ASSET PURCHASE AGREEMENT
This Asset Purchase Agreement ("Agreement") is made and entered into as
of December 19, 1996, by and between Oryx Power Products Corporation, a
corporation organized and existing under the laws of the State of Delaware and
maintaining its principal place of business at 0000 Xxxxxxxxxxx Xxxxx, Xxxxx
Xxxxxxxx, Xxxxxxxx 00000 ("Power Products"), and Power Sensors Corporation, a
corporation organized and existing under the laws of the State of Illinois and
maintaining its principal place of business at 0000 Xxxxx Xxxx, Xxxxxxxxxx,
Xxxxxxxx 00000 ("PSC"). Together, Power Products and PSC are the only parties
hereto.
RECITALS
A. Power Products is in the business of designing, developing and
manufacturing power conversion products for electronic devices.
B. PSC is in the business of designing, developing and manufacturing
specialized power converters for electronic devices.
C. Power Products wishes to acquire all worldwide right, title and
interest in and to certain of the tangible and intangible assets of
PSC, and to assume certain liabilities of PSC.
D. PSC wishes to sell to Power Products all worldwide right, title and
interest in and to such assets, and to transfer to Power Products such
liabilities.
NOW, THEREFORE, in consideration of the premises and the mutual
covenants and agreements hereinafter set forth, the parties hereto covenant and
agree as follows:
1. DEFINITIONS
(a) The "Agreement" shall mean this Agreement, including its
Disclosure Schedule, and all other schedules and exhibits attached hereto or to
the Disclosure Schedule.
(b) The "Agreements to be Assigned" shall mean (i) all
manufacturing, representative, distributor and supplier agreements relating to
the Products as further described in Section 3(a)(xxi) of this Agreement and as
set forth on Exhibit D to the Disclosure Schedule, (ii) all non-disclosure
agreements relating to the Purchased Assets as further described in Section
3(a)(x) of this Agreement and as set forth in Exhibit A to the Disclosure
Schedule, and (iii) all leases for real and personal property and other
agreements relating to the operation of PSC's business which are specified in
the Disclosure Schedule.
(c) The "Assumed Liabilities" shall mean only those specific
liabilities as set forth on Exhibit B to the Disclosure Schedule. The total of
such Assumed Liabilities shall not exceed $800,000 without the express written
consent of Power Products.
(d) The "Closing Date" of this Agreement shall be the date on
which the "Closing" occurs as defined in Section 6(a) below.
(e) "Customer" shall mean any individual, firm, partnership,
corporation, proprietorship, association, governmental body or other
organization or entity to whom PSC, its subsidiaries or agents has leased, sold
or otherwise conveyed the right to use the Products prior to the Closing Date,
as set forth on Exhibit C to the Disclosure Schedule.
(f) "Customer Data" shall mean all of PSC's customer lists,
lists of End-Users, advertising and marketing know-how and materials, sales
tools and advertising and other data on Customers and potential customers
related to the Products.
(g) "Disclosure Schedule" shall mean the disclosure schedule
and its attached exhibits dated the date hereof, signed or initialed for
identification by a duly authorized representative of PSC, delivered to Power
Products prior to the execution of this Agreement, and attached hereto.
(h) "Documentation" shall mean all (i) schematics, drawings,
layouts, parts lists, and other materials related to the design and manufacture
of the Products, and (ii) specifications and documents necessary for the use and
maintenance of the Products to assure performance of the functions they were
designed to perform, including but not limited to, all user manuals, test or
other data, test programs, and other necessary information that is owned, used
or held by PSC, and described further in the Disclosure Schedule.
(i) "General Assets" shall mean those assets of PSC
so listed and described in the Disclosure Schedule.
(j) "Intellectual Property" shall mean any and all of the
right, title and interest of PSC in and to: the Marks, the Customer Data, all
worldwide marketing rights, copyrights, copyright registrations, copyright
applications, patent rights (including, without limitation, issued patents,
applications, divisions, continuations and continuations-in-part, reissues,
patents of addition, utility models and inventors' certificates), trade secrets,
inventions, inventors' notes, drawings and designs, and vendor lists and the
goodwill associated with any of the foregoing, relating to the Products or the
Documentation or otherwise described in the Disclosure Schedule.
(k) The "Marks" shall mean the trademarks "Power Sensors" and
any other trade or service marks or names used in connection with the Products,
and all trade or service xxxx registrations (and any applications therefor)
associated therewith, together with all associated goodwill, as described
further in the Disclosure Schedule.
(l) "Products" shall mean all products and components thereof
previously and/or currently manufactured by or for PSC, and including all
optional parts and equipment marketed as a part of the foregoing, as set forth
on Exhibit D to the Disclosure Schedule. The term "Products" shall include all
present and predecessor versions of the above (whether or not actually
marketed).
(m) "Proprietary Information" shall mean information which
discloses an apparatus, products, methods, processes, circuits, algorithms,
software designs and methodologies, customer lists, marketing data, product
pricing, listings, product plans, procedures and techniques used by PSC in the
development, manufacture, assembly and marketing of the Products, where such
information derives independent economic value, actual or potential, from not
being generally known to and not being readily ascertainable by proper means by
other persons who can obtain economic value from its disclosure or use, and
which is the subject of efforts by PSC that are reasonable under the
circumstances to maintain its secrecy.
(n) The "Purchased Assets" shall mean the Products, the
Documentation, the Customer Data, the General Assets, the Intellectual Property,
and the Agreements to be Assigned, collectively.
2. SALE OF PURCHASED ASSETS AND PURCHASE PRICE
(a) In consideration of Power Products' payment to PSC
pursuant to the provisions of Section 2(d) below, and subject to the provisions
set forth in this Agreement, at the Closing Date, PSC shall transfer, sell and
assign to Power Products, and Power Products shall purchase from PSC, all
worldwide right, title and interest in and to the Purchased Assets, including,
without limitation, the worldwide right to manufacture, market, distribute and
sell the Products.
(b) PSC hereby agrees not to use, after the Closing Date, the
Marks or any confusingly similar product name or service xxxx, except that for
thirty (30) days following the Closing Date, PSC may use the Marks to dispose of
the assets not purchased by Power Products under this Agreement.
(c) PSC agrees that at and after the Closing Date PSC shall
have no further right to manufacture or market the Products or to use any of the
Intellectual Property or Proprietary Information.
(d) In consideration of PSC's transfer to Power Products of
the Purchased Assets, Power Products shall pay PSC and assume certain
liabilities as follows:
(i) Power Products Stock.
