EXHIBIT 2.2
ASSIGNMENT AND ASSUMPTION AGREEMENT
This Assignment and Assumption Agreement (this "Agreement") is entered
into as of this 5th day of December, 2000, by and between Xxxxx Systems, Inc., a
South Dakota corporation previously named M-Tron Industries Inc. (the
"Transferor"), and M-Tron Industries, Inc., a Delaware corporation (the
"Transferee").
W I T N E S S E T H:
WHEREAS, the Transferor desires to transfer to the Transferee, and the
Transferee desires to receive from the Transferor, substantially all of the
Assets (as hereinafter defined) held by the Transferor; and
WHEREAS, the Transferor and the Transferee each desire that Transferee
assume from the Transferor the Assumed Liabilities (as hereinafter defined).
NOW, THEREFORE, in consideration of the mutual covenants,
representations and warranties made herein, and of the mutual benefits to be
derived hereby, the parties hereto agree as follows:
ARTICLE I
TRANSFER OF THE ASSETS
1.1 ASSETS. Subject to and upon the terms and conditions set
forth in this Agreement the Transferor hereby transfers, conveys, assigns and
delivers to the Transferee, and the Transferee accepts from the Transferor, all
right, title and interest of the Transferor in and to the properties, assets,
and rights of every nature, kind and description, tangible and intangible
(including good will), whether real, personal or mixed, whether accrued,
contingent or otherwise (other than the Excluded Assets (as hereinafter defined)
held by the Transferor (collectively, the "Assets"), including without
limitation all of the items in the following categories:
(a) all machinery, equipment, furniture, furnishings,
automobiles, trucks, vehicles, tools, dies, molds and
part of similar property (including but not limited
to, any of the foregoing purchased subject to any
conditional sales or title retention agreement in
favor of any other person);
(b) all inventories or raw materials, works in process,
finished products, goods, spare parts, replacement
and component parts, and office and other supplies
(collectively, the "Inventories"), including
Inventories held at any location controlled by the
Transferor and Inventories previously purchased and
in transit to the Transferor;
(c) all rights in and to products sold or leased
(including, but not limited to, products hereafter
returned or repossessed and unpaid sellers' rights of
rescission, replevin, reclamation and rights to
stoppage in transit);
(d) all rights (including but not limited to any and all
Intellectual Property (as hereinafter defined) set
forth on Schedule 1.1 hereto) in and to products sold
or leased and in and to any products or other
Intellectual Property rights under research or
development prior to the merger of Xxxxx Systems,
Inc., a Delaware corporation ("Xxxxx Delaware"), into
Transferor on the date hereof (the "Merger");
(e) all of the rights of the Transferor under all
contracts, arrangements, licenses, leases or other
agreements, including, without limitation, any right
to receive payment for products sold or services
rendered, and to receive goods and services, pursuant
to such agreements and to assert claims and take
other rightful actions in respect of breaches,
defaults and other violations of such contracts,
arrangements, licenses, leases and other agreements
and otherwise;
(f) all credits, prepaid expenses, deferred charges,
advance payments, security deposits and prepaid
items;
(g) all notes and accounts receivable held by the
Transferor and all notes, bonds and other evidence of
indebtedness of and to receive payments from any
person held by the Transferor;
(h) all United States and foreign: (i) patents (including
design patents, industrial designs and utility
models) and patent applications (including docketed
patent disclosures awaiting filing, reissues,
divisions, continuations-in-part and extensions),
patent disclosures awaiting filing determination,
inventions and improvements thereto; (ii) trademarks,
service marks, trade names, inventions, trade dress,
logos, business and product names, slogans and
registration and application for registration
thereof; (iii) copyrights (including software) and
registrations thereof but excluding the name of the
Transferor, which shall be separately licensed to the
Transferee; (iv) inventions, processes, designs,
formulae, trade secrets, know how, industrial models,
confidential and technical information,
manufacturing, engineering and technical drawings,
product specifications and confidential business
information; (v) mask work and other semiconductor
