ASSET PURCHASE AGREEMENT
This Asset Purchase Agreement (this "Agreement") is entered into
on January 16, 2003, by and between CLAIRCOM COMMUNICATIONS GROUP,
INC., (doing business as AT&T Wireless Services, Aviation
Communications Division, a Delaware corporation,) having its
principal place of business at 0000 Xxxxxx Xxxxxx, Xxxxx 000,
Xxxxxxx, Xxxxxxxxxx 00000 ("Seller"), and Sky Way Aircraft, Inc.,
a Nevada corporation, having its principal place of business at
0000 X. Xxxxx Xxxxx Xx. Xxxxx 0000, Xxxxx, Xxxxxxx 00000
("Buyer").
In consideration of the mutual covenants, conditions and terms set
forth in this Agreement, Seller and Buyer agree as follows:
1. Purchase and Sale, Assignment and License
1.1 Assets Included
Seller shall sell, assign or license to Buyer certain of seller's
rights, titles and interests in and to certain assets as set forth
below (the "Assets"), and Buyer shall accept the same, all on the
terms and conditions set forth in this Agreement.
1.2 Equipment
Seller shall sell, convey, assign and transfer to Buyer the
equipment, components, parts, servers and other items of tangible
personal property listed in Schedule A-1 of Exhibit A of this
Agreement (the "Equipment") pursuant to and in accordance with a
xxxx of sale substantially in the form of the Xxxx of Sale
attached as Exhibit A (the "Xxxx of Sale").
1.3 Assigned Patent Rights
No patent rights are assigned under the present agreement. The
parties agree to negotiate in good faith to attempt to arrive at a
mutually agreeable separate contract for assignment to Buyer all
of its right, title and interest in the patents and patent
applications listed in Exhibit B to this Agreement. If the
parties are unable to arrive at a mutually acceptable agreement
prior to 05 February 2003, then assignment negotiations will
terminate on 28 February 2003 and Seller has no obligation to
assign any patent rights to Buyer. Thus, after termination of
negotiations, Seller may license or assign the patents and patent
applications listed in Exhibit B to any third party. Until 28
February 2003, Seller agrees not to assign the patents and patent
applications listed in Exhibit B to third parties.
1.4 Licensed Patent Rights
No patent licenses, express or implied, are granted under the
present agreement. The parties agree to negotiate in good faith
to arrive at a mutually agreeable separate contract for non-
exclusive, perpetual license to Buyer of certain mutually agreed
rights in the patents and patent applications listed in Exhibit C
of this Agreement. If the parties are unable to arrive at a
mutually acceptable agreement prior to 05 February 2003, then
license negotiations will terminate on 28 February 2003 and Seller
has no obligation to license any patent rights to Buyer. Thus,
after termination of negotiations, Seller may license or assign
the patents and patent applications listed in Exhibit C to any
third parties.
1.5 Ground Station Site Information
Promptly after the Closing Date (as defined below), Seller shall
deliver to Buyer a copy of a database of certain contact
information for the lessors of certain ground station sites
previously used or intended for use by Seller for a proposed
wireless communication network for communications between ground-
based stations and aircraft cockpits, together with a copy of such
additional information relating to Seller's abandoned business
plan for such a network as may be agreed upon in writing by Seller
and Buyer (collectively, the "Ground Station Site Information");
provided, however, that (a) Seller shall not be obligated to
disclose or delver any such information to the extent restricted
by Seller's confidentiality obligations to any third party (as
determined after February 28, 2003. SELLER MAKES NO
REPRESETATIONS OR WARRANTY REGARDING ANY SUCH INFORMATION,
INCLUDING< WITHOUT LIMITATION, ANY REPRESENTATION OR WARRANTY THAT
SUCH INFORMATION IS COMPLETE OR ACCCURATE.
1.6 Assets Excluded
All other assets of Seller are excluded from the transactions
hereunder.
2. Price and Terms
2.1 Purchase Price
The aggregate price payable by Buyer under this Agreement for the
transfer of the Equipment, the delivery of Ground Station Site
Information, and reservation of negotiation period for assignment
and license of patent rights (collectively, the "Transactions")
shall be Five Hundred Thousand Dollars ($500,000) (the "Purchase
Price"). The Purchase Price shall be allocated among the
Transactions as follows:
Two Hundred Fifty Thousand Dollars ($250,000) for the Equipment;
Two Hundred Thousand Dollars ($200,000) for the Ground Station
Site Information; and Fifty Thousand Dollars ($50,000) for the
constraint on Claircom's ability to assign the patents to other
interested parties during the negotiation period. If the parties
arrive at mutually acceptable terms for assignment and license of
rights to patents and applications listed in Exhibit B and Exhibit
C, respectively, the aggregate price for such assignment and
license will be One Million Dollars ($1,000,000).