At the Closing, Power Products shall pay to PSC consideration in the form
of shares of Power Products Series A Common Stock (the "Series A Securities") to
be paid as follows: (a) 540,000 shares of the Series A Securities shall be
delivered to PSC at the closing; and (b) 60,000 shares of the Series A
Securities (the "Escrow Amount") shall be deposited in an escrow account (the
"Escrow") established pursuant to the terms and conditions of the escrow
agreement by and among Power Products, PSC, and an escrow agent (the "Escrow
Agent") substantially in the form attached hereto as Exhibit 4 (the "Escrow
Agreement"). If, within three (3) years of the Closing Date, Power Products is
not itself (a) sold as an entirety to, or purchased by, a third party for cash
or public securities of such third party or (b) publicly traded as a company
whose securities are registered under the Securities Act of 1933 or is a
reporting company under the Securities Exchange Act of 1934, then each of the
holders of such Series A Securities on that date, shall have the option to
exchange the Series A Securities into a non-interest bearing promissory note
(the "Promissory Note") of Power Products substantially in the form of Exhibit 2
hereto (the "option" or "conversion right.").
Such option shall be exercised, if at all, by each holder of the Series A
Securities (as shown on Power Products stock registry) sending a signed notice
to Power Products within thirty (30) days after the expiration of the three (3)
year period following the Closing Date. The failure of any such registered
holder to send such signed notice within the thirty (30) day period shall be
deemed to be a failure to exercise such conversion right, and the conversion
right shall thereafter be void. All such notices sent under this section 2(d)(i)
shall be sent in accordance with Section 12 below.
The text of the notice to be sent by the holders of the Series A Securities
shall be as follows:
"The undersigned registered holder of Power Products Series A Common Stock
issued in the Power Products acquisition of the assets of Power Sensors
Corporation under that certain Asset Purchase Agreement dated ____________,
1996, hereby exercises his/her option right to demand that Oryx Power Products
purchase such shares in their entirety in accordance with the terms of said
Asset Purchase Agreement by executing that certain Promissory Note attached to
said Asset Purchase Agreement in an amount equal to two dollars and fifty cents
($2.50) per such share."
Upon its receipt of such notice, Power Products shall execute the
Promissory Note substantially in the form attached hereto as Exhibit 2 in the
amount of two dollars and fifty cents ($2.50) per share of Power Products Series
A Common Stock to be purchased, and deliver same to the registered holder
thereof.
Power Products agrees that following the Closing Date, it will not directly
or indirectly cause the issuance to itself, its parent corporation, any
subsidiary of its parent corporation, or corporate entity in which it's parent
corporation holds a greater than fifty percent (50%) interest, any Power
Products Series A Securities unless it provides to PSC or its successors in
interest the option for a period of thirty (30) days following delivery of
written notice of the proposed issuance of the Series A Securities, to purchase
on the same terms and conditions that amount of Series A Securities as necessary
to preserve PSC's same percentage ownership of the outstanding Series A
Securities immediately prior to the proposed issuance of the Series A
Securities.
If Power Products at any time within three (3) years of the Closing Date
proposes to register any of its Series A Securities under the Securities Act
(other than a registration effected solely to implement an employee benefit plan
or any other form or type of registration in which the Series A Securities
cannot be included pursuant to Commission regulation, rule or practice), it will
give written notice to PSC or its successors in interest of its intention to
make such registration. If such registration is proposed to be on a form which
permits inclusion of the Series A Securities, then upon the written request of
PSC or its successors in interest, given within thirty (30) days after
transmittal by Power Products to PSC or its successors in interest of such
written notice (stating the intended method and terms of disposition of such
securities, including a list of the jurisdictions in which the Power Products
intends to qualify such securities), Power Products will use commercially
reasonable efforts to cause such Series A Securities of said requesting holders
to be registered under the Securities Act and qualified for sale under any state
blue sky law, all to the extent requisite to permit such sale or other
disposition by such holders of the Series A Securities so registered. If the
managing underwriter determines that marketing factors require a limitation on
the number of shares to be underwritten, the managing underwriter may limit the
Series A Securities and other securities to be distributed through such
underwriting. Power Products will notify PSC or its successors in interest of
such limitation and the number of shares of Series A Securities that may be
included in the registration and underwriting shall be allocated in proportion
to the respective amounts of such securities held by PSC or its successors in
interest at the time of filing the registration statement.
(ii) Assumption of Liabilities.
As of the Closing, Power Products will assume the Assumed Liabilities as
set forth on Exhibit B to the Disclosure Schedule, which Assumed Liabilities
will not exceed $800,000 without the express written consent of Power Products.
As part of this $800,000 assumption of liabilities, Power Products will, prior
to the Closing Date, repay in full the Small Business Administration Loan with
Merchants' Bank of Aurora and the National Republic Bank of Chicago Loan, both
identified on the Disclosure Schedule, provided that Power Products is able to
obtain prior to the Closing Date a new loan from the National Republic Bank of
Chicago for the amount of, and to accomplish, such
repayment.
3. REPRESENTATIONS AND WARRANTIES
(a) Representations and Warranties of PSC. As of the
date hereof and as of the Closing Date, PSC represents and warrants to Power
Products as follows:
(i) Due Organization. PSC is a corporation
duly organized, validly existing andin good standing under the laws of the
State of Illinois. Unless otherwise set forth in the Disclosure Schedule,
PSC is in good standing and qualified as a foreign corporation to do
business in all other jurisdictions in which the nature of the business
conducted by it makes such qualification necessary.
(ii) Power and Authority. PSC will, as of the
Closing Date, have the corporatepower and authority to execute and
deliver this Agreement and each of thedocuments contemplated hereby to
which PSC is a party, and to perform itsobligations hereunder and
thereunder, and the execution, delivery and performance of this Agreement
and each of the documents contemplated hereby to which PSC is a party will,
as of the Closing Date, have been duly and validly authorized and approved by
all necessary and proper corporate action on the part of PSC. PSC will, as of
the Closing Date, have taken all other action required by law, its Certificate
of Incorporation or By-Laws or any agreement to which it is a party or to which
it may be subject in order to execute and deliver this Agreement and to
perform its obligations hereunder, including, without limitation,
obtaining the approval of its shareholders and Board of Directors
respectively.
(iii) Legality and Validity. Assuming due
authorization, execution and delivery on the part of Power
Products where applicable, this Agreement and each of the documents
contemplated hereby to which PSC is a party, to the best of PSC's knowledge,
constitute legal, valid and binding obligations of PSC, and, to the
best of PSC's knowledge, are enforceable against PSC in accordance with their
respective terms, except as the enforceability thereof may be limited by
applicable bankruptcy, insolvency, reorganization or other similar laws of
general application relating to creditors' rights.
(iv) Execution Legal. The execution and
delivery of this Agreement and each of the documents contemplated hereby to
which PSC is a party and the consummation of the transactions contemplated
hereby and thereby will not, on the part of PSC, violate any state, federal or
other statute or regulation or any order of any court or other governmental
department, authority, agency or instrumentality, including without
limitation, any Illinois bulk sales or transfer law.
