EXHIBIT 2.2
STOCK AND INTELLECTUAL PROPERTY PURCHASE AGREEMENT, dated as of
December 13, 2004, among XXXXX XXXXXXXX, SCHLATTL GBR, a German partnership
("SCHLATTL GBR" and, together with Xxxxx Xxxxxxxx, the "SELLERS"), ADVANCED
TECHNOLOGY INDUSTRIES, INC., a Delaware corporation ("PURCHASER"), XXXXXXX
XXXXXXXXX, XXXXXXX XXXXXXXX and XXXXX XXXXXXXX.
WHEREAS, Alfa-Pro Products GmbH, a corporation organized
pursuant to the Gesetz betreffend die Gesellschaften mit beschrankter Haftung of
the Federal Republic of Germany ("ALFA-PRO"), Xxxxx Xxxxxxxx and Purchaser (a)
previously entered into an Asset Purchase Agreement dated as of June 28, 2003
(the "ORIGINAL AGREEMENT") and (b) desire to terminate the Original Agreement
and enter into this Agreement;
WHEREAS, Xxxxx Xxxxxxxx owns all of the capitalization of
Alfa-Pro consisting of 1 share (the "SHARE") in the nominal amount of 25,000
Euros;
WHEREAS, Xxxxx Xxxxxxxx is the managing director with powers
of sole representation of Alfa-Pro and has been released from the restrictions
of Section 181 of the German Civil Code;
WHEREAS, Xxxxx Xxxxxxxx desires to sell to Purchaser, and
Purchaser desires to purchase from Xxxxx Xxxxxxxx, the Share, upon the terms and
subject to the conditions of this Agreement;
WHEREAS, Schlattl GBR desires to sell to Purchaser, and
Purchaser desires to purchase from Schlattl GBR, the Schlattl GBR Acquired
Intellectual Property (as defined in Section 1.02), upon the terms and subject
to the conditions of this Agreement;
WHEREAS, Xxxxxxx Xxxxxxxxx, Xxxxxxx Xxxxxxxx, Xxxxx Xxxxxxxx
and Xxxxx Xxxxxxxx (collectively, the "SCHLATTL GBR OWNERS") are the only
members of Schlattl GBR;
WHEREAS, Purchaser is a party to the Amended and Restated
Agreement and Plan of Merger dated as of August 11, 2004 (the "MERGER
AGREEMENT") among Purchaser, LTDN Acquisition Corp. and LTDnetwork, Inc.; and
WHEREAS, the Closing (as defined in Section 2.01) is occurring
immediately prior to the consummation of the Merger (as defined in the Merger
Agreement).
NOW, THEREFORE, in consideration of the foregoing and the
representations, warranties and covenants herein contained, the parties hereto,
intending to be legally bound, hereby agree as follows:
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ARTICLE I.
PURCHASE AND SALE OF THE SHARE AND SCHLATTL GBR ACQUIRED INTELLECTUAL PROPERTY
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SECTION 1.01. PURCHASE AND SALE. (a) Xxxxx Xxxxxxxx hereby
sells, assigns, transfers and delivers to Purchaser, and Purchaser hereby
purchases from Xxxxx Xxxxxxxx, the Share in consideration for (i) 43,600 shares
(the "ALFA-PRO SHARES") of series A preferred stock, $0.001 par value, of
Purchaser ("PURCHASER PREFERRED STOCK") and (ii) an amount equal to the amount
loaned by Xxxxx Xxxxxxx to Alfa-Pro as evidenced in the books of Alfa-Pro and as
determined in accordance with Section 2.04, such amount not to exceed $90,000
(the "CASH CONSIDERATION AMOUNT") and (b) Schlattl GBR hereby sells, assigns,
transfers, conveys and delivers to Purchaser, and Purchaser hereby purchases
from Schlattl GBR all the right, title and interest of Schlattl GBR in, to and
under the Schlattl GBR Acquired Intellectual Property in consideration for 6,400
shares of Purchaser Preferred Stock (the "SCHLATTL GBR SHARES" and, together
with the Alfa-Pro Shares, the "CONSIDERATION SHARES"). The purchase and sale of
the Share and the Schlattl GBR Acquired Intellectual Property is referred to in
this Agreement as the "ACQUISITION".