2.2 Payment of Purchase Price
The Purchase Price shall be paid as follows:
(a) Upon execution of this Agreement, Buyer shall deliver to
Seller cash in the amount of Two Hundred and Fifty Thousand
Dollars ($250,000) as an initial, non-refundable payment to be
applied against the payment for the Ground Station Site
Information and negotiation period portions of the Purchase Price
(which sum is referred to as the "Initial Payment").
(b) Buyer shall deliver to Seller the balance of the Purchase
Price (i.e., $250,000) in cash on or before May 30, 2003.
3. Representations and Warranties
3.1 Seller's Representations and Warranties
Seller represents and warrants that, to the actual knowledge of
its officers, as of the date of this Agreement:
(a) Seller is a corporation duly incorporated, validly existing
and in good standing under the laws of the State of Delaware and
is qualified to do business in the State of Washington, and has
full corporate power and authority to own the Assets: and
(b) This Agreement has been duly authorized and approved, and
the execution and delivery of this Agreement and all corporate
action necessary or proper to fulfill the obligations of Seller to
be performed under this Agreement on or before the Closing Date
have been duly authorized and approved. Except as otherwise
provided herein, this Agreement and all documents executed by
Seller that are to be delivered to Buyer at the Closing are legal,
valid and binding obligations of Seller, and do not, or shall not,
violate any provisions of nay agreement, or judicial order to
which Seller is a party or to which it is subject.
3.2 Buyer's Representations and Warranties
Buyer represents and warrants that, as of the date of this
Agreement:
(a) Buyer is a corporation duly organized, validly existing, is
in good standing under the laws of the State of Nevada and is
qualified to do business in each jurisdiction in which such
qualification is necessary, and has full corporate power and
authority to own its property. This Agreement has been duly
authorized and approved, and the execution and delivery of this
Agreement and all corporate action necessary or proper to fulfill
the obligations of Seller to be performed under this Agreement on
have been duly authorized and approved.
(b) This Agreement and all documents executed by Buyer that are
delivered to Seller at the Closing are legal, valid, and binding
obligations of Buyer, and do not, or shall not, violate any
provisions of any agreement, or judicial order to which Buyer is a
party or to which it is subject.
(c) There is no litigation pending or, to Buyer's Knowledge,
threatened, against Buyer that materially and adversely affect the
ability of Buyer to perform its obligations under this Agreement.
(d) All financial statements provided to Seller fairly and
accurately present the financial position of Buyer as of their
respective dates of the balance sheets included in the financial
statements, and the results of Buyer's operations for the
respective period indicated. Since the date of the last
financial statement provided to Seller, there has been no material
adverse change in the financial condition of Buyer.
4. Closing
4.1 Closing Date
The Transactions described in this Agreement shall be consummated
("Closing") on January , 2003 or such other date as may be
agreed upon by Seller and Buyer in writing (the "Closing Date").
4.2 Delivery by Seller to Buyer
At or before the Closing, Seller shall deliver to Buyer:
(a) the Xxxx of Sale duly executed by an authorized representative
of Seller; and
(b) such resolutions, certificates, authorizations, or other
corporate documents or agreements relating to Seller regarding the
execution and consummation of this Agreement.
4.3 Delivery by Buyer to Seller
At or before the Closing, Buyer shall deliver to Seller
(a) the Xxxx of Sale duly executed by and authorized
representative of Buyer; and
(b) the Initial Payment:
(c) such resolutions, certificates, authorizations, or other
corporate documents or agreement relating to Seller regarding the
execution and consummation of this Agreement.
4.4 Other Instruments
Seller and Buyer shall each deliver such other instruments and
documents as are reasonably required to consummate the
Transactions in accordance with the terms of this Agreement.
4.5 Costs
Buyer shall pay all sales taxes, or use taxes or both, which arise
out of the Transactions under this Agreement. Buyer and Seller
shall bear their own costs for professional fees. Buyer shall
also pay all filing, recording and miscellaneous charges. All
other expenses incurred by or on behalf of Buyer and Seller in
connection with the authorization, preparation and consummation of
this Agreement, including without limitation, all fees and
expenses of agents, representatives, attorneys and accountants
employed by the parties in connection with their preparation,
execution and consummation of this agreement shall be born solely
by the person who shall have incurred the same.