(v) Title to Assets. Except as set forth in the
Disclosure Schedule, PSC has all worldwide rights to, and ownership interest
in, the Purchased Assets, including all components and related Intellectual
Property transferred with respect to the Products hereunder, free and clear of
all claims, liens and encumbrances, and PSC further warrants that it has no
obligations to third parties with respect to the Purchased Assets, except as
set forth in the Disclosure Schedule. PSC has the exclusive right to bring
actions for infringement of the Documentation. Notwithstanding anything to
the contrary contained herein, PSC makes no representation or warranty as
to whether it has any proprietary exclusive rights to the Intellectual Property,
although it is unaware that the same infringes any patents.
(vi) Compliance with Laws. Except as set forth
in the Disclosure Schedule, to the best of its knowledge, PSC is not in
violation of any applicable statute, regulation (including environmental
and occupational safety and health laws, foreign corrupt practices laws and
related regulations), ordinance, writ, injunction, order, judgment, or
decree of any government or governmental agency, foreign or domestic, which
relates to the Purchased Assets, which, if such violation exists, would
have a material adverse effect on the Purchased Assets or the business which
Power Products intends with respect to such assets.
(vii) Actions Pending. Except as set forth in
the Disclosure Schedule, and to the best knowledge of PSC, there are no
actions, suits, investigations or proceedings (A) pending or threatened
against PSC or any properties or rights of PSC before any court, arbitrator or
administrator or governmental body which arose out of or are based upon the
ownership or use of the Purchased Assets and there is no judgment, order,
writ or decree of any governmental authority applicable to PSC which might
have a material adverse effect on the value of the Purchased Assets to Power
Products, (B) challenging the ownership or use, in and respect, of the
Purchased Assets, or (C) asserting the invalidity of this Agreement or
seeking to prevent any of the transactions contemplated hereby. Nor, to the
best knowledge of PSC, is there any valid basis for any successful action,
suit, investigation or proceeding of the nature referred to above.
(viii) Conflicting Agreements.
Subject to the obtaining of such consents and waivers as are listed and
described in the Disclosure Schedule, neither the execution nor delivery by
PSC of this Agreement nor compliance by PSC with the terms and provisions
hereof will (A) conflict with, or result in a breach of, the terms,
conditions or provisions of, or constitute a default under, or result in any
violation of, the Certificate of Incorporation or By-Laws of PSC, any award of
any arbitrator or any other agreement (including any agreement with
stockholders), or regulations to which PSC is subject, or (B) result in the
creation of any lien upon the Purchased Assets. Except as set forth in the
Disclosure Schedule, PSC is not a party to, or otherwise subject to any
provision contained in, any instrument evidencing indebtedness, any agreement
relating thereto or any other contract or agreement (including its Certificate
of Incorporation) which restricts or otherwise limits the transfer of the
Purchased Assets. Except as set forth in the Disclosure Schedule, neither PSC
nor any affiliate of PSC is a party to any joint venture or similar affiliation
involving the Purchased Assets.
(ix) Proprietary Rights. Except as set forth in
the Disclosure Schedule, as of the Closing Date, to the best of its knowledge,
PSC's manufacture, marketing or use of the Products, Documentation and
Intellectual Property does not infringe upon any U.S. patent, copyright,
trade secret or other proprietary right held by any third party, or, to the best
of PSC's knowledge, any non-U.S. patent, copyright, trade secret or other
proprietary right held by any third party.
(x) Access. Except as set forth in the
Disclosure Schedule, all persons who in the ordinary course of business have
had access to the Proprietary Information contained in and regarding the
Purchased Assets have executed, or will have executed prior to the Closing,
a non-disclosure agreement with PSC. All such agreements are listed and
described in the Disclosure Schedule. The rights to enforce these
agreements with respect to the Purchased Assets and the Proprietary
Information contained therein are hereby assigned to Power Products effective
upon the Closing.
(xi) Product Versions. Ownership of all
rights to the Products owned by PSC, including all current, prior, and
future versions (as same may exist), is hereby transferred from PSC to Power
Products, as of the Closing Date.
(xii) Work in Progress. All work in
progress relating to modifications and enhancements of the Products and
corrections to the Documentation is hereby transferred from PSC to Power
Products as of the Closing Date.
(xiii) Customer List. The Disclosure Schedule
contains a true and accurate list of current Customers of PSC, and PSC
represents and warrants that except as set forth in the Disclosure
Schedule, the Customers have not expressed dissatisfaction to PSC with
the Products any more than reasonably expected in the normal course of
business.
(xiv) Absence of Changes. Except as set forth in
the Disclosure Schedule or as may have been consented to in writing by Power
Products, since October 31, 1996:
(A) there has been no material
adverse change in PSC's financial condition or business related to the
Purchased Assets; and
(B) there has not been any damage,
destruction or loss (whether or not covered by insurance) materially and
adversely affecting the Purchased Assets or components of PSC's business
related to the Purchased Assets.
(xv) Tax Matters. In all respects relating
to the Purchased Assets or PSC's business related to the Purchased Assets,
directly or indirectly, (A) PSC has filed all federal, state, local and
foreign tax returns required to be filed for the jurisdictions in which the
business or assets of PSC are subject to tax, (B) each such return is complete,
accurate and in compliance with applicable law and regulations in all material
respects, and (C) PSC has paid or provided for all such taxes of any nature
whatsoever, with any related penalties, interest and liabilities (any of the
foregoing being referred to herein as a "Tax"), that are or would be shown on
such tax returns as due and payable on or before the date hereof, other than
such Taxes as are being contested in good faith.
(xvi) Product and Service Warranty. The
Disclosure Schedule sets forth a true and complete description of all
warranties provided by PSC to Customers with respect to the Products. Except
as disclosed in the Disclosure Schedule, to the best of PSC's knowledge, no
Product sold, licensed or leased is the subject of any pending or threatened
claim for breach of warranty or product liability.
(xvii) Employees.
(A) Except as set forth in Exhibit G to the
Disclosure Schedule, to the best of PSC's knowledge PSC is in compliance
with all applicable laws and regulations respecting employment and
employment practices, and terms and conditions of employment and wages and
hours, violation of which would have a material adverse effect upon the
value of the Purchased Assets to Power Products.
(B) Exhibit G to the Disclosure Schedule contains (1) a true and complete
list of all employment and consulting contracts or arrangements with any of
PSC's current employees, (2) a true and complete list of all current employees
or consultants retained by PSC, with salary or compensation rates, and (3) the
names of all employees or former employees (or consultants) of PSC who are
receiving or are entitled to receive at any time continuing payments of any kind
after termination of employment other than under an employment contract listed
in clause (1) immediately above.
