4
292354-8
EXHIBIT 2.1
ASSET PURCHASE AGREEMENT
by and between
GE TRANSPORTATION SYSTEMS GLOBAL SIGNALING, LLC
and
XxXxxxx-OCS, Inc.
Dated as of November 1, 2002
ASSET PURCHASE AGREEMENT
This Asset Purchase Agreement ("Agreement"), dated as of November 1, 2002,
is made and entered into by and between GE Transportation Systems Global
Signaling, LLC, a Delaware limited liability company (the "Purchaser"), and
XxXxxxx-OCS, Inc., a Delaware corporation (the "Company"). The Purchaser and the
Company are sometimes individually referred to herein as a "Party" and
collectively as the "Parties." XxXxxxx, Inc., a Delaware corporation
("XxXxxxx"), hereby joins in this Agreement for the sole purpose of providing
the representations and warranties contained in Article V of this Agreement and
delivering the Guaranty Agreement described in Section 2.7 of this Agreement.
A. The Company manufactures products and provides services for use in its
Railroad Segment Business (as defined herein) through the Company's Network
Technologies Group ("NTG").
B. The Parties desire to enter into this Agreement pursuant to which the
Company sells to the Purchaser, and the Purchaser purchases from the Company,
the Company's assets used in its Railroad Segment Business,
subject to a royalty-
free, perpetual license back to the Company allowing the Company to use the
technology included in such assets outside of the Railroad Segment, and the
Purchaser assumes certain of the liabilities and obligations of the Company
(collectively, the "Acquisition").
C. The Parties desire to make certain representations, warranties and
agreements in connection with the Acquisition.
NOW, THEREFORE, in consideration of the foregoing and the respective
representations, warranties, covenants, agreements and conditions hereinafter
set forth, and intending to be legally bound hereby, the Parties agree as
follows:
ARTICLE I
DEFINITIONS
SECTION 1.1 Definitions. The following terms, as used herein, have the
following meanings:
"Affiliate" means, with respect to any Person, any other Person
directly or indirectly controlling, controlled by, or under common control
with such other Person. For purposes of this definition, "control," when
used with respect to any specified Person, means the power to direct the
management and policies of such Person, directly or indirectly, whether
through the ownership of voting securities, by contract or otherwise; and
the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Associate," with respect to any Person, means (i) any corporation or
organization (other than a majority-owned subsidiary) of which such Person
is an officer or partner or is, directly or indirectly, the beneficial
owner of 10% or more of any class of equity securities (ii) any trust or
other estate in which such Person has a substantial beneficial interest or
as to which such Person serves as trustee or in a similar fiduciary
capacity, and (iii) any relative or spouse of such Person, or any relative
of such spouse, who has the same home as such Person or who is a director
or officer of an entity or any of its parents or subsidiaries.
"Business Day" means any day except Saturday, Sunday or any day on
which banks are generally not open for business in the City of New York.
"CERCLA" means the Comprehensive Environmental Response, Compensation
and Liability Act of 1980, as amended, and any rules or regulations
promulgated thereunder.
"Environmental Laws" means any federal, state, local or foreign law
(including, without limitation, common law), treaty, judicial decision,
regulation, rule, judgment, order, decree, injunction, permit or
governmental restriction or any agreement with any governmental authority
or other third party, whether now or hereafter in effect, relating to the
environment, human health and safety or to pollutants, contaminants,
wastes or chemicals or any toxic, radioactive, ignitable, corrosive,
reactive or otherwise hazardous substances, wastes or materials.
"Environmental Liabilities" means any and all liabilities arising in
connection with or in any way relating to the Company (or any predecessor
of the Company or any prior owner of all or part of its business and
assets), any property now or previously owned, leased or operated by the
Company, the Business (as currently or previously conducted), or the Assets
(including, without limitation, offsite disposal), whether accrued,
contingent, absolute, determined, determinable or otherwise, which (i)
arise under or relate to any Environmental Law and (ii) relate to actions
occurring or conditions existing on or prior to the date of this Agreement.
"Environmental Permits" mean all permits, licenses, franchises,
certificates, approvals and other similar authorizations of governmental
authorities relating to or required by Environmental Laws and affecting, or
relating in any way to, the Railroad Segment Business.
"Governmental Entity" means any federal, state or local or foreign
government or any court, administrative or regulatory agency or commission
or other governmental authority or agency, domestic or foreign.
"Hazardous Materials" mean any waste, pollutant, contaminant,
hazardous substance, toxic, ignitable, reactive or corrosive substance,
hazardous waste, special waste, industrial substance, by-product, process
intermediate product or waste, petroleum or petroleum-derived substance or
waste, chemical liquids or solids, liquid or gaseous products, or any
constituent of any such substance or waste, the use, handling or disposal
of which by the Company is in any way governed by or subject to any
applicable Environmental Law.
"HSR Act" means the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of
1976, as amended.
"Knowledge" with respect to the Company means any and all facts that
were actually known by all officers and directors of the Company and
XxXxxxx including specifically Xxxxx XxXxxxx, Xxxxxx Xxxxxxxxxx, and Xxx
Xxxxxxxx (the "Knowledge Group") on the date on which this Agreement is
executed by the Company and all matters that would be expected to be
discovered during the course of a reasonably prudent investigation of the
Company, XxXxxxx, the Assets or the Railroad Segment Business by a
reasonably prudent party possessing all resources available to the
Knowledge Group.
"Lien" means, with respect to any property or asset, any mortgage,
lien, pledge, charge, security interest, encumbrance or other adverse claim
of any kind in respect of such property or asset. For the purposes of this
Agreement, a Person shall be deemed to own subject to a Lien any property
or asset which it has acquired or holds subject to the interest of a vendor
or lessor under any conditional sale agreement, capital lease or other
title retention agreement relating to such property or asset.
"Material Adverse Effect" means any state of facts, change, event,
effect or occurrence that is or may be reasonably likely to be materially
adverse to the Assets or the Railroad Segment Business taken as a whole.
A Material Adverse Effect shall also include any state of facts, change,
event or occurrence that shall have occurred or been threatened that (when
taken together with all other adverse state of facts, changes, events,
effects or occurrences that have occurred or been threatened) is or would
be reasonably likely to prevent or materially delay the performance by the
Company of any of its obligations under this Agreement or the consummation
of the transactions contemplated hereby.
"Permitted Liens" means (i) Liens for taxes not yet due and payable,
(ii) statutory Liens of landlords and Liens of carriers, warehousemen,
mechanics, materialmen and repairmen incurred in the ordinary course of
business consistent with past practice and not yet delinquent,
(iii) zoning, building, or other restrictions, variances, covenants, rights
of way, encumbrances, easements and other minor irregularities in title,
none of which, individually or in the aggregate, (A) interfere in any
material respect with the present use of or occupancy of such parcel by the
Company, (B) have more than an immaterial effect on the value thereof or
its use or (C) would impair the ability of such parcel to be sold for its
present use, and (iv) the License Agreement described in Section 2.6 of
this Agreement.
"Person" means an individual, corporation, partnership, limited
liability company, association, trust or other entity or organization,
including a government or political subdivision or an agency or
instrumentality thereof.
"Railroad Segment" means the rail, light rail, and other fixed guide
way transportation industries.
"Railroad Segment Business" or "Business" means that portion of the
Company's business that relates to the Railroad Segment.
ARTICLE II
PURCHASE AND SALE
SECTION 2.1 Agreement to Purchase and Sell. Subject to the terms and
conditions of this Agreement, except as otherwise specifically provided in this
Article I:
(a) The Company hereby grants, sells, assigns, transfers and
delivers to the
Purchaser, and the Purchaser hereby purchases and acquires from the Company, all
right, title and interest of the Company in, to and under the assets, properties
and business specifically listed in Section 2.2 (collectively referred to in
this Agreement as the "Assets"), free and clear of any Liens, other than
Permitted Liens; and
(b) The Purchaser hereby assumes the Assumed Liabilities (as hereinafter
defined).
(c) The purchase and sale contemplated by this Agreement shall be effective as
of 11:59 p.m. on November 1, 2002 (the "Effective Time").
Section 2.2 Assets. The Assets include only the following
assets, properties
and rights of the Company:
(a) all rights of the Company under those contracts
listed on Schedule 2.2(a)
(collectively, the "Assumed Contracts");
(b) the operational information contained in the Company's
ScadaNET Network
Database pertaining to the Railroad Segment Business,
including customer and
contact data, unit and site data, and communication
and notification histories
(the "Customer Information");
(c) all right, title, and interest of the Company in the intellectual property
and the technology described on Exhibit 2.2(c) (referred to herein as the
"Intellectual Property" and the "Technology"), subject to the License Agreement
(as described in Section 2.6);
(d) that portion of the Company's inventory described on Schedule 2.2(d) that
is exclusive to the Railroad Segment Business (including, without limitation,
spare, replacement, and component parts), which is currently located at the
Company's Lenexa, Kansas location and which has an aggregate value of at least
$70,000 (collectively, the "Inventory");
(e) all rights to causes of action, lawsuits, judgments, claims and demands of
any nature available to or being pursued by the Company, whether arising by way
of counterclaim or otherwise, that relate exclusively to the Assets or the
Business, with the exception of any and all accounts receivable of the Company;
(f) all rights in and under all express or implied guarantees, warranties,
representations, covenants, indemnities and similar rights in favor of the
Company that relate exclusively to the Assets or the Business; and
(g) all rights in and under the Company's certifications relating to its
Cellemetry and Microburst products.
Section 2.3 Excluded Assets. Notwithstanding anything
to the contrary set
forth in this Agreement, the Assets do not include any of the Company's assets,
properties and rights to the extent not specifically included in the description
of the Assets (collectively, the "Excluded Assets"). The parties agree and
acknowledge that the Union Pacific development agreement described on Schedule
4.4 is not included in the Assets, and constitutes an Excluded Asset, however,
any intellectual property and technology developed by the Company pursuant to
such agreement is included in the Assets. In addition, the parties agree and
acknowledge that any license agreements for basic commonly available, off-the-
shelf software (such as Microsoft Word) used by the Company in the Railroad
Segment Business are not included in the Assets and constitute Excluded Assets.