SECTION 1.02. ACQUIRED INTELLECTUAL PROPERTY. (a) The term
"ACQUIRED INTELLECTUAL PROPERTY" of a person means the following:
(i) all patents (including all reissues, divisions,
continuations and extensions thereof), patent applications,
patent rights, trademarks, trademark registrations, trademark
applications, servicemarks, trade names, business names, brand
names, internet domain names, copyrights, copyright
registrations, designs, design registrations, and all rights
to any of the foregoing ("INTELLECTUAL PROPERTY") of a person;
and
(ii) all trade secrets, confidential information,
inventions, know-how, formulae, processes, procedures,
research records, records of inventions, test information,
market surveys and marketing know-how of a person.
(b) The term "SCHLATTL GBR ACQUIRED INTELLECTUAL PROPERTY"
means all Acquired Intellectual Property of Schlattl GBR, including the
Intellectual Property set forth on Schedule 1.02(b).
(c) Purchaser is acquiring the Share free and clear of all
Liens (as defined in Section 3.04). Purchaser is acquiring the Schlattl GBR
Acquired Intellectual Property free and clear of all liabilities, obligations
and commitments of Schlattl GBR and the Schlattl GBR Owners and free and clear
of all Liens.
SECTION 1.03. RELEASE. In consideration of the mutual promises
and other consideration set forth in this Agreement, and for other good and
valuable consideration, the adequacy and receipt of which is hereby
acknowledged, each of the Sellers and the Schlattl GBR Owners, on behalf of
themselves and their respective affiliates, administrators, heirs, executors,
representatives and assigns, as well as for anyone else who may claim by or
through them or in any other way on behalf of them (collectively, the
"RELEASORS") hereby releases and discharges Purchaser and its affiliates and
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Purchaser's and such affiliates' past and present officers, directors,
employees, shareholders, parent entities, subsidiaries, divisions, heirs,
administrators, executors, partners, general partners, limited partners,
members, managing members, agents, advisors, attorneys, accountants, investment
bankers, representatives, predecessors, successors and assigns (collectively,
the "RELEASEES") from any and all actions, causes of action, suits, debts, dues,
sums of money, accounts, reckonings, bonds, bills, specialities, covenants,
contracts, controversies, agreements, promises, variances, trespasses, damages,
judgments, extents, executions, claims (including any derivative claims on
behalf of Purchaser or any other person), and demands whatsoever, in law or
equity, known and unknown, against the Releasees, which the Releasors ever had,
now have or hereafter can, shall or may, have for, upon, by reason of, or
arising out of any matter whatsoever from the beginning of the world to the date
hereof, including any claims with respect to the (1) purchase by Purchaser of
Cetoni and (2) Patent Maintenance and Development Contract among Purchaser,
Schlattl GBR and the Schlattl GBR Owners, except for matters arising out of any
obligations under this Agreement.
ARTICLE II.
THE CLOSING
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SECTION 2.01. CLOSING DATE. The closing of the Acquisition
(the "CLOSING") is taking place at Passau, Germany immediately prior to the
consummation of the Merger.
SECTION 2.02. TRANSACTIONS BEING EFFECTED AT THE CLOSING. At
the Closing:
(a) Xxxxx Xxxxxxxx is delivering to Purchaser:
(i) A copy of the notarized contract evidencing the
transfer and assignment of the Share which will be filed with
notary Xx. Xxxxxxxxx Xxxxxx, Passau, formerly notary Xx.
Xxxxxxxx, authenticated under German law;
(ii) Certificate URNr. 1483/1999 filed by notary Xx.
Xxxxxxxx, Passau, evidencing the Share;
(iii) written releases and waivers that all Liens
imposed on Alfa-Pro and its assets have been removed; and
(iv) certificates evidencing the valid existence of
Alfa-Pro.
(b) Schlattl GBR is delivering to Purchaser:
(i) written releases and waivers that all Liens
imposed on the Schlattl GBR Acquired Intellectual Property
have been removed; and
(ii) certificates evidencing the valid existence of
Schlattl GBR and evidence of the authority of Schlattl GBR to
execute and perform this Agreement.
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SECTION 2.03. SHARE CERTIFICATES. Within 10 business days
following the Closing, Purchaser shall deliver to Xxxxx Xxxxxxxx certificates in
definitive form registered in the name of Xxxxx Xxxxxxxx, evidencing the
Alfa-Pro Shares. Within 10 business days following the receipt by Purchaser of
evidence that the transfer of the Schlattl GBR Acquired Intellectual Property
that constitutes Seller Registered Intellectual Property (as defined in Section
3.05) has been made with each applicable Governmental Entity in which such
Seller Registered Intellectual Property is registered or registrations have been
applied for, Purchaser shall deliver to Schlattl GBR certificates in definitive
form registered in the name of Schlattl GBR, evidencing the Schlattl GBR Shares.