(xviii) Insurance. The Disclosure Schedule
contains true and complete list of all policies of insurance relating to the
Purchased Assets specifying the amount of coverage and type of insurance,true
and complete copies of which have been delivered to Power Products. Except
as set forth in the Disclosure Schedule, such insurance is in good standing
and is duly in force and all premiums due with respect thereto have been paid.
The Disclosure Schedule includes a true and complete description of claims
experience for the past five years, including settled and outstanding claims
relating to the Purchased Assets, under all insurance policies held by PSC,
whether or not currently in effect, as set forth on Exhibit F to the Disclosure
Schedule.
(xix) Contracts. The Disclosure Schedule
contains true and complete copies of all agreements, arrangements, commitments
and understandings, whether oral or written, and all instruments or
documents to which PSC is a party or by which it is bound as the same may have
been supplemented or amended, not elsewhere specifically referred to in
this Section, which are material to PSC or have a term of more than one
year and which relate to the Purchased Assets ("Contracts"), as set
forth in Exhibit E to the Disclosure Schedule. For the purposes of this
Section 3(a)(xx), "material" means the contract has a value in excess of $5,000
and/or is significant to the manufacture of the Products. To the best of
PSC's knowledge, except as set forth in the Disclosure Schedule, there has
not been any breach, violation, default or event of default, or any event
which with the giving of notice or passage of time would become a default or
event of default by PSC (nor, to the best knowledge of PSC, by any other
party to any Contract) under any Contract which individually or collectively
would have a material adverse effect upon the value of the Purchased Assets to
Power Products.
(xx) Distributors, Dealers, Representatives,
Suppliers and Manufacturers. The following are either contained in the
Disclosure Schedule or have been previously provided to Power Products:
(A) true and complete copies of all
agreements or contracts with all current distributors, dealers, and
representatives of the Products (including original equipment manufacturers),
representatives and agents of PSC;
(B) true and complete copies of all
agreements or contracts with persons who provided goods or services to PSC
relating to the Products in the twelve months ended the date hereof and
thereafter through the Closing Date, and to whom PSC paid or is committed to
pay $5,000 or more in the aggregate since the beginning of said period;
(C) true and complete copies of all
agreements or contracts with all licensees, lessees and other users of the
Products;
(D) a true and complete list of all
current advertising and marketing arrangements relating to the Products, and
a description of the terms thereof; and
(E) true and complete copies of all
current contracts with manufacturers and fabrication facilities.
There is no material agreement or contract (or the relationship of PSC and any
of the foregoing persons or entities) which is not either set forth in the
Disclosure Schedule or otherwise disclosed. All of the foregoing agreements or
contracts are included in the Agreements to be Assigned except as set forth in
the Disclosure Schedule.
(xxi) Related Party Transactions. Except as set
forth in the Disclosure Schedule, no shareholder, employee, officer, or
director of PSC:
(A) has any interest in the Purchased
Assets, or
(B) to the best of PSC's knowledge,
has any direct or indirect interest of any nature whatever in any
corporation or business which competes with, conducts any business
similar to, or has any present (or contemplated) arrangement or
agreement (whether as a customer or supplier) with PSC relating to the
Purchased Assets.
(xxii) Disclosure. This Agreement, the Disclosure
Schedule, the Exhibits hereto, and all certificates or statements furnished
to Power Products by or on behalf of PSC in connection herewith do not
contain any untrue statement of a material fact or omit to state a material
fact necessary in order to make the statements contained herein and therein not
misleading. There is no fact known to PSC which materially adversely affects
or in the future will (so far as is now reasonably foreseeable by PSC)
materially adversely affect the value of the Purchased Assets to Power
Products which has not been set forth in this Agreement or the Disclosure
Schedule.
(xxiii) No Other Assets. Upon transfer of the
Purchased Assets to Power Products, PSC will retain no assets necessary to the
conduct of PSC's business other than the rights of PSC under this Agreement.
(xxiv) Conduct of Business. From the date hereof
until the Closing Date, PSC has conducted its business in the ordinary
course and has not entered into any contract or commitment, incurred any
liability or taken any other action related to the Purchased Assets where such
contract, commitment, liability or action was not in the ordinary course of
business except as set forth in the Disclosure Schedule to be supplemented
until the Closing.
(b) Representations and Warranties of Power Products.
As of the date hereof and as of the Closing Date, Power Products represents
and warrants to PSC as follows:
(i) Due Organization. Power Products is a
corporation duly organized and validly existing and in good standing under the
laws of the State of Delaware.
(ii) Power and Authority. Power Products has
the corporate power and authority to execute and deliver this Agreement,
and each of the documents contemplated hereby to which Power Products is
a party, and to perform its obligations hereunder and thereunder, and the
execution, delivery and performance of this Agreement and each of the
documents contemplated hereby to which Power Products is a party, have been
duly and validly authorized by all necessary and proper corporate action on
the part of Power Products, and Power Products has taken all other action
required by law, its Articles of Incorporation or By-Laws or any agreement
to which it is a party or to which it may be subject in order to execute
and deliver this Agreement and to perform its obligations hereunder.
(iii) Legality and Validity. Assuming due
authorization, execution and delivery on the part of PSC where applicable,
this Agreement and each of the documents contemplated hereby to which Power
Products is a party, constitute legal, valid and binding obligations of Power
Products, and are enforceable against Power Products in accordance with
their respective terms, except as the enforceability thereof may be limited by
applicable bankruptcy, insolvency, reorganization or other similar laws of
general application relating to creditors' rights.
(iv) Execution Legal. The execution and
delivery of this Agreement and each of the documents contemplated hereby
to which Power Products is a party and consummation of the transactions
contemplated hereby and thereby will not, on the part of Power Products,
violate any state, federal or other statute or regulation or any order of
any court or any governmental department, authority, agency or instrumentality.
(v) Compliance with Laws. To the best of
Power Products' knowledge, Power Products is not in violation of any
applicable statute, regulation (including environmental and occupational
safety and health laws, foreign corrupt practices laws and related regulations),
ordinance, writ, injunction, order, judgment, or decree of any government or
governmental agency, foreign or domestic, which relates to its property
or the Purchased Assets, which, if such violation exists, would have a
material adverse effect on the Purchased Assets or Power Products' business.
(vi) Actions Pending. There are no actions,
suits, investigations or proceedings pending, or to the best knowledge of
Power Products, (A) threatened against Power Products or any properties or
rights of Power Products before any court, arbitrator or administrator or
governmental body which arose out of or are based upon the ownership or use of
its property or the Purchased Assets and there is no judgment, order, writ or
decree of any governmental authority applicable to Power Products which
might have a material adverse effect on the value of its property or the
Purchased Assets to Power Products, (B) challenging the ownership or use,
in any respect, of its property or the Purchased Assets, or (C) asserting
the invalidity of this Agreement or seeking to prevent any of the transactions
contemplated hereby. To the knowledge of Power Products, no valid basis for
any successful action, suit, investigation or proceeding of the nature referred
to above exists.