5. Indemnification
(a) Except as otherwise expressly provided in this Agreement or
the Xxxx of Sale, Seller shall defend, protect, indemnify and hold
Buyer free and harmless from any and all claims, losses, damages,
injuries, lien and liabilities arising from the operation of
ownership of, or in connection with, the Assets, based on events
occurring before the Closing Date and for Seller's breach of this
Agreement, whenever such breach occurs. The provisions of this
Section 5a) shall terminate upon the expiration of a one (1) year
period, commencing upon the Closing Date, provided however, as to
any such claim or demand asserted by a third party which is
pending or unresolved at the end of such period, such claim or
demand shall continue to be covered by the provisions of this
Section until finally terminated or otherwise resolved.
(b) Except as otherwise expressly provided in this Agreement or
the Xxxx of Sale, Buyer shall defend, protect, indemnify and hold
seller free and harmless from any and all claims, losses, damages,
injuries, and liabilities arising from the transfer, operation, or
or ownership of the Equipment after the Closing Date and for
Buyer's breach of its obligations under this Agreement whenever
such breach occurs.
(c) In the event either party hereto receives notice of a claim
or demand against which it is entitled to indemnification pursuant
to this Section 5, such party shall promptly give notice to the
other party to this Agreement. The party obligated to indemnify
shall immediately take such measures as may be reasonably required
to properly and effectively defend such claim, and may defend with
counsel of its own choosing approved by the other party (which
approval shall not be unreasonably withheld or delayed). If the
party obligated to indemnify fails to properly and effectively
defend such claim, then the party entitled to indemnification may
defend such claim with counsel of its own choosing at the expense
of the party obligated to indemnify.
6. General Provisions
6.1 Notices
Any and all notices or other communications required or permitted
by this Agreement or by law to be served on or given to either
party by the other party to this Agreement shall be in writing and
shall be deemed duly served when personally delivered to the party
to whom they are directed, or in lieu of such personal service,
three (3) business days after deposited in the United States mail,
postage prepaid, certified or registered, addressed:
To Buyer at: Sky Way Aircraft, Inc.
0000 X. Xxxxx Xxxxx Xx., Xxxxx 0000
Xxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxx
Facsimile: (000) 000-0000
To Seller at: AT&T Aviation Communications Group, Inc.
D/b/a/ AT&T Wireless Services.
Aviation Communications Division
0000 Xxxxxx Xxxxxx, Xxxxx 000
Xxxxxxx, Xxxxxxxxxx 00000
Attention: Legal Department
Facsimile: (000) 000-0000
With a Copy to:
Xxxxxxx Coi
000-000xx Xxxxxx XX, Xxxxx 0000
Xxxxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxx
Facsimile: (000) 000-0000
With a Copy also to:
AT&T Wireless Services, Inc.
00000 XX 00xx Xxx
Xxxxxxx, XX 00000
Attn: Vice President and Chief Counsel -
Technology Development, Network Services & Intellectual Property
Facsimile: (000) 000-0000
6.2 Attorneys' Fees
If either party brings an action or proceeding (including any
cross-complaint, counterclaim, or third-party claim) against the
other party by reason of a default by the other party or otherwise
arising out of this Agreement, the non-prevailing party shall pay
to the prevailing party in the action or proceeding all of the
prevailing party's costs and expenses of suit, including
reasonable attorneys' fees, which shall be payable whether or not
such action is prosecuted to judgment. "Prevailing party" shall
include a party who dismisses an action for recovery in exchange
for payment of the sums allegedly due, performance of covenants
allegedly breached, or consideration substantially equal to the
relief sought in the action. Attorneys' fees under this Section
shall include attorneys' fees on any appeal and in any bankruptcy
or similar or related proceeding in federal or state courts, and
in addition, a party entitled to attorneys' fees shall be entitled
to all other reasonable costs and expenses incurred in connection
with such action. Attorney fees shall also include post-judgment
collection costs. This Section shall survive and not be merged
into any judgment awarded to either party.
6.3 Modification
No modifications, amendments or changes hereof shall be binding on
either party unless set forth in writing, duly executed by both
parties.
6.4 Successors and Assigns
This Agreement shall inure to the benefit of, and shall be binding
upon, the parties hereto and their respective successors and
assigns. This Agreement may not be transferred or assigned by
Buyer without the express written consent of Seller.
6.5 Law Governing
This Agreement shall be governed by and construed in accordance
with the laws of the State of Delaware applicable to contracts
made between residents of and to be performed wholly within such
State. The parties hereby irrevocably submit to the jurisdiction
of the state and federal courts located in King County, State of
Washington, for all actions, suits or proceedings arising in
connection with this Agreement, and to service of process by
United States Postal Service certified mail addressed to the
intended recipient at its address for notices under Section 6.1.
Sky Way shall not commence or prosecute any suit, proceeding or
claim arising in connection with this Agreement, other than in the
above courts.
