Agreement or any other transaction.
(c) The Obligations of Guarantor hereunder shall not be released,
discharged, diminished or impaired by (i) the renewal, extension, modification
or alteration by Seller, Elecsys and Buyer, with or without the knowledge or
consent of Guarantor, of the Agreement or of any liability or obligation of
Buyer thereunder or of any document or instrument under which the Obligations
arise, (ii) any forbearance or compromise granted to Buyer by Seller or Elecsys
when dealing with Buyer except to the extent of such forbearance or compromise,
(iii) any change in corporate structure or ownership of Buyer or the bankruptcy,
insolvency, liquidation, receivership, dissolution, winding-up or termination of
Buyer or the fact that at any time Buyer
does not exist, (iv) the inaccuracy of any of the representations and warranties
of Buyer under the Agreement, (v) any neglect, delay, omission, failure or
refusal of Seller or Elecsys to take or prosecute any action in connection with
the Agreement, (vi) the full or partial release of Buyer from any liability or
obligation, except that Guarantor shall be released pro tanto to the extent
Seller or Elecsys expressly releases Buyer from liability with respect to the
Obligations, or (vii) any other circumstance relating to the Obligations that
might otherwise constitute a legal or equitable discharge of or defense to the
Guarantor not available to Buyer with respect to the Obligations.
(d) Guarantor waives notice of (i) acceptance of this Guaranty, (ii) the
creation, renewal, extension, modification, alteration or existence of any
liability or obligation of Buyer constituting part of the Obligations, and (iii)
any breach of or default in the liabilities or obligations of Buyer.
(e) If Buyer fails to perform the Obligations, in whole or in part, when
such Obligations are due, Guarantor shall promptly perform such Obligations
(including payment of any amount due to Seller or Elecsys upon demand in lawful
money of the United States). Seller and Elecsys may enforce Guarantor's
obligations under this Guaranty without first suing Buyer or joining Buyer in
any suit against Guarantor, or enforcing any rights and remedies against Buyer,
or otherwise pursuing or asserting any claims or rights against Buyer or any
other person or entity or any of its or their property which may also be liable
with respect to the matters for which Guarantor is liable under this Section 1.
(f) Guarantor reserves the right to assert defenses which Buyer may have
to payment or performance of any Obligation, other than defenses that Buyer may
possess relating to (i) lack of validity or enforceability of the Agreement
against Buyer arising from Buyer's defective incorporation or lack of
qualification to do business in any applicable jurisdiction, (ii) Buyer's lack
of corporate authority to enter into or perform the Agreement, or (iii) the
termination of existence, dissolution, liquidation, insolvency, bankruptcy,
receivership, or other reorganization of Buyer.
Section 2. Preference. If any payment to Seller or Elecsys by (i) Buyer,
or (ii) Guarantor in the event of Buyer's bankruptcy, is held to constitute a
preference under any applicable bankruptcy laws, or if under applicable
bankruptcy, insolvency, reorganization, fraudulent transfer, moratorium or other
similar laws of general application with respect to creditors, Seller or Elecsys
shall be required to refund part or all of any payment by Buyer, or Guarantor in
the event of Buyer's bankruptcy, or to pay the amount thereof to any other
party, then any such payment to Seller or Elecsys by Buyer or Guarantor shall
not constitute a release from Guarantor's liability hereunder, and Guarantor's
liability hereunder shall be reinstated to the extent of such payment.
Section 3. Reinstatement. This Guaranty shall continue to be effective, or
be reinstated, as the case may be, if at any time payment, or any part thereof,
of any of the Obligations is rescinded or must otherwise be restored or returned
by Seller or Elecsys upon the insolvency, bankruptcy, dissolution, liquidation
or reorganization of Buyer, or upon or as a result of the appointment of a
receiver, intervenor or conservator of, or trustee or similar officer for,
Buyer or any substantial part of its property, or otherwise, all as though such
payments had not been made.
Section 4. Representation as to Benefit. Guarantor warrants and represents
for and as to itself that it has received, or will receive, direct or indirect
benefit from the making of this Guaranty.
Section 5. Representations and Warranties of Guarantor. Guarantor hereby
represents and warrants to Seller and Elecsys as follows:
(a) Organization. Guarantor is a company duly organized and validly
existing under the laws of the jurisdiction of its incorporation and has the
requisite corporate power to carry on its business as it is now being conducted.