Section 2.4 Assumed Liabilities.
(a) Except as provided in Section 2.4(b), the
Purchaser does not assume, in
connection with the transactions contemplated by this Agreement, any liability
or obligation of the Company whatsoever, and the Company retains responsibility
for all liabilities and obligations accrued prior to the Effective Time, and all
liabilities and obligations arising from the Assets prior to the Effective Time,
whether or not accrued and whether or not disclosed.
(b) As the sole exception to the provisions in Section 2.4(a), the Purchaser
hereby assumes and agrees to pay, discharge or perform, as appropriate, the
following liabilities and obligations of the Company (collectively, the "Assumed
Liabilities"):
(i) obligations of the Company under the Assumed
Contracts to the extent such
obligations are not required to be performed prior to the Effective Time and are
disclosed on the face of such Assumed Contracts; and
(ii) the Company's deferred revenue liability for prepayments under the Assumed
Contracts, up to a maximum aggregate amount of $1.6 million.
Section 2.5 Excluded Liabilities. Specifically, and without in any way
limiting the generality of Section 2.2(a), the Assumed Liabilities do not
include, and in no event will the Purchaser assume, agree to pay, discharge or
satisfy any liability or obligation under this Agreement or otherwise have any
responsibility for, any liability or obligation of the Company that is not an
Assumed Liability (collectively, the "Excluded Liabilities"). The parties agree
and acknowledge that the fire incident described on Schedule 4.6 is an Excluded
Liability and not an Assumed Liability.
Section 2.6 License Agreement. The Purchaser
hereby delivers to the Company
a fully-paid, royalty-free and perpetual license in the form attached hereto as
Exhibit 2.6 (the "License Agreement").
Section 2.7 Guaranty. The Company hereby delivers to the Purchaser a
Guaranty Agreement executed by XxXxxxx in the form attached hereto as Exhibit
2.7 (the "Guaranty Agreement").
Section 2.8 Consents. The Company hereby delivers to the Purchaser any
consents required to be obtained under the terms of any of the Assumed Contracts
and evidence that all Liens affecting the Assets have been released, including
all liens held by U.S. Bank National Association.
Section 2.9 Xxxx of Sale, Assignment, and Assumption Agreement. The Company
and the Purchaser hereby execute and deliver a Xxxx of Sale, Assignment, and
Assumption Agreement in the form attached hereto as Exhibit 2.9 (the "Assignment
Agreement"), and agree to execute after the date hereof any other related
instruments of assignment, certificates of title or other conveyance documents
necessary to effecting the transfer of all of the Assets and the Assumed
Liabilities from the Company to the Purchaser, and the Company hereby delivers
possession of the Assets to the Purchaser.
Section 2.10 Service Agreement. Each of the
Company and the Purchaser hereby
execute and deliver a Service Agreement in the form attached as Exhibit 2.10.
Section 2.11 Manufacturing Agreement. Each of XxXxxxx and the Purchaser
hereby deliver a Manufacturing Agreement in the form attached as Exhibit 2.11.
Section 2.12 Certified Resolutions. Each of the Company, XxXxxxx, and the
Purchaser shall deliver to one another a copy of the resolutions adopted by such
party's sole shareholder, Board of Directors or Manager, as the case may be,
authorizing the execution of this Agreement and the transactions contemplated
hereby, duly certified by such party's Secretary or such other person performing
similar functions.
ARTICLE III
PURCHASE PRICE; ALLOCATIONS
SECTION 3.1 Purchase Price. The aggregate
amount to be paid for the Assets
(the "Purchase Price") shall be Five Million Three Hundred Thousand Dollars
($5,300,000). In addition to the foregoing payment, as consideration for the
grant, sale, assignment, transfer and delivery of the Assets, the Purchaser
shall assume and discharge the Assumed Liabilities.
Section 3.2 Payment of Purchase Price.
(a) On the date hereof, the Purchaser shall
pay or cause to be paid to the
Company or to the Escrow Agreement an amount equal to the Purchase Price minus
(i) Seven Hundred Ninety-Five Thousand Dollars ($795,000) which shall be held in
escrow pursuant to the Escrow Agreement attached as Exhibit 3.2(a), and (ii) any
other credit to which Purchaser may be entitled by reason of any other agreement
between the parties.
(b) All payments required under this Section 3.2
shall be made in cash by the
wire transfer of immediately available funds to such bank account(s) as shall be
designated in writing by the recipient(s) at least three (3) Business Days prior
to the applicable payment date.
Section 3.3 Allocation of Purchase Price.
Attached as Schedule 3.3 is an
allocation of the Purchase Price for the Assets and the Assumed Liabilities.
The Purchaser and the Company agree to file all Tax Returns on the basis of such
allocation.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
The Company hereby represents and warrants to the Purchaser as follows:
Section 4.1 Organization. The Company is a corporation duly formed and
validly existing under the laws of the jurisdiction set forth in the
introductory paragraph of this Agreement and has all requisite power and
authority to own, lease and operate its properties and to carry on its business
as now being conducted. The Company is not required to be duly qualified or
registered as a foreign corporation to transact business under the laws of any
jurisdiction other than Missouri. The Company has heretofore made available to
the Purchaser true, correct and complete copies of its charter documents as
currently in effect. The Company is qualified or registered to do business as a
foreign corporation in the State of Missouri.
Section 4.2 Authorization. The Company has full power and authority to
execute and deliver this Agreement and any other certificate, agreement,
document or other instrument to be executed and delivered by it in connection
with the transactions contemplated by this Agreement (collectively, the "Company
Ancillary Documents") and to perform its obligations under this Agreement and
the Company Ancillary Documents and to consummate the transactions contemplated
hereby and thereby. The execution and delivery of this Agreement and the
Company Ancillary Documents by the Company and the performance by the Company of
its obligations hereunder and thereunder and the consummation of the
transactions provided for herein and therein have been duly and validly
authorized by all necessary board and shareholder action on the part of the
Company. This Agreement has been, and the Company Ancillary Documents will be
as of the date hereof, duly executed and delivered by the Company and do or
will, as the case may be, constitute the valid and binding agreements of the
Company, enforceable against the Company in accordance with their respective
terms, subject to applicable bankruptcy, insolvency and other similar laws
affecting the enforceability of creditors' rights generally, general equitable
principles and the discretion of courts in granting equitable remedies.
Section 4.3 Absence of Restrictions and Conflicts.
The execution, delivery
and performance of this Agreement and the Company Ancillary Documents, the
consummation of the transactions contemplated by this Agreement and the Company
Ancillary Documents and the fulfillment of and compliance with the terms and
conditions of this Agreement and the Company Ancillary Documents do not or will
not (as the case may be), with the passing of time or the giving of notice or
both, violate or conflict with, constitute a breach of or default under, result
in the loss of any benefit under, permit the acceleration of any obligation
under or create in any party the right to terminate, modify or cancel, (a) any
term or provision of the charter documents of the Company, (b) except as
indicated on Schedule 4.3, any Assumed Contract or any other contract, will,
agreement, permit, franchise, license or other instrument applicable to the
Company or the Assets, (c) any judgment, decree or order of any court or
governmental authority or agency to which the Company is a party or by which any
of the Assets are bound or (d) any permit, statute, law, rule, regulation or
arbitration award applicable to the Company or the Assets. No consent,
approval, order or authorization of, or registration, declaration or filing
with, any governmental agency or public or regulatory unit, agency or authority
is required with respect to the Company in connection with the execution,
delivery or performance of this Agreement or the Company Ancillary Documents or
the consummation of the transactions contemplated thereby.
Section 4.4 Title to Assets; Related Matters.
(a) The Company has and hereby conveys to the Purchaser good and
marketable title to the Assets, free and clear of all Liens except for Permitted
Liens.
(b) Except for sales, marketing, personnel and other assets and functions
that have been apparent or otherwise disclosed to Purchaser during its due
diligence investigation of the Railroad Segment Business, the Assets, together
with the assets and services contemplated by the Service Agreement and the
Manufacturing Agreement, constitute all of the material assets that the Company
is currently using or has used in the past to operate the Railroad Segment
Business. Except for any and all matters that were known or revealed to
Purchaser at any time during the due diligence investigation of Seller, XxXxxxx,
the Assets or the Railroad Segment Business that was conducted by or on behalf
of Purchaser prior to the closing of the transaction contemplated by this
Agreement, and except for the Intellectual Property and Technology set forth and
described in Exhibit 2.2(c) of this Agreement (respectively, the "Intellectual
Property" and "Technology"), the Company has no Knowledge of any material
additional technology-related requirement that Purchaser will be required to
obtain in order to operate the Railroad Segment Business in the same manner as
the Company has operated the Railroad Segment Business.
(c) All inventory, equipment and other items of tangible personal property
and assets included in the Assets (i) are in good operating condition and in a
state of good maintenance and repair, ordinary wear and tear excepted, (ii) are
usable in the regular and ordinary course of business and (iii) except as
described in Schedule 4.4(c), conform in all material respects to all applicable
laws, ordinances, codes, rules and regulations applicable thereto, and the
Company has no Knowledge of any material defects or problems with any of such
intangible assets. The Inventory consists of items that are good and
merchantable within normal trade tolerances, and is of a quality and quantity
presently usable or saleable in the ordinary course of business of the Company
(subject to applicable reserves).
(d) To the Knowledge of the Company, except as described in Schedule
4.4(d), there are no developments affecting any of the Assets (pending or
threatened) which might materially detract from the value, materially interfere
with any present or intended use, or materially adversely affect the
marketability of such Assets.