6.6 Counterparts
It is specifically agreed that this Agreement may be executed in
one or more counterparts, all of which shall be taken together to
constitute and the same instrument and shall be binding upon each
party who may sign a counterpart of this Agreement.
6.7 Time of the Essence
Time is of the essence under this Agreement.
6.8 Severability
Invalidation of any of the provisions contained in this Agreement,
by judgment or court order shall in no way affect any of the other
provisions of this Agreement and the same shall remain in full
force and effect, unless enforcement of this Agreement of this
Agreement as so invalidated would be unreasonable or grossly
inequitable under all the circumstances or would frustrate the
purposes of this Agreement.
6.9 Waiver
The failure of a party to insist upon or enforce strict
performance by any of the provisions of this Agreement, or to
exercise any right or remedy under this Agreement, shall not be
interpreted or construed as a waiver or relinquishment to any
extent of that party's right to assert or rely upon any such
provisions, rights or remedies in that or any other instance;
rather, the same be and remain in full force and effect.
6.10 Exhibits
The Exhibits and Schedules to Exhibits to which reference is made
in this Agreement are deemed incorporated into this Agreement in
their entirety by reference.
6.11 Entire Agreement
This Agreement, the Exhibits, and any documents and instruments
delivered under this Agreement contain all the representations and
the entire agreement between the parties with respect to the
transactions contemplated by this Agreement. Except as otherwise
specified in this Agreement, any prior correspondence, memoranda,
agreements, warranties or representations are superceded in total
by this Agreement and Exhibits, and such documents and
instruments.
6.12 Construction of Agreement
The captions preceding the text of each Article, Section, and
subsection are included only for convenience of reference and
shall be disregarded in the construction and interpretation of
this Agreement. Whenever required by the context, the singular
shall include the plural and vice versa, and the masculine gender
shall include the feminine or neuter genders, or vice versa.
6.13 Further Assurances
Each party shall take all actions and do all things, and execute,
with acknowledgement or affidavit if required, any and all
documents and writings that may be necessary or proper to achieve
the purposes and objectives of this Agreement.
6.14 Confidentiality
Buyer and Seller agree that all negotiations regarding the
Transactions and this Agreement shall remain confidential and that
no press or other publicity release or communication to the
general public concerning this transaction shall be issued without
the other party's prior approval. Notwithstanding the foregoing,
the parties agree that Buyer may issue a press release after the
Closing Date announcing the consummation of the Transactions; such
press release shall be subject to Seller's prior written approval.
6.15 Buyer's Access to the Assets Before Closing
Neither Buyer nor Buyer's agents nor representatives shall enter
onto the premises where any Assets are located at anytime without
the prior express approval by Seller.
IN WITNESS WHEREOF, the parties have entered into this Agreement
as of the date first set forth above.
"SELLER" AT&T AVIATION COMMUNICATIONS GROUP, INC.,
doing business as AT&T Wireless Services,
Aviation Communications Division
BY: /s/Xxxxxxxxxxx X. Xxxxxx
----------------------------------------------------
PRINTED NAME: Xxxxxxxxxxx X. Xxxxxx
TITLE: V. P & C.O.O.
"BUYER" SKY WAY AIRCRAFT, INC.
BY: /s/Xxxxx X. Xxxx
-----------------------------------------------------
Schedule of Exhibits
Exhibit A Xxxx of Sale
Exhibit B Patents and Applications for Potential
Assignment to Buyer
Exhibit C Patents and Applications for Potential License
to Buyer
EXHIBIT A
XXXX OF SALE
This Xxxx of Sale is made and entered into as of January ,
2003, by and between Claircom Communications Group, Inc. A
Delaware Corporation, doing business as AT&T Wireless Services,
Aviation Communications Division, ("Sell") and Sky Way Aircraft,
Inc., a Nevada corporation ("Buyer"), pursuant to that certain
Asset Purchase Agreement by and between Seller and Buyer, dated
, 2003 (the "Asset Purchase Agreement").
Seller and Buyer agree as follows:
1. Transfer. Subject to and in accordance with the terms and
conditions of this Xxxx of Sale, Seller hereby sells, conveys,
assigns and transfers to Buyer all of the equipment, components,
parts, servers and other items of tangible personal property
listed in attached Schedule A-1 (the "Equipment").
2. Payment(s). Buyer shall pay to Seller a purchase price for
the Equipment equal to $300,000 (the "Purchase Price") payable
[upon the signature and delivery of this Xxxx of Sale by each
party] on or before March 30, 2003.