Each certificate representing the Consideration Shares and any other securities
issued in respect of the Consideration Shares upon any conversion, stock split,
stock dividend, recapitalization, merger, consolidation or similar event, shall
(unless otherwise permitted or unless the securities evidenced by such
certificate shall have been registered under the Securities Act (as defined in
Section 3.07)) be stamped or otherwise imprinted with a legend substantially in
the following form (in addition to any legend required under applicable state
securities laws):
"THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933 OR ANY STATE SECURITIES LAWS. THESE
SHARES MAY NOT BE SOLD OR OFFERED FOR SALE IN THE ABSENCE OF SUCH
REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT
TO, SUCH REGISTRATION."
SECTION 2.04. PAYMENT OF CASH CONSIDERATION AMOUNT. Purchaser
shall pay to Xxxxx Xxxxxxxx the Cash Consideration Amount if within 180 days
following the Closing Xxxxx Xxxxxxxx prepares and delivers to Purchaser a
statement (the "ALFA-PRO STATEMENT") certified by independent auditors of
Alfa-Pro acceptable to Purchaser setting forth the amount loaned by Xxxxx
Xxxxxxxx to Alfa-Pro which is unpaid as of the Closing. Purchaser shall, on the
later of (x) 180 days following the Closing and (y) 10 business days following
the receipt by Purchaser of the Alfa-Pro Statement, pay to Xxxxx Xxxxxxxx by
wire transfer, to a bank account designated in writing by Xxxxx Xxxxxxxx,
immediately available funds equal to the Cash Consideration Amount.
ARTICLE III.
REPRESENTATIONS AND WARRANTIES OF THE SELLERS AND THE SCHLATTL GBR OWNERS
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Each Seller and the Schlattl GBR Owners hereby jointly and
severally represent and warrant to Purchaser as follows:
SECTION 3.01. ORGANIZATION STANDING AND POWER. Each of
Alfa-Pro and Schlattl GBR is duly organized, validly existing and in good
standing under the laws of the Federal Republic of Germany and has full power
and authority and possesses all governmental franchises, licenses, permits,
authorizations and approvals necessary to enable it to own, lease or otherwise
hold its properties and assets and to conduct its businesses as presently
conducted.
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SECTION 3.02. AUTHORITY; EXECUTION AND DELIVERY;
ENFORCEABILITY. Each of the Sellers and the Schlattl GBR Owners have full power
and authority to execute this Agreement and to consummate the Acquisition and
the other transactions contemplated hereby. The execution and delivery by each
of the Sellers and the Schlattl GBR Owners of this Agreement and the
consummation by each of the Sellers and the Schlattl GBR Owners of the
Acquisition and the other transactions contemplated hereby have been duly
authorized by all necessary action. Each of the Sellers and the Schlattl GBR
Owners have duly executed and delivered this Agreement and this Agreement
constitutes each Sellers' or the Schlattl GBR Owners', as the case may be,
legal, valid and binding obligation, enforceable against such party in
accordance with its terms.
SECTION 3.03. NO CONFLICTS; CONSENTS. The execution and
delivery by each of the Sellers and the Schlattl GBR Owners of this Agreement,
the consummation of the Acquisition and the other transactions contemplated
hereby and compliance by each of the Sellers and the Schlattl GBR Owners with
the terms hereof do not conflict with, or result in any violation of or default
(with or without notice or lapse of time, or both) under, or give rise to a
right of termination, cancellation or acceleration of any obligation or to loss
of a benefit under, or to increased, additional, accelerated or guaranteed
rights or entitlements of any person under, or result in the creation of any
Lien upon any of the properties or assets of Alfa-Pro or Schlattl GBR under, any
provision of (i) the organizational documents of Alfa-Pro or Schlattl GBR, as
the case may be, (ii) any agreement, contract, instrument or understanding to
which Alfa-Pro, Schlattl GBR or a Schlattl GBR Owner is a party or by which any
of their respective properties or assets is bound or (iii) any judgment, order
or decree ("JUDGMENT") or statute, law (including common law), ordinance, rule
or regulation ("APPLICABLE LAW") applicable to Alfa-Pro, Schlattl GBR or a
Schlattl GBR Owner or their respective properties or assets. No consent,
approval, license, permit, order or authorization ("CONSENT") of, or
registration, declaration or filing with, any Federal, state, local or foreign
government or any court of competent jurisdiction, administrative agency or
commission or other governmental authority or instrumentality, domestic or
foreign (a "GOVERNMENTAL Entity") is required to be obtained or made by or with
respect to any of Alfa-Pro, Schlattl GBR or the Schlattl GBR Owners in
connection with the execution, delivery and performance of this Agreement or the
consummation of the Acquisition or the other transactions contemplated hereby.