chip rights and registration thereof (vi)
intellectual property rights similar to any of the
foregoing; and (vii) copies and tangible embodiments
thereof (in whatever form or medium, including
electronic media) (collectively, the "Intellectual
Property") and all rights thereunder or in respect
thereof primarily
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relating to and used or held for use in connection
with the business of the Transferor, including but
not limited to, rights to xxx for and remedies
against past, present and future infringements
thereof, and the rights of priority and protection of
interests therein under the laws of any jurisdiction
worldwide and all tangible embodiments thereof
(together with all Intellectual Property rights
included in the other clauses of this Section 1.1,
the "Intellectual Property Assets");
(i) all books, records, manuals and other materials (in
any form or medium, including, but not limited to,
all records and materials maintained at the
headquarters of the Transferor, advertising matter,
catalogues, price lists, correspondence, mailing
lists, lists of customers, distribution lists,
photographs, production data, sales and promotional
materials and records, purchasing materials and
records, personnel records, manufacturing and quality
control records and procedures, blueprints, research
and development files, records, data and laboratory
books, Intellectual Property disclosures, media
materials and plates, accounting records, sales and
order files and litigation files;
(j) to the extent their transfer is permitted by law, all
governmental approvals, including all applications
therefor;
(k) all real property (as set forth on Schedule 1.1
hereto) (the "Real Property") and all licenses,
permits, approvals and qualifications relating to any
Real Property issued to the Transferor by any
governmental authority;
(l) all rights to causes of action, lawsuits, judgments,
claims and demands of any nature available to or
being pursued by the Transferor with respect to the
business or the ownership, use function or value of
any Asset, whether arising by way of counterclaim or
otherwise; and
(m) all guarantees, warranties, indemnities and similar
rights in favor of Transferor with respect to any
Asset.
1.2 EXCLUDED ASSETS. The Transferor will retain and not
transfer, and the Transferee will not accept or acquire, the following assets
(the "Excluded Assets"):
(a) any assets received by the Transferor from Xxxxx
Delaware as a result of the Merger, including,
without limitation, the Collateral as defined in that
certain Credit Agreement, dated as of March 22, 2000,
by and between SunTrust Bank, a Georgia banking
corporation, and Xxxxx Delaware, as amended or
restated from time to time, and any other assets
acquired by the Transferor after the Effective Date;
and
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(b) any and all shares of stock of Spinnaker Industries,
Inc., a Delaware corporation, including any rights to
any dividends or other distributions payable in cash,
securities or other property, declared on such shares
of stock but unpaid as of the Effective Date (as
hereinafter defined) (collectively, the "Spinnaker
Stock").
ARTICLE II
THE CLOSING AND ASSUMPTION OF LIABILITIES
2.1 PLACE AND DATE. The transfer of Assets and assumption of the
Assumed Liabilities as contemplated in this Agreement shall be effective as of
the date hereof (the "Effective Date").
2.2 ASSUMPTION OF LIABILITIES. Subject to the terms and conditions set
forth herein, at the Effective Date, the Transferee shall assume and agree to
pay, honor and discharge when due all of the Transferor's liabilities,
obligations and commitments existing at or arising on the Effective Date
(collectively, the "Assumed Liabilities").
2.3 EXCLUDED LIABILITIES. Notwithstanding the provisions of Section 2.2
or any other provision hereof or any schedule or exhibit hereto and regardless
of any disclosure to Transferee, the Transferee shall not assume: (a) any
liabilities, obligations or commitments of the Transferor assumed or incurred by
the Transferor from Xxxxx Delaware in connection with the Merger or (b) any
liabilities, obligations or commitments of the Transferor to SunTrust Bank,
including, without limitation, any such liabilities, obligations or commitments
incurred in connection with the pledge of the Spinnaker Stock pursuant to that
certain Pledge Agreement, dated as of the date hereof, by and between Transferor
and SunTrust Bank (collectively, the "Excluded Liabilities").