3. Taxes. Buyer shall promptly pay or reimburse Seller for all
property, bulk sales, sales, use or similar taxes, and all filing,
recording, transfer and similar fees, payable to any governmental
authority arising from the transactions under this Xxxx of Sale.
4. Delivery. All of the Equipment has been or shall be
delivered to Buyer at the location where the Equipment is located
as of the date of this Xxxx of Sale ("Delivery Site"). Buyer
shall be solely responsible for removing and transporting the
Equipment from the Delivery Site. Seller shall provide with
access to the Delivery Site during Seller's normal business hours
to the extent reasonably needed to remove and transport the
Equipment. Buyer shall comply with Seller's security and other
rules and regulations while on Seller's premises. Without
limiting any other remedies Sell may have under this Xxxx of Sale
or otherwise, Buyer shall pay to Seller a storage fee of One
Hundred Dollars ($100.00) per day for each whole or partial day
that any time of Equipment remains at Seller's premises after
January 10, 2003. Seller may, at Buyer's expense, remove and
destroy or otherwise dispose of any Equipment not removed from
Seller's premises on or before January 17, 2003.
5. Risk of Loss. All risk of loss of the Equipment shall pass
to Buyer upon the date of this Xxxx of Sale.
6. Embedded Software. Some of the Equipment may contain and be
delivered by Seller with certain computer programs or other
software developed and owned by Seller ("Embedded Software").
Seller hereby grants to Buyer a fully paid-up, non-exclusive
license to any of Seller's copyrights in the Embedded Software
that are necessary to use the Embedded Software for the limited
purpose of operating, upgrading, or replacing the Equipment on
which it is delivered, in support of an air-to-ground
communication network. Further, Buyer shall not distribute or
publish any of the Embedded Software. Buyer may modify or
upgrade the Embedded Software. Seller shall not have any
obligation to provide any corrections, modifications, updates or
other support for any of the Embedded Software.
7. Third Party Software. This Xxxx of Sale is not intended to
transfer to Buyer any license, right, title or interest in or to
any third party software that may be installed on or required for
the use or operation of the Equipment. If the Buyer acquires
possession of any such third
party software in connection with acquiring possession of the
Equipment pursuant to this Xxxx of Sale, Buyer shall, upon
identification of any such software, immediately return to Seller,
destroy or obtain from third parties appropriate licenses or other
rights to such software.
8. Seller's Limited Warranty and Covenant. Seller warrants
that: (a) Seller is a corporation duly organized, validly
existing and in good standing under the laws of the State of
Delaware; (b) Seller has all necessary corporate power and
authority to execute and deliver this Xxxx of Sale and perform its
obligations hereunder; and (c) to the knowledge of its Chief
Financial Officer, the Equipment is sold, conveyed, assigned and
transferred to Buyer free and clear of any and all mortgages,
deeds of trust, security interests and other liens arising by,
through or under Seller. Seller covenants that, to the extent
any Equipment is not free and clear of any and all mortgages,
deeds of trust, security interests and other liens arising by,
through or under Seller, Seller will use commercially reasonable
efforts to remove the same.
9. Buyer's Warrants. Buyer warrants that: (a) Buyer is a
corporation duly organized, validly existing and in good standing
under the laws of the state of Nevada; and (b) Buyer has all
necessary corporate power and authority to execute and deliver
this Xxxx of Sale and perform its obligations hereunder.
10. Disclaimer; Waiver. BUYER ACCEPTS THE EQUIPMENT AND
EMBEDDED SOFTWARE "AS IS," "WHEREIS" and "WITH ALL FAULTS AND
DEFECTS". EXCEPT AS SPECIFICALLY SET FORTH IN PARAGRAPH 6, SELLER
DISCLAIMS, AND BUYER WAIVES AND RELEASES, ALL WARRANTIES OF ANY
KIND, EXPRESS OR IMPLIED, WITH RESPECT TO THE EQUIPMENT AND THE
EMBEDDED SOFTWARE INCLUDING, WIHTOUT LIMITATION, ANY IMPLIED
WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR
USE, OR NONINFRINGEMENT, AND ANY WARRANTIES ARISING BY LAW, FROM
COURSE OF PERFORMANCE, COURSE OF DEALING OR USAGE OF TRADE, OR
OTHERWISE. WITHOUT LIMITING THE FOREGOING, SELLER DISCLAIMS ANY
WARRANTY AS TO THE CONDITION, NATURE, FUNCTION, PERFORMANCE,
CAPACITY, RESPONSIVENESS, QUALITY, DURABILITY, SUITABILITY,
FITNESS, SAFETY, SOURCE OR OTHER CHARACTERISTICS OF ANY EQUIPMENT
OR EMBEDDED SOFTWARE, AND BUYER WAIVES AND RELEASES ALL OF ITS
RIGHTS AND REMEDIES WITH RESPECT TO THE SAME (INCLUDING, BUT NOT
LIMITED TO, CLAIMS IN TORT, WHETHER OR NOT ARISING IN WHOLE OR
PART FROM SELLER'S FAULT, STRICT LIABILITY OR NEGLIGENCE).