SECTION 3.04. LIENS. Alfa-Pro has good and valid title to all
the Intellectual Property set forth on Schedule 3.05, in each case free and
clear of all mortgages, liens, security interests, charges, easements, leases,
subleases, covenants, rights of way, options, claims, restrictions or
encumbrances of any kind (collectively, "LIENS"). Schlattl GBR has good and
valid title to all the Schlattl GBR Acquired Intellectual Property, in each case
free and clear of all Liens.
SECTION 3.05. INTELLECTUAL PROPERTY. To the best knowledge of
the Schlattl GBR Owners, Schedule 3.05 sets forth an unaudited list of all
Intellectual Property owned by Alfa-Pro. To the best knowledge of the Schlattl
GBR Owners, Schedule 1.02(b) sets forth an unaudited list of all Intellectual
Property owned by Schlattl GBR. With respect to all Intellectual Property owned
by Alfa-Pro and Schlattl GBR Acquired Intellectual Property that is the subject
of an application, certificate, filing, registration, or other documents issued
by, filed with, or recorded by, any Governmental Entity (the "SELLER REGISTERED
INTELLECTUAL PROPERTY"), to the best knowledge of the Schlattl GBR Owners,
Schedule 1.02(b) and Schedule 3.05, as the case may be, sets forth a list of all
jurisdictions in which such Seller Registered Intellectual Property has been
issued or is registered or registrations applied for and all registration and
application numbers.
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SECTION 3.06. CAPITALIZATION. Xxxxx Xxxxxxxx is the record and
beneficial owner of all the Share, free and clear of all Liens. Other than the
Share, no equity interests, or securities convertible or exchangeable into
equity interests, of Alfa-Pro are outstanding. There are no agreements,
contracts, instruments or understandings, relating to the issuance, sale or
transfer of any equity interests, or securities convertible or exchangeable into
equity interests, of Alfa-Pro. Alfa-Pro owns no equity interests in any entity.
The Schlattl GBR Owners are the record and beneficial owners of all equity
interests, and securities convertible or exchangeable into equity interests, of
Schlattl GBR, free and clear of all Liens. There are no agreements, contracts,
instruments or understandings, relating to the issuance, sale or transfer of any
equity interests, or securities convertible or exchangeable into equity
interests, of Schlattl GBR.
SECTION 3.07. RESTRICTED SHARES. (a) None of the Sellers or
the Schlattl GBR Owners is (x) a "U.S. Person" as that term is defined in
Regulation S promulgated under the Securities Act of 1933 (as amended, the
"SECURITIES ACT") or (y) acquiring any Consideration Shares for the account or
benefit of a U.S. Person. Under Regulation S, with certain exceptions, "U.S.
Person" means: (i) any natural person resident in the U.S.; (ii) any partnership
or corporation organized or incorporated under the laws of the U.S.; (iii) any
estate of which any executor or administrator is a U.S. person; (iv) any trust
of which any trustee is a U.S. person; (v) any agency or branch of a foreign
entity located in the U.S.; (vi) any non-discretionary account or similar
account (other than an estate or trust) held by a dealer or other fiduciary for
the benefit or account of a U.S. person; (vii) any discretionary account or
similar account (other than an estate or trust) held by a dealer or other
fiduciary organized, incorporated, or (if an individual) resident in the U.S.;
and (viii) any partnership or corporation if: (A) organized or incorporated
under the laws of any foreign jurisdiction; and (B) formed by a U.S. person
principally for the purpose of investing in securities not registered under the
Securities Act, unless it is organized or incorporated and owned by accredited
investors (as defined in Rule 501(a) under the Securities Act) who are not
natural persons, estates or trusts.
(b) Each of the Sellers and the Schlattl GBR Owners
acknowledges and understands that the Consideration Shares constitute a
"restricted security" under the Securities Act and have not been registered
under the Securities Act in reliance upon specific exemption therefrom, which
exemption depends upon, among other things, the bona fide nature of Sellers'
representations as expressed herein. Each of the Sellers and the Schlattl GBR
Owners further understands that the Consideration Shares must be held
indefinitely unless they are subsequently registered under the Securities Act or
an exemption from such registration is available. Moreover, each of the Sellers
and the Schlattl GBR Owners understands that Purchaser is under no obligation to
register the Consideration Shares. Each of the Sellers and the Schlattl GBR
Owners understands that the certificates evidencing the Consideration Shares
will be imprinted with a legend as described in Section 2.03 which prohibits the
transfer of the Consideration Shares unless they are registered or such
registration is not required.