2.4 CONSENT OF THIRD PARTIES. To the best of Transferor's knowledge,
all consents of third parties required for the transfer of the Assets and the
assumption of the Assumed Liabilities as contemplated herein have been obtained.
In the event that the consent of any third party so required has not been
obtained as of the Effective Date, this Agreement shall not be effective to
assign or transfer such Asset or to assume such Assumed Liability, as the case
may be, until such consent has been obtained.
2.5 INDEMNIFICATION OF TRANSFEROR.
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(a) Transferee hereby agrees that it will pay or perform all
obligations, liabilities and responsibilities of the Transferor owing
to First National Bank of Omaha, a national banking association, Xxxxxx
Xxxxx, Xxxxxx X. Xxxxxxx and Xxxxx X. Xxxx (collectively, the
"Creditors"). Transferee further agrees that it will (i) indemnify
Transferor against any actions or claims brought by or on behalf of the
Creditors, (ii) defend Transferor against any actions or claims brought
by the
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Creditors against Transferor, and (iii) pay any settlement amount or
judgment for the payment of money obtained by the Creditors against
Transferor.
(b) Transferee further agrees that, with respect to actions or
claims brought against Transferor at any time and which arise from
actions or omissions by Transferor or its directors, officers, agents
or employees before the Effective Date (including without limitation
any claims or actions brought against Transferor by or on behalf of
Paradyne Networks, Inc. relating to the civil patent litigation
captioned Lamelson Foundation x. Xxxx Electronics Corporation, et al.,
United States District Court, District of Arizona, No. CIV 000660 PHX
JWS), Transferee will (i) indemnify Transferor against any such actions
or claims, (ii) defend Transferor against any such actions or claims,
and (iii) pay any settlement amount or judgment for the payment of
money obtained by any party bringing such action or claim.
2.6 FURTHER ASSURANCES. If at any time after the Effective Date any
further action is necessary to carry out the purposes of this Agreement, each of
the parties hereto will take such further action (including, without limitation,
the execution and delivery of such further instruments and documents of
conveyance) as any other party may reasonably request. Without limiting the
generality of the foregoing, the parties hereby acknowledge and agree that from
and after the Effective Date, Transferee will be entitled to possession of all
documents, books, records, agreements and financial data of any sort relating to
the Assets or the Assumed Liabilities, and Transferor will be entitled to
possession of all documents, books, records, agreements and financial data of
any sort relating to the Excluded Assets or the Excluded Liabilities.
ARTICLE III
MISCELLANEOUS
3.1 SEVERABILITY. If any provision of this Agreement, including any
phrase, sentence, clause, Section or subsection is inoperative or unenforceable
for any reason. Such circumstances shall not have the effect of rendering the
provision in questions inoperative or unenforceable in any other case or
circumstance, or of rendering any other provision or provisions herein contained
invalid, inoperative or unenforceable to any extent whatsoever.
3.2 NOTICES. All notices, requests, demands, waivers and other
communications required or permitted to be given under this Agreement shall be
in writing and shall be deemed to have been duly given if (i) delivered
personally; (ii) mailed by first-class, registered or certified mail, return
receipt requested, postage prepaid, or (iii) sent by next-day or overnight mail
or delivery or (iv) set by telecopy or telegram.
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(a) if to Transferor, to
Xxxxx Systems, Inc
000 Xxxxx Xxxxxxx Xxxxxx
X.X. Xxx 000
Xxxxxxx, XX 00000
(b) if to Transferee, to
M-Tron Industries, Inc.
000 Xxxxx Xxxxxxx Xxxxxx
X.X. Xxx 000
Xxxxxxx, XX 00000
3.3 HEADINGS. The headings contained in this Agreement are for purposes
of convenience only and shall not affect the meaning or interpretation of this
Agreement.