ANYDESCRIPTION OF THE EQUIPMENT OR EMBEDDED SOFTWARE CONTAINED IN
THIS XXXX OF SALE IS SOLELY FOR IDENTIFICATION PURPOSES AND DOES
NOT CONSTITUTE ANY WARRANT OR REPRESENTATION THAT THE EQUIPMENT OR
EMBEDDED SOFTWARE CONFORMS TO SUCH DESCRIPTION.
11. Acknowledgement. Buyer acknowledges that(a) Buyer has
inspected and tested the Equipment and Embedded Software as fully
as it desires; (b) Buyer accepts the Equipment and Embedded
Software in its present condition and state of repair; and (c)
Seller is not a merchant with respect to any Equipment or Embedded
Software.
12. Buyer's Indemnity. Buyer shall defend, indemnify and hold
harmless Seller and its successors and assigns from and against
any claims, liabilities, damages, costs and expenses (including,
but not limited to, reasonable attorneys' fees) arising out of or
in connection with any (a) use, possession, operation, disposition
or ownership of, and any defect or deficiency in, any Equipment or
Embedded Software after the date of this Agreement; (b) acts or
omissions of Buyer or its representatives while on Seller's
premises; and (c) possession, copying, reproduction, making of
derivative works based upon, distribution, performance, display,
compilation, translation or use of any third party computer
programs or other software contained on or in the Equipment by or
through Buyer, even if such software was made available to Buyer
by Seller. Seller shall promptly notify Buyer of any such claim,
cooperate with Buyer in connection with the defense and settlement
of the claim and not settle the claim without Buyer's prior
written consent, which consent shall not be unreasonably withheld
or delayed.
13. Limitations of Liability. IN NO EVENT SHALL SELLER BE
LIABLE TO BUYER UPON ANY CLAIM, WHETHER ARISING IN TORT, CONTRACT
OR OTHERWISE, FOR ANY INDIRECT, SPECIAL, EXEMPLARY, PUNITIVE OR
CONSEQUENTIAL DAMAGES, OR LOST PROFITS OR LOST BUSINESS.
SELLER'S LIABILITY FOR ANY AND ALL CLAIMS ARISING OUT OF OR IN
CONNECTION WITH THIS XXXX OF SALE (INCLUDING, WITHOUT LIMITATION,
ANY BREACH OR NONPERFORMANCE HEREUNDER) SHALL NOT EXCEED, IN THE
AGGREGATE, FIFTY PERCENT (50%) OF THE PURCHASE PRICE ACTUALLY PAID
BY BUYER AND RECEIVED BY SELLER UNDER SECTION 2 OF THIS AGREEMENT.
14. Compliance With Laws. Buyer shall comply with all
applicable laws, rules, regulations, orders and other requirements
of any governmental authority having jurisdiction with respect to
the removal, use, possession, operation, ownership and disposition
of the equipment (including, without limitation, all such
requirements related to the disposal of hazardous or toxic waste,
material or substances).
15. Additional. Action. Each party shall take such additional
action (including, without limitation, the execution and delivery
of separate bills of sale, certificates and other documents) as
may reasonably be requested ed by the other party to effect,
perfect or evidence any of the transactions or provisions set
forth in this Xxxx of Sale; provided, that the requesting party
pays or reimburses any and all of the out-of-pocket costs and
expenses (including, but not limited to, attorneys' fees)
reasonably incurred by the other in connection with any such
action.
16. Successors and Assigns. This Xxxx of Sale shall be binding
upon, inure to the benefit of and been enforceable by each of the
parties and their respective successors and assigns.
17. Entire Agreement. This Xxxx o Sale (including the attached
or referenced Schedules) constitutes the entire agreement, and
supersedes any and all prior agreements, between the parties with
regard to the Equipment. Without limiting the generality of the
foregoing, in the event of any conflict or inconsistency between
any provision of this Xxxx of Sale and any provision of the Asset
Purchase Agreement, the provision of this Xxxx of Sale shall
control. No amendment, modification or waiver of any provision
of this Xxxx of Sale shall be valid unless set forth in a written
instrument signed by the party to be bound thereby.
IN WITNESS WHEREOF, the parties have entered into this Xxxx of
Sale as of the date first set forth above.