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(c) Each of the Sellers and the Schlattl GBR Owners
acknowledges that such party has had access to all of the filings of Purchaser
filed under Section 13(a) of the Securities Exchange Act of 1934 (as amended,
the "EXCHANGE ACT") with the Securities and Exchange Commission (the "SEC")
since December 31, 2001. Each of the Sellers and the Schlattl GBR Owners has
been given the opportunity to ask questions of, and to receive answers from,
Purchaser concerning the terms and conditions of the acquisition of the
Consideration Shares and related matters and to obtain all additional
information which each of the Sellers and the Schlattl GBR Owners deems
necessary.
SECTION 3.08. LIABILITIES. Neither Seller has any liabilities
or obligations (whether accrued, absolute, contingent, unasserted or otherwise)
of any nature, except for liabilities and obligations in an amount not in excess
of 20,000 Euros in the aggregate. Neither Seller has, either voluntarily or
involuntarily, (a) filed or consented to the filing against it of a petition to
take advantage of any insolvency act, (b) made an assignment for the benefit of
its creditors, (c) consented to the appointment of a receiver for itself, (d)
had a petition in bankruptcy filed against it or (e) been adjudged a bankrupt.
ARTICLE IV.
REPRESENTATIONS AND WARRANTIES OF PURCHASER
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Purchaser hereby represents and warrants to each Seller and
the Schlattl GBR Owners as follows:
SECTION 4.01. ORGANIZATION, STANDING AND POWER. Purchaser is
duly organized, validly existing and in good standing under the laws of the
State of Delaware and has full corporate power and authority to enable it to
own, lease or otherwise hold its properties and assets and to carry on its
business as presently conducted.
SECTION 4.02. AUTHORITY; EXECUTION AND DELIVERY; AND
ENFORCEABILITY. Purchaser has full power and authority to execute this Agreement
and to consummate the Acquisition and the other transactions contemplated
hereby. The execution and delivery by Purchaser of this Agreement and the
consummation by Purchaser of the Acquisition and the other transactions
contemplated hereby have been duly authorized by all necessary corporate action.
Purchaser has duly executed and delivered this Agreement and this Agreement
constitutes its legal, valid and binding obligation, enforceable against it in
accordance with its terms.
SECTION 4.03. NO CONFLICTS; CONSENTS. The execution and
delivery by Purchaser of this Agreement, the consummation of the Acquisition and
the other transactions contemplated hereby and compliance by Purchaser with the
terms hereof do not conflict with, or result in any violation of or default
(with or without notice or lapse of time, or both) under, or give rise to a
right of termination, cancellation or acceleration of any obligation or to loss
of a material benefit under, any provision of (i) the certificate of
incorporation or by-laws of Purchaser, (ii) any agreement, contract, instrument
or understanding to which Purchaser is a party or by which any of its properties
or assets is bound or (iii) any Judgment or Applicable Law applicable to
Purchaser or its properties or assets. No Consent of or registration,
declaration or filing with any Governmental Entity is required to be obtained or
made by or with respect to Purchaser in connection with the execution, delivery
and performance of this Agreement or the consummation of the Acquisition or the
other transactions contemplated hereby, other than compliance with and filings
under Section 13(a) of the Exchange Act.
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SECTION 4.04. CONSIDERATION SHARES. The Consideration Shares,
when issued in accordance with this Agreement, shall be duly authorized, validly
issued, fully paid and nonassessable.
ARTICLE V.
COVENANTS
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SECTION 5.01. FURTHER ASSURANCES AND COOPERATION. From time to
time, as and when requested by Purchaser, each of the Sellers and the Schlattl
GBR Owners shall execute and deliver, or cause to be executed and delivered, all
such documents and instruments and shall take, or cause to be taken, all such
further actions, as Purchaser may reasonably deem necessary or desirable to
consummate the transactions contemplated by this Agreement, including, executing
and delivering to Purchaser such assignments, consents and other instruments as
Purchaser may reasonably request as necessary or desirable for such purpose. The
Schlattl GBR Owners will each use their respective best efforts to cooperate
with and provide any information and representation letters requested by the
auditors selected by Purchaser in connection with the preparation by such
auditors of audited financial statements of Alfa-Pro and with respect to the
Schlattl GBR Acquired Intellectual Property to the extent such financial
statements are required to be filed by Purchaser with the SEC to comply with the
rules and regulations of the SEC.