(vii) Conflicting Agreements. Neither the
execution nor delivery by Power Products of this Agreement nor compliance by
Power Products with the terms and provisions hereof will (A) conflict with,
or result in a breach of, the terms, conditions or provisions of, or constitute
a default under, or result in any violation of, the Certificate of
Incorporation or By-Laws of Power Products, any award of any arbitrator or any
other agreement (including any agreement with shareholders), or regulations
to which Power Products is subject, or (B) result in the creation of any lien
upon its property or the Purchased Assets. Power Products is not a party to,
or otherwise subject to any provision contained in, any instrument
evidencing indebtedness, any agreement relating thereto or any other contract or
agreement (including its Certificate of Incorporation) which restricts or
otherwise limits the transfer of its property or the Purchased Assets.
(viii) Tax Matters. Power Products has filed all
federal, state, local and foreign tax returns required to be filed for the
jurisdictions in which the business or assets of Power Products are subject
to tax. Each such return is complete, accurate and in compliance with
applicable law and regulations in all material respects. Power Products has
paid or provided for all such taxes of any nature whatsoever, with any related
penalties, interest and liabilities (any of the foregoing being referred
to herein as a "Tax"), that are or would be shown on such tax returns as
due and payable on or before the date hereof, other than such Taxes as are
being contested in good faith.
(ix) Financial Statements. Set forth on
Exhibit 5 are the balance sheet and income statement of Power Products
for the fiscal years ended 2/28/94 and 2/28/95 and the 9 month period ended
10/31/96 as filed with the Securities and Exchange Commission on the
Forms 10K-SB and 10Q-SB of Oryx Technology Corporation for the respective
periods.
4. CONDITIONS TO OBLIGATIONS OF POWER PRODUCTS
Power Products' obligation to consummate the transactions
contemplated by this Agreement shall be subject to the reasonable satisfaction,
or to the waiver by Power Products in writing, on or before the Closing Date, of
the following conditions, all of which are for the sole benefit of Power
Products:
(a) Representations and Warranties True. The
representations and warranties of PSC contained in this Agreement shall
be true in all material respects on the Closing Date, and a certificate
attesting to same signed by Xxxxxx Xxxx.
(b) Performance of Covenants. PSC shall have performed and
complied in all material respects with each and every covenant, agreement and
condition required by this Agreement to be performed or complied with by PSC
prior to or on the Closing Date.
(c) No Governmental or Other Proceeding or Litigation. No
order of any court or administrative agency shall be in effect which restrains
or prohibits any transaction contemplated hereby or which would limit or affect
Power Products' rights hereunder except as set forth in the Disclosure Schedule;
no suit, action, investigation, inquiry or proceeding by any governmental body
or other person or entity shall be pending or threatened against PSC or Power
Products which challenges the validity or legality, or seeks to restrain the
consummation, of the transactions contemplated hereby or which seeks to limit or
otherwise affect any of Power Products' rights hereunder; and no written advice
shall have been received by PSC or Power Products or their counsel from any
governmental body or other person, and remain in effect, stating that an action
or proceeding will, if any such transaction is consummated or sought to be
consummated, be filed seeking to invalidate or restrain any such transaction or
limit or otherwise affect Power Products' or PSC's right to the ownership of the
Purchased Assets.
(d) Approvals and Consents. Except as set forth in the
Disclosure Schedule, all approvals, applications, notifications or filings of or
to public authorities, federal, state, or local, and, except as consented to by
Power Products, all consents or approvals of any non-governmental persons who
are parties to contracts or other agreements to which PSC is also a party or to
which assets of PSC are subject, the granting of which is necessary for the
consummation of the transactions contemplated hereby or for preventing any
material loss or disadvantage to Power Products by reason of such transaction,
shall have been obtained, and no such consent or approvals shall have imposed a
condition to such consent or approval which in the reasonable opinion of Power
Products is unduly burdensome to the financial position or operations of Power
Products.
(e) Employment Agreements. Xxxxxx Xxxx, Xxxx Xxxxxxxxx, and
Xxxx Xxxxx each shall have executed an Employment Agreement in substantially the
form attached hereto as Exhibit 1 to the Agreement, which is not part of the
disclosure requirements set forth in the Disclosure Schedule.
5. CONDITIONS TO OBLIGATIONS OF PSC
PSC's obligations to consummate the transactions contemplated
by this Agreement shall be subject to the reasonable satisfaction, or to the
waiver by PSC in writing, on or before the Closing Date, of the following
conditions, all of which are for the sole benefit of PSC:
(a) Representations and Warranties True. The
representations and warranties of Power Products contained in this Agreement
shall be true in all material respects on the Closing Date.
(b) Performance of Covenants. Power Products shall have
performed and complied in all material respects with each and every covenant,
agreement and condition required by this Agreement to be performed or complied
with by it prior to or on the Closing Date.
(c) No Governmental or Other Proceeding or Litigation. No
order of any court or administrative agency shall be in effect which restrains
or prohibits any transaction contemplated hereby or which would limit or affect
PSC's rights hereunder; no suit, action, investigation, inquiry or proceeding by
any governmental body or other person or entity shall be pending or threatened
against Power Products or PSC which challenges the validity or legality, or
seeks to restrain the consummation, of the transactions contemplated hereby or
which seeks to limit or otherwise affect any of PSC's rights hereunder; and no
written advice shall have been received by Power Products or PSC or their
counsel from any governmental body or other person, and remain in effect,
stating that an action or proceeding will, if any such transaction is
consummated or sought to be consummated, be filed seeking to invalidate, or
restrain any such transaction or limit or otherwise affect Power Products' or
PSC's right to the ownership of the Purchased Assets.
(d) Approvals and Consents. All approvals, applications
notifications or filings of or to public authorities, federal, state, or local,
and all consents or approvals of any non-governmental persons who are parties to
contracts or other agreements to which Power Products is also a party or to
which assets of Power Products are subject, the granting of which is necessary
for the consummation of the transactions contemplated hereby, shall have been
obtained.
(e) Employment Offers. Power Products shall have
offered employment to those current employees of PSC listed on the Disclosure
Schedule.
(f) Employment Agreements. Xxxxxx Xxxx, Xxxx Xxxxxxxxx, and
Xxxx Xxxxx each shall have executed an Employment Agreement in substantially the
form attached hereto as Exhibit 1 to the Agreement, which is not part of the
disclosure requirements set forth in the Disclosure Schedule.