(b) Authority Relative to this Guaranty. Guarantor has full corporate
power and authority to execute and deliver this Guaranty and to consummate the
transactions contemplated hereby. The execution and delivery by Guarantor of
this Guaranty and the consummation by Guarantor of the transactions and
performance of the terms and conditions contemplated hereby have been duly and
validly authorized by the Board of Directors of Guarantor, and no other
corporate proceedings on the part of Guarantor are necessary to authorize this
Guaranty or consummate the transactions so contemplated. This Guaranty has been
duly and validly executed and delivered by Guarantor, and this Guaranty
constitutes a valid and binding agreement of Guarantor, enforceable against
Guarantor in accordance with its terms, subject to (i) applicable bankruptcy,
insolvency, reorganization, moratorium and other similar laws of general
application with respect to creditors, (ii) general principles of equity, and
(iii) the power of a court to deny enforcement or remedies generally based upon
public policy.
(c) Consents and Approvals, No Violation. Neither the execution and
delivery by Guarantor of this Guaranty nor the performance of its obligations
under the Guaranty contemplated hereby do or will (i) conflict with or result in
any breach of any provision of the Memorandum and Articles of Association (or
other similar governing documents) of Guarantor, (ii) require any consent,
approval, authorization or permit of, or filing with or notification to, any
governmental or regulatory authority, except where it is reasonably expected
that the failure to obtain such consent, approval, authorization or permit, or
to make such filing or notification, would not have an adverse effect on the
ability of Guarantor to perform its obligations under this Guaranty and would
not prevent or delay in any material respect such performance, (iii) result in a
default (or give rise to any rights of termination, cancellation or
acceleration) under any of the terms, conditions or provisions of any note,
license, agreement or other instrument or obligation to which Guarantor is a
party or by which Guarantor or any of its assets may be bound, except for such
defaults (or rights of termination, cancellation or acceleration) as to which
requisite waivers or consents have been obtained or which, in the aggregate,
would not have an adverse effect on the ability of Guarantor to perform its
obligations under this Guaranty and would not prevent or delay in any material
respect such performance, or (iv) violate any order, writ, injunction, decree,
statute, rule or regulation applicable to Guarantor, or any of its assets,
except for violations which would not in the aggregate have an adverse effect on
the ability of Guarantor to perform its obligations under this Guaranty and
would not prevent or delay in any material respect such performance.
(d) Litigation; Claims. As of the date hereof there is no claim, action,
proceeding or investigation pending or, to the knowledge of Guarantor,
threatened against Guarantor before any court or governmental or regulatory
authority or body that would prevent or delay in any material respect the
performance by Guarantor of this Guaranty. Guarantor is not subject to any
judgment or outstanding order, writ, injunction or decree that would have an
adverse effect on its ability to perform its obligations under this Guaranty and
that would prevent or delay in any material respect the performance by Guarantor
of this Guaranty.
Section 6. Costs and Expenses. Each party agrees to pay to the prevailing
party, upon demand, all reasonable costs and expenses, including reasonable
attorneys' fees, that may be incurred by the prevailing party in enforcing or
defending its rights under this Guaranty.
Section 7. Governing Law; Consent to Jurisdiction; Waiver of Punitive
Damages and Jury Trial.
(a) THIS GUARANTY SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF NEW YORK WITHOUT GIVING EFFECT TO ITS CONFLICTS OF LAWS
PRINICPLES.
(b) Each of the parties hereto hereby irrevocably and unconditionally
submits, for itself and its property, to the exclusive jurisdiction of any court
sitting in the District of Columbia and any appellate court from any thereof, in
any action or proceeding arising out of or relating to this Guaranty or the
transactions contemplated hereby or for recognition or enforcement of any
judgment relating thereto, and each of the parties hereto hereby irrevocably and
unconditionally agrees that all claims in respect of any such action or
proceeding may be heard and determined in such court. Each of the parties hereto
agrees that a final, non-appealable judgment in any such action or proceeding
shall be conclusive and may be enforced in other jurisdictions by suit on the
judgment in any other manner provided by law.
(c) Each of the parties hereto hereby irrevocably and unconditionally
waives, to the fullest extent it may legally and effectively do so, any
objection which it may now or hereafter have to the laying of venue of any suit,
action or proceeding arising out of or relating to this Guaranty or the
transactions contemplated hereby in any court sitting in the District of
Columbia. Each of the parties hereto hereby irrevocably and unconditionally
waives, to the fullest extent permitted by law, the defense of any inconvenient
forum to the maintenance of such action or proceeding in any such court.
(d) Each of the parties hereto irrevocably consents to service of process
in the manner provided for notices in Section 10 hereof. Notwithstanding the
foregoing, each of the parties hereto shall have the right to serve process in
any other manner permitted by law.
(e) THE PARTIES TO THIS GUARANTY EXPRESSLY WAIVE AND FOREGO ANY RIGHT TO
RECOVER PUNITIVE, EXEMPLARY, CONSEQUENTIAL OR SIMILAR DAMAGES IN ANY LAWSUIT,
LITIGATION, ARBITRATION OR PROCEEDING ARISING OUT OF OR RESULTING FROM ANY
CONTROVERSY OR CLAIM ARISING OUT OF OR RELATING TO THIS GUARANTY OR THE
TRANSACTIONS CONTEMPLATED HEREBY.