(e) Except as described on Schedule 4.4(e) and for (i) any and all matters
that were known or revealed to Purchaser at any time during the due diligence
investigation of Seller, XxXxxxx, the Assets or the Railroad Segment Business
that was conducted by or on behalf of Purchaser prior to the closing of the
transactions contemplated by this Agreement, and (ii), any and all matters
that may not reasonably be expected to have a Material Adverse Affect or to
materially impede or obstruct the use by Purchaser of the Intellectual Property
and Technology in the same manner as the Company:
(A) the Company is the owner of the entire right, title
and interest in and to
the Intellectual Property and Technology;
(B) to the Knowledge of the Company, the Intellectual Property and Technology
are a unique compilation of ideas, information, know-how and techniques and
neither the Intellectual Property and Technology, nor any identical compilation
of ideas, information, know-how and techniques, has been developed, copied or
originated by anyone other than the Company or its predecessors in interest;
(C) the Company owns the Intellectual Property and Technology outright, free
and clear of any and all liens, licenses, or transfer agreements;
(D) the Company has no Knowledge of any claim of infringement of any third
party's intellectual property arising from any manufacture, use sale, offer for
sale or importation of any product or process by the Company or its predecessors
;
(E) the Company has no Knowledge of any asserted or unasserted claim or demand
which the Company believes is of probable validity or enforceability against the
Intellectual Property and Technology, or which could or would impede or
interfere with the rights acquired by Purchaser pursuant to this Agreement;
(F) the Company has no Knowledge of any infringement of the Intellectual
Property as a result of any manufacture, use, sale, offer for sale or
importation of any product or process by any third party;
(G) the Company has no Knowledge of any other product on the market or in
development that utilizes the identical unique compilation of ideas,
information, know-how and techniques that is the Intellectual Property and
Technology; and
(H) the Company has obtained all required consents and assignments, and has
full right, power and authority to grant, sell, assign, transfer and deliver the
Intellectual Property and Technology to Purchaser in accordance with this
Agreement
(I) to the knowledge of the Company, the Company has taken reasonable steps to
maintain in confidence all of the software, trade secrets, and other
confidential information of the Intellectual Property and Technology.
(f) To the Knowledge of the Company, each of the products produced or sold
by the Company to end users in connection with the Railroad Segment Business
("Railroad Segment Business Products") is, and at all times up to and including
the date of the execution of this Agreement has been, in material compliance
with all applicable federal, state, local and foreign laws and regulations.
Except as set forth on Schedule 4.4(f): (i) the Company has no Knowledge of any
facts or matters that would cause the Company to conclude that any of the
Railroad Segment Business Products is not fit for the ordinary purpose for which
it was intended to be used or did not conform in all material respects to any
promises or affirmations of fact that were made by the Company or XxXxxxx on the
container or label for such product or in connection with its sale; (ii) the
Company has no Knowledge of any material design defect with respect to any of
the Railroad Segment Business Products; and (iii) the Company has no Knowledge
that any of the Railroad Segment Business Products have failed to contain
adequate warnings, presented in a reasonably prominent manner, in accordance
with applicable laws, rules and regulations and current industry practice with
respect to its contents and use.
Section 4.5 Absence of Certain Changes.
Since June 30, 2002 and except as
set forth in any of the Schedules to this Agreement, there has not been (i) any
event, occurrence, development or state of circumstances or facts which,
individually or in the aggregate, has had or could reasonably be expected to
have a Material Adverse Effect on the Assets, or (ii) any damage, destruction,
loss or casualty to the Assets with a value in excess of $25,000, whether or not
covered by insurance.
Section 4.6 Legal Proceedings. Except as set
forth in Schedule 4.6, there
are no suits, actions, claims, arbitration, proceedings or investigations (or
any basis therefor) pending or, to the Knowledge of the Company, threatened
against, relating to or involving the Company or the Assets before any
Governmental Entity. None of such suits, actions, claims, proceedings or
investigations, if finally determined adversely, are reasonably likely,
individually or in the aggregate, to have a Material Adverse Effect on the
Company or the Assets. The Company is not subject to any judgment, decree,
injunction, rule or order of any court or arbitration panel.
Section 4.7 Compliance with Law. The Company
is (and has been at all times
during the past five (5) years) in compliance in all material respects with all
laws, ordinances, regulations and orders of all Governmental Entities applicable
to the Assets. Except as set forth in Schedule 4.7, with respect to the Assets,
(i) the Company has not been charged with and, to the Knowledge of the Company,
is not now under investigation with respect to, any material violation of any
applicable law, regulation, ordinance, order or other requirement of a
Governmental Entity, (ii) the Company is not a party to or bound by any order,
judgment, decree or award of any Governmental Entity and (iii) the Company has
filed all reports and has all licenses and permits required to be filed with any
Governmental Entity on or before the date hereof.
Section 4.8 Assumed Contracts. The Assumed Contracts, together with the
other contracts and agreements previously disclosed or described to the
Purchaser during the course of its due diligence with respect to the Assets and
the Railroad Segment Business, constitute all of the contracts applicable to or
used in the operation of the Assets or the Company's Railroad Segment Business,
including:
(a) all bonds, debentures, notes, loans, credit or loan agreements or loan
commitments, mortgages, indentures, guarantees or other contracts relating to
the borrowing of money or binding upon any of the Assets;
(b) all leases or licenses involving any properties or assets (whether real,
personal or mixed, tangible or intangible) used in the Railroad Segment
Business;
(c) all franchising and licensing agreements;
(d) any contract or agreement for capital expenditures or the acquisition or
construction of fixed assets requiring the payment by the Company of an amount
in excess of $1,000;
(e) any contract or agreement granting any Person a Lien on all or any part of
any of the Assets;
(f) any contract or agreement for the cleanup, abatement or other actions in
connection with any Hazardous Materials, the remediation of any existing
environmental condition or relating to the performance of any environmental
audit or study;
(g) any contract or agreement granting to any Person an option or a first
refusal, first-offer or similar preferential right to purchase or acquire any of
the Assets;
(h) any contract or agreement with any agent, distributor or representative
which is not terminable without penalty on thirty (30) calendar days' or less
notice;
(i) any contract or agreement for the granting or receiving of a license or
sublicense or under which any Person is obligated to pay or has the right to
receive a royalty, license fee or similar payment;
(j) any joint venture or partnership contract;
(k) any customer contract for the provision of goods or services by the
Company;
(l) all existing contracts and commitments (other than those described in
subparagraphs (a) through (k) of this Section 4.8) to which the Company is a
party or by which any of the Assets are bound involving an annual commitment or
annual payment to or from the Company of more than $1,000 individually or which
is otherwise material to the Railroad Segment Business.
True, correct and complete copies of all Assumed Contracts have been made
available to the Purchaser. To the knowledge of the Company: (i) the Assumed
Contracts are legal, valid, binding and enforceable in accordance with their
respective terms with respect to the Company and each other party to such
Assumed Contracts; (ii) there are no existing material defaults or breaches of
the Company under any Assumed Contract (or events or conditions which, with
notice or lapse of time or both would constitute a default or breach); and (iii)
there are no such material defaults (or events or conditions which, with notice
or lapse of time or both, would constitute a default or breach) with respect to
any third party to any Assumed Contract. Except as set forth on Schedule 4.3,
the Company is not participating in any discussions or negotiations regarding
modification of or amendment to any Assumed Contract or entry in any new
material contract applicable to the Assets. Schedule 4.3 identifies each
Assumed Contract that requires the consent of or notice to the other party
thereto to avoid any breach, default or violation of such contract, agreement or
other instrument in connection with the transactions contemplated hereby,
including the assignment of such Assumed Contract to the Purchaser.
Section 4.9 Customer and Supplier Relations. The Customer Information
contains a complete and accurate list of the names and addresses of the
Company's Railroad Segment customers as of the date hereof (the "Customers").
The Company maintains good relations with each of the Customers, and, to the
Knowledge of the Company, no event has occurred that would materially and
adversely affect the Company's relations with any such Customer. Except as set
forth in any of the Schedules to this Agreement, no Customer has, during the
last twelve months, canceled, terminated or made any threat to cancel or
otherwise terminate its relationship with the Company or its usage of the Assets
or the Intellectual Property and Technology. The Company has not received any
notice or has no Knowledge to the effect that any Customer or Railroad Segment
supplier may terminate or materially alter its business relations with the
Company, either as a result of the transactions contemplated by this Agreement
or otherwise.
Section 4.10 Licenses and Permits. Except for the
certifications described in
Section 2.2(g), no notifications, licenses, permits (including, without
limitation, environmental, construction and operation permits), franchises,
certificates, approvals, exemptions, classifications, registrations or other
similar documents or authorizations, or applications therefor relating to the
Assets or the Intellectual Property and Technology (i) are held by the Company,
(ii) are necessary to operate the Company's Railroad Segment Business, or (iii)
have been issued by any Governmental Entity to the Company, or submitted by the
Company to any Governmental Entity.
Section 4.11 Brokers, Finders and Investment Bankers.
Neither the Company,
nor any officers, directors or employees of the Company nor any Affiliate of the
Company, has employed any broker, finder or investment banker or incurred any
liability for any investment banking fees, financial advisory fees, brokerage
fees or finders' fees in connection with the transactions contemplated by this
Agreement.
Section 4.12 Product and Service Warranties.
Except as set forth in Schedule
4.12, the Company does not make any express warranties or guaranties on its own
behalf as to goods sold to, or services provided to, the Railroad Segment, and
there is no pending or, to the Knowledge of the Company, threatened claim
alleging any material breach of any such warranty or guaranty. Except as set
forth in Schedule 4.12, attached to which are copies of all such warranties, the
Company has no exposure to liability under any such warranty beyond that which
is typically assumed in the ordinary course of business by companies or firms
engaged in businesses comparable to the Company's Railroad Segment Business or
which would have a Material Adverse Effect on the Assets.
Section 4.13 Environmental, Health and Safety Matters.