6. EXECUTION AND CLOSING
(a) Time, Date and Place of Closing. The purchase and sale
contemplated by this Agreement shall be consummated on or before December 20,
1996 at the offices of Xxxxxxx, Xxxxxxxx & Xxxxxx Ltd., 000 Xxxxxxxx Xxxxxx,
Xxxxxxx, Xxxxxxxx 00000 at such time as the parties may mutually agree or at
such other time, date or place as the parties may mutually agree; provided,
however, Power Products in its discretion may postpone the Closing Date for up
to 90 days in the event that PSC has not performed the conditions to obligations
of Power Products set forth in Section 4 above by December 20, 1996; and,
provided further, PSC in its discretion may postpone the Closing Date for up to
90 days in the event that Power Products has not performed the conditions to
obligations of Power Products set forth in Section 5 above by December 20, 1996.
Closing may be effected by facsimile signatures, provided that all documents are
followed by delivery of the originals.
(b) Deliveries by PSC. Subject to the terms and conditions
hereof, at the Closing PSC will deliver or cause to be delivered to Power
Products at Power Products' offices in Illinois the following:
(i) duly executed bills of sale and other
instruments of transfer in the form of Exhibit 3 in form and substance
satisfactory to Power Products and its counsel and sufficient to convey to
Power Products all right, title and interest in and to all of the Purchased
Assets; and
(ii) the other documents referred to in
Section 4(a), (d) and (e) hereof.
(c) Deliveries by Power Products. Subject to the
terms and conditions hereof, at the Closing, Power Products will deliver
the following:
(i) to PSC, one (1) stock certificate
representing 540,000 shares of Power Products Series A Common Stock and the
other documents referred to in Section 5 hereof; and
(ii) to the Escrow Agent, one (1) stock
certificate representing 60,000 shares of Power Products Series A Common Stock
to be held in escrow under the terms of the Escrow Agreement.
(d) Further Assurances. PSC and Power Products agree that at
or after the Closing, upon the request of the other, each shall from time to
time execute and deliver to the other all such instruments and documents or
further assurances as shall be reasonably necessary to vest in Power Products
title to and possession of the Purchased Assets, and further that each shall
provide or otherwise make available to the other all such documents,
instruments, agreements and other information and take such further actions as
shall be necessary to consummate the transactions contemplated hereby.
(e) Sales Taxes. Power Products shall pay any sales,
use, transfer or other taxes arising from the sale of the Purchased Assets to
Power Products.
(f) Press Release. At a mutually agreed time, Power Products
and PSC shall issue a joint press release announcing the purchase of the
Purchased Assets in form and substance reasonably satisfactory to Power Products
and PSC.
7. WARRANTIES
(a) Product Warranty. PSC represents and warrants that the
Products as delivered to Power Products hereunder on the Closing Date and
installed as described in PSC's Product installation manuals, (i) shall be
suitable for use as currently documented and (ii) shall be capable of
substantially performing in accordance with the documented specifications in all
material respects. THE FOREGOING WARRANTY IS IN LIEU OF ALL OTHER WARRANTIES,
EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. If any Products do not
conform to the warranty, then Power Products shall be entitled to reimbursement
from PSC or its successors in interest in the amount of the lesser of: (I) the
internal cost of Power Products to conform the Products to the warranty; or (ii)
the value ascribed to the Products as set forth on the Disclosure Schedule.
(b) No Brokers. PSC and Power Products mutually represent and
warrant to each other that they have not negotiated with any broker or finder in
connection with this Agreement or the subject matter hereof. Each party agrees
that should any claim be made against the other party for any broker's
commission or finder's fee by reason of the acts of such party, the party upon
whose acts such claim is based and who is liable for such obligation shall hold
the other party free and harmless from and against all liability and expenses in
connection therewith.
(c) Survival of Warranties. PSC and Power Products hereby
agree that any representations or warranties made by any party in this Agreement
shall survive the execution of this Agreement and the delivery of the Purchased
Assets for a period of three (3) years from the Closing Date hereof. The parties
hereto each acknowledge that they are making said representations and warranties
to induce the others to enter into this Agreement.
8. COVENANTS
(a) Maintenance of Status Quo. PSC agrees that from the date
of execution of this Agreement until the Closing Date, it will not (1) offer or
sell, or negotiate with or entertain any proposals from any other person for any
such offer or sale of the Purchased Assets, or (2) negotiate with or entertain
any proposals from any other persons for any other transaction wherein the
Purchased Assets would be acquired, directly or indirectly, by any party other
than Power Products. Until the Closing Date, PSC will use its best efforts to
preserve intact PSC's customers, business organization and existing business
relationships related to the Purchased Assets. In this regard PSC agrees that
during the period from the time it executes this Agreement to the Closing Date,
PSC will conduct its business in the ordinary course and will not, without the
prior written consent of Power Products, enter into any contract or commitment,
incur any liability or take any other action related to the Purchased Assets
where such contract, commitment, liability or action is not in the ordinary
course of business.
(b) Notice of Claims. PSC shall promptly notify Power Products
in writing of any claim or litigation, commenced or threatened, with regard to
the Products, the Documentation or the Intellectual Property, or with regard to
PSC's title or proprietary rights thereto that is brought to the attention of
PSC during the warranty period set forth in Section 7(c) above.
(c) Mailing. Following the Closing Date, PSC shall participate
with Power Products in a mailing to each of the Customers and prospects listed
in the Disclosure Schedule to explain the transfer of the Purchased Assets to
Power Products. The content for the mailing shall be mutually agreed upon and
the mailing shall be at the parties' joint expense.
(d) No Interference. PSC hereby agrees that it will
not in any way undertake to sell, lease, license, transfer or otherwise
use the Product so as to interfere with the rights obtained by Power
Products hereunder, nor will PSC permit or assist anyone else in so doing.
(e) Covenant Not to Compete. PSC hereby agrees that neither
PSC nor any corporation controlled by or subject to the control of PSC, shall
engage in the United States, or worldwide, for a period of five (5) years from
the Closing Date, in the development, marketing, leasing or selling of any
products so similar as to be substantially competitive with any one of the
Products. Further, it is specifically agreed that this covenant is reasonable in
scope and term, PSC being free to engage in the development, marketing, leasing
or selling of all other types of products.