3.4 ENTIRE AGREEMENT. This Agreement (including the Schedules hereto)
constitutes the entire agreement and supercedes all prior agreements and
understandings, both written and oral, between the parties with respect to the
subject matter hereof.
3.5 COUNTERPARTS. This Agreement may be executed in several
counterparts, each of which shall be deemed an original and all of which shall
together constitute one and the same instrument.
3.6 GOVERNING LAW. This Agreement shall be governed in all respects,
including as to validity, interpretation and effect, by the internal laws of the
State of Delaware.
3.7 BINDING EFFECT. This Agreement shall be binding upon and inure to
the benefit of the parties hereto and their respective heirs, successors and
permitted assigns.
3.8 ASSIGNMENT. This Agreement shall not be assignable or otherwise
transferable by any party hereto without the prior written consent of the other
party hereto, PROVIDED that that Transferee may assign this Agreement to any
subsidiary of the Transferee or to any lender in respect of financing
arrangements entered into in connection with the transactions contemplated
hereby and any refinancing, extensions, refunding or renewals thereof, PROVIDED,
FURTHER, that no assignment to any such lender shall in any way affect the
Transferee's obligations or liabilities under this Agreement.
3.9 NO THIRD PARTY BENEFICIARIES. Nothing in this Agreement shall
confer any rights upon any person or entity other than the parties hereto and
their respective heirs, successors and permitted assigns.
3.10 AMENDMENT; WAIVERS, ETC. No amendment, modification or discharge
of this Agreement, and no waiver hereunder, shall be valid or binding unless set
forth in
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writing and duly executed by the party against whom enforcement of the
amendment, modification, discharge or waiver is sought. Any such waiver shall
constitute a waiver only with respect to the specific matter described in such
writing and shall in no way impair the rights of the party granting such waiver
in any other respect or at any other time. Neither the waiver by any of the
parties hereto of a breach of or a default under any of the provisions of this
Agreement, nor its failure by any of the parties, on one or more occasions, to
enforce any of the provision of this Agreement or to exercise any rights or
privileges hereunder, shall be construed as a waiver of any other breach or
default of a similar nature, or as a waiver of any of such provisions, rights or
privileges hereunder. The rights and remedies herein provided are cumulative and
are not exclusive of any rights to remedies that any party may otherwise have at
law or in equity. The rights and remedies of any party based upon, arising out
of or otherwise in respect of any inaccuracy or breach of any representation,
warranty, covenant or agreement or failure to fulfill any condition shall in no
way be limited by the fact that the act, omission, occurrence or other state of
facts upon which any claim of any such inaccuracy or breach is based may also be
the subject matter of any other representations, warranty, covenant or agreement
as to which there is no inaccuracy or breach.
(Remainder of page intentionally left blank. Signature page to follow.)
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IN WITNESS WHEREOF, the parties have duly executed this Agreement as of
the date first written above.
Xxxxx Systems, Inc.
By:
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Name: Xxxxxx Xxxxxxx
Title: President
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M-Tron Industries, Inc.
By:
--------------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: President
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SCHEDULE 1.1
REAL PROPERTY
West Two Hundred Feet (W200') of the Northeast Quarter of the Northeast
Quarter (NE 1/4 NE 1/4) except the North 467.8 feet thereof, and the
West Two Hundred feet (W200') of Government Lot One (1), Section
Seventeen (17), Township Ninety-three (93), Range Fifty-five (55),
Yankton County, South Dakota.
Lots One (1) and Two (2), Xxxxxx'x 4th Addition, County of Yankton,
South Dakota as per plat recorded in Book S11, page 66.
East Two Hundred Feet (E200') of the Northwest Quarter (NW 1/4) of the
Northeast Quarter (NE 1/4) of Xxxxxxx 00, Xxxxxxxx 00, Xxxxx 00, Xxxx
of the 5th P.M., Yankton County, South Dakota
INTELLECTUAL PROPERTY
Selected Overtone Resonator with Channels, U.S. Patent No. 6,016,025,
dated January 18, 2000