With respect to the
Railroad Segment Business and the Assets:
(a) the Company is not required to obtain any permits,
licenses and government
authorizations under any Environmental Laws, and the Company is in material
compliance with all applicable limitations, restrictions,
conditions, standards,
prohibitions, requirements, obligations, schedules
and timetables contained in
those laws or contained in any law, regulation, code, plan, order, decree,
judgment, notice, permit or demand letter issued, entered, promulgated or
approved thereunder;
(b) there are no material liabilities arising in connection with or in any way
relating to the Assets of any kind whatsoever, whether accrued, contingent,
absolute, determined, determinable or otherwise, arising under or relating to
any Environmental Law, and, to the Company's Knowledge, there are no facts,
events, conditions, situations or set of circumstances which could reasonably be
expected to result in or be the basis for any such material liability;
(c) the Company has not received notice of actual or threatened liability
CERCLA or any similar foreign, state or local statute or ordinance from any
governmental agency or any third party and, to the Company's Knowledge, there
are no facts or circumstances which could form the basis for the assertion of
any claim against the Company under any Environmental Laws including, without
limitation, CERCLA or any similar local, state or foreign law with respect to
any on-site or off-site location;
(d) the Company has not entered into or agreed to enter into and the Company
does not contemplate entering into, any consent decree or order, and the Company
is not subject to any judgment, decree or judicial or administrative order
relating to compliance with, or the cleanup of Hazardous Materials under, any
applicable Environmental Laws;
(e) no notice, notification, demand, request for information, citation,
summons or order or administrative or judicial proceeding has been received, no
complaint has been filed, no penalty has been assessed and no investigation,
action, claim, suite, proceeding or review is pending or, to the Company's
Knowledge, threatened by any governmental entity or other Person with respect to
any matters relating to the Company and relating to or arising out of any
Environmental Law;
(f) to the Company's Knowledge, the Company is not subject to any claim,
obligation, liability, loss, damage or expense of whatever kind or nature,
contingent or otherwise, incurred or imposed or based upon any provision of any
Environmental Law or arising out of any act or omission of the Company, or the
Company's employees, agents or representatives or arising out of the ownership,
use, control or operation by the Company of any plant, facility, site, area or
property (including, without limitation, any plant, facility, site, area or
property currently or previously owned or leased by the Company) from which any
Hazardous Materials were released into the environment (the term "release"
meaning any spilling, leaking, pumping, pouring, emitting, emptying,
discharging, injecting, escaping, leaching, dumping or disposing into the
environment, and the term "environment" meaning any surface or ground water,
drinking water supply, soil, surface or subsurface strata or medium, or the
ambient air);
(g) the Company has heretofore made available to the Purchaser true, correct
and complete copies of all files relating to environmental matters. The Company
has not paid any fines, penalties or assessments within the last five (5) years
with respect to environmental matters;
(h) no polychlorinated biphenyls, radioactive material, lead,
asbestos-containing material, incinerator, sump, surface impoundment, lagoon,
landfill, septic, wastewater treatment or other disposal system or underground
storage tank (active or inactive) is or has been present in any Asset;
(i) the Company has not imported, manufactured, stored, used, operated,
transported, treated or disposed of any Hazardous Materials other than in
compliance with all Environmental Laws;
(j) There has been no environmental investigation, study, audit, test, review
or other analysis conducted of which the Company has Knowledge in relation to
any Asset which has not been delivered to the Purchaser at least ten days prior
to the date hereof; and
(k) For purposes of this Section, the term "Company" shall include any entity
which is, in whole or in part, a predecessor of the Company.
Section 4.14 Insurance Policies. The Company has made available to the
Purchaser a complete and correct list of all insurance policies relating to the
Railroad Segment Business or the Assets carried by or for the benefit of the
Company, specifying the insurer, amount of and nature of coverage, the risk
insured against, the deductible amount (if any) and the date through which
coverage will continue by virtue of premiums already paid. The Company
maintains insurance with reputable insurers for the Railroad Segment Business
and the Assets against all risks normally insured against, and in amounts
normally carried, by corporations of similar size engaged in similar lines of
business and, in the Company's opinion, such coverage is sufficient. All
insurance policies and bonds with respect to the Railroad Segment Business and
Assets are in full force and effect and will be maintained by the Company in
full force and effect as they apply to any matter, action or event relating to
the Company occurring through the date hereof and the Company has not reached or
exceeded its policy limits for any insurance policies in effect at any time
during the past five (5) years. There is no claim by the Company pending under
any of such policies or bonds as to which coverage has been questioned, denied
or disputed by the underwriters of such policies or bonds or in respect of which
such underwriters have reserved their rights. All premiums payable under all
such policies and bonds have been timely paid and the Company has otherwise
complied in all material respects with the terms and conditions of all such
policies and bonds. The Company does not know of any threatened termination of,
premium increase with respect to, or material alteration of coverage under, any
of such policies or bonds.
Section 4.15 Transactions With Affiliates. To the Company's Knowledge, other
than any arrangements that have been previously disclosed to the Purchaser
during the Purchaser's due diligence investigation of the Railroad Segment
Business, no officer or director of the Company, or any person with whom any
such officer or director has any direct or indirect relation by blood, marriage
or adoption, or any entity in which any such person, owns any beneficial
interest (other than a publicly held corporation whose stock is traded on a
national securities exchange or in the over-the-counter market and less than
five percent (5%) of the stock of which is beneficially owned by all such
Persons in the aggregate) or any Affiliate of any of the foregoing or any
current or former Affiliate of the Company has any interest in: (a) any
contract, arrangement or understanding with, or relating to, the Railroad
Segment Business, the Assets or the Assumed Liabilities; (b) any loan,
arrangement, understanding, agreement or contract for or relating to the
Railroad Segment Business, the Assets or the Assumed Liabilities; or (c) any
property (real, personal or mixed), tangible or intangible, used or currently
intended to be used by the Company relating to the Railroad Segment Business,
the Assets or the Assumed Liabilities.
Section 4.16 Ethical Practices. Neither the Company nor any representative
thereof has offered or given, and the Company has no Knowledge of any Person
that has offered or given on its behalf, anything of value to: (i) any official
of a Governmental Entity, any political party or official thereof, or any
candidate for political office; (ii) any customer or member of the government;
or (iii) any other Person, in any such case while knowing or having reason to
know that all or a portion of such money or thing of value may be offered, given
or promised, directly or indirectly, to any customer, member of the government
or candidate for political office for the purpose of the following: (x)
influencing any action or decision of such Person, in such Person's official
capacity, including a decision to fail to perform such Person's official
function; (y) inducing such Person to use such Person's influence with any
government or instrumentality thereof to affect or influence any act or decision
of such government or instrumentality to assist the Company in obtaining or
retaining business for, or with, or directing business to, any Person; or (z)
where such payment would constitute a bribe, kickback or illegal or improper
payment to assist the Company in obtaining or retaining business for, or with,
or directing business to, any Person.
Section 4.17 Copies of Documents. The Company has made available to the
Purchaser:
(a) The Certificate of Incorporation and Bylaws of the Company.
(b) Each of the Assumed Contracts.
(c) Each trademark and service xxxx registration or application therefor,
patent or patent application included in the Intellectual Property and
Technology and each assignment or license with respect to any thereof.
(d) Any pleadings or briefs filed in any pending suit or proceeding of the type
described in Section 4.6.
(e) Any written licenses and permits of the type describe in Section 4.10.
Section 4.18 Certain Financial Information. The
Company has provided to the
Purchaser a summary report for the fiscal years ended July 2, 2000 and July 1,
2001 and the nine-month period ended March 31, 2002 entitled "XxXxxxx Inc.
Network Technologies Group, Expense Summary Including Departments 714 & 813"
(the "Expense Summary"). A copy of the Expense Summary is attached as Exhibit
4.18A. Subject to the assumptions and qualifications contained in the Expense
Summary and the footnotes thereto, the Expense Summary is a reasonable and fair
good faith estimate of an allocation of the Company's NTG-related expenses that
are attributable to the operations of its Railroad Segment Business. The
Company has also provided to the Purchaser certain historical sales and cost of
goods sold financial data (the "Sales & Gross Margin Data"). The Sales & Gross
Margin Data is true, accurate and complete. A copy of the Sales & Gross Margin
Data is attached as Exhibit 4.18B.
Section 4.19 Disclosure.
(a) No representation, warranty or covenant
made by the Company in this
Agreement, the Schedules or the Exhibits attached
to this Agreement, or any of
the Company Ancillary Documents, contains an
untrue statement of a material fact
or omits to state a material fact required to
be stated herein or therein or
necessary to make the statements contained
herein or therein not misleading.
(b) Prior to the execution of this Agreement, the Company has delivered to the
Purchaser true and complete copies of the Assumed Contracts, and all security
agreements and other instruments creating or imposing any security interest
encumbrance or adverse claim on the Assets, and any other documents or
instruments identified or referred to in the Schedules. Such delivery will not
alone constitute adequate disclosure of those facts required to be disclosed on
any Schedule to this Agreement, and notice of their contents (other than by
express reference on a Schedule) will in no way limit the Company's other
obligations or the Purchaser's other rights under this Agreement.
Section 4.20 Representations. The representations and warranties of the
Company contained in this Agreement are true and correct with only such
exceptions as would not in the aggregate reasonably be expected to have a
Material Adverse Effect.
ARTICLE V
REPRESENTATIONS AND WARRANTIES OF XXXXXXX
XxXxxxx hereby represents and warrants to the Purchaser as follows:
Section 5.1 Organization. XxXxxxx is a corporation
duly organized, validly
existing and in good standing under the laws of the jurisdiction set forth in
the introductory paragraph of this Agreement and has
all requisite corporate
power and authority to own, lease and operate its properties and to carry on its
business as now being conducted.