SECTION 5.02. CONFIDENTIAL INFORMATION. Each of the Sellers
and the Schlattl GBR Owners shall maintain as confidential any confidential
information (including, trade secrets) of Alfa-Pro and with respect to the
Schlattl GBR Acquired Intellectual Property.
SECTION 5.03. INTELLECTUAL PROPERTY ASSIGNMENT. In
consideration of the mutual promises and other consideration set forth in this
Agreement and at no additional cost to Purchaser or any of its subsidiaries
(provided that Purchaser shall pay any out of pocket filing or other
governmental fees required, and any reasonable legal fees incurred, in
connection with any such assignment), each of the Schlattl GBR Owners hereby
assigns and agrees to assign to Purchaser such person's full right, title and
interest in and to the Inventions (as defined below) of such person. Each of the
Schlattl GBR Owners agree that such person will promptly disclose to Purchaser
any and all such Inventions, and that, upon the reasonable request of Purchaser,
such person will execute and deliver any and all documents or instruments and
take any other action which Purchaser shall deem necessary to assign to and vest
completely in Purchaser, to perfect trademark, copyright and patent protection
with respect to, or to otherwise protect Purchaser's and its subsidiaries' trade
secrets and proprietary interest in such Inventions. The obligations of this
Section 5.03 shall continue beyond the termination of the Assignment Period (as
defined below) with respect to such Inventions conceived of, reduced to
practice, or developed by such person during the Assignment Period. Without
limiting the foregoing, any Invention disclosed by any such person to third
parties within one year following the end of the Assignment Period shall be
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deemed to be Purchaser's property unless proven by such person to the
satisfaction of Purchaser to have been conceived and made following the
Assignment Period. The term "INVENTIONS" with respect to a person means any and
all right or interest such person obtains in any designs, trade secrets,
technical specifications, software programs, software and systems documentation,
design, flowcharts, logic diagrams, software methodologies and algorithms,
technical data, know-how, inventions, concepts, ideas, expressions, discoveries,
improvements and patent or patent rights which are authored, conceived, devised,
developed, reduced to practice, or otherwise obtained by such person until the
fifth anniversary of the date of this Agreement (the "ASSIGNMENT PERIOD").
SECTION 5.04. COMMERCIALIZATION OF INTELLECTUAL PROPERTY. In
consideration of the mutual promises and other consideration set forth in this
Agreement and at no additional cost to Purchaser or any of its subsidiaries,
from time to time, as and when requested by Purchaser, the Schlattl GBR Owners
shall take, or cause to be taken, all actions as Purchaser may request in
connection with the development, marketing or commercialization of the assets of
Alfa-Pro, the Schlattl GBR Acquired Intellectual Property and the Inventions,
including meeting with potential licensees or purchasers of the assets of
Alfa-Pro, the Schlattl GBR Acquired Intellectual Property or the Inventions and
providing advice and assistance with respect to the production and manufacture
of any products based on the assets of Alfa-Pro, the Schlattl GBR Acquired
Intellectual Property or the Inventions.
ARTICLE VI.
INDEMNIFICATION
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SECTION 6.01. INDEMNIFICATION BY THE SELLERS AND THE SCHLATTL
GBR OWNERS. Each of the Sellers and the Schlattl GBR Owners, jointly and
severally, shall indemnify Purchaser and its affiliates and each of their
respective officers, directors, employees, stockholders, agents and
representatives against, and hold them harmless from, any loss, liability,
claim, damage or expense (including reasonable legal fees and expenses)
("LOSSES"), as incurred (payable promptly upon written request), arising from,
in connection with or otherwise with respect to (i) any breach of any
representation or warranty of a Seller or the Schlattl GBR Owners that is
contained in this Agreement and (ii) any breach of any covenant of a Seller or
the Schlattl GBR Owners contained in this Agreement.
SECTION 6.02. INDEMNIFICATION BY PURCHASER. Purchaser shall
indemnify each Seller and its affiliates and each of their respective officers,
directors, employees, stockholders, agents and representatives against, and
agrees to hold them harmless from, any Loss, as incurred (payable promptly upon
written request), for or on account of or arising from or in connection with or
otherwise with respect to (i) any breach of any representation or warranty of
Purchaser contained in this Agreement and (ii) any breach of any covenant of
Purchaser contained in this Agreement.