(f) Access to Records. Power Products' representatives,
attorneys and accountants have had prior to the date hereof, and PSC shall allow
them to continue to have until the Closing Date, reasonable access to the
records and files, audits and properties of PSC as well as all information
relating to taxes, commitments, contracts, titles and the financial condition
of, or otherwise pertaining to, the business and affairs of PSC relating to the
Purchased Assets. From the date hereof, PSC agrees to cause its accountants to
cooperate with Power Products in making available all financial information
concerning the Purchased Assets as is requested, and Power Products and its
accountants shall have the right to examine all working papers pertaining to
examinations of PSC's business relating to the Purchased Assets, or preparation
of its report by PSC's accountants. Unless and until the Closing contemplated
herein is consummated, Power Products shall hold in confidence, and shall use
its best efforts to cause its representatives, attorneys and accountants to hold
in confidence, all information (unless ascertainable from public or published
information or trade sources) obtained as aforesaid, and if such Closing is not
consummated within 30 days of the Closing Date, Power Products shall return to
PSC all such copies of documents relating to the business, assets and operations
of PSC, and Power Products shall continue to hold all such information in
confidence, treat the same as confidential, and not use such information in the
conduct of its business. Power Products agrees to make available to a designated
representative of PSC the opportunity to review the books and records of Power
Products to verify the capitalization of Power Products and the compliance by
Power Products with respect to its obligations under Section 2(d)(i) of this
Agreement.
(g) Payment of Taxes.Any tax returns required to have been
filed by PSC for periods prior to the Closing Date shall be promptly so filed by
PSC upon notice of the requirement to do so, and PSC shall include with all such
filings all taxes, interest, and penalties due in connection therewith.
9. MARKETING OF THE PRODUCTS AND MICRO ENERGY (INDIA) LTD.
POTENTIAL
(a) PSC hereby agrees that, as a consequence of this
Agreement, PSC will, following the Closing, have no right to manufacture, market
or sell the Products.
(b) Power Products agrees to consider a future business
relationship with Micro Energy (India) Ltd. ("MEI") on mutually agreeable
terms. Specifically:
(i) Power Products agrees to consider MEI
for MEI's design and manufacturing resources in order to sell Power Products
products in the Indian subcontinent, with any licensing and/or sales
commission agreements to be based on mutually agreeable terms.
(ii) Power Products agrees to consider MEI as a
manufacturing partner for selected Power Products products subject to
qualification of MEI's manufacturing facility by Power Products and
demonstration by MEI of standards of quality and cost acceptable to Power
Products.
10. INDEMNIFICATION
(a) Defense of Power Products. PSC will defend or settle, at
its own expense, any claim or proceeding brought against Power Products by any
person not a party to this Agreement and indemnify Power Products for any costs,
expenses or damages incurred by Power Products arising out of or related to
same, which claim or proceeding is:
(i) based upon an allegation that PSC
breached any provision of any agreement relating to any Product; or
(ii) based upon an allegation that PSC breached any
provision of any representative or distributor agreement between PSC and any
domestic or foreign representative or distributor of any Products; or
(iii) based upon the inaccuracy of any
representation or warranty or a breach of any covenant of PSC contained herein;
or
(iv) based upon the claims of any creditor of
PSC asserting any lien against the Purchased Assets, which claims have not
been assumed by Power Products; or
(v) based upon:
(A) PSC's failure to file all federal,
state, local and foreign tax returns required to be filed for the
jurisdictions in which the business or assets of PSC are subject to tax;
(B) any such return not being complete,
accurate and in compliance with applicable law and regulations in all material
respects; or
(C) PSC's failure to pay or provide
for all such taxes of any nature whatsoever, with any related penalties,
interest and liabilities, that are or would be shown on such tax returns as
due and payable with respect to periods prior to the date hereof.
PSC will pay only those costs, damages, and reasonable fees of attorneys and
other professionals finally awarded against Power Products or which Power
Products is ordered to pay in any such claim or proceeding, plus the research
fees and expenses incurred by Power Products associated with Power Products'
defense of such claims.
(b) Control by PSC. In defending any claim or proceeding
against Power Products, PSC shall have the option to choose the attorney to
defend each party in connection with any such claim or proceeding and PSC shall
pay for said defense with respect to any such claim brought by any third party,
provided that PSC shall conduct the defense of any such claim or proceeding so
as to the extent possible to prevent the taking or seizure of any Purchased
Assets or the interruption of business of Power Products relating thereto or the
imposition of any lien or other encumbrance against the same. Power Products
shall have the right to hire an attorney or participate in such defense but the
fees and expenses of such attorney shall be Power Products' expense unless (i)
the employment thereof has been specifically authorized by PSC in writing or
(ii) PSC has failed to assume the defense.
(c) Notice. Power Products agrees to give PSC prompt notice of
any claims; PSC's obligations under this Section 10 shall be conditional,
however, on Power Products' notification to PSC of any claims.
(d) Non-Exclusive Remedies. The rights and remedies
under this Section 10 shall be cumulative and in addition to any
non-monetary remedies available to Power Products at law or in equity or
otherwise.
(e) Time Limitation. No claim for indemnification shall be
made under this Agreement nor shall PSC be obligated to defend or settle any
claim or proceeding under Sections 10(a) (i), (ii), (iii), or (iv)above after
the third anniversary of the Closing Date, unless prior thereto Power Products
shall have given PSC written notice of such claim for indemnification or notice
of a third party claim pursuant to Section 10(a).
No time limits shall apply to claims or proceedings under Section 10 (a) (vi).
(f) Indemnification Limitation. Notwithstanding anything
herein to the contrary, the indemnification obligation of PSC to Power Products
or any third party claimant under this Section 10 (except for Section 10 (a)
(vi)) shall not exceed one hundred fifty thousand dollars ($150,000) in the
aggregate, to be collateralized against the Escrow Amount as set forth in
Section 2 (d)(i).
11. CONFIDENTIALITY
Power Products and PSC recognize and acknowledge that the
Proprietary Information is a valuable, special and unique asset. The parties
agree not to make or permit to be made any copies, abstracts or summaries of the
Proprietary Information in any form, except in pursuit of their activities
hereunder. PSC agrees to forever hold and maintain as confidential and
proprietary all Proprietary Information unless and until any such information is
public information or otherwise freely made available to the public without a
confidentiality agreement. Power Products agrees to hold and maintain as
confidential and proprietary all Proprietary Information until such information
is public information or otherwise freely made available to the public without a
confidentiality agreement. The parties hereto further agree not to use in the
conduct of their respective businesses, and to keep confidential and not to
disclose to others, except as required hereunder or by law, any matter or thing
pertaining to the business of the other that is ascertained through their
association under this Agreement, the disclosure of which would be contrary to
the proprietary interests of any of the parties hereto. The parties agree that
the provisions of the foregoing sentence of this Section 11 shall survive,
whether or not the other provisions hereof remain in full force and effect,
until mutually rescinded by the parties, provided that no rescission of the
obligations of the foregoing sentence of this Section 11 and Section 8 (f) above
shall be effective unless in writing and signed by the party against whom it is
sought to be enforced. The parties further agree that upon consummation of this
Agreement, Power Products shall have the right to use the Proprietary
Information of PSC purchased by Power Products as Power Products sees fit in its
discretion.