Section 5.2 Authorization. XxXxxxx has full corporate
power and authority to
execute and deliver this Agreement and the Guaranty Agreement, to perform its
obligations under this Agreement and the Guaranty Agreement and to consummate
the transactions contemplated by this Agreement and the Guaranty Agreement. The
execution and delivery of this Agreement and the Guaranty Agreement by XxXxxxx,
the performance by XxXxxxx of its obligations under this Agreement and the
Guaranty Agreement, and the consummation of the transactions provided for in
this Agreement and the Guaranty Agreement have been duly and validly authorized
by all necessary corporate action on the part of XxXxxxx. This Agreement and
the Guaranty Agreement have been duly executed and delivered by XxXxxxx and
constitute the valid and binding agreements of XxXxxxx, enforceable against
XxXxxxx in accordance with their respective terms, subject to applicable
bankruptcy, insolvency and other similar laws affecting the enforceability of
creditors' rights generally, general equitable principles and the discretion of
courts in granting equitable remedies.
Section 5.3 Absence of Restrictions and Conflicts.
The execution, delivery
and performance of this Agreement and the Guaranty, the consummation of the
transactions contemplated by this Agreement and the Guaranty and the fulfillment
of and compliance with the terms and conditions of this Agreement and the
Guaranty do not or will not (as the case may be), with the passing of time or
the giving of notice or both, violate or conflict with, constitute a breach of
or default under, result in the loss of any benefit under, or permit the
acceleration of any obligation under, (a) any term or provision of the charter
documents of XxXxxxx, (b) any contract to which XxXxxxx is a party, (c) any
judgment, decree or order of any Governmental Entity to which XxXxxxx is a party
or by which XxXxxxx or any of its properties is bound or (d) any permit,
statute, law, rule or regulation applicable to XxXxxxx.
Section 5.4 Brokers, Finders and Investment
Bankers. Neither XxXxxxx, nor
any officers, directors or employees of XxXxxxx nor any Affiliate of XxXxxxx,
has employed any broker, finder or investment banker or incurred any liability
for any investment banking fees, financial advisory fees, brokerage fees or
finders' fees in connection with the transactions contemplated by this
Agreement.
Section 5.5 Public Information. There has
been delivered to the Purchaser
copies of XxXxxxx'x Annual Report on Form 10-K for the fiscal years ended June
30, 2002 and July 1, 2001 and XxXxxxx'x 2001 Annual Report to Shareholders
(collectively, the "Public Information"). The Public Information and the
representations and warranties made by XxXxxxx in this Article IV do not contain
any untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading.
ARTICLE VI
REPRESENTATIONS AND WARRANTIES OF PURCHASER
The Purchaser hereby represents and warrants to the Company as follows:
Section 6.1 Knowledge and Due Diligence Investigation by Purchaser. The
Purchaser has no actual knowledge that any representation or warranty of the
Company or XxXxxxx that is set forth in this Agreement is false or misleading in
whole or in part. The Purchaser has conducted what the Purchaser believes to be
a reasonably prudent due diligence investigation of the Company, XxXxxxx, the
Assets and the Railroad Segment Business, and has had full and adequate
opportunity to question the Company and XxXxxxx about those subjects.
Section 6.2 Organization. The Purchaser is a
limited liability company duly
organized, validly existing and in good standing under the laws of the
jurisdiction set forth in the introductory paragraph of this Agreement and has
all requisite power and authority to own, lease and operate its properties and
to carry on its business as now being conducted.
Section 6.3 Authorization. The Purchaser has full corporate power and
authority to execute and deliver this Agreement and any other certificate,
agreement, document or other instrument to be executed and delivered by it in
connection with the transactions contemplated by this Agreement (collectively,
the "Purchaser Ancillary Documents"), to perform its obligations under this
Agreement and the Purchaser Ancillary Documents and to consummate the
transactions contemplated by this Agreement and the Purchaser Ancillary
Documents. The execution and delivery of this Agreement and the Purchaser
Ancillary Documents by the Purchaser, the performance by the Purchaser of its
obligations under this Agreement and the Purchaser Ancillary Documents, and the
consummation of the transactions provided for in this Agreement and the
Purchaser Ancillary Documents have been duly and validly authorized by all
necessary corporate action on the part of the Purchaser. This Agreement has
been and, as of the date hereof, the Purchaser Ancillary Documents will be, duly
executed and delivered by the Purchaser and do or will, as the case may be,
constitute the valid and binding agreements of the Purchaser, enforceable
against the Purchaser in accordance with their respective terms, subject to
applicable bankruptcy, insolvency and other similar laws affecting the
enforceability of creditors' rights generally, general equitable principles and
the discretion of courts in granting equitable remedies.
Section 6.4 Absence of Restrictions and Conflicts.
The execution, delivery
and performance of this Agreement and the Purchaser Ancillary Documents, the
consummation of the transactions contemplated by this Agreement and the
Purchaser Ancillary Documents and the fulfillment of and compliance with the
terms and conditions of this Agreement and the Purchaser Ancillary Documents do
not or will not (as the case may be), with the passing of time or the giving of
notice or both, violate or conflict with, constitute a breach of or default
under, result in the loss of any benefit under, or permit the acceleration of
any obligation under, (a) any term or provision of the charter documents of the
Purchaser, (b) any contract to which the Purchaser is a party, (c) any judgment,
decree or order of any Governmental Entity to which the Purchaser is a party or
by which the Purchaser or any of its properties is bound, or (d) any permit,
statute, law, rule or regulation applicable to the Purchaser.
Section 6.5 Brokers, Finders and Investment
Bankers. Neither the Purchaser,
nor any officers, directors or employees of the Purchaser nor any Affiliate of
the Purchaser, has employed any broker, finder or investment banker or incurred
any liability for any investment banking fees, financial advisory fees,
brokerage fees or finders' fees in connection with the transactions contemplated
by this Agreement.
ARTICLE VII
CERTAIN COVENANTS AND AGREEMENTS
SECTION 7.1 Public Announcements. Subject to their respective legal
obligations (including requirements of stock exchanges and other similar
regulatory bodies), the Purchaser and the Company shall consult with one another
regarding the timing and content of all announcements regarding any aspect of
this Agreement or the transactions contemplated hereby to the financial
community, government agencies, employees, customers or the general public and
shall use reasonable efforts to agree upon the text of any such announcement
prior to its release.
Section 7.2 Mutual Non-Solicitation.
(a) Non-Solicitation of Employees. Because
the parties' respective employees
are a valuable resource, the loss of whom could cause significant harm to their
respective businesses, for a period of five (5) years following the date hereof:
(i) the Company will not either directly or indirectly be involved in the
recruitment, or hiring or any attempt to recruit or hire, or encourage the
resignation of, any person who at the date hereof is an employee of the
Purchaser; and (ii) the Purchaser will not either directly or indirectly be
involved in the recruitment or hiring or any attempt to recruit or hire, or
encourage the resignation of, any person who at the date hereof is an employee
of the Company or XxXxxxx; provided, however, that (i) for a period of sixty
(60) days following the date of this Agreement, and subject to the prior consent
of the Company (which shall not be unreasonably withheld if such hiring will not
interfere with the ability of the Company to perform its obligations under the
Service Agreement, the Purchaser may recruit or hire (and may hire after the
sixty (60) day period if the recruiting effort was commenced prior to the
expiration of the sixty (60) day period) employees of the Company or XxXxxxx
who, immediately prior to the transactions contemplated by this Agreement,
provided customer support, sales, network operations and design, or data base
analysis services (but not operations or engineering management services) for
the Company's Railroad Segment Business, and (ii) during such sixty (60) day
period, the Company will not make a competing offer for a more senior position
or higher salary to such employee identified by the Purchaser as a potential
recruit of the Purchaser. Notwithstanding this Section 7.2 (a), if the
Purchaser obtains the Company's prior written consent, the Purchaser may solicit
the Company's employees after such sixty (60) day period and prior to the
expiration of the five-year anniversary of this Agreement.
(b) Remedies. Each party acknowledges that
breach by such party of the
provisions of Section 7.2(a) could reasonably be expected to result in
irreparable harm to the other for which no adequate remedy at law exists.
Accordingly, in the event of any actual or reasonably perceived threatened
breach or default under Section 7.2(a) by a party (or by any other person or
entity working with or for such party in connection with such breach or
default), the other party shall be entitled to obtain specific performance of
Section 7.2(a) or other injunctive or equitable relief, as well as any monetary
damages sustained by such party. Further, in the event that litigation is
commenced concerning the rights and responsibilities created under Section
7.2(a), the prevailing party shall be entitled to recover such amount, if any,
as the court may determine is reasonable for attorneys' fees, costs, and
expenses incurred by the prevailing party in connection with such litigation.
Section 7.3 Transition Period. For a period of
sixty (60) days following the
date of this Agreement, the Company shall provide to the Purchaser such further
information, documents and assistance as the Purchaser may reasonably request in
order to complete the transfer of the Assets to the Purchaser and familiarize
the Purchaser with the Company's Railroad Segment Business.
ARTICLE VIII
TAX MATTERS
SECTION 8.1 Definitions.
(a) "Code" means the Internal Revenue Code of 1986, as amended.
(b) "Pre-Signing Tax Period" means (i) any Tax period ending on or before the
Effective Time and (ii) with respect to a Tax period that commences before but
ends after the Effective Time, the portion of such period up to and including
the date hereof.
(c) "Taxes" means all taxes, assessments, charges, duties, fees, levies or
other governmental charges (including interest, penalties or additions
associated therewith), including income, franchise, capital stock, real
property, personal property, tangible, withholding, employment, payroll, social
security, social contribution, unemployment compensation, disability, transfer,
sales, use, excise, gross receipts, value-added and all other taxes of any kind
for which the Company may have any liability imposed by any Governmental Entity,
whether disputed or not, and any charges, interest or penalties imposed by any
Governmental Entity.