Seller:
Claircom Communications Group, Inc.
By:
Printed name
Title
Buyer:
Sky Way Aircraft, Inc.
By:
Printed Name:
Title:
Schedule A-1
To
Xxxx of Sale
Equipment
Seattle:
Network hardware
The following network equipment presently located at the Claircom
space at 0000 Xxxxxx Xxxxxx, Xxxxxxx:
1 GTAS/OPS processor, which is a XXXXX 00 system with:
(2) 60-MHz processors
(1) 128 MB of RAM
(2) 1 GB internal disks on the first SCSI controller
(4)2 GB external disks on the second SCSI controller
(1) 1 GB external disk unmirrored
(1) 4-mm DAT Tape Drive on the first SCSI controller, address 4
0 XX-XXX Xxxxx on the first SCSI controller, address 6
3 LAN interface cards
2 active twisted pair Ethernet ports
1 SUN microsystems monitor
1 SUN Microsystems keyboard and mouse
1 DCB MSU-5 Modem Sharing Unit (used to connect to Crossover
Switch)
2 Call Servers, which both are XXXXX 00 systems each configured
with:
(2) 60-MHz processors
(1) 128 MB of RAM
(2) 1 GB internal disks on the first SCSI controller
(4) 2 GV external disks on the second SCSI controller
(1) 4-mm DAT Tape Drive on the first SCSI controller, address 4
0 XX-XXX Xxxxx on the first SCSI controller, address 6
3 LAN interface cards
2 active twisted pair Ethernet ports
1 Aurora Multiport Model 401S synchronous interface card
1 SUN Microsystems monitor
1 SUN Microsystems keyboard and mouse
1 Motorola CODEX modem model 3512 (terminates 9.6 circuit)
3 Lucent Technologies CVIS MAP/100p Conversant systems, each
configured with:
1 VGA video card
1 SCSI controller card
(1) 2 GB SCSI hard disk drives
(2) AYC21 T1 Interface cards configured as T1 cards 0-2
1 monitor
1 keyboard
1 Cisco Virtual Central Office/40000 port (VC)/4k) Switch
configured with:
2 Combined Controller cards each configured with:
CPU, 3.5" Floppy Drive, Hard Drive and SWI
2 Network Bus Controller (NBC3) cards
3 Interface Controller Cards (ICC)
1 Service Platform Card (SPC)
2 Power Supplies
2 Alarm Arbiter Cards (AAC)
2 Intergrated Prompt/Records Cards (IPRC)
1 console terminal
1 printer
2 Dataprobe A/B Switches
1 Electro Standards Laboratories, Inc. Model 7025 Remote Control
Crossover Switch
Version 2.0 (used to swithch 9.6 circuits between Call Servers)
1 Cisco 4000 Router
3 BayNetworks Baystack 304 Ethernet Switch
1 DCB Access Switch
1 Xyplex MAXserver 1640 Terminal Server
Telco Equipment
The following telco equipment presently located at the Claircom
space at 0000 Xxxxxx Xxxxxx, Xxxxxxx:
3 DSX Panel (bantam to wire)
3 DSX Panel (bantam to RJ45)
1 Lorain 120V - 56 VDC Model MZ12CAB Rectifier
3 AT&T Pardyne Comsphere 3000 CSU rack
2 SNMP LAN adapter
3 AT&T Paradyne SDU installed in each CSU rack
6 AT&T Paradyne CSUs model 3151 installed in CSU rack
Other Equipment
Such additional equipment, components, parts and servers that
Seller may designate and set aside for Buyer at Sesller's facility
located at 0000 Xxxxxx Xxxxxx., Xxxxxxx, XX prior to the Closing
Date.