SECTION 6.03. CLAIMS. In the event any indemnified party
should have a claim against any indemnifying party under Section 6.01 or 6.02,
the indemnified party shall deliver notice of such claim with reasonable
promptness to the indemnifying party. The failure by any indemnified party to so
notify the indemnifying party shall not relieve the indemnifying party from any
liability that it may have to such indemnified party under Section 6.01 or 6.02,
except to the extent that the indemnifying party demonstrates that it has been
materially prejudiced by such failure. If the indemnifying party does not notify
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the indemnified party within 10 calendar days following its receipt of such
notice that the indemnifying party disputes its liability to the indemnified
party under Section 6.01 or 6.02, such claim specified by the indemnified party
in such notice shall be conclusively deemed a liability of the indemnifying
party under Section 6.01 or 6.02 and the indemnifying party shall pay the amount
of such liability to the indemnified party on demand or, in the case of any
notice in which the amount of the claim (or any portion thereof) is estimated,
on such later date when the amount of such claim (or such portion thereof)
becomes finally determined. If the indemnifying party has timely disputed its
liability with respect to such claim, as provided above, the indemnifying party
and the indemnified party shall proceed in good faith to negotiate a resolution
of such dispute and, if not resolved through negotiations, such dispute shall be
resolved by litigation in an appropriate court of competent jurisdiction.
ARTICLE VII.
GENERAL PROVISIONS
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SECTION 7.01. ASSIGNMENT. This Agreement and the rights and
obligations hereunder shall not be assignable or transferable by either Seller
or the Schlattl GBR Owners without the prior written consent of the other
parties hereto and any attempted assignment in violation of this Section 7.01
shall be void. ATI may assign any rights hereunder without the consent of any
other party hereto.
SECTION 7.02. AMENDMENTS AND WAIVERS. This Agreement may not
be amended except by an instrument in writing signed on behalf of each of the
parties hereto. By an instrument in writing Purchaser, on the one hand, or the
Sellers and the Schlattl GBR Owners, on the other hand, may waive compliance by
the other party with any term or provision of this Agreement that such other
party was or is obligated to comply with or perform.
SECTION 7.03. NO THIRD-PARTY BENEFICIARIES. Except as provided
in Article VI, this Agreement is for the sole benefit of the parties hereto and
their permitted assigns and nothing herein expressed or implied shall give or be
construed to give to any person, other than the parties hereto and such assigns,
any legal or equitable rights hereunder.
SECTION 7.04. ATTORNEY FEES. A party in breach of this
Agreement shall, on demand, indemnify and hold harmless the other party for and
against all reasonable out-of-pocket expenses, including legal fees, incurred by
such other party by reason of the enforcement and protection of its rights under
this Agreement. The payment of such expenses is in addition to any other relief
to which such other party may be entitled.
SECTION 7.05. NOTICES. All notices or other communications
required or permitted to be given hereunder shall be in writing and shall be
delivered by hand or sent by facsimile or sent, postage prepaid, by registered,
certified or express mail or reputable overnight courier service and shall be
deemed given when so delivered by hand or facsimile, or if mailed, three days
after mailing (one business day in the case of express mail or overnight courier
service), as follows:
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(i) if to Purchaser,
Advanced Technology Industries, Inc.
0000 Xxxx Xxxxxx, Xxx 0000
Xxxxxx, XX 00000
Attention: Xxxxx Xxxxxxxxx
(ii) if to either Seller or a Schlattl GBR Owner,
Xxxxxxxxxxxx 0
00000 Xxxxxxxxx
Xxxxxxx
Attention: Xxxxx Xxxxxxxx
SECTION 7.06. INTERPRETATION; SCHEDULES; CERTAIN DEFINITIONS.
(a) The headings contained in this Agreement and in any Schedule hereto are for
reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement. All Schedules annexed hereto or referred to
herein are hereby incorporated in and made a part of this Agreement as if set
forth in full herein. Any capitalized terms used in any Schedule but not
otherwise defined therein, shall have the meaning as defined in this Agreement.
When a reference is made in this Agreement to a Section or Schedule, such
reference shall be to a Section of, or a Schedule to, this Agreement unless
otherwise indicated.
(b) For all purposes hereof:
"affiliate" of any person means another person that directly
or indirectly, through one or more intermediaries, controls, is controlled by,
or is under common control with, such first person.
"including" means including, without limitation.
"person" means any individual, firm, corporation, partnership,
limited liability company, trust, joint venture, Governmental Entity or other
entity.