(d) "Tax Return" shall mean any report, return, declaration or other
information required to be supplied to a Governmental Entity in connection with
Taxes, including estimated returns and reports of every kind with respect to
Taxes.
Section 8.2 Tax Matters. Except as set forth
in Schedule 8.2, the Company
hereby represents and warrants to Purchaser that
(a) The Company has timely paid all Taxes, and
all interest and penalties due
thereon and payable by it for the Pre-Signing Tax Period which will have been
required to be paid on or prior to the date hereof, the non-payment of which
would result in a Lien on any of the Assets, would otherwise adversely affect
the Railroad Segment Business or would result in the Purchaser becoming liable
or responsible therefor.
(b) The Company has established, in accordance with GAAP applied on a basis
consistent with that of preceding periods, adequate reserves for the payment of,
and will timely pay all Tax liabilities, assessments, interest and penalties
which arise from or with respect to the Assets and are incurred in or
attributable to the Pre-Signing Tax Period, the non-payment of which would
result in a Lien on any of the Assets or would result in Purchaser becoming
liable therefor.
Section 8.3 Tax Cooperation; Allocation of Taxes.
(a) The Purchaser and the Company agree to
furnish or cause to be furnished to
each other, upon request, as promptly as practicable, such information and
assistance relating to the Assets (including, without limitation, access to
books and records) as is reasonably necessary for the filing of all Tax returns,
the making of any election relating to Taxes, the preparation for any audit by
any taxing authority, and the prosecution or defense of any claim, suit or
proceeding relating to any Tax. The Purchaser and the Company shall retain all
books and records with respect to Taxes pertaining to the Assets for a period of
at least six years following the date hereof. At the end of such period, each
party shall provide the other with at least ten days prior written notice before
destroying any such books and records, during which period the party receiving
such notice can elect to take possession, at its own expense, of such books and
records. The Purchaser and the Company shall cooperate with each other in the
conduct of any audit or other proceeding relating to Taxes involving the Assets.
(b) All real property taxes, personal property taxes and similar ad valorem
obligations levied with respect to the Assets for a taxable period which
includes (but does not end on) the date hereof (collectively, the "Apportioned
Obligations") shall be apportioned between the Purchaser and the Company based
on the number of days of such taxable period included in the Pre-Signing Tax
Period and the number of days of such taxable period after the date hereof (with
respect to any such taxable period, the "Post-Signing Tax Period"). The Company
shall be liable for the proportionate amount of such taxes that is attributable
to the Pre-Signing Tax Period, and the Purchaser shall be liable for the
proportionate amount of such taxes that is attributable to the Post-Signing Tax
Period. Upon receipt of any xxxx for real or personal property taxes relating
to the Purchased Assets, each of the Company and the Purchaser shall present a
statement to the other setting forth the amount of reimbursement to which each
is entitled under this Section 8.3(b) together with such supporting evidence as
is reasonably necessary to calculate the proration amount. The proration amount
shall be paid by the party owing it to the other within 10 days after delivery
of such statement. In the event that either the Purchaser or the Company shall
make any payment for which it is entitled to reimbursement under this Section
8.3(b), the other party shall make such reimbursement promptly but in no event
later than 10 days after the presentation of a statement setting forth the
amount of reimbursement to which the presenting party is entitled along with
such supporting evidence as is reasonably necessary to calculate the amount of
reimbursement.
(c) All excise, sales, use, value added, registration stamp, recording,
documentary, conveyancing, franchise, property, transfer, gains and similar
Taxes, levies, charges and fees (collectively, "Transfer Taxes") incurred in
connection with the transactions contemplated by this Agreement shall be borne
equally by the Company and the Purchaser. The Purchaser and the Company shall
cooperate in providing each other with any appropriate resale exemption
certifications and other similar documentation. The party that is required by
applicable law to make the filings, reports, or returns with respect to any
applicable Transfer Taxes shall do so, and the other party shall cooperate with
respect thereto as necessary.
ARTICLE IX
INDEMNIFICATION
SECTION 9.1 Indemnification Obligations of the Company. Subject to the
provisions of Section 9.5 below, the Company will indemnify, defend and hold
harmless the Purchaser and its Affiliates, each of their respective officers,
directors, employees, agents and representatives and each of the heirs,
executors, successors and assigns of any of the foregoing (collectively, the
"Purchaser Indemnified Parties") from, against and in respect of any and all
claims, liabilities, obligations, losses, costs, expenses, penalties, fines and
judgments (at equity or at law) and damages whenever arising or incurred
(including, without limitation, amounts paid in settlement, costs of
investigation and reasonable attorneys' fees and expenses) arising out of or
relating to:
(a) any liability or obligation of the Company of any
nature whatsoever, except
the Assumed Liabilities;
(b) events or circumstances occurring or existing with respect to the
ownership, operation and maintenance of the Assets on or prior to the date
hereof;
(c) any material breach or inaccuracy of any representation or warranty made by
the Company in this Agreement or in the Company Ancillary Documents;
(d) any material breach of any covenant, agreement or undertaking made by the
Company in this Agreement or in the Company Ancillary Documents; or
(e) any fraud, willful misconduct or bad faith of the Company in connection
with this Agreement or the Company Ancillary Documents.
The claims, liabilities, obligations, losses, costs, expenses, penalties, fines
and damages of the Purchaser Indemnified Parties described in this Section 9.1
as to which the Purchaser Indemnified Parties are entitled to indemnification
are hereinafter collectively referred to as the "Purchaser Losses."
Section 9.2 Indemnification Obligations of the
Purchaser. The Purchaser will
indemnify and hold harmless the Company and XxXxxxx and each of their respective
officers, directors, employees, agents and representatives and each of the
heirs, executors, successors and assigns of any of the foregoing (collectively,
the "Company Indemnified Parties") from, against and in respect of any and all
claims, liabilities, obligations, losses, costs, expenses, penalties, fines and
judgments (at equity or at law, including statutory and common) and damages
whenever arising or incurred (including, without limitation, amounts paid in
settlement, costs of investigation and reasonable attorneys' fees and expenses)
arising out of or relating to:
(a) the Purchaser's failure to perform, discharge
or satisfy the Assumed
Liabilities;
(b) events or circumstances occurring or existing with respect to the
ownership, operation and maintenance of the Assets after the date hereof;
(c) any material breach or inaccuracy of any representation or warranty made by
the Purchaser in this Agreement or in any of the Purchaser Ancillary Documents;
(d) any material breach of any covenant, agreement or undertaking made by the
Purchaser in this Agreement or in any of the Purchaser Ancillary Documents; or
(e) any fraud, willful misconduct or bad faith of the Purchaser in connection
with this Agreement or the Purchaser Ancillary Documents.
The claims, liabilities, obligations, losses, costs, expenses, penalties, fines
and damages of the Company Indemnified Parties described in this Section 8.2 as
to which the Company Indemnified Parties are entitled to indemnification are
hereinafter collectively referred to as "Company Losses."
Section 9.3 Indemnification Procedure.
(a) Promptly after receipt by a Purchaser Indemnified
Party or a Company
Indemnified Party (hereinafter collectively referred to as an "Indemnified
Party") of notice by a third party (including any Governmental Entity) of any
complaint or the commencement of any audit, investigation, action or proceeding
with respect to which such Indemnified Party may be entitled to receive payment
from the other Party for any Purchaser Losses or Company Losses (as the case may
be), such Indemnified Party will notify the Purchaser or the Company, as the
case may be (the "Indemnifying Party"), promptly following the Indemnified
Party's receipt of such complaint or of notice of the commencement of such
audit, investigation, action or proceeding; provided, however, that the failure
to so notify the Indemnifying Party will relieve the Indemnifying Party from
liability under this Agreement with respect to such claim only if, and only to
the extent that, such failure to notify the Indemnifying Party results in the
forfeiture by the Indemnifying Party of rights and defenses otherwise available
to the Indemnifying Party with respect to such claim. The Indemnifying Party
will have the right, upon written notice delivered to the Indemnified Party
within ten (10) days thereafter assuming full responsibility for any Purchaser
Losses or Company Losses (as the case may be) resulting from such audit,
investigation, action or proceeding, to assume the defense of such audit,
investigation, action or proceeding, including the employment of counsel
reasonably satisfactory to the Indemnified Party and the payment of the fees and
disbursements of such counsel. If, however, the Indemnifying Party declines or
fails to assume the defense of the audit, investigation, action or proceeding on
the terms provided above or to employ counsel reasonably satisfactory to the
Indemnified Party, in either case within such ten (10)-day period, then such
Indemnified Party may employ counsel to represent or defend it in any such
audit, investigation, action or proceeding and the Indemnifying Party will pay
the reasonable fees and disbursements of such counsel as incurred; provided,
however, that the Indemnifying Party will not be required to pay the fees and
disbursements of more than one (1) counsel for all Indemnified Parties in any
jurisdiction in any single audit, investigation, action or proceeding. In any
audit, investigation, action or proceeding with respect to which indemnification
is being sought hereunder, the Indemnified Party or the Indemnifying Party,
whichever is not assuming the defense of such action, will have the right to
participate in such matter and to retain its own counsel at such Party's own
expense. The Indemnifying Party or the Indemnified Party, as the case may be,
will at all times use reasonable efforts to keep the Indemnifying Party or the
Indemnified Party, as the case may be, reasonably apprised of the status of the
defense of any matter the defense of which they are maintaining and to cooperate
in good faith with each other with respect to the defense of any such matter.
(b) No Indemnified Party may settle or compromise any claim or consent to the
entry of any judgment with respect to which indemnification is being sought
hereunder without the prior written consent of the Indemnifying Party, unless
(i) the Indemnifying Party fails to assume and maintain the defense of such
claim pursuant to Section 9.3(a) or (ii) such settlement, compromise or consent
includes an unconditional release of the Indemnifying Party from all liability
arising out of such claim. An Indemnifying Party may not, without the prior
written consent of the Indemnified Party, settle or compromise any claim or
consent to the entry of any judgment with respect to which indemnification is
being sought hereunder unless (i) such settlement, compromise or consent
includes an unconditional release of the Indemnified Party from all liability
arising out of such claim, (ii) does not contain any admission or statement
suggesting any wrongdoing or liability on behalf of the Indemnified Party and
(iii) does not contain any equitable order, judgment or term which in any manner
affects, restrains or interferes with the business of the Indemnified Party or
any of the Indemnified Party's Affiliates.
(c) In the event an Indemnified Party claims a right to payment pursuant to
this Agreement, such Indemnified Party will send written notice of such claim to
the appropriate Indemnifying Party. Such notice will specify the basis for such
claim. As promptly as possible after the Indemnified Party has given such
notice, such Indemnified Party and the appropriate Indemnifying Party will
attempt to establish the merits and amount of such claim (first, in good faith
by mutual agreement, and, if not successful, by litigation, arbitration or
otherwise). Any and all claims, actions, and proceedings arising out of such
claim shall be filed and adjudicated exclusively in a court having a situs in,
or jurisdiction over, St. Louis County, Missouri, and each party to this
Agreement hereby irrevocably consents to jurisdiction and venue in such court
and irrevocably waives any and all objections to jurisdiction, venue, and
convenience therein. In the event that a final judgment or ruling of such court
finds or determines that a claim (or any material component of a claim) or the
defense to such claim or defense to a component of a claim made by a Party
hereunder was not made in good faith after due and adequate investigation of the
facts and law involved in such claim or defense, then the Party against whom
the claim or defense was not made in good faith shall be entitled to an award of
its reasonable costs and attorney's fees incurred in investigating, prosecuting
or defending such claim plus an award of interest at prevailing market rates on
such claim from the date of notice of such claim. The provisions set forth in
this Section 9.3(c) are and shall be the exclusive remedy and procedures
available to a Party with respect to claims for payments pursuant to Section
9.3(c) of this Agreement.
Section 9.4 Claims Period. For purposes of
this Agreement, a "Claims Period"
shall be the period during which an Indemnified Party may assert a claim for
indemnification under this Agreement. The Claims Periods under this Agreement
shall begin on the date hereof and terminate as follows:
(a) with respect to Purchaser Losses arising out of any material breach or
inaccuracy of any representation or warranty by the Company in Section 4.13 of
the Agreement, the Claims Period shall continue indefinitely, except as limited
by law (including by applicable statutes of limitation);
(b) with respect to all other Purchaser Losses arising out of any breach
or inaccuracy of any representation or warranty by the Company and with respect
to all Company Losses arising out of any provision of this Agreement, the Claims
Period shall terminate on the date that is five (5) years after the date hereof;
and
(c) with respect to all Purchaser Losses arising out of any breach under
Sections 9.1(a), 9.1(b), 9.1(d), 9.1(e), or Company Losses arising out of any
breach under 9.2(a), 9.2(b), 9.2(d), or 9.2(e) (collectively, the "Surviving
Obligations"), the Claims Period shall terminate on the date that is five (5)
years after the date that Purchaser or Company discovered the other party's
breach of the Surviving Obligation.
Notwithstanding the foregoing, if, prior to the close of the business day
on the last day of the applicable Claims Period, an Indemnifying Party shall
have been properly notified of a claim for indemnity hereunder and such claim
shall not have been finally resolved or disposed of at such date, such claim
shall continue to survive and shall remain a basis for indemnity hereunder until
such claim is finally resolved or disposed of in accordance with the terms
hereof.
Section 9.5 Liability Limits. Notwithstanding
anything to the contrary set
forth herein, (i) the Purchaser Indemnified Parties shall not be entitled to
make a claim against the Company for indemnification of any Purchaser Losses
unless and until the aggregate amount of such Purchaser Losses exceeds the sum
of $50,000, in which event the Purchaser Indemnified Parties may, subject to the
further provisions of this Section 9.5, claim indemnification for all Purchaser
Losses, including the initial $50,000; and (ii); the aggregate amount of
indemnification obligations of the Company under this Agreement with respect to
all Purchaser Losses arising out of any material breach or inaccuracy of any
representation or warranty by the Company in all Sections other than 4.13 of the
Agreement shall be limited to the amount of the Purchase Price plus the Assumed
Liabilities, provided, however, that such amount and such obligation shall be
reduced to one-half of that amount and obligation on June 30, 2003 and shall be
further reduced by one-fourth (1/4) of that amount on each anniversary thereof.
The aggregate amount of indemnification obligations of the Company under this
Agreement with respect to all Purchaser Losses arising out of any material
breach or inaccuracy of any representation or warranty by the Company in Section
4.13 of the Agreement shall be unlimited.
Section 9.6 Investigations. Except as otherwise
set forth in this Agreement,
the respective representations and warranties of the Parties contained in this
Agreement or in any certificate or other document delivered by any Party prior
to the Closing and the rights to indemnification set forth in Article VIII will
not be deemed waived or otherwise affected by any investigation made by a Party
to this Agreement.
ARTICLE X
MISCELLANEOUS PROVISIONS
SECTION 10.1 Notices. All notices,
communications and deliveries under this
Agreement will be made in writing signed by or on behalf of the Party making the
same, will specify the Section under this Agreement pursuant to which it is
given or being made, and will be delivered personally or by telecopy
transmission or sent by registered or certified mail (return receipt requested)
or by next day courier (with evidence of delivery and postage and other fees
prepaid) as follows:
To the Purchaser: GE Transportation Systems Global Signaling, LLC
XX Xxx 000
0000 X. Xxxxxxxxxx Xxxx
Xxxxx Xxxxxx, Xxxxxxxx 00000
Attn: Manager & President
Telecopy No.: 000-000-0000
with a copy to: GE Transportation Systems Global Signaling, LLC
XX Xxx 000
2712 X. Xxxxxxxxxx Xxxx
Xxxxx Xxxxxx, Xxxxxxxx 00000
Attn: Service Business Leader
Telecopy No.: 000-000-0000
and to: GE Transportation Systems Global Signaling, LLC
XX Xxx 000
2712 X. Xxxxxxxxxx Xxxx
Xxxxx Xxxxxx, Xxxxxxxx 00000
Attn: Legal Counsel
Telecopy No.: 000-000-0000
To the Company XxXxxxx-OCS, Inc./
or XxXxxxx: XxXxxxx, Inc.
0000X Xxxxxxx Xxxx
Xx. Xxxxx, Xxxxxxxx 00000
Attn: Xxxxxx X. Xxxxxxxxxx
Telecopy No.: (000) 000-0000
with a copy to: Suelthaus & Xxxxx, P.C.
0000 Xxxxxxx Xxxxxxxxx, 00xx Xxxxx
Xx. Xxxxx, Xxxxxxxx 00000
Attn: Xxxxxxx X. Xxxxxxx
Telecopy No.: (000) 000-0000
or to such other representative or at such other address of a Party as such
Party may furnish to the other Parties in writing. Any notice which is
delivered personally or by telecopy transmission in the manner provided herein
shall be deemed to have been duly given to the party to whom it is directed upon
actual receipt by such party or its agent. Any notice which is addressed and
mailed in the manner herein provided shall be conclusively presumed to have been
duly given to the Party to which it is addressed at the close of business, local
time of the recipient, on the fourth business day after the day it is so placed
in the mail (or on the first Business Day after placed in the mail if sent by
overnight courier)or, if earlier, the time of actual receipt.
Section 10.2 Schedules and Exhibits. The Schedules and Exhibits to this
Agreement are hereby incorporated into this Agreement and are hereby made a part
of this Agreement as if set out in full in this Agreement.
Section 10.3 Assignment; Successors in Interest.
No assignment or transfer by
any Party of such Party's rights and obligations under this Agreement will be
made except with the prior written consent of the other Parties to this
Agreement; provided that the Purchaser shall, without the obligation to obtain
the prior written consent of any other Party to this Agreement, be entitled to
assign this Agreement or all or any part of its rights or obligations hereunder
to any one (1) or more Affiliates of the Purchaser. This Agreement will be
binding upon and will inure to the benefit of the Parties and their successors
and permitted assigns, and any reference to a Party will also be a reference to
a successor or permitted assign.
Section 10.4 Number; Gender. Whenever the
context so requires, the singular
number will include the plural and the plural will include the singular, and the
gender of any pronoun will include the other genders.
Section 10.5 Captions. The titles, captions and
table of contents contained
in this Agreement are inserted in this Agreement only as a matter of convenience
and for reference and in no way define, limit, extend or describe the scope of
this Agreement or the intent of any provision of this Agreement. Unless
otherwise specified to the contrary, all references to Articles and Sections are
references to Articles and Sections of this Agreement and all references to
Schedules or Exhibits are references to Schedules and Exhibits, respectively, to
this Agreement.
Section 10.6 Controlling Law; Amendment. This
Agreement will be governed by
and construed and enforced in accordance with the internal laws of the State of
Missouri without reference to its choice of law rules. This Agreement may not
be amended, modified or supplemented except by written agreement of the Parties.
Section 10.7 Consent to Jurisdiction, Etc. Except as otherwise expressly
provided in this Agreement, the Parties hereto agree that any suit, action or
proceeding seeking to enforce any provision of, or based on any matter arising
out of or in connection with, this Agreement or the transactions contemplated
hereby shall be brought only in the courts of the State of Missouri or the
federal courts located in the State of Missouri, and each of the Parties hereby
consents to the jurisdiction of such courts (and of the appropriate appellate
courts therefrom) in any such suit, action or proceeding and irrevocably waives,
to the fullest extent permitted by law, any objection which it may now or
hereafter have to the laying of the venue of any such suit, action or proceeding
in any such court or that any such suit, action or proceeding which is brought
in any such court has been brought in an inconvenient forum. The Parties agree
that, after a legal dispute is before a court as specified in this Section 10.7,
and during the pendency of such dispute before such court, all actions, suits,
or proceedings with respect to such dispute or any other dispute, including
without limitation, any counterclaim, cross-claim or interpleader, shall be
subject to the exclusive jurisdiction of such court. Process in any such suit,
action or proceeding may be served on any Party anywhere in the world, whether
within or without the jurisdiction of any such court. Without limiting the
foregoing, each Party agrees that service of process on such Party as provided
in Section 9.1 shall be deemed effective service of process on such Party. Each
Party hereto agrees that a final judgment in any action, suit or proceeding
described in this Section 9.7 after the expiration of any period permitted for
appeal and subject to any stay during appeal shall be conclusive and may be
enforced in other jurisdictions by suit on the judgment or in any other manner
provided by applicable laws.
Section 10.8 WAIVER OF JURY TRIAL . EACH OF THE PARTIES HERETO HEREBY
IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING
ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED
HEREBY.
Section 10.9 Severability. Any provision of this Agreement which is
prohibited or unenforceable in any jurisdiction will, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions of this Agreement, and any such
prohibition or unenforceability in any jurisdiction will not invalidate or
render unenforceable such provision in any other jurisdiction. To the extent
permitted by law, the Parties waive any provision of law which renders any such
provision prohibited or unenforceable in any respect.
Section 10.10 Counterparts. This Agreement may
be executed in two (2) or more
counterparts, each of which will be deemed an original, and it will not be
necessary in making proof of this Agreement or the terms of this Agreement to
produce or account for more than one (1) of such counterparts.
Section 10.11 Enforcement of Certain Rights.
Nothing expressed or implied in
this Agreement is intended, or will be construed, to confer upon or give any
Person other than the Parties, and their successors or permitted assigns, any
rights, remedies, obligations or liabilities under or by reason of this
Agreement, or result in such Person being deemed a third party beneficiary of
this Agreement.
Section 10.12 Waiver. Any agreement on the
part of a Party to any extension or
waiver of any provision of this Agreement will be valid only if set forth in an
instrument in writing signed on behalf of such Party. A waiver by a Party of
the performance of any covenant, agreement, obligation, condition,
representation or warranty will not be construed as a waiver of any other
covenant, agreement, obligation, condition, representation or warranty. A waiver
by a Party of a condition to Closing will not be considered a waiver of any
rights to indemnification that may be claimed by such Party with respect to the
matters relating to such waived condition. A waiver by any Party of the
performance of any act will not constitute a waiver of the performance of any
other act or an identical act required to be performed at a later time.
Section 10.13 Integration. This Agreement and
the documents executed pursuant
to this Agreement supersede all negotiations, agreements and understandings
(both written and oral) among the Parties with respect to the subject matter of
this Agreement, except for that certain Confidentiality Agreement dated March
26, 2002 between Purchaser and the Company, and constitutes the entire agreement
between the Parties. The Parties hereby agree that for purposes of this
Agreement (including, but not limited to conditions to Closing and
indemnification obligations) neither Party has made to the other any
representations, warranties or covenants or other disclosures other than those
contained in this Agreement.
Section 10.14 Compliance with Bulk Sales Laws. The Parties hereby waive
compliance by the Parties with the bulk sales laws and any other similar laws in
any applicable jurisdiction in respect of the transactions contemplated by this
Agreement.
Section 10.15 Transaction Costs. Except as provided above or as otherwise
expressly provided herein, (a) the Purchaser will pay its own fees, costs and
expenses incurred in connection with this Agreement and the transactions
contemplated by this Agreement, including the fees, costs and expenses of its
financial advisors, accountants and counsel, and (b) the Company will pay the
fees, costs and expenses of the Company incurred in connection with this
Agreement and the transactions contemplated by this Agreement, including the
fees, costs and expenses of its financial advisors, accountants and counsel.
[signatures appear on next page]
IN WITNESS WHEREOF, the Parties have caused this Agreement to be duly
executed, as of the date first above written.
XXXXXXX-OCS, INC.
By: _/s/Xxxxx X. XxXxxxx
Name: Xxxxx X. XxXxxxx
Title: President and Chief Executive Officer
GE TRANSPORTATION SYSTEMS GLOBAL SIGNALING, LLC
By: /s/Xxxxxx X. Xxxxxxx
Name: Xxxxxx X. Xxxxxxx
Title: Manager and President
JOINING THIS AGREEMENT SOLELY FOR THE PURPOSE OF THE REPRESENTATIONS AND
WARRANTIES CONTAINED IN ARTICLE V AND THE DELIVERY OF THE GUARANTY AGREEMENT AND
THE MANUFACTURING AGREEMENT:
XXXXXXX, INC.
By: /s/Xxxxx X. XxXxxxx
Name: Xxxxx X. XxXxxxx
Title: President and Chief Executive Officer
Exhibit 2.2(c)
Intellectual Property and Technology
Intellectual Property
The Intellectual Property consists of the following:
1. The "Patent Rights," which consist of:
(i) the following patents or patent applications and resulting patents:
(A) MIN Reuse and Auto Commissioning (Patent No. 6,393,298;
issued May 21, 2002);
(B) Light Performance Monitoring Device (Patent No. 6,222,446;
issued April 24, 2001);
(C) Highway Grade Crossing Vehicle Violation Detector (Patent
No. 6,340,139; issued January 22, 2001);
(D) Methods and Apparatus for Light Outage Detection (Patent
No. 6,369,704; issued March 7, 2001);
(E) Highway Grade Crossing Vehicle Violation Detector (Patent
No. 09/584,865; filed June 1, 2000)
(F) Methods and Apparatus for Light Outage Detection (Canadian
filing; Patent Pending; No. 2,366,273; filed March 1, 2001);
(G) Methods and Apparatus for Light Outage Detection (Canadian
filing; Patent Pending; No. 2,343,688; filed April 11, 2001); and
(H) Use of Control Channel and SMS Transport for Periodic High
Volume Data (Patent Pending; No. 09/347,168; filed July 2, 1999).
(ii) any divisionals, continuation-in-part applications, and continued
prosecution applications (and their relevant international equivalents) of the
patent applications described in (i), to the extent the claims are directed to
subject matter specifically described in such patent applications, and the
resulting patents;
(iii) any patents resulting from reissues, reexaminations, or
extensions (and their relevant international equivalents) of the patents
described in (i) and (ii);
(iv) international (non-United States) patent applications filed after
the date of this Agreement and the relevant international equivalents to
divisionals, continuations, continuation-in-part applications and continued
prosecution applications of such patent applications and any patents resulting
from reissues, reexaminations, or extensions of the patents described in (i),
(ii), and (iii), above, to the extent that the claims are directed to subject
matter specifically described in the patents or patent applications referred to
in (i), (ii), and (iii), above, and the resulting patents.
2. The "Copyrights," which consist of the Company's copyrights in the
Software.
3. The "Software," which includes all computer software, including object code
and source code, that the Company currently uses in its Railroad Segment
Business or its ScadaNet Network Product Line, and related documentation, if
any, as the same exists on the date of the Agreement, to the extent the same is
assignable to the Purchaser.
3. The "Trademarks," which consist of all rights (together with the goodwill
of the business symbolized thereby) in the names "ScadaNet" or "ScadaNet
Network," "Cellular RTU," and "Config RTU" and the following symbols:
(Cellular RTU LOGO)
(ScadaNET Network LOGO)
4. The "Product Technology" which consists of all Intellectual Property and
Technology for products now or formerly sold by the Company through its Railroad
Segment Business, including, but not limited to, the following:
A. ScadaNET Network(TradeMark)
i. System Specification and architecture
B. CRTU-6
i. Hardware design, Bills of Materials, Engineering,
Manufacturing, and Test Engineering drawings and procedures
ii. Firmware
* Programmed logic array maps
* Processor firmware (boot code), current and all prior revisions
* Processor firmware (executive), current and all prior revisions
C. CRTU-10
i. Hardware design, Bills of Materials, Engineering,
Manufacturing and Test Engineering drawings and procedures
ii. Firmware
* Processor firmware (executive)
D. Accessory devices
i. Hardware design, Bills of Materials, Engineering,
Manufacturing and Test Engineering drawings and procedures
* Analog to digital converter modules
* Solid state power outage monitor module
E. Configuration application software
i. ConfigRTU programs, current and all prior revisions
F. ScadaNET Network Software
i. Codebase, current and all prior revisions
G. CRTU-5
H. XM-10
5. All software and copyrights in computer software, including object code and
source code, applying XML and Xxxxxxxxx.Xxx formats and related documentation
developed by the Company for use with the ScadaNet Network Product Line using
intellectual property licensed pursuant to the License Agreement described in
Section 2.6 of the Agreement, as such software and copyrights exist at the
earlier of June 30, 2003 or the termination of the Service Agreement described
in Section 2.10 of the Agreement.
6. All intellectual property and technology developed by the Company pursuant
to the development agreement with the Union Pacific Railroad described in
Schedule 4.4 as such intellectual property and technology exists at the
conclusion of such development agreement.
Technology
The "Technology" consists of all of the Company's information (including, but
not limited to, technical or nontechnical data, formulas, patterns, drawings,
xxxx of materials, trade secrets, know-how, compilations, programs, devices,
methods, techniques, and processes) that relates exclusively to the Intellectual
Property, as the same exists on the date of the Agreement, together with any
customary database maintenance and incremental process improvements that may be
initiated (but not necessarily completed) by the Company during the term of the
Service Agreement described in Section 2.10 of the Agreement.
Exhibit 2.6
License Agreement
Exhibit 2.7
Guaranty Agreement
Exhibit 2.9
Xxxx of Sale, Assignment and Assumption Agreement
Exhibit 2.10
Service Agreement
Exhibit 2.11
Manufacturing Agreement
Exhibit 3.2(a)
Escrow Agreement
Exhibit 4.18A
Expense Summary
Exhibit 4.18B
Sales & Gross Margin Data