Partial inventory of "Other Equipment"
2 ea. Spectrum Analyzer
Oscililoscope
Aircraft Cables
Type II rack and cables
Type III rack and cables
1 box Zone Telephony boxes
1 box Seat Telephony boxes
2 ea. lab laptops 2 ea. lab test stations
3 ea. Aircraft Maintenance Terminals
2 ea. CT racks
CE rack
Aircraft breakout box
BBU/CTU/RFU test bench
4 ea. PSU
4 ea. RFU
4 ea. BBU
4 ea. CTU
1 RT800
2 ea. Techelecs
1 toolbox
16 ea. desks and workstations
miscellaneaous solder equipment
miscellaneous airfax equipment
Dallas:
The following equipment presently located in Dallas, Texas:
1 GTAS/OPS processor, which is a XXXXX 00 system with:
(2) 60-MHz processors
(1) 128 MB of RAM
(2) 1 GB internal disks on the first SCSI controller
(4) 2 GB external disks on the second SCSI controller
(1) 1 GB external disk unmirrored
(1) 4-mm DAT Tape Drive on the first SCSI controler, address 4
1 CD-ROM Drvie on the first SCSI controller, address 6
3 LAN interface cards
2 active twisted pair Ethernet ports
1 SUN Microsystems monitor
1 SUN Microsystems keyboard and mouse
1 DCB MSU-5 Modem Sharing Unit (used to connect to Crossover
Switch)
2 Call Servers, which both are XXXXX 00 systems each configured
with:
(2) 60-MHz processors
(1) 128 MB of RAM
(2) 1 GB external disks on the first SCSI controller
(4) 2 GB external disks on the second SCSI controller
(1) 4-mm DAT tape Drive on the first SCSI controller, address 4
0 XX-XXX Xxxxx on the first SCSI controller, address 6
3 LAN interface cards
2 active twisted pair Ethernet ports
1 Aurora Mulitport Model 401S synchronous interface card
1 SUN Microsystems monitor
1 SUN Microsystems keyboard and mouse
1 Motorola CODEX modem model 3512 (terminates 9.l6 circuit)
1 Cisco 4000 Router
3 BayNetworks Baystack 304 Ethernet Switch
1 Xyplex MAX server 1640 Terminal Server
Other
Ground Station Site Information
Exhibit B
Patents
Title Registration No. Jurisdiction
---------------------------------------------------------------------------------
Tube Mounted Telephone 5,627,891 U.S.
Handset in an Armrest
Telephone Handset and 5,652,792 U.S.
Cradle
Multi-Purpose Telepohone 5,394,467 U.S.
Strain Relief
Wired Seat Back Aircraft 5,410,597 U.S.
Telephone Set6
Armrest Cradle for 5,865,503 U.S.
Electronic
Communications Handset
Airplane Telephone Set D361,568 U.S.
Airline Telephone Handset D370,910 U.S.
With Digital Passenger
Control Functions and
Video Game Controls
Airline Telephone Handset D363,068 U.S.
With Digital Passenger
Control Functions and
Video Game Controls
Telephone Handset D371,553 U.S.
Telephone Handset 00000 Xxxxxxx
Telephone Handset 00000 Xxxxxx
Armrest Cradle for 2184424 Canada
Electronic
Communications Handset
Telephone Xxxxxxx 000000 Xxxxxx
Telephone Handset M9507231.4 Germany
Airplane Telephone 29580194.8 Germany
Telephone Handset 2050278 Great Britain
Telephone Handset 9900591.0 Hong Kong
Telephone Xxxxxxx 000000 Xxxxx
Telephone Xxxxxxx 000000 Xxxxx
Airplane Telephone 348946 Korea
Armrest Cradle for 000000 Xxxxxx
Electronic Communications
Handset
Telephone Xxxxxxx 00000 Xxxxxx
Telephone Xxxxxxx 0000000 Xxxxxxxxx
Tube Mounted Telephone 174723 Taiwan
Handset in an Armrest
Patent Applications
Title Serial No. Jurisdiction
--------------------------------------------------------------------------------
Airplane Telephone 09/454416 U.S.
Aircraft Cockpit 09/990192 U.S.
Telephony
Aircraft Cabin Telephony 09/648947 U.S.
Multiple Handset Cradle 09/723648 U.S.
Assembly
Methods and Systems for 09/853137 U.S.
Audio Distribution Over
Aircraft
Telecommunications
Wiring
Airplane Telephone 2188768 Canada
Airplane Telephone 95193450.3 China
Exhibit C
Patents
Title Registration No. Jurisdiction
--------------------------------------------------------------------------------------
Stabilization of Frequency 5,455,964 U.S.
And Power in an Airborne
Communication System
Credit Card Reader 5,463,678 U.S.
High Bandwidth Delivery 6,201,797 U.S.
And Internet Access for
Airborne Passenger
Seamless hand-Off for 6,303,281 U.S.
Air-To-Ground Systems
Short Messaging Method 6,559,287 U.S.
And System for Airborne
Passengers
Patent Applications
Title Serial No. Jurisdiction
-------------------------------------------------------------------------------------
System and Method for 09/312011 U.S.
Communication Between
Airborne and Ground-Based
Entities
Aircraft Data 09/884724 U.S.
Communications Services
For Users
Aircraft Data Services 09/884730 U.S.
Multi-Nodal Digital 09/451579 U.S.
Telephone Distribution
System
Multi-Nodal Digital 09/849135 U.S.
Telephone Distribution
System
Aircraft Data PCT/USO2/19336 U.S.
Communications Services
For Users
Aircraft Data Services PCT/US02/19337 U.S.