12. NOTICES
All notices, demands or consents required or permitted to be
given under this Agreement shall be in writing and shall be sent by recognized
courier service or by registered or certified mail, postage prepaid, return
receipt requested, if to the Company at its principal executive offices,
attention chief executive officer, and if to the PSC holders of the Series A
Common, at their addresses as respectively shown on the Company's stock
registry, and if to Power Sensors, then to Xxxxxx Xxxx at his address as shown
on the Company's records at the addresses as shall be given by any party to the
others in writing. Notices shall be effective upon receipt, or, if receipt is
refused, then two (2) days after the first day of attempted delivery.
13. WAIVER, AMENDMENT AND MODIFICATION
No waiver, amendment or modification of any provision hereof
or of any right to remedy hereunder shall be effective unless in writing and
signed by the party against whom such waiver, amendment or modification is
sought to be enforced. No failure by any party in exercising any right, power or
remedy secured hereunder shall operate as a waiver of any such right, power or
remedy.
14. ASSIGNMENT
This Agreement shall be binding upon and inure to the benefit
of the permitted successors and assigns of the parties hereto. No party hereto
shall assign or transfer this Agreement to any party without the prior written
consent of the other party, and any attempted assignment without such permission
shall be void.
15. GOVERNING LAW AND ARBITRATION
The validity, construction and performance of this Agreement
shall be governed by the substantive laws of the State of Illinois, excluding
that body of the law applicable to choice of laws. In the event that any
provision of this Agreement or the application of such provision shall be held
by a court of competent jurisdiction to be contrary to law, the remaining
provisions of this Agreement shall remain in full force and effect.
Any claim or controversy arising out of or related to this
Agreement or any breach thereof, which claim or controversy cannot be resolved
informally, shall be settled in Chicago, Illinois by arbitration before a single
arbitrator agreeable to both parties under the then current commercial rules of
the American Arbitration Association. If the parties cannot agree on an
arbitrator within thirty (30) days after a demand for arbitration has been
requested in writing by either of them, then arbitration shall proceed before an
arbitrator appointed by the American Arbitration Association under its then
current commercial rules. No discovery shall be permitted in such proceeding and
the number of hearing days in the arbitration shall be limited to five (5) days
in total, all taking place within a two week period. The first day of the
hearing shall occur within thirty (30) days of the date the arbitrator is
selected. The arbitrator shall issue a written decision within fifteen (15) days
of the last hearing date; such decision shall list findings of fact and give the
reasoning for the conclusions reached. The arbitration award shall be
specifically enforceable, and judgment upon any award rendered pursuant to the
arbitration may be entered in any court with jurisdiction over the parties and
the subject matter of the dispute. The arbitrator shall have no right to award
any punitive damages. Provided, however, that notwithstanding any other
provision of this Section, either party shall have the right to seek injunctive
relief (temporary, preliminary and/or permanent) in a court of law for any
breach by a party of its confidentiality obligation as set forth herein.
16. COMPLIANCE WITH LAWS AND REGULATIONS
In performing their obligations pursuant to this Agreement,
the parties hereto agree and covenant that they will comply with all applicable
federal, state and local laws and regulations.
17. PROPRIETARY AGREEMENT
This Agreement shall be considered a confidential and a
proprietary document. Except as otherwise herein provided, the parties hereto
agree that neither this Agreement nor any specific provisions hereof shall be
revealed or disclosed by it without the prior written consent of the other
parties, except to the party's own agents, personnel with a need to know, or
except as required to allow either party to (i) comply with any reporting
obligations such party may have under federal securities laws or other
applicable law, or (ii) exercise its rights pursuant to Section 14 above.
18. EXPENSES
Each of the parties hereto will pay its own expenses incurred
in connection with this Agreement or any transaction contemplated by this
Agreement. The cost of any mutually agreed audit prepared prior to or after the
Closing will be shared equally by Power Products and PSC. If either party
requires an audit for its own purposes, such audit shall be prepared at the sole
expense of such party. The foregoing shall not be construed as limiting any
rights which any party may have as the result of a misrepresentation or breach
of obligation of any other party.
19. BULK SALES
Prior to the Closing Date, PSC shall use its best efforts to
comply with any applicable notice requirements of the intended bulk transfer
contemplated by this Agreement in compliance with Illinois law
20. NO THIRD PARTY BENEFICIARY RIGHTS
This Agreement is not intended to and shall not be construed
to give any person or entity other than the parties signatory hereto any
interest or rights (including, without limitation, any third party beneficiary
rights) with respect to or in connection with any agreement or provision
contained herein or contemplated hereby.
21. COUNTERPARTS
This Agreement may be executed in two or more counterparts,
each of which shall be deemed an original, but all of which together shall
constitute one and the same instrument.
22. HEADINGS
The headings of the Sections of this Agreement are inserted
for convenience only and shall not constitute a part hereof.
23. INTEGRATION
This Agreement and the Exhibits and Disclosure Schedule
hereto, constitute the entire Agreement between the parties hereto with respect
to the subject matter hereof and may not be modified or amended except as
provided in Section 13 above. All statements contained in the Disclosure
Schedule or other schedule hereto are an integral part of this Agreement, and
shall be deemed representations and warranties hereunder. This Agreement,
together with the Exhibits and Disclosure Schedule, supersedes, merges, and
renders void any and all other agreements or understandings between the parties
relating to its subject matter, including, without limitation, that certain
Letter of Intent dated October 24, 1996. All Confidentiality and Nondisclosure
Agreements between Power Products and PSC entered into prior to the date hereof
shall remain in full force and effect to the extent they are not inconsistent
with Power Products' ownership of the Purchased Assets.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first above written.
ORYX POWER PRODUCTS CORPORATION POWER SENSORS CORPORATION
By:_/s/ Xxxxxx X. Spaight_______ By:__/s/ Xxxxxx X. Xxxx
Xxxxxx X. Xxxxxxx Xxxxxx X. Xxxx
(Printed Name) (Printed Name)
President President
(Printed Title) (Printed Title)
EXHIBIT INDEX
POWER SENSORS CORPORATION
DISCLOSURE SCHEDULE
Exhibit A Purchased Assets
Exhibit B Assumed Liabilities
Exhibit C Customer List
Exhibit D Products
Exhibit E Contracts
Exhibit F Insurance Policies
Exhibit G Employee List
OTHER EXHIBITS
Exhibit 1 Form of Employment Agreement
Exhibit 2 Form of Promissory Note
Exhibit 3 Instruments of Transfer
Exhibit 4 Escrow Agreement
Exhibit 5 Oryx Power Products Corporation Financial Information