"subsidiary" of any person means another person, an amount of
the voting securities, other voting ownership or voting partnership interests of
which is sufficient to elect at least a majority of its Board of Directors or
other governing body (or, if there are no such voting interests, 50% or more of
the equity interests of which) is owned directly or indirectly by such first
person.
SECTION 7.07. COUNTERPARTS. This Agreement may be executed in
one or more counterparts, all of which shall be considered one and the same
agreement, and shall become effective when one or more such counterparts have
been signed by each of the parties and delivered to the other party.
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SECTION 7.08. ENTIRE AGREEMENT. This Agreement, along with the
Schedules hereto, contain the entire agreement and understanding between the
parties hereto with respect to the subject matter hereof and supersede all prior
agreements and understandings relating to such subject matter. Alfa-Pro, Xxxxx
Xxxxxxxx and Purchaser hereby agree to terminate the Original Agreement.
SECTION 7.09. SEVERABILITY. If any provision of this Agreement
(or any portion thereof) or the application of any such provision (or any
portion thereof) to any person or circumstance shall be held invalid, illegal or
unenforceable in any respect by a court of competent jurisdiction, such
invalidity, illegality or unenforceability shall not affect any other provision
hereof (or the remaining portion thereof) or the application of such provision
to any other persons or circumstances.
SECTION 7.10. CONSENT TO JURISDICTION. Each of the Sellers and
the Schlattl GBR Owners irrevocably submits to the exclusive jurisdiction of (a)
the Delaware Court of Chancery and (b) the United States District Court for the
District of Delaware, for the purposes of any suit, action or other proceeding
arising out of this Agreement or any transaction contemplated hereby. Each of
the Sellers and the Schlattl GBR Owners agrees to commence any such action, suit
or proceeding either in the United States District Court for the District of
Delaware or if such suit, action or other proceeding may not be brought in such
court for jurisdictional reasons, in the Delaware Court of Chancery. Each of the
Sellers and the Schlattl GBR Owners further agrees that service of any process,
summons, notice or document by U.S. registered mail to such party's respective
address set forth above shall be effective service of process for any action,
suit or proceeding in Delaware with respect to any matters to which it has
submitted to jurisdiction in this Section 7.10. Each of the Sellers and the
Schlattl GBR Owners irrevocably and unconditionally waives any objection to the
laying of venue of any action, suit or proceeding arising out of this Agreement
or the transactions contemplated hereby and thereby in (i) the Delaware Court of
Chancery or (ii) the United States District Court for the District of Delaware,
and hereby and thereby further irrevocably and unconditionally waives and agrees
not to plead or claim in any such court that any such action, suit or proceeding
brought in any such court has been brought in an inconvenient forum.
SECTION 7.11. GOVERNING LAW. This Agreement, and all claims
arising hereunder or relating hereto, shall be governed by and construed in
accordance with the internal laws of the State of Delaware applicable to
agreements made and to be performed entirely within such State, without regard
to the conflicts of law principles of such State.
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IN WITNESS WHEREOF, Xxxxx Xxxxxxxx, Schlattl GBR, Xxxxxxx
Xxxxxxxxx, Xxxxxxx Xxxxxxxx, Xxxxx Xxxxxxxx and Purchaser have duly executed
this Agreement as of the date first written above.
/s/ Xxxxx Xxxxxxxx
------------------------
Xxxxx Xxxxxxxx
/s/ Xxxxxxx Xxxxxxxxx
------------------------
Xxxxxxx Xxxxxxxxx
/s/ Xxxxxxx Xxxxxxxx
------------------------
Xxxxxxx Xxxxxxxx
/s/ Xxxxx Xxxxxxxx
------------------------
Xxxxx Xxxxxxxx
ADVANCED TECHNOLOGY INDUSTRIES, INC.
by /s/ Xxxx-Xxxxxxx Xxxxxxxxx
--------------------------
Name:
Title:
SCHLATTL GBR,
by /s/ Xxxxx Xxxxxxxx
------------------------
Xxxxx Xxxxxxxx, on behalf of Schlattl GBR
/s/ Xxxxxxx Xxxxxxxxx
------------------------
Xxxxxxx Xxxxxxxxx, on behalf of Schlattl GBR
/s/ Xxxxxxx Xxxxxxxx
------------------------
Xxxxxxx Xxxxxxxx, on behalf of Schlattl GBR
/s/ Xxxxx Xxxxxxxx
------------------------
Xxxxx Xxxxxxxx, on behalf of Schlattl GBR
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