(f) EACH PARTY HERETO ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY WHICH
MAY ARISE UNDER THIS GUARANTY IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT
ISSUES, AND THEREFORE IT HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT
IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR
INDIRECTLY ARISING OUT OF OR RELATING TO THIS GUARANTY OR THE TRANSACTIONS
CONTEMPLATED HEREBY.
(g) EACH PARTY HERETO CERTIFIES AND ACKNOWLEDGES THAT (I) NO
REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY
OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK
TO ENFORCE THE WAIVERS SET FORTH IN CLAUSE (a) OF THIS SECTION 7, (II) IT
UNDERSTANDS AND HAS CONSIDERED THE IMPLICATIONS OF SUCH WAIVERS, (III) IT MAKES
SUCH WAIVERS VOLUNTARILY, AND (IV) IT HAS BEEN INDUCED TO ENTER INTO THIS
GUARANTY BY, AMONG OTHER THINGS, THE WAIVERS AND CERTIFICATIONS IN SUCH SECTION.
Section 8. Benefit. This Guaranty shall inure to the benefit of Seller,
Elecsys and their respective successors and assigns, and shall be binding upon
Guarantor and its successors and assigns; provided, however, that (i) Seller and
Elecsys, on the one hand, and Guarantor on the other, shall not assign
(including by operation of law) their rights or obligations under this Guaranty
without the prior written consent of the other parties hereto, except that
Seller or Elecsys may assign its rights or obligations under this Guaranty to an
affiliate or by operation of law, (ii) no assignment or other transfer by,
through or under Seller or Elecsys shall operate to increase Guarantor's
obligations hereunder, and (iii) Guarantor shall be fully protected in making
and shall receive full credit for any payments or other performance made by it
to Seller, Elecsys or their respective successors and assigns with respect to
the Obligations prior to the time Guarantor receives written notice of such
assignment or succession.
Section 9. Continuing Guaranty. Subject to the terms, conditions and
limitations hereof, this Guaranty is a continuing guaranty and shall remain in
full force and effect and be binding upon Guarantor until the Obligations have
been satisfied in full.
Section 10. Notices. Any notice, demand or other communication required or
permitted under this Guaranty shall be in writing and given by hand delivery,
facsimile, overnight courier, or registered or certified United States mail,
return receipt requested. All notices shall be properly addressed to the
recipient, with all postage and other charges being paid by the party giving
notice. Notices shall be effective when actually received by the party being
notified. The addresses of the parties for purposes of notice are as follows:
If to Guarantor:
Xxxxxx Xxxxxxx Systems Limited
Xxxxxxxx Xxxxx
Xxxxx Xxxx, Xxxxxxxxxx
Xxxxx, XX0 0XX
UK
Attention: Xxxxxx Xxxxx, Esq.
Telephone: 000-00-0000-000000
Facsimile: 011-44-1245-702856
with a copy to:
Xxxxx X. Xxxxxxx, Esquire
Xxxxxxx & Xxxxxx LLP
0000 Xxxxxxxxxxxx Xxxxxx, X.X.
Xxxxxxxxxx, X.X. 00000-0000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
If to Seller and Elecsys:
Elecsys Corporation
00000 X. 000xx Xxxxxx
Xxxxxx, Xxxxxx 00000
Attention: Xxxxx X. Xxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
with a copy to:
Xxxxx Xxxxxx, Esquire
Xxxxxxxxx Xxxxxxx Xxxxx Xxxxxx LLP
0000 Xxxx Xxxxxx, Xxxxx 0000
Xxxxxx Xxxx, Xxxxxxxx 00000
Telephone (000) 000-0000
Facsimile: (000) 000-0000
Either party may change its address by giving ten (10) days advance
written notice to the other party.
Section 11. Interpretation. Capitalized terms used herein without definition
herein have the meanings given to them in the Agreement.
Section 12. Subrogation. Upon payment of all of the Obligations owing to Seller
and Elecsys, Guarantor shall be subrogated to the rights of Seller and Elecsys
against Buyer, and
Seller and Elecsys agree to take, at Guarantor's expense, such steps as
Guarantor may reasonably request to implement such subrogation.
IN WITNESS WHEREOF, the undersigned has executed this Guaranty as of the
date and year first above written.
GUARANTOR:
XXXXXX XXXXXXX SYSTEMS LIMITED
By:
Name:-------------------------------
Title:
SELLER:
AIRPORT SYSTEMS INTERNATIONAL, INC.
By:
Name: ---------------------------
Title:
ELECSYS CORPORATION
By:
Name: --------------------------------
Title:
