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Exhibit 10.40a
ASSET PURCHASE AGREEMENT
AMONG
AIRLINE INTERIORS, INC.,
SIMULA TRANSPORTATION EQUIPMENT CORPORATION,
AND
SIMULA, INC.
AS SELLING PARTIES
AND
XXXXX AIRCRAFT, INC.
AS PURCHASER
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ASSET PURCHASE AGREEMENT
This ASSET PURCHASE AGREEMENT (the "Agreement") is executed as of this
24th day of December, 1999, by and among AIRLINE INTERIORS, INC., an Arizona
corporation ("Seller"), SIMULA TRANSPORTATION EQUIPMENT CORPORATION, an Arizona
corporation ("Simtec"), and SIMULA, INC., an Arizona corporation ("Simula"), and
XXXXX AIRCRAFT, INC., a Delaware corporation ("Purchaser"), with reference to
the facts set forth in the Preliminary Statements below.
PRELIMINARY STATEMENTS
A. Simula is the sole shareholder of Simtec, which is in turn the sole
shareholder of Seller.
X. Xxxxxx and Simtec may sometimes be hereafter collectively referred
to as the "Shareholder." Seller and Shareholder may sometimes be hereafter
collectively referred to as the "Selling Parties."
C. Seller owns and operates a business involving the design,
manufacture, and sale of new commercial aircraft passenger seats. Seller
conducts this business in Poway, California.
D. Seller desires to sell Purchaser certain assets used in such
business of Seller.
E. In connection with the subject transaction, Purchaser will buy
certain assets of Seller and assume certain liabilities of Seller, all as more
fully provided below in this Agreement.
F. The parties are executing this Agreement in order to memorialize
their understanding concerning said transaction.
AGREEMENT
NOW, THEREFORE, in consideration of the above Preliminary Statements
and the mutual covenants of the parties set forth below in this Agreement, the
parties hereby agree as follows:
ARTICLE 0
KEY BUSINESS TERMS AND DEFINITIONS
0.1 KEY BUSINESS TERMS.
(a) PURCHASE PRICE. The Purchase Price shall be a
variable amount, consisting of the Cash Payment (as defined below) and
the assumption of the Assumed Liabilities (as defined below). The
amount of the Cash Payment shall be determined as provided in Section
1.2(d) below.
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The amount of the Assumed Liabilities shall be determined effective as of the
Closing, as provided in Section 0.3(m) below.
(b) INITIAL DEPOSIT. $2,000,000. See Section 1.6 below.
(c) EFFECTIVE DATE. December 31, 1999. See Section 1.10 below.
(d) BALANCE SHEET CUT-OFF DATE. Seven (7) days before the Target
Closing Date. See Section 0.3(tt) below.
(e) TARGET CLOSING DATE. January 25, 2000. See Section 1.6(a)
below.
(f) CLOSING DEADLINE: February 29, 2000. See Section 0.3(o) below.
(g) INDEMNITY CAP. $1,500,000. See Section 8.6(b) below.
(h) INDEMNITY PERIOD. An eighteen (18) month period which is more
precisely defined in Section 0.3(cc). See Section 8.6(b) below.
(i) ACCOUNTING STANDARDS. Except as may be otherwise expressly
provided in this Agreement, all financial and accounting information delivered
to Purchaser by Selling Parties or to be prepared by Seller pursuant to this
Agreement, including without limitation Seller's Financial Statements (as
defined below) shall be prepared in accordance with generally accepted
accounting principles ("GAAP") in the United States, consistently applied. It is
agreed that it will not be necessary to reiterate this principle elsewhere in
this Agreement. The only permitted exceptions to or deviations from GAAP are
expressly noted below.
0.2 DEFINED TERMS GENERALLY. Terms used in this Agreement which begin
with initial capital letters are defined terms which shall have the meanings
ascribed to them in the Preliminary Statements above, in Section 0.3 below, or
elsewhere in this Agreement
0.3 LISTING OF CERTAIN DEFINED TERMS. Terms defined in this
Section 0.3 are as follows:
(a) ACCOUNTS RECEIVABLE. The term "Accounts Receivable" shall
have the meaning given it in Section 1.1(a) below.
(b) AGREED INVENTORY VALUE. The term "Agreed Inventory Value"
shall mean the value of the Included Inventory to be used in calculating
Seller's Adjusted Net Worth. The initial amount of the Agreed Inventory Value
shall be mutually agreed upon by Purchaser and Seller on or before the Balance
Sheet Cut-Off Date. The final amount of the Agreed Inventory Value shall be
determined as part of the Post-Closing Accounting Adjustments. The Agreed
Inventory Value shall be determined in accordance with the procedures set forth
in the Inventory Valuation Methodology attached hereto as Exhibit "B" and the
Inventory Reserve Methodology attached hereto as Exhibit "C." The Agreed
Inventory Value (net of any inventory reserve established pursuant to
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Paragraph C of Exhibit "C") shall be inserted on line 6 of the Pre-Closing
Balance Sheet; provided, however, that the aggregate amount of the inventory
reserve computed pursuant to Paragraph 2 of Exhibit "C" shall not exceed thirty
percent (30%).
(c) AGREED OFFSETS. The term "Agreed Offsets" shall have the
meaning given it in Section 0.3(nn)(3) below.
(d) ASSETS. The term "Assets" shall mean all the assets of Seller,
whether used in the Business or other businesses of Seller. The Assets consist
of the Included Assets and the Excluded Assets. Purchaser is purchasing only the
Included Assets.
(e) ASSUMED LIABILITIES.
(1) The term "Assumed Liabilities" shall mean the stated
liabilities of Seller with respect to the Business to be assumed by Purchaser
effective as of the Closing. As of the date of this Agreement, the nature and
amount of the liabilities to be included in the Assumed Liabilities are not
known. The parties will make a good faith estimate of the Assumed Liabilities as
of the Balance Sheet Cut-Off Date. The Assumed Liabilities shall only consist of
the specific contractual obligations of Seller to be assumed pursuant to the
Assignment and Assumption Agreement, i.e., (i) certain Vendor Contracts, (ii)
certain Customer Contracts, (iii) certain Equipment Leases (whether operating or
capital leases), and (iv) such other obligations and commitments of Seller as
shall be specified in the Assignment and Assumption Agreement at the Closing.
The Assumed Liabilities will be listed on Schedule 0.3(e). Purchaser and Selling
Parties shall amend this Agreement to reflect their agreement on the items to be
listed on Schedule 0.3(e) before the Balance Sheet Cut-Off Date.
(2) Subject to adjustments to reflect the Post-Closing
Accounting Adjustments, the aggregate amount of the Assumed Liabilities shall
not exceed the sum of the following items listed on the Pre-Closing Balance
Sheet: (i) Seller's trade accounts payable (line 14 on the Pre-Closing Balance
Sheet), (ii) certain of Seller's other accrued liabilities for items approved by
Purchaser (line 15 on the Pre-Closing Balance Sheet); and (iii) certain
inter-company trade payables (the "Simula Payables") in an amount not to exceed
$2,432,000 owing by Seller to Simula Composites Corporation and Simula
Technologies, Inc. for services and materials provided with respect to the
Products (line 16 on the Pre-Closing Balance Sheet). The estimated amount (as of
December 21, 1999) of each such balance sheet entry to be included as part of
the Assumed Liabilities is shown on the Pro Forma Closing Date Balance Sheet
attached hereto as Exhibit "A."
(f) BALANCE SHEET CUT-OFF DATE. The term "Balance Sheet Cut-Off
Date" shall mean the date as of which the Pre-Closing Balance Sheet shall be
prepared. The Balance Sheet Cut-Off Date shall be as specified in Section 0.1(d)
above.
(g) BEST KNOWLEDGE OF SELLER'S RESPONSIBLE EMPLOYEES. The term
"Best Knowledge of Seller's Responsible Employees" shall mean the knowledge of
Seller's Responsible Employees after (1) due inquiry of Seller's employees,
officers, and directors and (2) a review of Seller's books, records and files.
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(h) Best Knowledge of Selling Parties. The term "Best Knowledge of
Selling Parties" shall mean the Best Knowledge of Shareholder's Corporate
Management and the Best Knowledge of Seller's Responsible Employees,
collectively.
(i) Best Knowledge of Shareholder's Corporate Management. The term
"Best Knowledge of Shareholder's Corporate Management" shall mean the knowledge
of the following officers of Simula: Xxxxxx X. Xxxxxxxx, Xxxxxxx X. Xxxxx, Xxxxx
X. Xxxxxxxx, and Xxxxx X. Xxxx after due inquiry of Selling Parties' employees,
officers and directors.
(j) Books and Records. The term "Books and Records" shall have the
meaning given it in Section 1.1(b) below.
(k) Business. The term "Business" shall mean the business
conducted by Seller in the Poway Facility involving the design, manufacture and
sale of the Products.
(l) Cash Payment. The term "Cash Payment" shall mean the cash
portion of the Purchase Price payable to Seller by Purchaser for the Included
Assets. The amount of the Cash Payment is a variable amount equal to (1) the sum
of (i) Seller's Adjusted Net Worth determined effective as of the Closing and
(ii) goodwill in the amount of Six Million Five Hundred Thousand Dollars
($6,500,000), (2) reduced by the outstanding principal balance of the Operating
Loan as of the Closing. The amount of the Cash Payment shall be determined as of
the Closing as provided in Section 1.2 below. To illustrate, assuming that
Seller's Adjusted Net Worth as shown on the Pre-Closing Balance Sheet is Six
Million Five Hundred Thousand Dollars ($6,500,000), and the principal balance of
the Operating Loan is One Million Dollars ($1,000,000), the Cash Payment would
be equal to Twelve Million Dollars ($12,000,000). It is understood that the
actual amount of the Cash Payment payable at the Closing will be based on the
amount of Seller's Adjusted Net Worth determined on the basis of the Pre-Closing
Balance Sheet and will be adjusted by the Post-Closing Accounting Adjustments.
(m) Closing. The term "Closing" shall have the meaning given it in
Section 1.6(a) below.
(n) Closing Date. The term "Closing Date" shall mean the date on
which the Closing occurs.
(o) Closing Deadline. The term "Closing Deadline" shall mean the
last date by which the Closing may occur. The Closing Deadline may be extended
by mutual agreement of the parties or as provided in this Agreement. As of the
date of this Agreement, the Closing Deadline is as specified in Section 0.1(f)
above.
(p) Closing Documents. The term "Closing Documents" shall mean and
include:
(1) Assignment and Assumption Agreement (Exhibit "D");
(2) Assignment of Intellectual Property (Exhibit "J");
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(3) Xxxx of Sale (Exhibit "E");
(4) Consents to the assignment of the Customer's
Contracts pursuant to Section 2.12 below;
(5) Asset Acquisition Statement (IRS Form 8594); and
(6) Patent License Agreement (Exhibit "H").
(q) Code. The term "Code" shall mean the Internal Revenue Code of
1986, as amended.
(r) Equipment Leases. The term "Equipment Leases"shall have the
meaning given it in Section 1.1(d) below.
(s) Escrow. The term "Escrow" shall mean the escrow to be opened
with Escrowholder pursuant to Section 1.9 below for the purpose of holding the
Initial Deposit and the Closing Documents pending the Closing.
(t) Escrowholder. The term "Escrowholder" shall mean BankOne,
N.A., Columbus, Ohio.
(u) Excluded Assets. The term "Excluded Assets" shall mean those
Assets of Seller which are not being purchased by Purchaser, as listed on
Schedule 0.3(u).
(v) Excluded liabilities. The term "Excluded Liabilities" shall
mean all liabilities of Seller which are not being specifically assumed by
Purchaser as part of the Assumed Liabilities. As noted above, as of the date of
this Agreement, Purchaser does not yet know the exact nature or amount of the
Excluded Liabilities. The Excluded Liabilities shall consist of those
liabilities of Seller to be listed on Schedule 0.3(v) and all other liabilities
of Seller (whether stated or unstated or whether arising out of the Business or
otherwise) which are not part of the Assumed Liabilities to be listed on
Schedule 0.3(e). Schedule 0.3(v) will be prepared at the same time as Schedule
0.3(e).
(w) Funding agreement. The term "Funding Agreement" shall mean
that certain Funding Agreement to be entered into by Purchaser and Selling
Parties pursuant to Section 1.11 below.
(x) Governmental Airworthiness Approvals. The term "Governmental
Airworthiness Approvals" shall have the meaning given it in Section 1.1(e)
below.
(y) HSR Act. The term "HSR Act" shall mean the Xxxx-Xxxxx-Xxxxxx
Antitrust Improvements Act of 1976, as amended.
(z) Included Assets. The term "Included Assets"shall mean those
Assets being
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purchased by Purchaser pursuant to this Agreement. Generally, the Included
Assets are listed in Sections 1.1(a)-(n) below. However, Purchaser reserves the
right to purchase less than all of the following items listed in Section 1.1 as
being part of the Included Assets: Software Licenses, Supplies, Tangible
Personal Property and Vendor Contracts. At least five (5) business days before
the Balance Sheet Cut-Off Date, Purchaser shall give Selling Parties written
notice of the actual identification and/or quantity of such items which
Purchaser desires to purchase. Upon receipt of such notice from Purchaser,
Purchaser and Selling Parties shall amend the schedules to this Agreement that
may be affected by Purchaser's decisions and adjust the Pre-Closing Balance
Sheet appropriately.
(aa) Included Inventories. The term "Included Inventories" shall
have the meaning given it in Section 1.1(f) below.
(bb) Indemnity Cap. The term "Indemnity Cap" shall mean the maximum
amount which either Selling Parties or Purchaser is obligated to indemnify the
other under Article 8 below. The amount of the Indemnity Cap is specified in
Section 0.1(g) above.
(cc) Indemnity Period. The term "Indemnity Period" shall mean an
eighteen (18) month period beginning on the Closing Date and ending on the last
day of the calendar month in which falls the 18th month anniversary of the
Closing. See Section 8.6(b) below.
(dd) Intellectual Property. The term "Intellectual Property"shall
have the meaning given it in Section 1.1(g) below.
(ee) Manufacturers' Warranties. The term "Manufacturers'
Warranties"shall have the meaning given it in Section 1.1(h) below.
(ff) Operating Loan. The term "Operating Loan" shall mean that
certain loan to be made before the Closing by Purchaser to Seller pursuant to
the Funding Agreement and as provided in Section 1.11 below.
(gg) Post-Closing Accounting Adjustments. The term "Post-Closing
Accounting Adjustments" shall have the meaning given it in Section 0.3(hh)(2)
below.
(hh) Pre-Closing Balance Sheet.
(1) The term "Pre-Closing Balance Sheet" shall mean a
preliminary balance sheet for the Business prepared as of the Balance Sheet
Cut-Off Date by Seller and approved by Purchaser pursuant to Section 1.2(c)
below. The Pre-Closing Balance Sheet shall be prepared in substantially the same
format as the Pro Forma Closing Date Balance Sheet attached hereto as Exhibit
"A." The parties shall agree on the methodology by which the items to be
included as part of the Included Assets shall be reflected on the Pre-Closing
Balance Sheet before the Balance Sheet Cut-Off Date.
(2) It is understood that the Pre-Closing Balance Sheet
may not accurately
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reflect the actual financial condition of Seller on the Closing, because it will
not be possible to make all necessary accounting entries and adjustments (the
"Post-Closing Accounting Adjustments") to properly close Seller's accounting
books effective as of the Closing until some time thereafter. Accordingly, it is
agreed that the parties shall make the Post-Closing Accounting Adjustments as
provided in Section 7.16 below.
(ii) POST-CLOSING DOCUMENTS. The term "Post-Closing Documents"
shall mean the Transition Support Agreement (Exhibit "I"), Non- Competition
Agreement (Exhibit "F"), and any other documents which the parties may be
required to execute after the Closing in order to fulfill their obligations
under Article 7 below.
(jj) POWAY FACILITY. The term "Poway Facility" shall mean the
industrial building leased by Seller in which the Business is conducted. The
Poway Facility is located at 00000 Xxxxxx Xxxxxx, Xxxxx, Xxxxxxxxxx 00000.
(kk) PRODUCTS. The term "Products" shall mean the new commercial
aircraft passenger seats designed, manufactured and sold by Seller as part of
the Business. The Products are identified by Seller as Model Nos. AI-1000
(economy-class seats) and AI-2000 (business-class and first-class seats).
(ll) PRO FORMA CLOSING DATE BALANCE SHEET. The term "Pro Forma
Closing Date Balance Sheet" shall mean the pro forma or specimen balance sheet
for the Business which is attached hereto as Exhibit "A." The Pre-Closing
Balance Sheet shall be prepared in substantially the same format as the Pro
Forma Closing Date Balance Sheet.
(mm) PURCHASE PRICE. The term "Purchase Price" shall mean the
purchase price to be paid by Purchaser for the Included Assets. The Purchase
Price is a variable amount, as specified in Section 0.1(a) above. The Purchase
Price consists of the Cash Payment and the assumption of the Assumed
Liabilities. See also Section 1.2 below.
(nn) SELLER'S ADJUSTED NET WORTH.
(1) The term "Seller's Adjusted Net Worth" shall be equal
to the difference between: (i) the net aggregate value of the Included Assets
and (ii) the sum of the Assumed Liabilities and the outstanding balance of the
Operating Loan as of the Closing. The parties' initial estimate of Seller's
Adjusted Net Worth shall be reflected on the Pre-Closing Balance Sheet. For
purposes of computing Seller's Adjusted Net Worth, the net aggregate value of
the Included Assets shall be equal to the difference between the Gross Asset
Value and the Agreed Offsets.
(2) The "Gross Asset Value" shall be equal to the sum of
the following:
(i) The Accounts Receivable, as shown on line 4
of the Pre-Closing Balance Sheet;
(ii) An amount equal to the Agreed Inventory
Value, as shown on
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line 5 of the Pre-Closing Balance Sheet.
(iii) The book value of the items
historically included as part of Seller's "property and equipment" (but only to
extent same are part of the Included Assets), as shown on line 8 of the
Pre-Closing Balance Sheet but not less than $608,000; and
(iv) The value of the items which have
been historically included on Seller' balance sheets in the category of "other
assets" (but only to the extent same are part of the Included Assets), as shown
on line 10 of the Pre-Closing Balance Sheet.
(3) The "Agreed Offsets" shall be equal to the
sum of (i) a warranty offset in the amount of One Million Seven Hundred
Twenty-One Thousand Nine Hundred Twelve Dollars ($1,721,912) and (ii) a
certification offset in the amount of Five Hundred Sixty Thousand Dollars
($560,000). The procedures to be followed in computing the Agreed Inventory
Value will reflect an inventory reserve computed in accordance with Exhibit "C."
(oo) SELLER'S FINANCIAL STATEMENTS. The term "Seller's
Financial Statements" shall have the meaning given it in Section 2.13 below.
(pp) SELLER'S RESPONSIBLE EMPLOYEES. The term "Seller's
Responsible Employees" shall mean and include: (1) the following employees of
the Selling Parties: Xxxxxx Xxxxxx, Xxx Xxxxx, Xxxxxx X. Xxxxx, Xxxx
Xxxxxxxxxxxx, Xxxxxx Xxxxxx, and Xxxx Xxx Xxxxxxxx, and (2) such other employees
as may be identified by employment position in the various sections of Article 2
below in which this defined term is used.
(qq) SHARED USE PATENT. The term "Shared Use Patent" shall
mean that patent currently owned by Seller which is known as "16g load limiting
technology" and which is identified as U.S. Patent No. 5,730,492 on Schedule
1.1(g). The Shared Use Patent is part of the Intellectual Property to be
acquired by Purchaser as part of the Included Assets.
(rr) SIMULA PAYABLES. The term "Simula Payables" shall
have the meaning given it in Section 0.3(e)(2) above.
(ss) TANGIBLE PERSONAL PROPERTY. The term " Tangible
Personal Property" shall have the meaning given it in Section 1.1(l) below.
(tt) TARGET CLOSING DATE. The term "Target Closing Date" shall
mean the date on which the parties reasonably anticipate that the Closing will
occur. The Target Closing Date shall be as specified in Section 0.1(e) above.
(uu) TOOLING. The term "Tooling" shall have the meaning
given it in Section 1.1(m) below.
(vv) TRANSITION PERIOD. The term "Transition Period" shall
mean a period of time following the Closing during which Purchaser will operate
in the Poway Facility pursuant to the
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Transition Support Agreement in order to prepare the Business for relocation to
Purchaser's manufacturing facility in Gainesville, Texas.
ARTICLE 1
SALE AND TRANSFER OF ASSETS
1.1 SALE OF INCLUDED ASSETS. Subject to all the terms and
conditions of this Agreement, at the Closing Seller hereby agrees to sell,
transfer, assign and deliver to Purchaser, and Purchaser hereby agrees to
purchase, all of Seller's right, title and interest in and to the Included
Assets. The Included Assets shall consist of the following:
(a) ACCOUNTS RECEIVABLE. All accounts receivable and
other rights to receive payment (collectively, the "Accounts Receivable") under
the Customer Contracts or otherwise, as may arise in the normal course of
business and are in existence at the Closing and all deposits, prepayments,
bonds, and refunds, as listed on Schedule 1.1(a);
(b) BOOKS AND RECORDS. All documents, customer files,
records, operating manuals, files and computer software which pertain to the
Business, whether printed or in electronic format, including without limitation
all procedure manuals, all vendor and supplier lists, customer lists, ledgers,
journals and general operational business and financial books and records
necessary to the uninterrupted operation of the Business (collectively, the
"Books and Records");
(c) CUSTOMER CONTRACTS. All open written contracts and
open written purchase orders (the "Customer Contracts"), with customers of
Seller for the sale of the Products, including without limitation components
thereof and related equipment or modifications and replacement parts, which are
open or incomplete as of the Closing, including without limitation those
contracts and purchase orders under which either (1) Seller has not completed
performance of its production or delivery obligations to its customers (i.e.
customer order backlog), or (2) such customers have not made payment in full to
Seller in accordance with applicable contractual provisions, as listed on
Schedule 1.1(c);
(d) EQUIPMENT LEASES. The leases (the "Equipment Leases")
for equipment used in the Business, but only those listed on Schedule 1.1(d);
(e) GOVERNMENTAL AIRWORTHINESS APPROVALS. To the extent
assignable or transferable, all approvals, authorizations, licenses,
certificates, accreditations and registrations and other licenses or permits
(collectively, the "Governmental Airworthiness Approvals") issued by
governmental airworthiness authorities anywhere in the world with respect to the
Products or in connection with the operation of the Business, including without
limitation the permits, approvals and licenses listed on Schedule 1.1(e);
(f) INCLUDED INVENTORIES. Subject to Section 2.10 below,
all inventories (the "Included Inventories") of the Products, including without
limitation raw materials and parts, work-in-process and finished goods, together
with such additions and deletions thereto as may arise in the
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ordinary course of business before the Closing, as listed on Schedule 1.1(f);
(g) INTELLECTUAL PROPERTY. All intangible property
(collectively, the "Intellectual Property") related to the Business, including
without limitation the patents, copyrights, licenses, intellectual property,
drawings, formulas and rights listed on Schedule 1.1(g);
(h) MANUFACTURERS' WARRANTIES. All warranties (the
"Manufacturers' Warranties") provided by any third-party manufacturers or
vendors with respect to any components or parts used in manufacturing the
Products;
(i) OTHER ASSETS. Any other assets (the "Other Assets")
of Seller utilized in the Business, wheresoever situated, excluding, however,
the Excluded Assets (Schedule 0.3(u));
(j) SOFTWARE LICENSES. The software licenses, including
appurtenant documentation and object and source code (the "Software Licenses"),
for the computer software programs used by Seller in the Business listed on
Schedule 1.1(j), it being agreed that Schedule 1.1(j) shall list only those
items which Purchaser elects to purchase as provided above;
(k) SUPPLIES. To the extent not part of the Included
Inventories, the inventories of manufacturing supplies, office supplies and
other disposables and consumables (the "Supplies") owned by Seller which are
used in connection with the Business, together with such additions and deletions
thereto as may arise in the ordinary course of business before the Closing as
listed on Schedule 1.1(k), it being agreed that Schedule 1.1(k) shall list only
those items which Purchaser elects to purchase as provided above;
(l) TANGIBLE PERSONAL PROPERTY. Certain tangible personal
property (the "Tangible Personal Property") used in connection with the
Business, including without limitation appurtenant manufacturing equipment and
machinery, furniture, computers, fixtures, office furnishings, and samples of
the Products, as listed on Schedule 1.1(l), but only those items which Purchaser
elects to purchase as provided above;
(m) TOOLING. All tooling, fixtures, molds, jigs, assembly
tools, and patterns and sample parts used to manufacture any parts or components
of the Products (collectively, the "Tooling"), whether located in the Poway
Facility or at the facilities of Seller's vendors, as listed on Schedule 1.1(m);
and
(n) VENDOR CONTRACTS. Those contracts and purchase orders
(collectively, the "Vendor Contracts") issued by Seller to its vendors for
parts, components, materials and other supplies used to manufacture the
Products, as listed on Schedule 1.1(n), it being agreed that Schedule 1.1(n)
shall list only those Vendor Contracts which Purchaser elects to acquire or
assume.
1.2 PURCHASE TRANSACTION.
(a) GENERAL. At the Closing, Purchaser shall purchase the
Included Assets for the Purchase Price as preliminarily determined on the basis
of the Pre-Closing Balance Sheet, which
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shall be prepared as provided in the following provisions of this Section 1.2.
See also Section 0.1(a) above. The Purchase Price is subject to adjustment to
reflect the Post-Closing Accounting Adjustments, as provided in Section 0.3(hh)
above. The Purchase Price shall be paid as provided in Section 1.6 below.
(b) CERTAIN PRE-CLOSING ACTIONS. No less than five (5)
business days before the Balance Sheet Cut-Off Date, Purchaser shall advise
Selling Parties of those items of Seller's Assets which Purchaser desires to be
included among the Included Assets pursuant to Section 1.1 above. In addition,
Seller and Purchaser shall cooperate with one another in order to assist
Purchaser in selecting the employees of Seller whom Purchaser desires to hire
after the Closing. See Section 4.1(b) and 5.2(m) below.
(c) DETERMINATION OF PRE-CLOSING BALANCE SHEET. At least
three (3) business days before the Target Closing Date, Seller shall deliver to
Purchaser the Pre-Closing Balance Sheet for the Business prepared on a basis
consistent with: (1) Seller's Financial Statements and (2) Seller's accounting
practices prior to the date of this Agreement. The Pre-Closing Balance Sheet
shall be used to make a preliminary estimate of Seller's Adjusted Net Worth and
the amount of the Assumed Liabilities as of the Closing. Purchaser shall have
two (2) business days after receipt from Seller in which to review and approve
the Pre-Closing Balance Sheet. If Purchaser disapproves of the Pre-Closing
Balance Sheet as prepared by Seller, Purchaser shall send Seller a written
notice to such effect. Purchaser's failure to timely object to the Pre-Closing
Balance Sheet as prepared by Seller shall mean that Purchaser has approved of
same. If Purchaser timely disapproves of Seller's Pre-Closing Balance Sheet, the
parties shall meet and confer in order to agree on a mutually agreeable
Pre-Closing Balance Sheet. If the parties are unable to agree on the Pre-Closing
Balance Sheet within two (2) business days after the Purchaser sends its
disapproval notice, the matter shall be promptly resolved by Selling Parties'
accounting firm, Deloitte & Touche, LLP, and Purchaser's accounting firm, Ernst
& Young, LLP, in a fair and impartial manner. Resolution of disagreements over
the Pre-Closing Balance Sheet shall extend the Target Closing Date until such
time as the matter is resolved. Extensions of the Target Closing Date pursuant
to the preceding sentence shall extend the Closing Deadline for an equal amount
of time.
(d) AMOUNT OF CASH PAYMENT. The Cash Payment shall then
be calculated as provided in Section 0.3(l) above. The Cash Payment shall be
paid all in cash at the Closing, as more fully provided in Section 1.6 below.
After the Post-Closing Accounting Adjustments are made, the amount of the Cash
Payment shall be appropriately adjusted as provided in Section 0.3(hh) above.
(e) AMOUNT OF ASSUMED LIABILITIES. The estimated amount
of the Assumed Liabilities shall be as set forth on the Pre-Closing Balance
Sheet approved by Seller and Purchaser pursuant to Section 1.2(c) above. The
Assignment and Assumption Agreement (Exhibit "D") shall list the specific items
to be included among the Assumed Liabilities, as set forth on Schedule 0.3(e).
1.3 ALLOCATION OF PURCHASE PRICE. The Purchase Price shall be
allocated by Purchaser and Seller on the basis of an allocation of the value of
the Included Assets made by the parties and their respective accounting
advisors, Ernst & Young, LLP and Deloitte & Touche, LLP. Seller shall cooperate
in providing the information necessary for the completion and filing of IRS Form
8594,
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Asset Acquisition Statement, under Section 1060 of the Code. The parties
shall each deliver executed copies of said Form 8594 at the Closing.
1.4 ASSUMPTION OF ASSUMED LIABILITIES. Subject to all the terms
and conditions of this Agreement, effective as of the Closing, Purchaser shall
assume the Assumed Liabilities by executing and delivering to Seller the
Assignment and Assumption Agreement substantially in the form of Exhibit "D"
hereto. The Assumed Liabilities shall be listed on Schedule 0.3(e).
Notwithstanding anything in this Agreement to the contrary, the Assumed
Liabilities shall not include any of the Excluded Liabilities.
1.5 CALIFORNIA SALES TAX. Purchaser shall pay any and all state
and local sales or transfer taxes that may be payable in connection with the
sale of the Included Assets.
1.6 CLOSING MATTERS.
(a) GENERAL.
(1) The consummation (the "Closing") of the
transactions contemplated in this Agreement shall occur at one time after all
conditions to the Closing have been waived or satisfied. The Closing shall take
place at the offices of Xxxxxxx & Xxxxx in San Diego, California, or at such
other place as Purchaser and Seller may agree upon in writing.
(2) The parties anticipate that the Closing will
occur on the Target Closing Date specified in Section 0.1(e) above. The Target
Closing Date may be extended to such other date as may be mutually agreed upon
by the parties or as provided in this Agreement. The Closing shall occur as soon
as practical after the expiration of the applicable waiting period under the HSR
Act, but not later than the Closing Deadline, as the same may be extended. See
Article 5.2(s) below. Extensions of the Target Closing Date under applicable
provisions of this Agreement shall also extend the Closing Deadline on a
day-for-day basis, notwithstanding anything in this Agreement to the contrary.
(b) DEPOSIT OF PURCHASER'S FUNDS. Promptly upon execution
of this Agreement by both parties, Purchaser shall deposit the Initial Deposit
into the Escrow. Between the date of the deposit of the Initial Deposit and the
Effective Date, the Escrow shall remain a unilateral escrow for the exclusive
benefit of Purchaser. After the Effective Date, the Escrow shall become a
bilateral escrow for the joint benefit of Seller and Purchaser, subject to all
the terms and conditions of this Agreement and the Funding Agreement. The
Initial Deposit shall be disbursed to fund the Operating Loan pursuant to the
Funding Agreement. See Section 1.11 below. The balance of the Initial Deposit
shall be credited against the Cash Payment. Interest accrued on funds deposited
into the Escrow while they are in Escrow shall accrue to the benefit of
Purchaser.
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(c) CLOSING PROCEDURES. At the Closing:
(1) Seller shall deliver to Escrowholder the
documents necessary to transfer title to the Included Assets, as more fully
provided in Section 1.8 below;
(2) Purchaser and Seller shall execute and
deliver to Escrowholder the Closing Documents;
(3) Purchaser shall deposit the unpaid balance
of the Cash Payment into the Escrow by wire transfer of immediately available
funds; and
(4) Purchaser and Seller shall execute and
deliver all other agreements and documents described in or contemplated in
Articles 4, 5, and 6 below (to the extent not included in the Closing Documents)
and all other documents reasonably agreed by the parties' respective legal
counsel to be required to be delivered and/or executed at or prior to Closing in
order to complete the transactions contemplated by this Agreement.
1.7 Bulk sale transfer notice. As a condition to the Closing,
Purchaser shall give notice to Seller's creditors of the bulk transfer
contemplated by this Agreement pursuant to Division 6 of the California
Commercial Code. At least thirty (30) days before the Target Closing Date,
Selling Parties will furnish Purchaser with the information necessary to prepare
this notice, including all names and business addresses used by it within the
last three (3) years and the location of all the Included Assets.
1.8 Instruments of Conveyance and Transfer. At the Closing, Seller
shall deliver (a) the executed Closing Documents, (b) the executed Post-Closing
Documents, (c) such additional documents as may be required to transfer title to
the Intellectual Property to Purchaser, and (d) other good and sufficient
endorsements, assignments and instruments of conveyance and transfer, and
releases of liens, in form and substance reasonably satisfactory to Purchaser's
legal counsel, may be required to vest in Purchaser title to the Included Assets
free and clear of all liens and encumbrances. Simultaneously with such delivery,
Seller shall take all such steps as may be reasonably required to put Purchaser
in actual possession and complete operating control of the Included Assets and
the Business.
1.9 Escrow Instructions. This Agreement shall constitute escrow
instructions to Escrowholder. By signing the signature page of this Agreement in
the space provided below, Escrowholder agrees to comply with said escrow
instructions. Seller and Purchaser agree to execute such supplemental and/or
general escrow instructions as Escrowholder may reasonably request. However, in
the event of a conflict between this Agreement and such supplemental or general
escrow instructions, this Agreement shall control. Selling Parties shall pay all
costs of the Escrow.
1.10 Effective Date. Notwithstanding anything in this Agreement to
the contrary, this Agreement shall not be effective on its execution. Rather, it
shall become effective as of the Effective Date specified in Section 0.1(c)
above, provided Seller has delivered the executed Funding
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Agreement to Purchaser and delivered to Escrowholder the executed Promissory
Note and the executed Guaranty of Simula provided for under the Funding
Agreement. Seller's delivery of the Funding Agreement, said Promissory Note and
said Guaranty shall be a condition precedent to Purchaser's obligations under
the Funding Agreement.
1.11 Funding Agreement. In order to assist Seller in meeting its
obligations under Section 4.1(a) below concerning the conduct of the Business
before the Closing, Purchaser has agreed to loan Seller up to One Million
Dollars ($1,000,000) (the "Operating Loan") pursuant to a certain Funding
Agreement (the "Funding Agreement") attached as Exhibit "G", to be entered into
by Purchaser, Seller and Simula. The proceeds of the Operating Loan shall be
used only for the following purposes: operating expenses of the Business
incurred in the ordinary course of business and trade payables of Seller
existing (as of December 31, 1999) with respect to the Business. The Operating
Loan shall not be used to pay inter-company loans or purchase parts or materials
to be used to manufacture the Products or fixed assets. The Funding Agreement
shall contain more detailed provisions for the use of the proceeds of the
Operating Loan. The Operating Loan shall be funded from the Initial Deposit in
the Escrow. As a condition to the disbursement of the proceeds of the Operating
Loan, Seller shall execute a Promissory Note and Simula shall execute a
Guaranty, both in form and substance reasonably satisfactory to the parties. The
loan proceeds shall be disbursed in increments. In order to draw down on the
Operating Loan, Seller shall submit a loan draw request to Escrowholder and
Purchaser describing in reasonable detail the purposes for which the draw
request is being submitted. If Purchaser approves the loan draw request,
Escrowholder shall issue a check payable to the order of the payee(s) specified
in Seller's draw request. Interest shall accrue on the Operating Loan only as
provided in the Funding Agreement. The Funding Agreement shall contain a more
complete statement of the parties' understanding concerning the Operating Loan.
ARTICLE 2
REPRESENTATIONS AND WARRANTIES OF SELLING PARTIES
Neither Seller nor Shareholder makes any representations or warranties
concerning the subject transactions, except as expressly provided in this
Article 2 or elsewhere in this Agreement. Neither Seller nor Shareholder makes
any representations or warranties as to pro forma financial information and
forecasts previously given Purchaser, except that they were prepared in good
faith. In addition, except as expressly set forth in this Agreement, neither
Seller nor Shareholder makes any warranty regarding the accuracy of the
information in any marketing materials or business summaries provided by CIBC
World Markets Corp., or in oral presentations (including the written materials
used therein) by Selling Parties' management personnel and/or CIBC World Markets
Corp., except that such materials and summaries were prepared in good faith.
Subject to the foregoing, Seller and Shareholder hereby represent,
warrant and agree that the following representations and warranties of the
Selling Parties are true, accurate and complete as of the date of this Agreement
and will be true, accurate and complete as of the Closing:
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2.1 ORGANIZATION AND STANDING. Selling Parties are corporations
duly organized, validly existing and in good standing under the laws of the
State of Arizona and qualified to do business as foreign corporations in
California and any other jurisdictions where such qualification is required.
Selling Parties have all requisite power and authority to carry on their
respective businesses as such businesses are now being conducted and to own the
properties and assets each now owns. Selling Parties have heretofore delivered
to Purchaser true, accurate and complete copies of their respective Articles of
Incorporation and Bylaws, together, in each case, with all amendments thereto
which have been adopted by requisite corporate action.
2.2 AUTHORITY FOR AGREEMENT. The respective Boards of Directors of
Seller and Shareholder have taken all actions required by law, their respective
Articles of Incorporation and Bylaws or otherwise to authorize the execution and
delivery of this Agreement, on behalf of Seller and Shareholder, the performance
by Seller and Shareholder of their respective obligations under this Agreement
and the consummation of the transactions contemplated hereby.
2.3 OWNERSHIP OF SELLER. Simtec owns one hundred percent (100%) of
the common stock of Seller. No other securities of Seller have been issued.
Simula owns one hundred percent (100%) of the common stock of Simtec. No other
securities of Simtec have been issued.
2.4 NO DEFAULTS OR VIOLATIONS. Except as disclosed on Schedule
2.4, neither the execution and delivery of this Agreement, nor the performance
by Selling Parties of their obligations under this Agreement nor the
consummation of the transactions contemplated hereby will: (a) violate any
provision of their respective Articles of Incorporation or Bylaws, or any
financing or other agreements by which any of them may be bound; (b) violate, or
be in conflict with, or constitute a default under, or permit the termination of
any of the Government Airworthiness Licenses or any customer agreement or
contract by which Selling Parties are bound, or result in the creation or
imposition of any lien upon any of the Included Assets; (d) require the
agreement or consent of any third party; or (e) violate any material statute or
law or any judgment, decree, order, regulation or rule of any court or
governmental authority to which Selling Parties or the Business may be subject.
2.5 TAXES. Selling Parties have filed all federal, state,
employment, and local tax returns or information returns required to be filed by
them. All of such returns have been prepared and filed in accordance with the
applicable laws and regulations. Selling Parties have paid or accrued for all
taxes and assessments (including, without limitation, income, excise,
unemployment, worker's compensation, social security, occupation, franchise,
property, sales and use taxes, import duties or charges, and all penalties and
interest in respect thereof) due and payable. Selling Parties have not been
audited by any taxing authority, nor are Selling Parties aware that any taxing
authority contemplates such an audit, nor have Selling Parties signed any
consent or extension agreement with any taxing authority. None of the Selling
Parties is a party to any dispute about taxes of any nature in any jurisdiction.
2.6 LITIGATION. Except as disclosed on Schedule 2.6, as of the
date of this Agreement, there is no investigation, audit, litigation, action,
suit or proceeding of any nature pending, or, to the Best Knowledge of Selling
Parties, threatened, against any Selling Party, their properties or any of their
officers or directors before any court or governmental agency, which if
adversely decided which
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could: (a) result in any material liability for Purchaser; (b) result in any
lien on any of the Included Assets; (c) have a material adverse effect on
Selling Parties' ability to perform their obligations under this Agreement; or
(d) have a materially adverse effect on the Business. For purposes of this
Section 2.6, the term "Seller's Responsible Employees" shall include Xxxxxxx X.
Xxxxx, and Seller's quality assurance personnel and field service personnel.
2.7 COMPLIANCE WITH LAW AND REGULATIONS. To the Best Knowledge of
Selling Parties, Selling Parties are in compliance with all material
requirements of all applicable domestic and foreign laws, and all material
requirements of all domestic and foreign governmental bodies or agencies having
jurisdiction over the Selling Parties relating to the conduct of the Business
and the use of the Products in the commercial aircraft industry. For purposes of
this Section 2.7, the term "Seller's Responsible Employees" shall include
Xxxxxxx X. Xxxxx, and Seller's human resources personnel,
manufacturing/production personnel, and quality assurance personnel.
2.8 GOVERNMENTAL APPROVALS. Schedule 1.1(e) lists all Governmental
Airworthiness Approvals granted to Seller by the United States Federal Aviation
Administration ("FAA") and the United Kingdom Civil Aviation Authority ("CAA")
that are material and necessary to the conduct of the Business. Except as
otherwise disclosed on Schedule 1.1(e), the conduct of the Business is in
compliance in all material respects with the Governmental Airworthiness
Approvals. In addition, Selling Parties have obtained, are subject only to and
are in full compliance with the other material governmental licenses, permits,
and other authorizations necessary to the conduct of the Business which are
listed on Schedule 2.8.
2.9 TITLE TO AND CONDITION OF INCLUDED ASSETS. Seller does not own
any real property. Except as set forth on Schedule 2.9, Seller has good and
marketable title to all the Included Assets which are not leased, free and clear
of liabilities, liens, security interests, defects, rights, charges and
encumbrances. Seller has good and valid leasehold estates in the equipment
leased under the Equipment Leases and is not in default under any of the
Equipment Leases. All of the Tangible Personal Property, the Included
Inventories and the Tooling are in good operating condition and repair, ordinary
wear and tear excepted. All the Books and Records are located in the Poway
Facility.
2.10 INVENTORIES. Schedule 1.1(f) is a true, accurate and complete
listing of the Included Inventories (including work-in-process). Except for
obsolete items that have been adequately reserved for, written off or written
down to net realizable value in accordance with the methodology set forth on
Exhibit "C" hereto, the Included Inventories: (a) are new and of a quality and
condition that comply with the warranties for the Products customarily given to
Seller's customers, (b) are of a commercially acceptable quality consistent with
quality standards generally prevailing in the commercial aircraft industry, and
(c) comply with Seller's design and manufacturing specifications for the
Products. All items included as part of the Included Inventory are capable of
being incorporated into the Products "as is" without rework or modification to
meet current drawing requirements. As of the Closing, no seat cushions which are
part of the Included Inventories will be older than ninety (90) days after the
applicable original date of manufacture. The amount stated on line 5 of the Pro
Forma Pre-Closing Balance Sheet as the Agreed Inventory Value for the Included
Inventory does not include any amount for Seller's refurbishment inventory
(which is not part of the Business) or engineering or testing costs incurred
with respect to the Products.
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2.11 OBLIGATIONS TO THIRD PARTIES OTHER THAN CUSTOMERS.
(a) LISTING. Schedule 2.11 is a true, accurate and
complete listing (effective as of the date hereof) of all material written
agreements and commitments of Seller to third parties who are not customers of
Seller, to which Seller is a party or by which it or any of the Included Assets
may be bound. The information contained on Section 2.11 may be duplicative of
information provided on other schedules of Seller. Such agreements and
commitments include the following:
(1) Notes, loans, credit agreements, mortgages,
indentures, security agreements, and other agreements and instruments relating
to the borrowing of money by, or the extension of credit to, Seller;
(2) Credit agreements, guarantees, etc. executed
by Shareholder for the benefit of Seller;
(3) Written employment and consulting
agreements;
(4) Written sales agency, representative, broker
or distributorship agreements;
(5) Equipment and real property leases,
including the Equipment Leases;
(6) Open contracts, open purchase orders and
other written agreements, orders or commitments for the purchase by Seller of
raw materials, supplies or finished products exceeding Two Thousand Five Hundred
Dollars ($2,500) in any one instance or Five Thousand Dollars ($5,000) in the
aggregate to any single vendor; and
(7) Open purchase orders and other written
agreements, orders or commitments for the purchase by Seller of services
exceeding Two Thousand Five Hundred Dollars ($2,500) in any one instance or Five
Thousand Dollars ($5,000) in the aggregate to any single vendor.
(b) DELIVERY OF DOCUMENTS. Prior to the execution of this
Agreement, Seller shall has delivered to Purchaser true, accurate and complete
copies of all of the agreements and commitments listed on Schedule 2.11,
together with all amendments thereto. Except the agreements and commitments
listed on Schedule 2.11, Seller does not now have (and at the Closing will not
have) any written agreements or commitments, contingent or otherwise, (1) to
incur any indebtedness in any amount, (2) for the purchase of supplies, services
or other similar items in excess of Two Thousand Five Hundred Dollars ($2,500)
in any one instance, or (3) for the purchase of any raw materials, supplies,
equipment, or machinery in excess of Two Thousand Five Hundred Dollars ($2,500)
in any one instance.
2.12 CUSTOMER CONTRACTS. Schedule 1.1(c) is a true, accurate and
complete listing (effective as of the date of this Agreement) of: (a) all the
Customer Contracts and (b) a true, accurate
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and complete listing (by customer name) of all of Seller's current customer
order backlog. Prior to the execution of this Agreement, Seller has delivered to
Purchaser (to the extent not previously delivered to Purchaser) true, accurate
and complete copies of all the Customer Contracts, together with all amendments
thereto. The Customer Contracts are assumable by Purchaser according to their
terms, it being agreed, however, that Purchaser shall be obligated to assume and
Seller shall be obligated to assign only such Customer Contracts as may be
specified in the Assignment and Assumption Agreement. Seller shall use
commercially reasonable efforts to obtain consents for the assignment of the
Customer Contracts, as may be reasonably requested by Purchaser. During the
period between the date of this Agreement and the Closing, Seller shall not
negotiate or execute any contracts for the sale or manufacture of the Products
(or spare parts for the Products) without first obtaining Purchaser's prior
written consent thereto, which consent shall not be unreasonably withheld or
delayed.
2.13 FINANCIAL STATEMENTS. The unaudited financial statements of
Seller for the years ended December 31, 1997 and December 31, 1998, and for the
eleven (11) months ended November 30, 1999 listed on Schedule 2.13
(collectively, "Seller's Financial Statements") are true, accurate and complete
in all material respects, and fairly present the financial condition of Seller
as of the respective dates thereof and the results of the operations of Seller
for the periods covered thereby.
2.14 ABSENCE OF MATERIAL CHANGES. Except as disclosed on Schedule
2.14, since the date of the last audited financial statement of Simula, there
has not been any:
(a) Sales of the Products by Seller except in the
ordinary course of business;
(b) Capital expenditure by Seller exceeding Five Thousand
Dollars ($5,000) in any one instance or Ten Thousand Dollars ($10,000) in the
aggregate;
(c) Material adverse change in the financial condition,
liabilities, assets, customer order backlog, production backlog, business, or
prospects of Selling Parties;
(d) Destruction, damage, or loss of any Included Asset
(whether insured or uninsured) that would materially and adversely affect the
financial condition, business, or prospects of Selling Parties;
(e) Change in accounting methods or practices (including
any change in depreciation or amortization policies or rates) by Seller;
(f) Revaluation by Seller of any of the Included Assets;
(g) Increase in the salary or other compensation payable
or to become payable by Seller to any of its respective officers, directors,
employees, or declaration, payment, or obligation of any kind for payment, by
Seller, of a bonus or other additional salary or compensation of any such person
other than in the ordinary course of business;
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(h) Sale or transfer of any of the Included Assets,
except in the ordinary course of business;
(i) Amendment or termination of any Customer Contract,
except in the ordinary course of business;
(j) Loan made by Seller to any person or entity or
guaranty by Seller of any loan or indebtedness for the benefit of any third
party;
(k) Mortgage, pledge, or other encumbrance of any
Included Asset by Seller;
(l) Waiver or release of any right or claim of Seller
relating to the Included Assets, except in the ordinary course of business;
(m) To the Best Knowledge of Selling Parties,
commencement or notice or threat of commencement of any civil or criminal
litigation or any governmental proceeding against or investigation of any
Selling Party or the affairs of any one of them, the adverse determination of
which would materially affect the Business or the Included Assets; or
(n) Claim of unlawful labor practice or employment
discrimination action.
2.15 NO OTHER LIABILITIES OR ADVERSE CONDITIONS. Except for (a) the
liabilities set forth on Seller's Financial Statements and on Schedules 1.1(c),
2.13, or 2.14, (b) liabilities incurred by Seller in the ordinary course of
business since December 31, 1998, and (c) the Agreed Offsets, to the Best
Knowledge of Selling Parties, Seller has no other liabilities of any nature,
whether absolute, accrued, contingent or otherwise, or whether due or to become
due, that are of a material nature, and, to the Best Knowledge of Selling
Parties, there is no basis known to Selling Parties for the assertion against
Seller of any such liability. All liabilities incurred since such date were
incurred in the ordinary course of business and are usual and normal in amount,
both individually and in the aggregate. For purposes of this Section 2.15, the
term "Seller's Responsible Employees" shall include Seller's quality assurance
and field service personnel.
2.16 ACCOUNTS RECEIVABLE. Schedule 1.1(a) is a true, accurate and
complete listing of all the Accounts Receivable, with the balances due Seller as
of the dates indicated. Except as expressly disclosed on Schedule 1.1(a), the
Accounts Receivable are free of any liens or encumbrances and are collectible in
full in the ordinary course of business. Except in the ordinary course of
business, Seller has no obligation to accept returns from, or to extend credit
terms to, its customers and has no policy, custom or practice of: (a) accepting
returns or extending credit, whether or not legally obligated to do so, other
than in the ordinary course of business, or (b) providing free or discounted
goods to customers that would affect the valuation of the Accounts Receivable or
Seller's customer order backlog. Except as may be disclosed on Schedules 2.9 and
1.1(a), no person has a security interest in the Accounts Receivable.
Shareholder has agreed to guarantee the collectability of the Accounts
Receivable pursuant to Section 7.3 below. Schedule 2.16 is a true, accurate and
complete listing of any Accounts Receivable which Selling Parties presently deem
to be uncollectable.
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2.17 ACCOUNTS PAYABLE. Schedule 2.17 is a true, accurate and
complete listing of all accounts payable of Seller and any collateral or
security applicable to the indebtedness owed by Seller to its creditors is
listed on Schedule 2.17.
2.18 CONSENTS AND APPROVALS OF GOVERNMENTAL AUTHORITIES. Except as
disclosed on Schedule 2.18 and as may be required under the HSR Act, no consent,
approval or authorization of, or declaration, filing or registration with, any
governmental, quasi-governmental, or regulatory authority is required to be made
or obtained by Seller in connection with the execution, delivery and performance
of this Agreement by Seller. Seller has filed all reports and returns required
by federal, state or municipal authorities with respect to the Business prior to
the date of this Agreement and has paid or will pay all sums that will become
due with respect to such reports and returns before the Closing.
2.19 LABOR, EMPLOYMENT CONTRACTS AND EMPLOYEE BENEFITS PLANS.
(a) EMPLOYEE POLICIES AND BENEFITS. Schedule 2.19(a)(1)
is a true, accurate and complete listing of all written personnel employment
agreements, policies, procedures, practices and employee rules and manuals which
are provided to employees, whether or not legally binding, including but not
limited to policies with respect to hiring, compensation, disability, sick
leave, vacation, leaves of absence, tuition reimbursement, relocation and
termination. Schedule 2.19(a)(2) is a listing of all of Seller's group
insurance, group hospitalization and other employee insurance benefit plans.
(b) MATERIAL OBLIGATIONS TO EMPLOYEES. Except as set
forth on Schedule 2.19(b), Seller has no material obligations, contingent or
otherwise, written or oral, under any employment contract, collective bargaining
agreement, pension or retirement plan, bonus plan, or other employee contract or
non-terminable agreement, expressed or implied, except (1) normal salary or wage
accruals, and (2) normal paid vacations and sick leave accruals.
(c) PAYROLL ROSTER. The names and current aggregate
annual compensation rates as of the date of this Agreement of each employee of
the Seller receiving regular compensation, and designations as a union or
non-union employee, are set forth in Schedule 2.19(c).
(d) ACCRUED VACATION AND SICK DAY ALLOWANCES. The amount
of currently accrued vacation and sick day allowances due to each employee on
the date hereof is listed by employee name on Schedule 2.19(d).
(e) INS FORM I-9. Seller has obtained Form I-9 from all
of its employees and Seller is in compliance with all rules and regulations of
the U.S. Immigration and Naturalization Service.
(f) ERISA COMPLIANCE. The Selling Parties have complied
with all material state and federal regulations for each of their respective
employee benefit plans, including without limitation ERISA.
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EXHIBIT 10.40a
(g) SEVERANCE PAY. Seller has no agreements to pay severance pay
to any of its officers or employees except as set forth on Schedule 2.19(g).
Seller shall pay any severance payments that may be due employees of Seller as
listed on Schedule 2.19(g). See Section 7.9 below for a discussion of severance
pay obligations to be assumed by Purchaser under the Transition Support
Agreement.
2.20 ENVIRONMENTAL MATTERS.
(a) COMPLIANCE WITH ENVIRONMENTAL LAWS. To the Best Knowledge of
Selling Parties, Seller is in compliance with all material rules and regulations
(and applicable standards and requirements) of the United States Environmental
Protection Agency (the "EPA") and the agencies and authorities of the City of
Poway, the County of San Diego, and the State of California, and any other
political subdivision in which it conducts the Business, which have jurisdiction
over environmental matters. Selling Parties have received no notice of, and, to
their best knowledge, has not during its operation of the Business made any act
or omission that would result in: (1) potential responsibility or liability for
environmental damage, or (2) any suit, claim, action or proceeding before any
court, governmental agency or board or other forum, nor is any such action
threatened by any person or entity or any basis for such suit, claim, action or
proceeding, for (x) noncompliance by Seller with any environmental law, rule or
regulation, (y) personal injury, wrongful death or other conduct relating to
materials, commodities or products used, sold, transferred, disposed or
manufactured by Seller, or (z) relating to the presence in or release or
discharge into the environment by Seller of any toxic or hazardous material,
substance, or waste generated by Seller whether or not occurring at or on a site
owned, leased or operated by Seller.
(b) PHASE 1 ESA. Purchaser is not assuming any environmental
liability of Seller. A Phase I environmental site assessment of the Poway
Facility will be conducted before the Closing to establish the condition of the
Poway Facility as of that date and as a baseline for this representation of
Seller. The cost of such environmental site assessment will be split evenly
between Purchaser and Seller. For purposes of this Section 2.20, the term
"Seller's Responsible Employees" shall include Seller's personnel charged with
responsibilities for compliance with environmental laws.
2.21 INSURANCE. Prior to the execution of this Agreement, Seller has
provided Purchaser with a true, accurate and complete listing of and a summary
description (including premiums, exclusions, deductible and coinsurance amounts,
broker and carrier) of all insurance policies maintained by Seller, or by
Shareholder on Seller's behalf. Such policies are in full force and effect, all
premiums due thereon have been paid, and Selling Parties have complied in all
material respects with the provisions of such policies. Except as disclosed on
Schedule 2.21, there are no claims pending under any of such insurance policies.
Selling Parties have sufficient insurance in force in general to properly
conduct the Business.
2.22 PRODUCT WARRANTIES. Schedule 2.22(a) is a true, accurate and
complete copy of the standard warranty of Seller that has at all times been
applicable to the Products from the date the first unit of the Products was
sold. Except disclosed on Schedule 2.22(b), Seller has received no notice of any
product liability or service warranty claims with respect to its entire
installed base of
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the Products, whether reserved for or not. Seller and Purchaser have agreed on
the amount of a warranty offset to be shown on line 15 of Seller's Pre-Closing
Balance Sheet. This warranty offset will be an adequate and reasonable estimate
of Seller's present and future, known and unknown, warranty obligations for all
Products delivered by Seller through the Closing. There are no unique or special
warranty arrangements with any customers of Seller which are at variance with
Seller's standard warranty, except as disclosed on Schedule 2.22(c). To the Best
Knowledge of Selling Parties, a warranty offset for all existing warranty and
service bulletin issues for Seller's existing base of airline passenger seats in
the amount of One Million Seven Hundred Twenty-One Thousand Nine Hundred Twelve
Dollars ($1,721,912) is adequate. Purchaser believes that the correct amount of
the warranty offset is at least One Million Dollars ($1,000,000) greater than
this amount. However, in consideration of Selling Parties' agreement, under
Section 7.8 below, that Selling Parties shall be liable under Article 8 to
indemnify Purchaser if actual warranty claims for the Products exceed the
foregoing warranty offset amount, Purchaser has agreed to use the foregoing
warranty offset amount in establishing the Agreed Offsets, without prejudice to
Purchaser's right to seek to collect a greater amount if the actual amount of
warranty claims exceeds the above warranty offset during the Indemnity Period.
2.23 BANKS. Schedule 2.23 is a true, accurate, and complete listing, as
of the date hereof, of (a) each bank or other financial institution, trust
company or brokerage firm at which Seller has an account or safe deposit box,
and (b) the account number and the names of all persons authorized to draw
thereon, have access thereto or transact business therewith.
2.24 TRADE NAMES, LOGOS, TRADEMARKS, AND COPYRIGHTS. Schedule 2.24 is a
true, accurate and complete listing of all trade names, logos, trademarks,
service marks, and copyrights and their registrations (collectively, the
"Seller's Trade Names") owned by Selling Parties which are used in the Business,
or to which they have any rights or licenses, together with a brief description
of each. Selling Parties have no knowledge of any infringement or alleged
infringement by others of Seller's Trade Names. In the conduct of the Business,
Selling Parties have not infringed, and are not now infringing, on any trade
name, logo, trademark, service xxxx, or copyright belonging to any other person,
firm, or corporation. Except as set forth in Schedule 2.24, Selling Parties are
not parties to any license, agreement, or arrangement, whether as licensor,
licensee, franchiser, franchisee, or otherwise, with respect to any copyrights
or any trademarks, service marks, trade names, logos, or applications for them
used in the Business. Selling Parties own or hold adequate licenses or other
rights to use all trademarks, logos, service marks, trade names, and copyrights
necessary for the Business as it is now conducted by Seller (including Seller's
Trade Names). Such use by Selling Parties does not, and will not, violate any
rights of others. Selling Parties have the right to sell or assign to Purchaser
all of Seller's Trade Names.
2.25 PATENT AND PATENT RIGHTS.
(a) LISTING. Schedule 2.25 is a true, accurate and complete
listing of all patents, patent applications, inventions, industrial models,
processes, designs, and applications for patents used in the Business which are
owned by the Selling Parties or in which they have any rights, licenses, or
immunities (collectively, "Seller's Patents"). Except as set forth on Schedule
2.25, no Selling Party is a party to any license, agreement, or arrangement,
whether as licensee, licensor, or otherwise,
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with respect to any patent, patent application, invention, design, model,
process, trade secret, or formula used in the Business. Seller's Patents are
valid and in full force and effect and are not subject to any taxes, maintenance
fees, or actions falling due within ninety (90) days after the Closing Date.
(b) NO INFRINGEMENT. There have been no interference actions or
other judicial, arbitration, or other adversary proceedings concerning the
patents or applications for Seller's Patents. The manufacture, use, or sale of
the inventions, models, designs, and systems covered by Seller's Patents, to the
Best Knowledge of Selling Parties, does not violate or infringe on any patent or
any proprietary or personal right of any person, firm, or corporation; and to
the Best Knowledge of Selling Parties, no Selling Party has infringed or is now
infringing on any patent or other right belonging to any person, firm, or
corporation.
(c) RIGHT TO TRANSFER. The Selling Parties have the right and
authority to use and to transfer to Purchaser such inventions, trade secrets,
processes, models, designs, and formulas as are necessary to enable them to
continue to conduct all phases of the Business in the manner presently conducted
by Seller and, to the Best Knowledge of Selling Parties, such use will not
violate any patent or other rights of others. For purposes of this Section 2.25,
the term "Seller's Responsible Employees" shall include Seller's engineering and
design personnel.
(d) NO FOREIGN PATENTS. Seller owns no patents or patent
applications with respect to the Products which have been registered or are in
the process of being registered in any jurisdiction outside the United States.
2.26 NO SALES AGENTS. Except as disclosed on Schedule 2.26, Seller has
no contracts, agreements or understandings (oral or written) with any sales
agents or representatives employed by or on behalf of Seller for the purpose of
selling or facilitating the sale of the Products. Schedule 2.26 lists any fees
or commissions that may become due or payable after the Closing to past or
present officers, employers, agents or employees of Seller for sales of the
Products initiated by Seller, whether completed before or after the Closing.
Seller has adequately accrued on Seller's Financial Statements (and will accrue
on the Pre-Closing Balance Sheet) an amount sufficient to pay any such fees or
commissions in full.
2.27 SOFTWARE LICENSES. Schedule 1.1(j) is a true, accurate and
complete listing of the Software Licenses. To the Best Knowledge of Selling
Parties, Seller is not in breach of any of the Software Licenses, and the number
of copies of software programs used by Seller is consistent with the applicable
Software Licenses. For purposes of this Section 2.27, the term "Seller's
Responsible Employees" shall include Seller's MIS personnel.
2.28 Y2K COMPLIANCE. Seller's material office automation, engineering
and information technology systems are currently in "Year 2000" compliance.
2.29 CUSTOMERS AND SALES. Schedule 2.29 is a true, correct and complete
listing of all customers of Seller, together with summaries of the sales made to
each such customer during the most recent fiscal year of Seller. Except as
indicated in Schedule 2.29, no Selling Party has received any notice that any of
these customers intends to cease doing business with Seller or materially alter
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the amount of the business they are presently doing with Seller, although no
affirmative commitments have been made by any customers to continue any
particular amount of business.
2.30 INTEREST IN CUSTOMERS, SUPPLIERS, AND COMPETITORS. Except as set
forth in Schedule 2.30, none of the Selling Parties and no officer, director, or
employee of the Selling Parties, nor any spouse or child of any of them, has any
material, direct or indirect, interest in any competitor, supplier, or customer
of the Selling Parties or in any person from whom or to whom any Selling Party
leases any real or personal property, or in any other person with whom any
Selling Party is doing business.
2.31 NO LIABILITY FOR EXCLUDED LIABILITIES. Selling Parties shall be
solely responsible for paying or otherwise satisfying the Excluded Liabilities
and Purchaser shall have no liability of any kind, contingent or otherwise, with
respect to the Excluded Liabilities.
2.32 FCPA COMPLIANCE. To the Best Knowledge of Selling Parties, Seller
is in full compliance with the Foreign Corrupt Practices Act of 1977 ("FCPA"),
as amended (15 U.S.C. Section 78dd-2, et seq.) and no agent, representative or
employee of Seller has engaged in conduct which would constitute a violation of
the FCPA. For purposes of this Section 2.32, the term "Seller's Responsible
Employees" shall include Seller's sales and marketing personnel.
2.33 [INTENTIONALLY DELETED]
2.34 [INTENTIONALLY DELETED]
2.35 [INTENTIONALLY DELETED]
2.36 SERVICE BULLETINS. Schedule 2.36 contains a true, accurate and
complete listing of all service bulletins issued by Seller with respect to any
of the Products, whether related to a warranty claim or a customer order.
2.37 OWNERSHIP OF TOOLING. Schedule 1.1(m) is a true, accurate and
complete listing of all the Tooling. The Tooling is located as specified on
Schedule 1.1(m). Seller is the sole owner of all of the Tooling, regardless of
where the Tooling may be located and no vendor of Seller has any right, title or
interest in any of the Tooling.
2.38 CUSTOMER ORDER BACKLOG. Schedule 2.38 is a true, accurate and
complete listing of the customer order backlog for the Products, listing all
customer orders for which Products have not been either manufactured or shipped.
All of Seller's customer order backlog is supported or backed by a Customer
Contract.
2.39 [INTENTIONALLY DELETED]
2.40 BID AND PROPOSAL LIST. Within two (2) business days after the date
of execution of this Agreement, Seller shall deliver to Purchaser a copy of all
outstanding bids and proposals made by Seller for sale of the Products to
customers. Upon delivery of such list to Purchaser, Selling
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Parties shall be deemed to be representing and warranting that such list is
true, accurate and complete.
2.41 NO SIDE AGREEMENTS. No past or present officer, director,
employee, representative or agent of Selling Parties has made any promise or
commitment (oral or written) to grant any customer of Seller any concession or
consideration for orders for the Products which is not expressly set forth in
Schedule 1.1(c).
ARTICLE 3
REPRESENTATIONS AND WARRANTIES OF PURCHASER
Purchaser hereby represents and warrants to Selling Parties as of the
Closing as follows:
3.1 ORGANIZATION AND STANDING. Purchaser is a corporation duly
organized, validly existing and in good standing under the laws of the
jurisdiction in which it is incorporated. Purchaser has full power and authority
to carry on its business as now conducted and as contemplated by this Agreement.
3.2 AUTHORITY FOR AGREEMENT. The execution and delivery of this
Agreement and the performance by Purchaser of its obligations under this
Agreement have been authorized in accordance with applicable corporate
requirements and no further corporate authorization is necessary on the part of
Purchaser.
3.3 NO THIRD PARTY CONSENTS. No consent, approval, or authorization of,
or declaration, filing, or registration with, any federal or state governmental
or regulatory authority in the United States or France is required to be made or
obtained by Purchaser in connection with the execution, delivery, and
performance of this Agreement and the consummation of the transactions
contemplated by this Agreement, except for the filing under the HSR Act.
3.4 NO DEFAULTS; NO VIOLATIONS. Except as disclosed on Schedule 3.4,
neither the execution and delivery of this Agreement, nor the performance by the
Purchaser of its obligations hereunder, nor the consummation of the transactions
contemplated hereby will: (a) violate any provision of its Articles of
Incorporation or Bylaws or any financing or other agreements to which Purchaser
is a party; (b) require the agreement or consent of any other party; or (c)
violate any material statute or law or any judgment, decree, order, regulation
or rule of any court or governmental authority to which Purchaser is subject;
except in the case of clauses (b) and (c) for violations, conflicts or defaults
which individually or in the aggregate would not materially adversely hinder or
impair the consummation of the transactions contemplated hereby.
3.5 ACKNOWLEDGMENT BY PURCHASER. Purchaser acknowledges that neither
Seller nor Shareholder makes any representations or warranties except as
expressly provided in Article 2 above.
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ARTICLE 4
CERTAIN COVENANTS OF THE PARTIES
4.1 COVENANTS OF SELLING PARTIES.
(a) CONDUCT OF BUSINESS. Except as may be otherwise contemplated
by this Agreement or required by any of the documents listed in the schedules
attached to this Agreement or except as Purchaser may otherwise consent to in
writing (which consent shall not be unreasonably withheld or delayed), from the
date of this Agreement and through the Closing, Selling Parties shall (1) in all
material respects, operate the Business only in the ordinary course; (2) use
reasonable efforts to preserve intact Seller's business organization; (3)
maintain the Included Assets in good operating condition and repair to enable
Seller to conduct the Business in all material respects in the manner in which
the Business is currently conducted except for maintenance required by reason of
fire, flood, earthquake, or other acts of God; (4) continue, or cause to be
continued, all material existing insurance policies (or comparable insurance) in
full force and effect; (5) not increase the rate or terms of compensation
payable or to become payable by Seller to its directors, officers, or key
employees, and not increase the rate or terms of any bonus, pension, or other
employee benefit plan covering any of their respective directors, officers, or
key employees, except in each case increases occurring in the ordinary course of
business in accordance with its customary practices (including normal periodic
performance reviews and related compensation and benefits increases); and (6)
use its reasonable efforts to preserve its relationships with its lenders,
suppliers, customers, licensors and licensees, and others having material
business dealings with Seller such that the Business will not be materially
impaired.
(b) COOPERATION WITH PURCHASER. Commencing on the date of
execution of this Agreement and continuing through the Closing, Selling Parties
shall grant Purchaser complete and unrestricted access to the Poway Facility,
Seller's Books and Records, and Seller's employees, including without limitation
those employees of Seller who fall within the definition of "Seller's
Responsible Employees." In the course of meeting with Seller's employees,
Purchaser shall have the right to interview and identify employees whom
Purchaser would be interested in hiring to work for Purchaser after the Closing,
either on a temporary or permanent basis. Purchaser agrees to exercise its
rights hereunder in a reasonable manner so as to minimize disruption of Seller's
ongoing business operations. Selling Parties shall use commercially reasonable
efforts to obtain requisite waivers and consents of private parties and
governmental agencies to the assignment of Customer Contracts and/or
Governmental Airworthiness Approvals from Seller to Purchaser.
4.2 COVENANT OF PURCHASER. From the date of this Agreement and through
the Closing, Purchaser shall use its best efforts, and shall cooperate with
Seller, to secure all necessary consents, approvals, authorizations, exemptions,
and waivers from third parties, including without limitation the FAA and the
CAA, as may be required in order to enable Purchaser to effect the transactions
contemplated in this Agreement. Purchaser will use its best efforts to cause the
consummation of such transactions in accordance with the terms and conditions of
this Agreement.
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4.3 JOINT COVENANTS OF SELLER AND PURCHASER.
(a) LISTING. As promptly as practicable after execution of this
Agreement, Seller and Purchaser shall cooperate with each other to allow
Purchaser and its representatives access to Seller's facilities, as follows:
(1) Purchaser and Seller shall cooperate with Ernst & Young,
LLP in conducting a physical inventory count of the Included Inventory and
valuation of same in accordance with Exhibits "B" and "C" which will be used for
the Pre-Closing Balance Sheet and such other reasonable procedures as may be
mutually agreed on; provided, however, that the inventory count and valuation
will be done without unreasonable interference with the Business and without
material disruption to the ongoing conduct of the Business;
(2) Purchaser shall review organizational charts, personnel
records, and conduct interviews with personnel as reasonably necessary to make
its determination with respect to the employees whom it shall retain during the
Transition Period and/or thereafter; and
(3) Selling Parties shall assist Purchaser in ascertaining
the location of all the Included Assets and verifying the quantity and condition
of same.
(b) PUBLIC DISCLOSURE. Except as may otherwise be required by
applicable securities laws of the United States and the Republic of France,
Selling Parties and Purchaser shall first consult with each other and cooperate
with one another before issuing any press releases or otherwise making public
statements with respect to the transactions contemplated by this Agreement. In
recognition of the Effective Date and to allow Purchaser the opportunity for
access to the Poway Facility for transition planning and employee
communications, the parties agree that no public disclosure of this Agreement or
the transactions contemplated herein shall occur until after the close of the
NYSE on January 3, 2000.
(c) HSR ACT FILING. As promptly as practicable after the
execution of this Agreement, Seller and Purchaser shall cooperate with each
other to prepare all filings required to be made by them to consummate the
transactions contemplated by this Agreement, specifically including all filings
required under the HSR Act.
ARTICLE 5
CONDITIONS TO CLOSING IN FAVOR OF PURCHASER
5.1 GENERAL. The obligation of Purchaser under this Agreement to
purchase the Included Assets and to assume the Assumed Liabilities is subject to
the satisfaction, at or before the Closing, of all the conditions set out below
in this Article 5. Purchaser may waive any or all of these conditions in whole
or in part without prior notice; provided, however, that no such waiver of a
condition shall constitute a waiver by Purchaser of any of Purchaser's other
rights or remedies, at law or in equity, if Selling Parties are in default of
any of their representations, warranties, or covenants contained in this
Agreement. Any obligations of Purchaser to consummate the purchase of the
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Included Assets and the assumption of the Assumed Liabilities are subject to the
fulfillment (or the written waiver thereof by Purchaser) of each of the
conditions precedent set forth below in this Article 5.
5.2 PURCHASER'S CONDITIONS PRECEDENT TO CLOSING. The conditions
precedent to the Closing in favor of Purchaser shall consist of the following:
(a) PERFORMANCE BY SELLING PARTIES. Each of the representations
and warranties of Selling Parties contained in Article 2 shall be true, accurate
and complete in all material respects. In addition, Selling Parties shall, on or
before the Closing, have substantially performed all of their covenants and
obligations under this Agreement which by the terms of this Agreement are to be
performed on or before the Closing. All actions necessary to authorize the
execution, delivery, and performance of this Agreement by Selling Parties and
the consummation of the transactions contemplated hereby shall have been duly
and validly taken by the board of directors of Selling Parties. Selling Parties
shall have obtained all authorizations, consents, and permits of others required
to permit the consummation of the transactions contemplated in this Agreement.
No temporary restraining order, preliminary injunction or permanent injunction
or other order preventing the consummation of the transactions contemplated by
this Agreement shall have been issued by any federal or state court and remain
in effect.
(b) COMPLIANCE WITH THIS AGREEMENT. Selling Parties shall have
substantially performed and complied with all covenants and conditions required
by this Agreement to be performed and complied with by them prior to or at the
Closing.
(c) APPROVAL OF DOCUMENTS. All actions, proceedings, instruments,
and documents required to carry out this Agreement or any undertaking incidental
thereto, and all other related legal matters shall be reasonably satisfactory in
form and substance to Purchaser and its legal counsel.
(d) NO LEGAL PROCEEDINGS. No action, suit, or other proceeding
shall be instituted or, so far as may be known to Purchaser or Selling Parties,
threatened before any court or governmental agency in which it is sought to: (1)
restrain, prohibit, invalidate, or set aside (in whole or in part) the
transactions contemplated by this Agreement; (2) affect the right of Purchaser
to operate or control the Business or to use and enjoy the Included Assets after
the Closing; or (3) obtain damages or other relief in connection with the
consummation of the transactions contemplated by this Agreement which, if
decided adversely, could reasonably have a material adverse affect on Purchaser.
(e) DELIVERY OF DOCUMENTS. Selling Parties shall have delivered to
Escrowholder, on or before the Target Closing Date, the Closing Documents and
such other documents and instruments as may be required to be delivered by
Seller in order to complete the transactions contemplated in this Agreement.
(f) NO MATERIAL ADVERSE CHANGE. During the period between the date
of this Agreement and the Closing, Seller will have not sustained any material
adverse change in its financial
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condition, liabilities, assets, customer order backlog, production backlog,
business or prospects that would materially affect Purchaser's ability to
conduct the Business after the Closing, it being agreed that no such change
shall be deemed to be a "material adverse change" if the parties agree, through
mutually good faith negotiations, that it can be corrected by an adjustment of
the Purchase Price so as to maintain the parties' respective economic
expectations under this Agreement.
(g) CONSENTS AND APPROVALS. The lessors under the Equipment
Leases, the parties (other than Selling Parties) to any contract or agreement to
which Seller is a party or subject, and any governmental or regulatory body or
authority having jurisdiction over Selling Parties to the extent that their
consent or approval is required or necessary under the pertinent lease,
contract, agreement, or other document or instrument, or under applicable
orders, laws, rules, or regulations, for the consummation of the transactions
contemplated hereby in the manner herein provided, shall have granted such
consent or approval; provided, however, that (1) FAA or CAA approval of or
authorization for the transfer of any FAA or CAA certificate or license and (2)
consents of Seller's customers under the Customer Contracts shall not be a
condition to the Closing.
(h) APPROVAL OF COUNSEL; CORPORATE MATTERS. All actions,
proceedings, resolutions, instruments, and documents required to carry out this
Agreement or incidental hereto and all other related legal matters shall have
been approved by Xxxxxxx & Xxxxx, counsel for Purchaser, in the exercise of
their reasonable judgment. Selling Parties shall also have delivered to
Purchaser such other documents, instruments, certifications, and further
assurances as such counsel may reasonably require.
(i) CORPORATE APPROVAL. The execution and delivery of this
Agreement by Selling Parties, and the performance of its covenants and
obligations under it, will have been duly authorized by all necessary corporate
action, and Purchaser will have received copies of all resolutions pertaining to
that authorization, certified by the corporate secretary of each Selling Party.
(j) ASSIGNMENT OF INTELLECTUAL PROPERTY. The Selling Parties shall
assign all of the Intellectual Property to Purchaser. The patent assignment
instruments shall be in form satisfactory to legal counsel for Purchaser.
(k) PURCHASE PRICE ALLOCATION. The parties shall have agreed on
the allocation of the Purchase Price as provided in Section 1.3 above.
(l) NON-COMPETITION AGREEMENT. Each of the Selling Parties shall
have executed and delivered to Purchaser a Non-Competition Agreement
substantially in the form of Exhibit "F" hereto. Such agreement shall provide,
among other things, that Selling Parties shall be prohibited from soliciting
employees of Purchaser to work for Selling Parties.
(m) WARN ACT NOTICE. Promptly after the Effective Date, Seller
shall grant Purchaser unrestricted access to Seller's Poway Facility in order to
enable Purchaser to identify before the Balance Sheet Cut-Off Date - the
employees of Seller whom Purchaser desires to hire after the Closing. See also
Section 4.1(b). After Seller receives Purchaser's list of employees whom
Purchaser desires to hire, Seller shall give its employees appropriate notices
under the WARN Act
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at least one (1) business day before the Closing pursuant to Section 7.10 below.
(n) PHASE I ESA. Seller has previously provided Purchaser with a
copy of a Phase I environmental site assessment for the Poway Facility which
shall be reasonably satisfactory to Purchaser in form and substance.
(o) GOVERNMENTAL APPROVALS. To the extent required, Purchaser
shall have received confirmation that all necessary licenses, certifications,
permits and approvals relating to the Business issued by federal, state and
local governmental units (excluding the Governmental Airworthiness Approvals)
listed on Schedule 1.1(e)) shall be in effect after the Closing so as to permit
Purchaser to continue to operate in the Poway Facility during the Transition
Period.
(p) UCC SEARCH. Seller shall have delivered to Purchaser at least
five (5) business days before the Target Closing Date a UCC lien search report
prepared by a recognized reporting service with respect to liens, judgment
liens, tax liens, and other mortgages and encumbrances that may be filed against
any of the Included Assets. Such report shall be dated no more than thirty (30)
days preceding the Target Closing Date. Seller shall, at the Closing, arrange
for the application of the Cash Payment to the payment of any secured creditors
of Seller and deliver to Purchaser in connection therewith copies of payoff
demands from all such secured creditors. Selling Parties shall furnish evidence
to Purchaser that all such liens are promptly released after the Closing. In the
event that Purchaser ascertains that any such lien remains unpaid more than
thirty (30) days after the Closing, Purchaser shall have the right to either
demand that any Selling Party discharge the subject lien or pay the amount
required to discharge the subject lien. The Selling Parties shall be jointly and
severally liable to reimburse any amount so paid by Purchaser without regard to
the Indemnity Cap.
(q) BID AND PROPOSAL LIST. Seller has previously delivered to
Purchaser the bid and proposal list for sales of the Products pursuant to
Section 2.40 above.
(r) OPINION OF LEGAL COUNSEL. Purchaser shall have been furnished
with the opinion of legal counsel to Simula, dated as of the Closing, to the
effect that:
(1) Selling Parties are corporations duly organized, validly
existing, and in good standing under the laws of the State of Arizona with full
power and authority to enter into and perform their obligations under this
Agreement, and are qualified to do business in any jurisdiction where such
qualification is required.
(2) Selling Parties have full corporate power and authority
to enter into and consummate the transactions contemplated by this Agreement.
(3) All proceedings required to be taken on the part of
Selling Parties to authorize them to enter into, carry out and fully comply with
the provisions of this Agreement, the Closing Documents, and any other documents
to be executed by any Selling Party, and to transfer and deliver the Included
Assets, have been duly, validly and properly taken. The execution, delivery and
performance of the foregoing agreements of Selling Parties do not violate any
provision of the
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Articles of Incorporation or Bylaws of Selling Parties, or any agreements to
which any Selling Party is bound.
(4) This Agreement and all other agreements to be executed by
the Selling Parties pursuant hereto are valid and legally binding obligations of
Selling Parties, enforceable in accordance with their respective terms except as
such enforceability may be limited by applicable bankruptcy, insolvency,
reorganization and similar laws relating to or affecting the rights and remedies
of creditors generally and by the general principles of equity.
(5) Except as to the matters described in Schedule 2.6, no
Selling Party is a party to any pending or, to the knowledge of such counsel,
threatened litigation, proceedings, claim or governmental investigation or audit
which may either (1) materially adversely affect the Included Assets or impair
the Purchaser's right or ability to operate the Business in the manner presently
conducted by Seller, or (2) seek to prevent, restrain or interfere with the
performance by Selling Parties of this Agreement.
(s) HSR ACT CLEARANCE. The applicable waiting period under the HSR
Act with respect to the transactions contemplated by this Agreement shall have
expired or shall have otherwise terminated without the U.S. Department of
Justice or the Federal Trade Commission taking any action to delay or block the
transactions contemplated in this Agreement.
(t) PRODUCT LIABILITY INSURANCE TAIL COVERAGE. Seller shall have
provided Purchase with evidence that Seller has purchased the product liability
tail coverage specified in Section 7.7 below.
ARTICLE 6
CONDITIONS TO CLOSING IN FAVOR OF SELLING PARTIES
Selling Parties' obligation to consummate this Agreement and the
transactions contemplated by this Agreement is subject to the fulfillment (or
the written waiver thereof by Selling Parties) of each of the following
conditions precedent on or before the Closing, as specified below:
6.1 PERFORMANCE BY PURCHASER. Each of the representations and
warranties of Purchaser contained in Article 3 shall be true and correct.
Purchaser shall, on or before the Closing, have performed all of its obligations
under this Agreement and the Funding Agreement, which by the terms of this
Agreement are to be performed on or before the Closing. All actions necessary to
authorize the execution, delivery, and performance of this Agreement by
Purchaser and the consummation of the transactions contemplated hereby and
thereby shall have been duly and validly taken by Purchaser. Purchaser shall
have obtained all authorizations, consents, and permits of others required to
permit the consummation of the transactions contemplated in this Agreement.
6.2 ABSENCE OF LITIGATION. No action, suit, or proceeding before any
court or any governmental body or authority, pertaining to the transactions
contemplated in this Agreement or to its consummation, will have been instituted
or threatened on or before the Closing. No governmental
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authority shall have asserted that the transactions contemplated herein
constitute a violation of law or give rise to liability on the part of any
Selling Party.
6.3 APPROVAL OF PROCEEDINGS. All actions, proceedings, instruments, and
documents required to carry out this Agreement and all other related legal
matters shall be reasonably satisfactory in substance to Seller and its counsel.
6.4 DELIVERY OF DOCUMENTS AND FUNDS. Purchaser shall have delivered to
Escrowholder on or before the Closing all documents to be signed by both
Purchaser and any Selling Party, including without limitation the Closing
Documents and the Cash Payment.
6.5 TERMINATION OF HSR ACT WAITING PERIOD. The applicable waiting
period under the HSR Act with respect to the transactions contemplated by this
Agreement shall have expired or shall have otherwise terminated without the U.S.
Department of Justice and the Federal Trade Commission taking action to delay or
block the transactions contemplated by this Agreement.
6.6 LICENSE BACK OF PATENT RIGHTS. Purchaser and Shareholder shall have
entered into a Patent License Agreement substantially in the form of Exhibit H
hereto pursuant to which Shareholder and its affiliates are granted a license to
utilize the 16G load limiting technology covered by the Shared Use Patent in
accordance with the Patent License Agreement.
6.7 TRANSITION SUPPORT AGREEMENT. Purchaser and Seller shall have
entered into the Transition Support Agreement. The Transition Support Agreement
shall be substantially in the form of Exhibit I attached hereto.
ARTICLE 7
POST CLOSING MATTERS
7.1 POST-CLOSING COVENANTS OF SELLING PARTIES. All the obligations to
be performed by Selling Parties after the Closing pursuant to this Article 7
shall be deemed to be covenants for which Selling Parties shall be jointly and
severally liable.
7.2 SURVIVAL OF REPRESENTATIONS AND WARRANTIES. The representations
and warranties of the parties contained in this Agreement shall survive the
Closing and continue in full force and effect until the last day of the
Indemnity Period.
7.3 COLLECTION OF ACCOUNTS RECEIVABLE.
(a) GUARANTY OF PAYMENT. Selling Parties shall guarantee to
Purchaser that the unpaid balance of all Accounts Receivable of Seller acquired
by Purchaser at the Closing will be paid within a collection period (the
"Collection Period") of one hundred eighty (180) days following the Closing.
Purchaser shall diligently exercise customary efforts to collect the Accounts
Receivable in the ordinary course of business during the Collection Period. It
is agreed that if Purchaser reduces or compromises any Account Receivable
without a reasonable basis for doing so which arises out of
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(1) problems with respect to Products sold by Seller or (2) errors in invoice
preparation, Selling Parties shall have no obligation to pay the amount of the
reduction or compromise granted by Purchaser. Any Accounts Receivable still
outstanding at the end of the Collection Period shall be assigned by Purchaser
back to Seller and, within ten (10) business days thereafter, Selling Parties
shall pay to Purchaser the amount of the unpaid Accounts Receivable, in cash,
less (1) the amount of the reserve for doubtful accounts reflected in the books
of Seller on the Closing, and (2) the amount of any Accounts Receivable written
off as uncollectible by Seller before the Closing but actually paid to Purchaser
during the Collection Period. If more than one invoice is outstanding for any
customer, the "first-in, first out" principle will be applied in determining the
invoice to which a payment relates, unless the payment by its terms specifies or
clearly indicates the invoice to which it relates.
(b) PURCHASER'S COLLECTION EFFORTS. Purchaser will exercise prompt
and diligent efforts to collect all unpaid Accounts Receivable before the end of
the Collection Period; provided, however, that Purchaser will not be required to
initiate legal proceedings for this purpose. Purchaser will cause all unpaid
Accounts Receivable to be assigned to Seller, without recourse, at the time of
Seller's payment of such Accounts Receivable.
(c) CUSTOMER NOTICES. If requested by Purchaser, Seller shall
cooperate with Purchaser in installing so-called "lock boxes" at all of
Purchaser's banks so as to insure that payments made by customer of Seller after
the Closing are paid to Purchaser and not Seller. After the Closing, Purchaser
and Seller shall send a joint notice (signed by both Seller and Purchaser) to
all of Seller's customers and vendors informing them of the Closing and
instructing them about procedures to be followed in making payment to Purchaser
and/or submitting invoices for payment by Purchaser. Such notices shall be
prepared by Purchaser and sent out according to a schedule established by
Purchaser.
7.4 DISCHARGE OF BUSINESS OBLIGATIONS. From and after the Closing,
except for the Assumed Liabilities, Seller shall pay and discharge, in
accordance with its past practices but not less than on a timely basis, all of
its obligations and liabilities in respect of the Business, its operations or
the Included Assets and the properties used in the business, including without
limitation any liabilities or obligations to employees, trade creditors, and
customers of the Business.
7.5 MAINTENANCE OF BOOKS AND RECORDS. Selling Parties shall preserve
until the third (3rd) anniversary of the Closing Date all records possessed or
to be possessed by any such party relating to any of the Included Assets, the
Assumed Liabilities, or the Business prior to the Closing. After the Closing,
where there is a legitimate purpose, such party shall provide the other parties
with access, upon prior reasonable written request specifying the need therefor,
during regular business hours, to (a) the officers and employees of such party
and (b) the books of account and records of such party, but, in each case, only
to the extent relating to the Included Assets, the Assumed Liabilities, or the
Business prior to the Closing, and the other parties and their representatives
shall have the right to make copies of such books and records; provided,
however, that the foregoing right of access shall not be exercisable in such a
manner as to interfere unreasonably with the normal business operations of such
party. Such records may nevertheless be destroyed by a party if such party sends
to the other parties written notice of its intent to destroy records, specifying
with particularity the contents of the records to be destroyed. Such records may
then be destroyed after the thirtieth (30th) day after such notice is given
unless another party objects to the destruction in
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which case the party seeking to destroy the records shall deliver such records
to the objecting party. After the Closing, Selling Parties and Purchaser shall
have the right to copy any financial records of Seller.
7.6 TITLE TRANSFER DOCUMENTS. From and after the Closing, Selling
Parties shall promptly refer all inquiries with respect to ownership of the
Included Assets to Purchaser. In addition, Selling Parties shall execute such
documents and financing statements as Purchaser may request from time to time to
evidence transfer of the Included Assets to Purchaser, including any necessary
assignments of financing statements affecting the Included Assets.
7.7 POST-CLOSING PRODUCT LIABILITY CLAIMS. In the event that a product
liability claim is asserted after the Closing with respect to Products which
were sold by Seller at any time before the Closing, Seller shall be solely
responsible for paying all such claims and Seller shall defend, indemnify, and
hold Purchaser harmless from any loss, cost, or expense, including without
limitation, reasonable attorneys' fees, arising out of any such claims. All
other product liability claims shall be the sole responsibility of Purchaser and
Purchaser shall indemnify Selling Parties from all losses, costs or expenses
associated therewith in accordance with Article 8. Seller shall purchase an
aviation products liability "tail coverage" insurance policy with limits of
liability of at least Two Million Dollars ($2,000,000) per occurrence and a term
of at least four (4) years unless such policy is duplicative of the insurance in
force on the date hereof for all relevant time periods during which Seller has
been selling the Products.
7.8 PRODUCT WARRANTY CLAIMS. Seller and Purchaser have agreed on an
offset for warranty claims for Products sold by Seller before the Closing in the
amount of $1,721,912. Notwithstanding anything in this Agreement to the
contrary, it is agreed that if the actual amount of warranty claims experienced
by Purchaser after the Closing during the Indemnity Period exceeds the foregoing
offset amount, Purchaser shall be entitled to assert claims against Selling
Parties for any such excess warranty claims, subject, however, to the Indemnity
Cap. Accordingly, Purchaser shall be solely responsible for handling (a) all
unresolved warranty claims asserted by purchasers of the Products before the
Closing, and (b) all warranty claims for Products sold by Seller which are
asserted after the Closing. In addition, Purchaser shall be solely responsible
for all warranty claims asserted after the Closing with respect to Products sold
by Purchaser. Purchaser shall administer warranty claims for the Products in a
business-like manner in accordance with Purchaser's usual business practices
without unwarranted concessions or compromises for marketing purposes.
7.9 TRANSITION SUPPORT AGREEMENT. After the Closing during the
Transition Period, Selling Parties shall assist Purchaser in the orderly
transition of Seller's manufacturing operations from Poway, California to the
Xxxxx Aircraft, Inc. facility in Gainesville, Texas. All of the respective
obligations of the parties during this period shall be set out in a Transition
Support Agreement substantially in the form of Exhibit I. Among other things,
the Transition Support Agreement will provide that:
(a) Purchaser shall be obligated to pay the lease obligations of
Seller under Seller's lease for the Poway Facility for a period of six (6)
months on the same terms and conditions stated in Seller's lease for such
facility;
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(b) Selling Parties shall provide necessary corporate support for
all computer systems used in the Business during the Transition Period;
(c) Seller shall grant Purchaser a license to use such Assets
which are to be utilized by Purchaser during the Transition Period, but which
are not part of the Included Assets;
(d) Effective as of the Closing, Purchaser shall become the
employer of the individuals whom it elects to hire. Seller will cooperate in
connection with the necessary transition of employees from its payroll to the
payroll and benefits systems of Purchaser.
(e) Actual out of pocket facilities costs, and other costs,
incurred by Seller on behalf of Purchaser during the Transition Period will be
paid by Purchaser without xxxx up. However, property, plant, equipment, tooling,
and leasehold improvements used by Purchaser during the Transition Period but
not purchased as part of the Included Assets shall be leased by Purchaser from
Seller for a rental factor equal to one hundred fifteen percent (115%) of the
applicable depreciation cost during the Transition Period. This 115% rental
factor shall not be applied to the rent or other amounts due under Seller's
lease for the Poway Facility.
7.10 WARN ACT COMPLIANCE. Seller shall be responsible for giving all
notices required under the WARN Act (29 U.S.C. Section 2101, et seq.) to be
given to Seller's employees and for paying all costs that may arise thereunder.
The WARN Act notice shall be given not earlier than before the Closing. See
Section 5.1(m). Any costs that may be imposed on Purchaser with respect to
Seller's failure to comply with the WARN Act compliance shall not be subject to
the Indemnity Cap.
7.11 PAYMENTS TO SELLER'S EMPLOYEES. In addition to payments due under
the WARN Act, Seller shall be solely responsible for paying all amounts due its
terminated employees under applicable law, including without limitation
severance pay, accruals for paid time off, etc., and Purchaser shall have no
responsibility therefor.
7.12 NO BANKRUPTCY FILING. Selling Parties agree that the transactions
contemplated in this Agreement do not constitute a "fraudulent transfer" within
the meaning of 11 U.S.C. Section 548. Shareholder covenants and agrees that it
will not cause or permit Seller to file a voluntary or involuntary bankruptcy
petition at any time during the twelve (12) months following the Closing.
7.13 UNDISCLOSED COMMITMENTS TO SELLER'S CUSTOMERS. In the event that
after the Closing any customer of Seller asserts a claim against Purchaser for a
price or other concession relating to the sale of the Products (or spare parts
therefor) made before the Closing which Selling Parties failed to disclose to
Purchaser before the Closing, Selling Parties shall promptly resolve the claim,
at Selling Parties' sole cost and expense, in a commercially reasonable manner
so that the valuable business relationship between Purchaser and its customer is
maintained. Selling Parties shall promptly notify Purchaser in writing of any
such claim that may be asserted by a customer of Seller. A final determination
(through arbitration or litigation) that any such claim by a customer of Seller
is valid shall constitute a breach of Seller's representations and warranties.
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7.14 PAYMENT OF SIMULA PAYABLES. Purchaser shall pay the Simula
Payables within two (2) business days after the date on which the Post-Closing
Accounting Adjustments are made, subject, however, to Purchaser's offset rights
under Section 0.3(hh)(2) above.
7.15 CHANGE OF SELLER'S CORPORATE NAME. Purchaser shall have the
exclusive right to use the xxxx "Airline Interiors" after the Closing.
Accordingly, Seller agrees to change its corporate name no later than thirty
(30) days after the Closing.
7.16 POST-CLOSING ACCOUNTING ADJUSTMENTS.
(a) GENERAL. The parties shall determine the amount of the
Post-Closing Accounting Adjustments in good faith in a manner consistent with
this Agreement as soon as practicable after the Closing, but no later than
thirty (30) days thereafter. After Purchaser and Selling Parties agree on the
amount of the Post-Closing Accounting Adjustments, they will promptly make
appropriate adjustments to the Cash Payment. If it is determined that Purchaser
owes Seller additional funds, Purchaser shall pay the amount due within ten (10)
days after the Post-Closing Accounting Adjustments are agreed on. If it is
determined that Seller owes Purchaser funds because of an overpayment of the
Cash Payment, Purchaser shall be entitled to offset the amount so owed Purchaser
by Seller against the amount of the Simula Payables. If the amount of the
Post-Closing Accounting Adjustments that may be due Purchaser exceeds the amount
of the Simula Payables, Simula shall pay any amount due Purchaser within five
(5) business days after demand.
(b) INVENTORY COUNT ADJUSTMENTS. As part of the Post-Closing
Accounting Adjustments, the parties shall verify the parts count used in
determining the valuation of the Included Inventory as shown on the Pre-Closing
Balance Sheet in the manner provided in this Section 7.16(b). Immediately after
the Closing, Purchaser shall conduct a physical inventory (utilizing procedures
approved by Purchaser's outside auditors) of the Included Inventory in order to
verify that the inventory count used to fix the value of same on the Pre-Closing
Balance Sheet was accurate as of the Closing. Selling Parties' representatives
may participate in this post-Closing inventory count. If it is later determined
that the assumed physical inventory count used to prepare the Pre-Closing
Balance Sheet was in error, an appropriate adjustment shall be made to the Cash
Payment at the time specified in Section 7.16(a), it being agreed that Purchaser
shall have, if applicable, the same right of offset against the Simula Payables
under this Section 7.16(b) as provided in the last sentence of said section.
ARTICLE 8
INDEMNIFICATION
8.1 INDEMNIFICATION BY SELLING PARTIES. The indemnification obligations
of Selling Parties under this Section 8.1 are in addition to any other
indemnification obligations which they may have under other provisions of this
Agreement. Selling Parties agree to defend, indemnify, and hold harmless
Purchaser (and companies owned by or under common control of Zodiac, S.A.), and
their respective employees, representatives, officers, directors, and agents
from and against any costs, losses, damages, liabilities, and expenses except as
disclosed in this Agreement and the schedules
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hereto (including without limitation interest, penalties, and reasonable
attorneys' fees) of any kind or nature whatsoever which may be sustained or
suffered by Purchaser by reason of any claim, action, or proceeding asserted or
instituted and based upon or involving (a) a breach of any representation,
warranty, covenant, or obligation of Seller or Shareholder in this Agreement or
in any schedule, exhibit, certificate, or financial statement delivered
hereunder or in connection herewith, or (b) the Excluded Liabilities
(collectively, the "Indemnifiable Claims").
8.2 INDEMNIFICATION BY PURCHASER. Purchaser agrees to defend,
indemnify, and hold harmless Selling Parties, their respective employees,
representatives, officers, directors, and agents from and against any costs,
damages, liabilities, losses, lawsuits, and expenses (including without
limitation interest, penalties, and reasonable attorneys' fees) of any kind or
nature whatsoever which may be sustained or suffered by Selling Parties by
reason of any claim, action, or proceeding asserted or instituted and based upon
or involving (a) a breach of any representation, warranty, covenant, or
obligation made by Purchaser in this Agreement or (b) the Assumed Liabilities.
8.3 NOTICE; DEFENSE OF CLAIMS. This Section 8.3 shall relate to the
handling of Indemnifiable Claims. Purchaser shall have the right to control the
defense of any third-party claim, action, or proceeding filed against it with
respect to any Indemnifiable Claims. Purchaser shall give prompt written notice
to the Selling Parties of each Indemnifiable Claim. Such notice shall be given
no later than thirty (30) days after Purchaser receives notice or actual
knowledge thereof, and shall specify the amount and nature of the claim, and of
any other relevant information. Selling Parties shall have the right to
participate at their own expense in the defense of any such matter or its
settlement, if, in the opinion of Purchaser, the Business acquired by Purchaser
would not be impaired thereby. Purchaser may authorize the Selling Parties, if
they so desire, to take over the defense of such matter so long as such defense
is handled in a diligent and expeditious manner. Purchaser and Selling Parties
agree to render to each other such assistance as they may reasonably require of
each other in order to ensure the proper and adequate defense of any such claim,
action, or proceeding.
8.4 PAYMENT OF INDEMNIFIABLE CLAIMS. Indemnifiable Claims shall be paid
or otherwise satisfied by the Selling Parties, within ninety (90) days after
notice of a bona fide Indemnifiable Claim is given to Selling Parties by
Purchaser, unless such claim is disputed pursuant to Section 8.5 below.
8.5 DISPUTE RESOLUTION. If Selling Parties or Purchaser dispute their
liability with respect to any Indemnifiable Claim, such dispute, or any other
dispute in connection with this Article 8 shall be resolved by arbitration
pursuant to Section 10.12 below.
8.6 LIMITATIONS ON OBLIGATIONS TO INDEMNIFY.
(a) THRESHOLD. Except in the event of claims based upon fraud,
neither Selling Parties nor Purchaser shall have any obligation to indemnify the
indemnitee in respect of any single Loss or Losses, the aggregate amount of
which is equal to or less than Seventy-Five Thousand Dollars ($75,000). If any
Loss or Losses exceeds that amount, the indemnifying party shall be obligated to
indemnify the indemnified party for the full amount of the Loss or Losses on a
"dollar one" basis. In other words, if the amount of a Loss were to exceed
Seventy-Five Thousand Dollars
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($75,000), the indemnifying party would be obligated to indemnify the
indemnified party for the full amount of the Loss, not just the portion in
excess of Seventy-Five Thousand Dollars ($75,000).
(b) MAXIMUM AMOUNT AND TIME LIMIT. Neither Selling Parties nor
Purchaser shall have any obligation to indemnify the other in respect of Losses
exceeding the Indemnity Cap in the aggregate, or in respect of any Loss, a claim
for which is made after the end of the Indemnity Period.
ARTICLE 9
TERMINATION OF AGREEMENT
9.1 TERMINATION OF AGREEMENT. This Agreement and the transactions
contemplated hereby may be terminated at any time prior to the Closing Date as
follows:
(a) By mutual written consent of Purchaser and Seller;
(b) By any party if it reasonably determines that the purchase of
the Included Assets has become impractical by reason of the institution by
state, local or federal governmental authorities or any other person or entity
of any material litigation, arbitration, grievance or other proceedings relating
to this transaction against any of the parties, and notifies the other parties
in writing of such determination;
(c) By any party if the transactions contemplated in this
Agreement have not closed on or before the Closing Deadline through no fault of
either party, by giving the other party at least ten (10) business days prior
written notice of termination; or
(d) By Purchaser or Selling Parties pursuant to Section 9.2 below,
due to the failure to obtain HSR Act clearance on or before the Closing
Deadline. If the parties mutually agree, the Closing Deadline shall be extended
for a reasonable period of time in order to permit the parties to pursue
regulatory appeals with governmental agencies having jurisdiction over the HSR
Act approval process.
9.2 FAILURE TO OBTAIN HSR ACT CLEARANCE. Notwithstanding anything in
this Agreement to the contrary, Purchaser and Selling Parties shall have the
right to terminate this Agreement and cancel the Escrow if the Closing does not
occur before the Closing Deadline because the parties fail to obtain HSR Act
clearance under Section 5.2(s) above. A party may elect to cancel this Agreement
by giving written notice (the "Termination Notice") to the other parties and
Escrowholder at any time after the Closing Deadline. Upon receipt of the
Termination Notice, Escrowholder shall refund to Purchaser all funds then held
in the Escrow, including accrued interest, and return all documents in the
Escrow to the parties who had deposited same. If a Termination Notice is sent,
Purchaser shall promptly vacate the Poway Facility and return to Seller all
property of Seller which may then be in Purchaser's possession.
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ARTICLE 10
MISCELLANEOUS PROVISIONS
10.1 NOTICES.
(a) METHOD OF DELIVERY. Any notice, request, demand, consent,
approval or other communication (hereafter "notice") required or permitted under
this Agreement or by law shall be in writing and delivered by any of the
following means: (1) personally delivering the notice to a senior officer or
duly authorized representative of the other party, (2) depositing the notice in
the United States mail, postage prepaid, duly certified (return-receipt
requested), (3) sending the notice by a commercial overnight delivery service
(such as FedEx) which maintains delivery records, or (4) sending the notice by
electronic facsimile or telecopier ("fax") (with the sending party retaining
evidence of the time and date of transmission). Confirmations of any notices
sent by fax shall be sent by mail as provided above.
(b) ADDRESSES. Notices shall be addressed as follows:
If to Seller: Airline Interiors, Inc.
00000 Xxxxxx Xxxxxx
Xxxxx, XX 00000
Attn: Xxxxxx Xxxxxx
Fax No.: (000) 000-0000
With copies to: Simula, Inc.
0000 Xxxxx Xxxxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, XX 00000
Attn: Xxxxxxx X. Xxxxx, Esq.
Fax No.: (000) 000-0000
If to Purchaser: Xxxxx Aircraft, Inc.
0000 Xxxxx Xxxxx
Xxxxxxxxxxx, Xxxxx 00000
Attn: Xxxxxx Xxxxxxx
Fax: (000) 000-0000
With copies to: Zodiac, S.A.
0, xxx Xxxxxxx Xxxxxx
00000, Xxxx-xxx-Xxxxxxxxxx Xxxxx
Xxxxxx
Attn: Xxxx-Xxxxxxx Xxxxx
Fax No: (000-000) 00 00 00 00
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Xxxxxxx & Xxxxx
000 Xxxx X Xxxxxx, 00xx Xxxxx
Xxx Xxxxx, XX 00000
Attn: Xxxxxxx X. Xxxxxx, Esq.
Fax No.: (000) 000-0000
Any party may, from time to time, by written notice to the other, designate a
different address which shall be substituted for that specified above. It is
agreed that separate notices need not be sent to Simtec. Notices sent to Simula
shall be deemed to have been sent to Simtec.
(c) EFFECTIVENESS. All notices shall be deemed effective upon
receipt. If personally delivered, notices shall be deemed received at the time
of delivery. If sent by mail, notices shall be deemed fully delivered and
received three (3) business days after the date of the postmark on the certified
mail receipt. If sent by commercial overnight delivery service, notices shall be
deemed fully delivered and received one (1) business day after the date of
deposit with such commercial overnight delivery service. If sent by fax, notices
shall be deemed received twenty-four (24) hours after transmission. Notices may
not be sent by e-mail. Rejection or other refusal to accept a notice or the
inability to deliver the same because of a changed address of which no notice
was given shall be deemed to be receipt of the notice sent. In the event of a
postal strike, all notices shall be personally delivered, sent by commercial
overnight delivery service, or sent by fax.
10.2 EXPENSES. Except for liabilities expressly assumed by Purchaser in
the Assignment and Assumption Agreement, Purchaser and Seller shall each pay
their own costs and expenses (including, without limitation, the fees and
expenses of their counsel, auditors and accountants and any finders' fees)
incidental to the preparation and carrying out of this Agreement and the
transactions contemplated hereby.
10.3 FINDERS' FEES. Each of the parties represents and warrants to the
other that, to the extent it has engaged any broker, finder or other person who
is entitled to a brokerage or other fee or commission in respect of the
execution of this Agreement and the consummation of the transactions
contemplated hereby, such fee is the sole responsibility of such party.
Purchaser shall indemnify and hold Seller harmless against and in respect of any
and all claims, liabilities and/or expenses which may be asserted against Seller
by any such broker or other person on the basis of any arrangement or agreement
made or alleged to have been made by Purchaser, its agents or employees; and
Seller shall indemnify and hold Purchaser harmless in respect of any and all
claims, liabilities and/or expenses which may be asserted against Purchaser by
any such broker or other person on the basis of any arrangement or agreement
made or alleged to have been made by Seller, its agents or employees.
10.4 INTEGRATION AND AMENDMENT. This Agreement supersedes any and all
previous agreements between the parties with respect to the subject matter
herein and may not be amended other than by a written instrument executed by
Purchaser and Seller, except for the Confidentiality Agreements dated March 15,
1999 and July 2, 1999, which shall remain in effect through the Closing
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and which shall remain in effect in the event this Agreement is terminated. This
Agreement is one of a series of agreements referenced in this Agreement which
are part of an integrated transaction. All such agreements shall be taken as a
whole in order to ascertain the intent of the parties. In the event of a
conflict between this Agreement and the other ancillary agreements referenced in
this Agreement, this Agreement shall control.
10.5 CAPTIONS. The captions and headings contained in this Agreement
are for reference purposes only and shall not in any way affect the meaning or
interpretation of this Agreement.
10.6 COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original, but all of which
together shall constitute but one and the
same instrument.
10.7 PARTIES IN INTEREST. This Agreement shall inure to the benefit of
and be binding upon the parties hereto and their respective successors and
assigns.
10.8 ASSIGNMENT. No party hereto shall assign this Agreement without
first obtaining the written consent of the other parties; provided, however,
that notwithstanding anything in this Agreement to the contrary, Purchaser shall
be entitled to assign this Agreement, in whole or in part, to any wholly-owned
subsidiary of Purchaser, it being agreed, however, that no such assignment shall
release or relieve Purchaser from any liability under this Agreement.
10.9 INTERPRETATION. The language in all parts of this Agreement shall
be construed, in all cases, according to its fair meaning, and not for or
against any party hereto. The parties acknowledge that each party and its
counsel have reviewed and revised this Agreement and that the normal rule of
construction to the effect that any ambiguities are to be resolved against the
drafting party shall not be employed in the interpretation of this Agreement.
10.10 GOVERNING LAW; VENUE. This Agreement and any interpretation
hereof and the resolution of any dispute hereunder shall be governed by the laws
of the State of California, and subject to the parties' obligation to arbitrate
and dispute any action to enforce any provision of this Agreement or to obtain
any remedy with respect hereto may be brought in the appropriate state or
federal court in San Diego County, California. For this purpose each party
hereto hereby expressly and irrevocably consents to the jurisdiction of said
court, it being understood and agreed that the parties are obligated to
arbitrate disputes between them pursuant to Section 10.12.
10.11 LISTING OF SCHEDULES AND EXHIBITS. The schedules and exhibits
referenced to this Agreement are listed on Annex 1 and Annex 2, respectively.
All such schedules and exhibits are hereby incorporated into this Agreement by
this reference. Said schedules and exhibits are not attached to this Agreement,
but shall be attached to this Agreement by execution of an amendment of this
Agreement prepared for such purpose. Such amendment shall be executed at least
five (5) business days before the Balance Sheet Cut-Off Date.
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10.12 ARBITRATION.
(a) GENERAL. Any controversy, claim, or dispute among the parties
hereto arising out of or related to this Agreement or the breach thereto, which
cannot be settled amicably by the parties, shall be submitted for binding
arbitration in accordance with the provisions contained herein and in accordance
with the Commercial Arbitration Rules of the American Arbitration Association
("Rules"); provided, however, that notwithstanding any provisions of such Rules,
the parties shall have the right to take depositions and obtain discovery
regarding the subject matter of the arbitration, as provided in Title III of
Part 4 (commencing with Section 1985) of the California Code of Civil Procedure.
Judgment upon the award rendered by the arbitrator may be entered in any court
having jurisdiction. The arbitrator shall determine all questions of fact and
law relating to any controversy, claim, or dispute hereunder, including but not
limited to whether or not any such controversy, claim, or dispute is subject to
the arbitration provisions contained herein.
(b) THIRD-PARTY CONTROVERSY. If a controversy, claim, or dispute
arises among the parties hereto which is subject to the arbitration provisions
hereunder, and there exists or later arises a controversy, claim, or dispute
between the parties hereto and any third party, which controversy, claim, or
dispute arises out of or relates to the same transaction or series of
transactions, said third party controversy, claim, or dispute shall be
consolidated with the arbitration proceedings hereunder; provided, however, that
any such third party must be a party to an agreement with a party hereto which
provides for arbitration of disputes thereunder in accordance with rules and
procedures substantially the same in all material respects as provided for
herein or, if not, must consent to arbitration as provided for hereunder.
(c) VENUE. All arbitration proceedings shall be held in San Diego,
California.
(d) NOTICES. Notice of the demand for arbitration shall be filed
in writing with Purchaser and Simula (on behalf of all Selling Parties), as
applicable, to this Agreement and with the American Arbitration Association.
10.13 GUARANTEE BY ZODIAC, S.A.. Purchaser is a wholly-owned subsidiary
of Zodiac, S.A., a French corporation ("Zodiac"). By signing below, Zodiac
agrees to unconditionally guarantee the full and complete performance of all of
Purchaser's obligations under this Agreement, including without limitation,
Purchaser's obligation to pay the Cash Payment in accordance with this
Agreement. Such guarantee shall, however, terminate as of the Closing.
10.14 STATUS OF SCHEDULES AND EXHIBITS. As of the date of this
Agreement, not all of the schedules listed on Annex 1 and all of the exhibits
listed on Annex 2 have been put in final form. The status of such schedules and
exhibits as of the date of execution of this Agreement is set forth in the
following tables. The parties shall agree on the final form of said schedules
and exhibits on or before the Effective Date.
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ANNEX 1
LIST OF ATTACHED SCHEDULES
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CONTROL SCHEDULE DESCRIPTION STATUS
NO. NO.
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1 0.3(e) Schedule of Assumed Liabilities Open
---------------------------------------------------------------------------------
2 0.3(u) Schedule of Excluded Assets Open
---------------------------------------------------------------------------------
3 0.3(v) Schedule of Excluded Liabilities Open
---------------------------------------------------------------------------------
4 1.1(a) Schedule of Accounts Receivable Update
---------------------------------------------------------------------------------
5 1.1(c) Schedule of Customer Contracts Complete
---------------------------------------------------------------------------------
6 1.1(d) Schedule of Equipment Leases Complete
---------------------------------------------------------------------------------
7 1.1(e) Schedule of Governmental Airworthiness Complete
Approvals
---------------------------------------------------------------------------------
8 1.1(f) Schedule of Included Inventories Update
---------------------------------------------------------------------------------
9 1.1(g) Schedule of Intellectual Property Complete
---------------------------------------------------------------------------------
10 1.1(i) Schedule of Other Assets Complete
---------------------------------------------------------------------------------
11 1.1(j) Schedule of Software Licenses Update
---------------------------------------------------------------------------------
12 1.1(k) Schedule of Supplies Complete
---------------------------------------------------------------------------------
13 1.1(l) Schedule of Tangible Personal Property Complete
---------------------------------------------------------------------------------
14 1.1(m) Schedule of Tooling Complete (no
location)
---------------------------------------------------------------------------------
15 1.1(n) Schedule of Vendor Contracts Complete
---------------------------------------------------------------------------------
16 2.4 Schedule of Defaults and Violations Complete
---------------------------------------------------------------------------------
17 2.6 Schedule of Pending Litigation Matters Complete
---------------------------------------------------------------------------------
18 2.8 Schedule of Other Governmental Licenses, Complete
Permits, and Authorizations
---------------------------------------------------------------------------------
19 2.9 Schedule of Title Exceptions Complete
---------------------------------------------------------------------------------
20 2.11 Schedule of Obligations and Commitments to Open
Third Parties Other than Customers
---------------------------------------------------------------------------------
21 2.13 Schedule of Financial Statements Income Stmt?
---------------------------------------------------------------------------------
22 2.14 Schedule of Material Adverse Changes Open
---------------------------------------------------------------------------------
23 2.16 Schedule of Uncollectible Accounts Complete
Receivable
---------------------------------------------------------------------------------
24 2.17 Schedule of Accounts Payable Update
---------------------------------------------------------------------------------
25 2.18 Schedule of Required Consents and Complete
Approvals
---------------------------------------------------------------------------------
26 2.19(a)(1) Schedule of Personnel Agreements, Policies, Complete
Procedures, etc.
---------------------------------------------------------------------------------
27 2.19(a)(2) Schedule of Group Health Insurance Benefits Complete
---------------------------------------------------------------------------------
28 2.19(b) Schedule of Material Employee-Related Complete
---------------------------------------------------------------------------------
43
45
---------------------------------------------------------------------------------
CONTROL SCHEDULE DESCRIPTION STATUS
NO. NO.
---------------------------------------------------------------------------------
---------------------------------------------------------------------------------
Obligations
---------------------------------------------------------------------------------
29 2.19(c) Schedule of Personnel Payroll Roster Complete
--------------------------------------------------------------------------------
30 2.19(d) Schedule of Accrued Vacation and Sick Day Complete
Allowances
--------------------------------------------------------------------------------
31 2.19(g) Schedule of Severance Pay Obligations Update
--------------------------------------------------------------------------------
32 2.21 Schedule of Material Pending Insurance Complete
Claims
--------------------------------------------------------------------------------
33 2.22(a) Schedule of Standard Product Warranty Complete
--------------------------------------------------------------------------------
34 2.22(b) Schedule of Material Warranty Claims Open
--------------------------------------------------------------------------------
35 2.22(c) Schedule of Special Warranty Arrangements Complete
--------------------------------------------------------------------------------
36 2.23 Schedule of Banks and Financial Institutions Complete
--------------------------------------------------------------------------------
37 2.24 Schedule of Trade Names, Logos, Complete
Trademarks, and Copyrights
--------------------------------------------------------------------------------
38 2.25 Schedule of Patents and Patent Rights Complete
--------------------------------------------------------------------------------
39 2.26 Schedule of Sales Agents Complete
--------------------------------------------------------------------------------
40 2.29 Schedule of Customer List Complete
--------------------------------------------------------------------------------
41 2.30 Schedule of Interests in Customers, Complete
Suppliers, and Competitors
--------------------------------------------------------------------------------
42 2.34 INTENTIONALLY DELETED
--------------------------------------------------------------------------------
43 2.36 Schedule of Service Bulletins Complete
--------------------------------------------------------------------------------
44 2.38 Schedule of Customer Order Backlog Complete
--------------------------------------------------------------------------------
45 3.4 Schedule of Violations by Purchaser Complete
--------------------------------------------------------------------------------
ANNEX 2
LIST OF ATTACHED EXHIBITS
--------------------------------------------------------------------------------
CONTROL EXHIBIT DESCRIPTION STATUS
NO. NO.
--------------------------------------------------------------------------------
46 A Pro Forma Closing Date Balance Sheet Approved
--------------------------------------------------------------------------------
47 B Inventory Valuation Methodology Approved
--------------------------------------------------------------------------------
48 C Inventory Reserve Methodology Approved
--------------------------------------------------------------------------------
49 D Assignment and Assumption Agreement Not Approved
--------------------------------------------------------------------------------
50 E Xxxx of Sale Not Approved
--------------------------------------------------------------------------------
51 F Non-Competition Agreement Not Approved
--------------------------------------------------------------------------------
52 G Funding Agreement Not Approved
--------------------------------------------------------------------------------
53 H Patent License Agreement Not Approved
--------------------------------------------------------------------------------
44
46
--------------------------------------------------------------------------------
54 I Transition Support Agreement Not Approved
--------------------------------------------------------------------------------
55 J Assignment of Intellectual Property Not Approved
--------------------------------------------------------------------------------
10.15 LOCATION OF DUE DILIGENCE MATERIALS. The due diligence materials
referenced on the schedules listed on Annex 1 will not be attached to this
Agreement. Rather, such materials are located in binders containing such due
diligence materials maintained by Xxxxxxx & Xxxxx.
[SIGNATURES APPEAR ON FOLLOWING PAGE]
45
47
IN WITNESS WHEREOF, the parties have duly executed this Asset Purchase
Agreement
as of the date first set forth above.
"SELLER" AIRLINE INTERIORS, INC., an Arizona
corporation
By: /s/ Xxxx Xxxxx
----------------------------------------
Printed Name: Xxxx Xxxxx
------------------------------
Its: Secretary
---------------------------------------
"SIMTEC" SIMULA TRANSPORTATION EQUIPMENT
CORPORATION, an Arizona corporation
By: /s/ Xxxx Xxxxx
----------------------------------------
Printed Name: Xxxx Xxxxx
------------------------------
Its: Secretary
---------------------------------------
"SIMULA" SIMULA, INC., an Arizona corporation
By: /s/ Xxxx Xxxxx
----------------------------------------
Printed Name: Xxxx Xxxxx
------------------------------
Its: Exec. Vice President - General Council
---------------------------------------
"PURCHASER" XXXXX AIRCRAFT, INC., a Delaware corporation
By: /s/ Xxxxxx Xxxxxxx
----------------------------------------
Xxxxxx Xxxxxxx, President
[SIGNATURE PAGE CONTINUES]
46
48
SIGNATURE OF GUARANTOR
The undersigned is executing this signature page for the limited
purpose of confirming that the undersigned is guaranteeing the obligations of
Purchaser under the above Agreement, as more fully provided in Section 10.13
above.
Dated: 12/27/99 ZODIAC, S.A., a French corporation
------------------
By: /s/ Jegou X. Xxxxxxx
--------------------------------------
Printed Name: Jegou X. Xxxxxxx
----------------------------
Its: Chief Financial Officer
-------------------------------------
ACCEPTANCE OF ESCROW
By signing below, the undersigned Escrowholder accepts the Escrow and
agrees to comply with the escrow instructions contained in the above Agreement.
Dated: 1-10-2000 Bank One, Arizona, NA
------------------ -----------------------------------------
By: /s/ Xxxxx X. XxXxxx
--------------------------------------
Printed Name: Xxxxx X. XxXxxx
----------------------------
Its: Vice President
-------------------------------------
47
49
EXHIBIT A
TERM LOAN PROMISSORY NOTE
December 30, 1999
$5,000,000
FOR VALUE RECEIVED, each of the undersigned, jointly and severally
(collectively, the "Company"), promises to pay to the order of THE CIT
GROUP/BUSINESS CREDIT, INC. (herein "CITBC") at its office located at 000 Xxxxx
Xxxxx Xxxxxx, 0xx Xxxxx, Xxx Xxxxxxx, Xxxxxxxxxx 00000, in lawful money of the
United States of America and in immediately available funds, the principal
amount of Five Million Dollars ($5,000,000) payable in equal monthly principal
installments of $555,556 each commencing on the date 90 days after the Closing
Date, and each subsequent installment shall be due on the same day of the month,
followed by an installment of the remaining principal balance together with
accrued and unpaid interest at the maturity date hereof on August 31, 2000. In
any event, the principal balance hereof and any accrued and unpaid interest
shall be due and payable upon the maturity of the Obligations under the
Financing Agreement.
The Company further agrees to pay interest at said office, in like money, on the
unpaid principal amount owing hereunder from time to time from the date hereof
on the date and at the rate specified in Section 8, Paragraph 2 of the Financing
Agreement of even date herewith between the Company and CITBC (the "Financing
Agreement"). Capitalized terms used herein and defined in the Financing
Agreement shall have the same meanings as set forth therein unless otherwise
specifically defined herein.
If any payment on this Note becomes due and payable on a day other than a
Business Day, the maturity thereof shall be extended to the next succeeding
Business Day, and with respect to payments of principal, interest thereon shall
be payable at the then applicable rate during such extension.
This Note is the Term Loan Promissory Note referred to in the Financing
Agreement, evidences the Term Loan thereunder, and is subject to, and entitled
to, all provisions and benefits thereof and is subject to optional and mandatory
prepayment, in whole or in part, as provided therein.
Upon the occurrence of any one or more of the Events of Default specified in the
Financing Agreement or upon termination of the Financing Agreement, all amounts
then remaining
51
50
unpaid on this Note may become, or be declared to be, at the sole election of
CITBC, immediately due and payable as provided in the Financing Agreement.
SIMULA, INC.
By /s/ Xxxxx X. Xxxx
-----------------------------------
Title: Executive Vice President & CFO
------------------------------
AIRLINE INTERIORS, INC.
By /s/ Xxxxx X. Xxxx
-----------------------------------
Title: Treasurer
------------------------------
ARTCRAFT INDUSTRIES CORP.
By /s/ Xxxxx X. Xxxx
-----------------------------------
Title: Treasurer
------------------------------
SIMULA TRANSPORTATION
EQUIPMENT CORPORATION
(formerly known as INTAERO INC.)
By /s/ Xxxxx X. Xxxx
-----------------------------------
Title: Treasurer
------------------------------
INTERNATIONAL CENTER FOR
SAFETY EDUCATION, INC.
By /s/ Xxxxx X. Xxxx
-----------------------------------
Title: Treasurer
------------------------------
52
51
SIMULA AUTOMOTIVE SAFETY
DEVICES, INC.
By /s/ Xxxxx X. Xxxx
-----------------------------------
Title: Treasurer
------------------------------
SIMULA COMPOSITES
CORPORATION
By /s/ Xxxxx X. Xxxx
-----------------------------------
Title: Treasurer
------------------------------
SIMULA POLYMER SYSTEMS, INC.
By /s/ Xxxxx X. Xxxx
-----------------------------------
Title: Treasurer
------------------------------
SIMULA SAFETY SYSTEMS, INC.
By /s/ Xxxxx X. Xxxx
-----------------------------------
Title: Treasurer
------------------------------
SIMULA TECHNOLOGIES, INC.
By /s/ Xxxxx X. Xxxx
-----------------------------------
Title: Treasurer
------------------------------
53
52
SIMULA AUTOMOTIVE SAFETY
DEVICES, LIMITED
By /s/ Xxxxx X. Xxxx
-----------------------------------
Title: Treasurer
------------------------------
CCEC CAPITAL CORP.
By /s/ Xxxxx X. Xxxx
-----------------------------------
Title: Treasurer
------------------------------
54
53
CIT / SIMULA
Schedule 1
Existing Liens (Attached)
54
SCHEDULE 1
Existing Liens
===============================================================================================================================
FILE NUMBER THRU DATE/
NAME SEARCHED JURISDICTION DATE SECURED PARTY COLLATERAL STATUS ACTION
-------------------------------------------------------------------------------------------------------------------------------
SIMULA, INC. XXX, XX 000000 AVNET COMPUTER TECHNOLOGIES, INC. Equipment 12-10-99
UCC 02-08-94
-------------------------------------------------------------------------------------------------------------------------------
774719 AVNET COMPUTER TECHNOLOGIES, INC. Equipment
02-08-94
-------------------------------------------------------------------------------------------------------------------------------
806105 AVNET COMPUTER TECHNOLOGIES, INC. Equipment
10-24-94
-------------------------------------------------------------------------------------------------------------------------------
924130 US BANCORP LEASING & FINANCIAL Equipment and proceeds
07-02-96
-------------------------------------------------------------------------------------------------------------------------------
935636 US BANCORP LEASING & FINANCIAL Specific Equipment
09-18-96
-------------------------------------------------------------------------------------------------------------------------------
940491 US BANCORP LEASING & FINANCIAL Equipment and proceeds
10-22-96
-------------------------------------------------------------------------------------------------------------------------------
948142 US BANCORP LEASING & FINANCIAL Specific Equipment
12-17-96
-------------------------------------------------------------------------------------------------------------------------------
CIT\SIMULA\SCHEDULE 1 Page 1 of 9
55
SCHEDULE 1
Existing Liens
FILE NUMBER THRU DATE/
NAME SEARCHED JURISDICTION DATE SECURED PARTY COLLATERAL STATUS ACTION
-----------------------------------------------------------------------------------------------------------------------------------
955078 US BANCORP LEASING Specific Equipment
02-07-97 & FINANCIAL
-----------------------------------------------------------------------------------------------------------------------------------
984273 XXXXX FARGO LEASING Computer Equipment
9-11-97 CORPORATION (lease)
-----------------------------------------------------------------------------------------------------------------------------------
00000000 BANK ONE, ARIZONA, Blanket
11-18-98 NA
-----------------------------------------------------------------------------------------------------------------------------------
01001258 XXXXX FARGO LEASING Computer Equipment
01-20-98 CORPORATION (lease)
-----------------------------------------------------------------------------------------------------------------------------------
1060115 NEW ENGLAND CAPITAL Communications
03-30-99 CORPORATION Equipment
-----------------------------------------------------------------------------------------------------------------------------------
Maricopa County, AZ 10-27-99
UCC, Tax Liens, Clear
Judgments, Suits
-----------------------------------------------------------------------------------------------------------------------------------
AIRLINE INTERIORS, SOS, AZ 0000000 BANK ONE, ARIZONA, Blanket 12-10-99
INC. UCC 11-18-98 NA
-----------------------------------------------------------------------------------------------------------------------------------
Maricopa County, AZ 10-27-99
UCC, Tax Liens, Clear
Judgments, Suits
-----------------------------------------------------------------------------------------------------------------------------------
CIT\SIMULA\SCHEDULE 1 Page 2 of 9
56
SCHEDULE 1
Existing Liens
------------------------------------------------------------------------------------------------------------------------------
FILE NUMBER THRU DATE/
NAME SEARCHED JURISDICTION DATE SECURED PARTY COLLATERAL STATUS ACTION
------------------------------------------------------------------------------------------------------------------------------
AIRLINE INTERIORS, INC. SOS, CA 9508760473 SOUTHWEST YALE MATERIAL 1 forklift 12-01-99
UCC 03-23-95 HANDLING COMPANY
------------------------------------------------------------------------------------------------------------------------------
9530760787 MASTER LEASE DIV OF TOKAI IDS phone system
11-01-95
------------------------------------------------------------------------------------------------------------------------------
0000000000 U.S. BANCORP LEASING Specific Equipment
12-13-96 & FINANCIAL (lease)
------------------------------------------------------------------------------------------------------------------------------
9705060100 U.S. BANCORP LEASING Specific Equipment
02-10-97 & FINANCIAL (lease)
------------------------------------------------------------------------------------------------------------------------------
9705660817 MINOLTA BUSINESS SYSTEMS 1 copier (lease)
02-18-97
------------------------------------------------------------------------------------------------------------------------------
9709760767 TOKAI FINANCIAL SERVICES, IDS phone system
03-31-97 INC.
------------------------------------------------------------------------------------------------------------------------------
9823660539 NEW ENGLAND CAPITAL Specific Equipment
08-20-98 CORPORATION (lease)
------------------------------------------------------------------------------------------------------------------------------
9906760112 CROWN CREDIT COMPANY Specific Equipment
02-25-99
------------------------------------------------------------------------------------------------------------------------------
9924560183 MINOLTA BUSINESS SYSTEMS Copiers (lease)
08-20-99
------------------------------------------------------------------------------------------------------------------------------
ARTCRAFT INDUSTRIES CORP. XXX, XX 0000000 BANK ONE, ARIZONA, NA Blanket
UCC 11-18-98
------------------------------------------------------------------------------------------------------------------------------
CIT\SIMULA\SCHEDULE 1 Page 3 of 9
57
SCHEDULE 1
Existing Liens
FILE NUMBER THRU DATE/
NAME SEARCHED JURISDICTION DATE SECURED PARTY COLLATERAL STATUS ACTION
____________________________________________________________________________________________________________________________________
ARTCRAFT Maricopa County, AZ 10-27-99
INDUSTRIES CORP. UCC, Tax Liens, Clear
Judgments, Suits
____________________________________________________________________________________________________________________________________
XXX, XX 0000000 FBS BUSINESS FINANCE Specific Equipment 10-28-99
UCC 11-10-97 CORPORATION (lease)
____________________________________________________________________________________________________________________________________
1727698 FBS BUSINESS FINANCE Specific Equipment
01-12-98 CORPORATION
____________________________________________________________________________________________________________________________________
1736595 U.S. BANCORP LEASING 6 commercial sewing
02-16-98 & FINANCIAL machines
____________________________________________________________________________________________________________________________________
1750761 LPI SOFTWARE FUNDING Specific Equipment
04-13-98 GROUP, INC. (lease)
____________________________________________________________________________________________________________________________________
1805630 BANK ONE, ARIZONA, NA Blanket
11-19-98
____________________________________________________________________________________________________________________________________
1805631 BANK ONE, ARIZONA, NA Blanket
11-19-98
____________________________________________________________________________________________________________________________________
Xxxxxxx County, GA 000-00-000000 U.S. BANCORP LEASING commercial sewing 12-03-99
UCC, Tax Liens, 05-19-98 & FINANCIAL machines
Judgments, Suits
____________________________________________________________________________________________________________________________________
Xxxxxx Xxxxxx, XX 00000 FBS BUSINESS Specific Equipment 11-16-99
UCC, Tax Liens, 11-12-97 FINANCE CORPORATION (lease)
Judgments, Suits
____________________________________________________________________________________________________________________________________
CIT\SIMULA\SCHEDULE 1 Page 4 of 9
58
SCHEDULE 1
Existing Liens
FILE NUMBER THRU DATE/
NAME SEARCHED JURISDICTION DATE SECURED PARTY COLLATERAL STATUS ACTION
------------- ------------ ----------- ------------- ---------- ---------- ------
ARTCRAFT INDUSTRIES CORP. Gwinnett County, GA 12-08-99 unofficial
UCC, Tax Liens, Clear search
Judgments, Xxxxx
XXXXXXXXXXXXX XXXXXX XXX XXX, XX 0000000 BANK ONE, ARIZONA, NA Blanket 12-10-99
SAFETY EDUCTION, INC. XXX 00-00-00
Xxxxxxxx Xxxxxx, XX 10-27-99
UCC, Tax Liens, Clear
Judgments, Suits
SIMULA AUTOMOTIVE SOS, AZ 945969 US BANCORP LEASING Computer
SAFETY DEVICES, INC. XXX 00-00-00 & XXXXXXXXX Xxxxxxxxx
000000 XX BANCORP LEASING Computer
12-17-96 & FINANCIAL Equipment
955077 US BANCORP LEASING Equipment
02-07-97 & FINANCIAL
0000000 BANK ONE, ARIZONA, NA Blanket
11-18-98
0000000 BANK ONE, ARIZONA, NA Blanket
11-18-98
Maricopa County, AZ 10-27-99
UCC, Tax Liens, Clear
Judgments, Suits
CIT\SIMULA\SCHEDULE 1 Page 5 of 9
59
SCHEDULE 1
Existing Liens
===============================================================================================================================
FILE NUMBER THRU DATE/
NAME SEARCHED JURISDICTION DATE SECURED PARTY COLLATERAL STATUS ACTION
--------------------------------------------------------------------------------------------------------------------------------
SIMULA AUTOMOTIVE SAFETY United Kingdom
DEVICES, LIMITED
--------------------------------------------------------------------------------------------------------------------------------
SIMULA COMPOSITES SOS, AZ 12-10-99
CORPORATION UCC Clear
--------------------------------------------------------------------------------------------------------------------------------
Maricopa County, AZ 10-27-99
UCC, Tax Liens, Clear
Judgments
--------------------------------------------------------------------------------------------------------------------------------
SOS, DE 11-30-99
UCC Clear
--------------------------------------------------------------------------------------------------------------------------------
SIMULA POLYMER SOS, AZ 12-10-99
SYSTEMS, INC. UCC
--------------------------------------------------------------------------------------------------------------------------------
Maricopa County, AZ 10-27-99
UCC, Tax Liens, Clear
Judgments, Suits
--------------------------------------------------------------------------------------------------------------------------------
SIMULA PROTECTIVE United Kingdom
SYSTEMS, LIMITED
--------------------------------------------------------------------------------------------------------------------------------
SIMULA SAFETY SYSTEMS, XXX, XX 0000000 BANK ONE, ARIZONA, NA Blanket 12-10-99
INC. UCC 11-18-98
--------------------------------------------------------------------------------------------------------------------------------
1049869 GE CAPITAL Business Machinery/
01-19-99 Equipment
--------------------------------------------------------------------------------------------------------------------------------
CIT\SIMULA\SCHEDULE 1 Page 6 of 9
60
SCHEDULE 1
Existing Liens
====================================================================================================================================
FILE NUMBER THRU DATE/
NAME SEARCHED JURISDICTION DATE SECURED PARTY COLLATERAL STATUS ACTION
------------------------------------------------------------------------------------------------------------------------------------
SIMULA SAFETY SYSTEMS, INC. Coconino County, AZ 12-06-99
UCC, Tax Liens Clear
Judgments, Suits
------------------------------------------------------------------------------------------------------------------------------------
Maricopa County, AZ 10-27-99
UCC, Tax Liens, Clear
Judgments, Suits
------------------------------------------------------------------------------------------------------------------------------------
Yavapai County, AZ 11-25-99
UCC, Tax Liens, Clear
Judgments, Suits
------------------------------------------------------------------------------------------------------------------------------------
SOS, NC 199887977 BANK ONE ARIZONA Blanket 10-22-99
UCC 11-20-98
------------------------------------------------------------------------------------------------------------------------------------
199931144 TRIMARC FINANCIAL, Specific Equipment
03-30-99 INC. (lease)
------------------------------------------------------------------------------------------------------------------------------------
Buncombe County, NC 12-10-99
UCC, Tax Liens, Clear
Judgments, Suits
------------------------------------------------------------------------------------------------------------------------------------
SIMULA TECHNOLOGIES, INC. XXX, XX 000000 XX BANCORP LEASING Equipment 12-10-99
XXX 00-00-00 & XXXXXXXXX
------------------------------------------------------------------------------------------------------------------------------------
000000 XX BANCORP LEASING Equipment
02-07-97 & FINANCIAL
------------------------------------------------------------------------------------------------------------------------------------
01021448 MAX MACHINERY, INC. Equipment
06-19-98
------------------------------------------------------------------------------------------------------------------------------------
SIMULA TECHNOLOGIES, INC. 1041771 NEW ENGLAND CAPITAL Equipment 12-10-99
(continued) 11-16-98 CORPORATION
------------------------------------------------------------------------------------------------------------------------------------
CIT\SIMULA\SCHEDULE 1 Page 7 of 9
61
SCHEDULE 1
Existing Liens
FILE NUMBER THRU DATE/
NAME SEARCHED JURISDICTION DATE SECURED PARTY COLLATERAL STATUS ACTION
------------- ------------ ----------- ------------- ---------- ---------- ------
0000000 BANK ONE, ARIZONA, NA Blanket
11-18-98
1049371 FIDELITY LEASING, INC. Specific Equipment
01-14-99 (lease)
1059879 NEW ENGLAND CAPITAL Equipment
03-29-99 CORPORATION
Maricopa County, AZ 00-0000000 TRIMARC FINANCIAL, INC. Specific Equipment
UCC, Tax Liens, 04-07-99 (lease)
Judgments, Suits
00-0000000 TRIMARC FINANCIAL, INC. Specific Equipment
12-07-98 (lease)
XXXXXX XXXXXXXXXX XXX, XX 000000 ADVANTA BUSINESS Inventory
PRODUCTS, INC. XXX 00-00-00 XXXXXXXX XXXX.
000000 XX BANCORP LEASING Equipment
12-03-96 & FINANCIAL
945974 US BANCORP LEASING Equipment
12-03-96 & FINANCIAL
948140 US BANCORP LEASING Equipment
12-17-96 & FINANCIAL
955076 US BANCORP LEASING Equipment
02-07-97 & FINANCIAL
SIMULA GOVERNMENT PRODUCTS XXX, XX 000000 THE CIT GROUP/EQUIPMENT Equipment 12-10-99
INC. (continued) UCC 04-15-97 FINANCING
INTAERO, INC. XXX, XX 0000000 BANK ONE, ARIZONA, XX Xxxxxxx 00-00-00
XXX 00-00-00
XXX\XXXXXX\XXXXXXXX 1 Page 8 of 9
62
SCHEDULE 1
Existing Liens
FILE NUMBER THRU DATE/
NAME SEARCHED JURISDICTION DATE SECURED PARTY COLLATERAL STATUS ACTION
------------------------------------------------------------------------------------------------------------------
Maricopa County, AZ 10-27-99
UCC, Tax Liens, Clear
Judgments, Suits
------------------------------------------------------------------------------------------------------------------
CIT\SIMULA\SCHEDULE 1 Page 9 of 9
63
CIT/SIMULA
SCHEDULE 2
a) Location of Chief Executive Office:
0000 X. Xxxxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000
b) Location of Collateral:
All collateral is located on the premises of the Company's operating
subsidiaries (or under the control of the subsidiaries), the description of
which is attached.
64
COMPANY INFORMATION
UPDATED: DECEMBER 1999
================================================================================================================================
COMPANY PHONE/FAX FEDERAL I.D. DIRECTORS OFFICERS CONTACT(S)
--------------------------------------------------------------------------------------------------------------------------------
Simula, Inc. ph. (000) 000-0000 Arizona Xxxx Xxxxxxxxxx Chairman - Xxxx Xxxxxxxxxx Xxx Xxxxxxxx
0000 Xxxxx Xxxxxxx fax (000) 000-0000 86-0320129 Xxx Xxxxxxxx President & CEO - Xxx Xxxxxxxx
Avenue Xxxx Xxxxx Secretary - Xxxx Xxxxx
Suite 1000 Xxx Xxxxxxxx Treasurer - Xxxxx Xxxx
Phoenix, Arizona Xxxx Xxxxxxxx Assistant Treasurer - Xxxxx Xxxxx
85004 Xxx Xxxxxxx
Xxxxx Xxxxxxx
Xxx Xxxxxxxxxxx
Xxxxxx Xxxxxxx
--------------------------------------------------------------------------------------------------------------------------------
Airline Interiors, Inc. ph. (000) 000-0000 Arizona Xxx Xxxxxx President - Xxx Xxxxxx Xxx Xxxxxxxx
00000 Xxxxxx Xxxxxx fax (000) 000-0000 doing business Xxx Xxxxxxxx Treasurer - Xxxx Xxxxxxxxxxxx
Xxxxx, XX 00000 in CA Xxx Xxxxxxxx Secretary - Xxxx Xxxxx
00-0000000 Xxxx Xxxxx Assistant Treasurer - Xxxxx Xxxx
--------------------------------------------------------------------------------------------------------------------------------
Artcraft Industries ph. (000) 000-0000 Arizona Xxxx Xxxxx Xxxx Xxxxx - President Xxxx Xxxxx
Corp. fax (000) 000-0000 Xxx Xxxxxxxx Xxx Xxxx - Treasurer
4753 Aviation Parkway Xxx Xxxxxxxx Xxx Xxxx - Assistant Treasurer
Suite F Xxxx Xxxxx - Secretary
Xxxxxxx Xxxx, XX 00000
--------------------------------------------------------------------------------------------------------------------------------
International Center for ph: (000) 000-0000 Arizona Xxxx Xxxxxxxxxx President - Xxxx Xxxxxxxxxx Xxx Xxxxxxx
Safety Education, Inc. fax (000) 000-0000 86-0787589 Xxx Xxxxxxxx Secretary - Xxxx Xxxxx
00000 Xxxxx 00xx Xxxxxx Xxx Xxxxxxx Treasurer - Xxxxx Xxxx
Xxxxxxx, Xxxxxxx 00000
--------------------------------------------------------------------------------------------------------------------------------
Simula Automotive ph. (000) 000-0000 Arizona Xxx Xxxxxxxx President - Xxxxxxx Xxxxx Xxxxxxx Xxxxx
Safety Devices, Inc. fax (000) 000-0000 86-0789385 Xxx Xxxxxxxx Secretary - Xxxx Xxxxx
(ASD - Simula) Xxxx Xxxxx Treasurer - Xxxxx Xxxx
0000 X. Xxxxxx Xxxx Xxxxxxx Xxxxx
Xxxxx 000
Xxxxx, Xxxxxxx 00000
================================================================================================================================
G/Legal/Corporate/Subsidiaries/Address List with Officers
1
65
COMPANY INFORMATION
UPDATED: DECEMBER 1999
================================================================================================================================
COMPANY PHONE/FAX FEDERAL I.D. DIRECTORS OFFICERS CONTACT(S)
--------------------------------------------------------------------------------------------------------------------------------
Simula Automotive Safety ph. 011-44-1670-562000 United Kingdom Xxx Xxxxxxxx President -- Xxxxx Xxxx Xxxxx Xxxx
Devices, Limited fax 000-00-0000-0000-000 Xxx Xxxxxxxx Secretary -- Xxxx Xxxxx Xxxxxxx Xxxxx
Xxxx 0 Xxxxxxx Xxxxx
Xxxxxxxx Xxxxxxxx Xxxx
Xxxxxx Xxxxxxx, Xxxxxxxxx
Xxxxxxxxxxxxxx XX00 0XX
Xxxxxx Xxxxxxx
(subsidiary of ASD --
Simula in U.S.)
-----------------------------------------------------------------------------------------------------------------------------------
Simula Composites Corporation ph. (000) 000-0000 Delaware Xxxx Xxxxxxxxxx President -- Xxxxx Xxxxx Xxxxx Xxxxx
0000 Xxxxx Xxxxxxxxxx Xxxx fax (000) 000-0000 00-0000000 Xxx Xxxxxxxx Secretary -- Xxxx Xxxxx
Avenue doing business Xxxx Xxxxx Treasurer -- Xxxxx Xxxx
Xxxxx, Xxxxxxx 00000 in Arizona
-----------------------------------------------------------------------------------------------------------------------------------
Simula Polymer Systems, Inc. ph. (000) 000-0000 Arizona Xxx Xxxxxxx Xxxx Xxxxx -- President Xxxx Xxxxx
00000 Xxxxx 00xx Xxxxxx fax (000) 000-0000 Corporation Xxxx Xxxxx Xxx Xxxxxxx -- Vice
Xxxxxxx, Xxxxxxx 00000 ID Applied For Xxx Xxxxxxxx President
Xxxxx Xxxx -- Secretary/
Treasurer
-----------------------------------------------------------------------------------------------------------------------------------
Simula Protective Systems, see Xxx Xxxxxxxx United Kingdom Xxx Xxxxxxxx N/A Xxx Xxxxxxxx
Limited
Unit 2
Wansbeck Business Park
Xxxxxx Xxxxxxx, Xxxxxxxxx
Xxxxxxxxxxxxxx XX00 0XX
Xxxxxx Xxxxxxx
(ASD-UK)
-----------------------------------------------------------------------------------------------------------------------------------
Simula Safety Systems, Inc., ph. (000) 000-0000 Arizona Xxxx Xxxxxxxxxx President -- Xxxxxxx Xxxxxx
Applied Technologies fax (000) 000-0000 00-0000000 Xxx Xxxxxxxx Xxxx Xxxxxxxxxx San Desjardins
Division (ATD) Xxxx Xxxxx Secretary -- Xxxx Xxxxxx Xxxx Xxxxxx
0000 Xxxxx Xxxx Xxxxxx Xxx Xxxxxxxx Assistant Secretary --
Xxxxx, Xxxxxxx 00000 Xxxxxxx Xxxxxx Xxxx Xxxxx
Treasurer -- Xxxx Xxxxxx
Assistant Treasurer --
Xxxxx Xxxx
-----------------------------------------------------------------------------------------------------------------------------------
Simula Safety Systems, Inc., ph. (000) 000-0000 A division of Xxxxx Xxxxx, GM
SEI Division fax (000) 000-0000 SSSI Xxxxxxx Xxxxxx
Safety Equipment
International (SEI)
000 Xxxxxxx Xxxxx Xxxxxxxxxx
Xxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx
00000
===================================================================================================================================
G/Legal/Corporate/Subsidiaries/Address List with Officers
2
66
COMPANY INFORMATION
UPDATED: December 1999
====================================================================================================================================
COMPANY PHONE/FAX FEDERAL I.D. DIRECTORS OFFICERS CONTACT(S)
------------------------------------------------------------------------------------------------------------------------------------
Simula Safety Systems Inc., Sedona ph. (000) 000-0000 A division of Xxxx Xxxxxxx, GM
Scientific Division fax (000) 000-0000 SSSI Xxxxxxx Xxxxxx
Sedona Scientific (SS)
(Division of SSSI)
00 Xxxxxxx Xxxxx
Xxxxxx, Xxxxxxx 00000-0000
------------------------------------------------------------------------------------------------------------------------------------
Simula Technologies, Inc. (STI) ph. (000) 000-0000 Arizona Xxxx Xxxxxxxxxx President - Xxx Xxxxxxx Xxx Xxxxxxx
00000 Xxxxx 00xx Xxxxxx fax (000) 000-0000 86-0842935 Xxx Xxxxxxxx Secretary - Xxxx Xxxxx
Xxxxxxx, Xxxxxxx 00000 Xxx Xxxxxxx Treasurer - Xxxxx Xxxx
Xxxx Xxxxx
------------------------------------------------------------------------------------------------------------------------------------
Simula Transportation Equipment ph. (000) 000-0000 Arizona Xxx Xxxxxxxx President - Xxx Xxxxxx Xxx Xxxxxx
Corporation (SIMTEC) fax (000) 000-0000 authorized in Xxx Xxxxxx Secretary - Xxxx Xxxxx Xxx Xxxxxxxx
(formerly Intaero, Inc.) CA as Intaero Xxxx Xxxxx Treasurer - Xxxxx Xxxx
9940 Mesa Rim Road Holdings, Inc.
Xxx Xxxxx, XX 00000 00-0000000
------------------------------------------------------------------------------------------------------------------------------------
CCEC Capital Corp. (formerly Coach 00-0000000 Xxxx Xxxxx President - Xxxx Xxxxx Xxx Xxxxx
and Car Equipment Corporation) Xxx Xxxxx Secretary - Xxxxx Xxxx
Treasurer - Xxxxx Xxxx
------------------------------------------------------------------------------------------------------------------------------------
Inataero, Limited (inactive)
------------------------------------------------------------------------------------------------------------------------------------
G\Legal\Corporate/Subsidiaries/Address List with Offices
3
67
EXHIBIT 10.40b
AMENDMENT NO. 1 TO
ASSET PURCHASE AGREEMENT
This AMENDMENT NO. 1 TO ASSET PURCHASE AGREEMENT (the "Amendment") is
executed as of this 1st day of February, 2000, by and among AIRLINE INTERIORS,
INC., an Arizona corporation ("Seller"), SIMULA TRANSPORTATION EQUIPMENT
CORPORATION, an Arizona corporation ("Simtec"), and SIMULA, INC., an Arizona
corporation ("Simula"), and XXXXX AIRCRAFT, INC., a Delaware corporation
("Purchaser"), with reference to the facts set forth in the Recitals below.
RECITALS
A. Seller, Simula, Simtec and Purchaser are parties to a certain Asset
Purchase Agreement dated December 24, 1999 (the "Asset Purchase Agreement").
B. Seller, Simula and Simtec are sometimes collectively referred to as
the "Selling Parties."
C. At the time that the Asset Purchase Agreement was executed, none of
the exhibits were attached to the Agreement and all of the schedules (the
"Schedules") to the Asset Purchase Agreement were incomplete.
D. The parties have agreed on the form of the documents comprising the
Exhibits and now desire to amend the Asset Purchase Agreement to incorporate the
Exhibits.
E. Selling Parties have provided Purchaser with the information needed
to complete the Schedules and the parties also desire to amend the Asset
Purchase Agreement to incorporate the Schedules.
F. The parties also desire to amend the Asset Purchase Agreement to
incorporate certain other provisions and to correct certain errors contained in
the Asset Purchase Agreement.
G. The parties are executing this Amendment in order to memorialize
their understanding concerning the matters referenced above.
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AGREEMENT
NOW, THEREFORE, in consideration of the Asset Purchase Agreement, the
above Recitals, and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereby agree as
follows:
1. INTERPRETATION. Except as amended by this Amendment, the Asset
Purchase Agreement shall remain in full force and effect. In the event of a
conflict between the provisions of this Amendment and those of the Asset
Purchase Agreement, this Amendment shall control. Terms with initial capital
letters are defined terms which shall have the respective meanings given them in
the Asset Purchase Agreement, unless the context of this Amendment requires
otherwise.
2. SCHEDULES. The Schedules referred to in the Asset Purchase Agreement
have now been completed and are listed in Annex 1 to the Asset Purchase
Agreement. Annex 1 and the Schedules listed therein are attached to this
Amendment and are hereby incorporated into the Asset Purchase Agreement by this
reference.
3. EXHIBITS. The Exhibits referred to in the Asset Purchase Agreement
have now been completed and are listed on Annex 2 to the Asset Purchase
Agreement. Annex 2 and the Exhibits listed below are attached to this Amendment
and are hereby incorporated into the Asset Purchase Agreement by this reference.
(a) Control No. 46: Exhibit A - Pro Forma Closing Date Balance
Sheet,
(b) Control No. 47: Exhibit B - Inventory Valuation Methodology
(c) Control No. 48: Exhibit C - Inventory Reserve Methodology
(d) Control No. 49: Exhibit D - Assignment and Assumption
Agreement,
(e) Control No. 50: Exhibit E - Xxxx of Sale,
(f) Control No. 51: Exhibit F - Non-Competition Agreement,
(g) Control No. 52: Exhibit G - Funding Agreement,
(h) Control No. 53: Exhibit H - Patent License Agreement,
(i) Control No. 54: Exhibit I - Transition Support Agreement,
(j) Control No. 55: Exhibit J - Assignment of Intellectual
Property, and
(k) Control No. 56: Exhibit K - Pre-Closing Balance Sheet.
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4. PRE-CLOSING BALANCE SHEET. The parties have agreed on the final form
of the Pre-Closing Balance Sheet. The final form of the Pre-Closing Balance
Sheet is attached hereto as Exhibit "K." The parties acknowledge that the Agreed
Inventory Value on line 5 of the Post-Closing Date Balance Sheet is in error.
The value of the Included Inventory will be adjusted downward as part of the
Post-Closing Accounting Adjustments to reflect the application of a 70%
valuation factor (as opposed to a 100% valuation factor) on the items identified
as LDC UK and LDC-1.
5. AMENDMENT OF SECTION 0.1(g). Section 0.1(g) of the Asset Purchase
Agreement is hereby amended and restated in is entirety to read as follows:
"(g) Indemnity Cap . $2,050,000. See Section 8.6(b) below."
6. AMENDMENT OF SECTION 0.1(h). Section 0.1(h) of the Asset Purchase
Agreement is hereby amended and restated in its entirety to read as follows:
"(h) INDEMNITY PERIOD. The period of time specified in Section
0.3(cc). See also Section 8.6 below."
7. AMENDMENT OF SECTION 0.3(p). Section 0.3(p) of the Asset Purchase
Agreement is hereby amended and restated in its entirety to read as follows:
"(p) CLOSING DOCUMENTS. The term "Closing Documents" shall mean and
include:
(1) Assignment and Assumption Agreement (Exhibit "D"),
(2) Xxxx of Sale (Exhibit "E"),
(3) Non-Competition Agreement (Exhibit "F"),
(4) Patent License Agreement (Exhibit "H"),
(5) Transition Support Agreement (Exhibit "I"),
(6) Assignment of Intellectual Property (Exhibit "J"),
(7) Pre-Closing Balance Sheet (Exhibit "K"),
(8) Asset Acquisition Statement (IRS Form 8594), and
(9) Such other documents and agreements as may be reasonably
required to carry out and implement the transactions contemplated in this
Agreement."
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8. AMENDMENT OF SECTION 0.3(cc). Section 0.3(cc) of the Asset Purchase
Agreement is hereby amended and restated in its entirety to read as follows:
"0.3(cc) INDEMNITY PERIOD. The term "Indemnity Period" shall mean a
period beginning on the Closing Date and ending at two different
times. The Indemnity Period shall end as to all Indemnifiable
Claims (as defined in Section 8.1 below) on the last day (the
"First Termination Date") of the calendar month in which falls the
18th month anniversary of the Closing. As to warranty claims for
Products sold by Seller, the Indemnity Period shall extend to the
last day of the calendar month in which falls the 24th month
anniversary of the Closing. After the First Termination Date, the
only Indemnifiable Claims which Purchaser may assert are the
warranty claims specified in the preceeding sentence. See Section
8.6(b) below."
9. AMENDMENT OF SECTION 0.3(nn)(3). Section 0.3(nn)(3) is hereby
amended and restated in its entirety as follows:
"(3) The "Agreed Offsets" shall be equal to the sum of (i) a
warranty offset in the amount of One Million Seven Hundred
Twenty-One Thousand Nine Hundred Twelve Dollars ($1,721,912), (ii)
a certification offset in the amount of Five Hundred Sixty Thousand
Dollars ($560,000), (iii) a reserve for passenger control units
sold by Seller in the amount of Five Hundred Thousand Dollars
($500,000) (as set out in Schedule 2.22(b) and due diligence
document Z-005), and (iv) a reserve for certain contractual
liabilities of Seller to Air 2000, Air Tours, ILFC/Flying Colors
and ILFC/Asiana in the amount of One Hundred Forty Three Thousand
Dollars ($143,000) (as set out in Schedule 2.41). The procedures to
be followed in computing the Agreed Inventory Value will reflect an
inventory reserve computed in accordance with Exhibit "C."
10. AMENDMENT OF SECTION 2.40. Section 2.40 of the Asset Purchase
Agreement is hereby amended and restated to read as follows:
"2.40 BID AND PROPOSAL LIST. Schedule 2.40 is a true, correct and
complete listing of all outstanding bids and proposals (as of the
Closing) made by Seller for the sale of the Products to customers."
11. AMENDMENT OF SECTION 2.41. Section 2.41 of the Asset Purchase
Agreement is hereby amended and restated to read as follows:
"2.41 NO SIDE AGREEMENTS. Except as set forth on Schedule 2.41, no
past or present officer, director, employee, representative or
agent of Selling Parties has made
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any promise or commitment (oral or written) to grant any customer
of Seller any concession or consideration for orders for the
Products and there are no other contractual commitments to
customers."
12. AMENDMENT OF SECTION 7.16(b). Section 7.16(b) of the Asset Purchase
Agreement is hereby amended by replacing the last sentence of said section with
the following:
"If it is later determined that the assumed physical inventory
count used to prepare the Pre-Closing Balance Sheet was in error,
an appropriate adjustment shall be made to the Cash Payment at the
time the Post-Closing Accounting Adjustments are made, it being
agreed that Purchaser shall have, if applicable, the same right of
offset against the Simula Payables under this Section 7.16(b) as
provided in Section 7.16(a). If the amount of the Post-Closing
Accounting Adjustments that may be due Purchaser under any part of
this Section 7.16 exceeds the amount of the Simula Payables, Simula
shall pay any amount due Purchaser within five (5) business days
after demand."
13. AMENDMENT OF SECTION 7.7. Section 7.7 of the Asset Purchase
Agreement is hereby amended by adding the following after the last sentence of
said section:
"Purchaser shall waive the requirement for said "tail coverage,"
provided Selling Parties maintain in effect for a term of at least
four (4) years after the Closing the coverage reflected on the
Certificate of Insurance dated July 30, 1999 identified as number
000-000-0000 issued by Acordia of Arizona identifying Simula as the
insured and provided further that Purchaser is included as an
additional named insured on said policy."
14. AMENDMENT OF SECTION 10.6. Section 10.6 of the Asset Purchase
Agreement is hereby amended and restated as follows:
"10.6 COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original and all of
which shall constitute one Agreement. The facsimile signatures of
the parties shall be deemed to constitute original signatures, and
facsimile copies hereof shall be deemed to constitute duplicate
original counterparts."
15. NEW SECTION 10.16. The Asset Purchase Agreement is hereby amended
by adding the following provision as Section 10.16:
"10.16 WAIVER. Any term or provision of this Agreement may be
waived at any time by the party entitled to the benefit thereof by
a written instrument duly executed by such party. The failure of
any of the parties to this Agreement to require the performance of
term or obligation under this Agreement or the waiver by any of the
parties to this Agreement of any breach thereunder or hereunder
shall not prevent
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subsequent enforcement of such term or obligation or be deemed a
waiver of any subsequent breach thereunder or hereunder."
16. NEW SECTION 10.17. The Asset Purchase Agreement is hereby amended
by adding the following provision as Section 10.17:
"10.17 SEVERABILITY. In case any one or more of the provisions of
this Agreement shall for any reason be held to be invalid, illegal
or unenforceable in any respect, such invalidity, illegality or
unenforceability shall not affect any other provision of this
Agreement, but this Agreement shall be construed as if such invalid
or illegal or unenforceable provision or part of a provision had
never been contained herein. In the event of any inaccuracy or
breach of any representation, warranty, covenant or agreement
contained in this Agreement, the rights and remedies of the
aggrieved party shall not be impaired or limited by reason of the
fact that the act, omission, occurrence, or other statement of
facts giving rise to such inaccuracy or breach may also be the
subject matter of any other representation, warranty, covenant or
agreement contained in this Agreement (or any other agreement
between the parties) as to which there is no inaccuracy or breach."
17. NEW SECTION 10.18. The Asset Purchase Agreement is hereby amended
by adding the following provision as Section 10.18:
"10.18 ATTORNEYS' FEES. Should any party hereto employ an attorney
for the purpose of enforcing or construing this Agreement, or any
judgment based on this Agreement, in any legal proceeding
whatsoever, including insolvency, bankruptcy, arbitration,
declaratory relief or other litigation, the prevailing party shall
be entitled to receive from the other party or parties thereto
reimbursement for all attorneys' fees and all costs, including but
not limited to service of process costs, filing fees, court and
court reporter costs, investigative costs, expert witness fees and
the cost of any bonds, whether taxable or not. Any such
reimbursement shall be included in any judgment or final order or
award issued in that proceeding. "Prevailing Party" means the party
determined to most nearly prevail and not necessarily the one in
whose favor a judgment or award is rendered. Attorneys' fees
incurred in enforcing any judgment or award are recoverable as a
separate item, and this provision for post-judgment or post-award
attorneys' fees shall survive any judgment or award and shall not
be deemed merged into any judgment or award."
18. NEW SECTION 10.19. The Asset Purchase Agreement is hereby amended
by adding the following provision as Section 10.19.
"10.19 NON-ASSUMPTION OF CERTAIN CUSTOMER CONTRACTS. The parties
understand that Purchaser is not assuming all of the Customer
Contracts. The Customer Contracts which Purchaser is assuming are
listed on Exhibit "A" to the
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Assignment and Assumption Agreement. As for those Customer
Contracts (the "Unassumed Customer Contracts") which Purchaser is
not assuming and which are open as of the Closing, Purchaser may
seek to negotiate new contractual arrangements for the sale of
Products to the customers under the Unassumed Customer Contracts
after the Closing. In such event, Purchaser shall use its best
efforts to cause such customers to release Seller from any
liability which Seller may have to such customers under the
Unassumed Customer Contracts. Nothing in this Section 10.19 shall
be construed as meaning or implying that Seller has any liability
to such customers."
[SIGNATURES APPEAR ON FOLLOWING PAGE]
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IN WITNESS WHEREOF, the parties have duly executed this Amendment No. 1
to Asset Purchase Agreement as of the date first set forth above.
"SELLER" AIRLINE INTERIORS, INC., an Arizona
corporation
By: /s/ Xxxxxxx X. Xxxxx
--------------------------------------------
Printed Name: Xxxxxxx X. Xxxxx
----------------------------------
Its: Secretary
-------------------------------------------
"SIMTEC" SIMULA TRANSPORTATION EQUIPMENT
CORPORATION, an Arizona corporation
By: /s/ Xxxxxxx X. Xxxxx
--------------------------------------------
Printed Name: Xxxxxxx X. Xxxxx
----------------------------------
Its: Secretary
-------------------------------------------
"SIMULA" SIMULA, INC., an Arizona corporation
By: /s/ Xxxxx X. Xxxx
--------------------------------------------
Printed Name: Xxxxx X. Xxxx
----------------------------------
Its: CFO
-------------------------------------------
"PURCHASER" XXXXX AIRCRAFT, INC., a Delaware corporation
By: /s/ Xxxxxx Xxxxxxx
--------------------------------------------
Xxxxxx Xxxxxxx, President
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CONTROL NO. 56
EXHIBIT "K"
Pre-Closing Date Balance Sheet
(as of January 24, 2000)
Pro Forma Amount
----------------
1. ASSETS
2. CURRENT ASSETS
3. - Cash and Cash Equivalents(1) $ -0-
4. - Accounts Receivable (net of reserve of $687,825.40)(2) $ 6,758,865.51
5. - Agreed Inventory Value(3) $ 6,881,773.67
6. - Prepaid Expenses $ -0-
7. TOTAL CURRENT ASSETS $ 13,640,639.18
8. Property and equipment - (net)(4) $ 608,000.00(5)
9. Intangibles - (net) $ 6,500,000.00
10. Other assets(6) $ -0-
11. TOTAL ASSETS $ 20,748,639.18
----------
(1) Seller shall retain all cash.
(2) The Accounts Receivable reserve will be eliminated as part of the
Post-Closing Accounting Adjustments.
(3) After valuation adjustment per Exhibit "B," and after applying a reserve
factor pursuant to Exhibit "C." The value of the Included Inventory will be
adjusted downward as part of the Post-Closing Accounting Adjustments to reflect
the application of a 70% valuation factor as opposed to a 100% valuation factor
on the items identified as LDC UK and LDC-1.
(4) "Property and Equipment" consists of all of the following items:
(a) Demonstration/Sample Seats [no allocation]
(b) Tooling
(c) Computers
(d) Manufacturing Equipment
----------
TOTAL $ 608,000
==========
(5) This amount is fixed and will not change.
(6) The term"other assets" as used here is not synonymous with the term Other
Assets as used in the Agreement.
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Pro Forma Amount
----------------
12. LIABILITIES AND
SHAREHOLDER'S EQUITY
13. CURRENT LIABILITIES
14. - Trade Accounts Payable $ 3,858,304.84
15. - Other Accrued Liabilities(7) $ 150,000.00
16. - Simula Payables(8) $ 2,456,762.69
17A. - Agreed Offset: Warranty offset(9) $ 1,721,912.00
17B. - Agreed Offset: Certification offset(9) $ 560,000.00
17C. - Agreed Offset: Passenger control unit offset(9) $ 500,000.00
17D. - Agreed Offset: Contractual liability offset(9) $ 143,000.00
18. TOTAL CURRENT LIABILITIES $ 9,389,979.53
19. Long-Term Debt -0-
20. TOTAL LIABILITIES $ 9,389,979.53
21. SHAREHOLDER'S EQUITY (Seller's Adjusted Net Worth)
22. - Shareholder's Equity $11,358,659.65
23. INTENTIONALLY LEFT BLANK
24. TOTAL LIABILITIES AND $20,748,639.18
SHAREHOLDER'S EQUITY
----------
(7) This item reflects the cost of GECAS Six Sigma Training which Seller agreed
to provide to this customer.
(8) See Section 0.3(e)(2) of the Agreement.
(9) See Section 0.3(nn)(3) of the Agreement.
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Exhibit 10.40c
ASSIGNMENT AND ASSUMPTION AGREEMENT
(Section 1.4)
This ASSIGNMENT AND ASSUMPTION AGREEMENT (the "Agreement") is executed as
of this 1st day of February 2000, by and among AIRLINE INTERIORS, INC., an
Arizona corporation ("Seller"), SIMULA TRANSPORTATION EQUIPMENT CORPORATION, an
Arizona corporation ("Simtec"), SIMULA, INC., an Arizona corporation ("Simula"),
and XXXXX AIRCRAFT, INC., a Delaware corporation ("Purchaser"), with reference
to the facts set forth in the Recitals below.
RECITALS
A. Seller and Purchaser, among others, are parties to that certain Asset
Purchase Agreement dated December 24, 1999, as amended (the "Asset Purchase
Agreement"). This Agreement is being executed pursuant to Sections 1.1 and 1.4
of the Asset Purchase Agreement.
X. Xxxxxx is the sole shareholder of Simtec, which is in turn the sole
shareholder of Seller. Simula, Simtec and Seller are sometimes collectively
referred to as the "Selling Parties."
C. Pursuant to the Asset Purchase Agreement, Seller has agreed to sell to
Purchaser certain assets referred to in Section 1.1 of the Asset Purchase
Agreement as the Included Assets.
D. Section 1.1 of the Asset Purchase Agreement provides that, as a part of
the sale of the assets contemplated in the Asset Purchase Agreement, that Seller
shall assign to Purchaser all of its right, title and interest in and to the
Included Assets.
E. This Agreement is intended to assign certain of those Included Assets to
Purchaser. The other Included Assets shall be sold, transferred, delivered or
assigned to Purchaser in the Xxxx of Sale and the Assignment of Intellectual
Property.
F. Section 1.4 of the Asset Purchase Agreement, provides that Purchaser
will assume at the Closing the Assumed Liabilities of Seller with respect to the
Business, which are set forth on Exhibit "A" hereto. The Assumed Liabilities
shall not include the Excluded Liabilities, which are set forth on the Schedule
of Excluded Liabilities attached as Control No. 3 (Schedule 0.3(v)).
G. The parties are executing this agreement in order to memorialize their
understanding concerning the foregoing.
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AGREEMENT
NOW, THEREFORE, in consideration of the Asset Purchase Agreement, the above
Recitals, the mutual covenants contained below in this Agreement and other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereby agree as follows:
ARTICLE 1
INTERPRETATION
1.1 INTERPRETATION. This Agreement is intended to implement the terms and
conditions of the Asset Purchase Agreement. In the event of a conflict between
the provisions of this Agreement, the Xxxx of Sale and those of the Asset
Purchase Agreement, the Asset Purchase Agreement shall control. Terms with
initial capital letters are defined terms which shall have the respective
meanings given them in the Asset Purchase Agreement unless the context of this
Agreement requires otherwise.
1.2 PARTIES' INTENT. Subject to the Closing of the transactions
contemplated in the Asset Purchase Agreement, the parties intend that:
(a) Seller shall assign and Purchaser shall assume any and all right,
title and interest to all of the Included Assets by virtue of this Agreement,
the Xxxx of Sale and the Assignment of Intellectual Property;
(b) Purchaser shall be solely responsible for the Assumed Liabilities
assumed pursuant to this Agreement. The Excluded Liabilities are not part of the
Assumed Liabilities. Selling Parties shall be responsible for paying or
otherwise satisfying the Excluded Liabilities. Purchaser shall have no liability
of any kind, contingent or otherwise, with respect to the Excluded Liabilities.
1.3 EFFECTIVE DATE. The Effective Date of this Agreement shall be the
Closing Date.
ARTICLE 2
ASSIGNMENT OF INCLUDED ASSETS
2.1 ASSIGNMENT BY SELLER. Subject to the Closing of the transaction
contemplated in the Asset Purchase Agreement and subject to the terms and
conditions set forth herein and in the Asset Purchase Agreement, Seller hereby
assigns to Purchaser the following Included Assets (the "Assigned Assets"):
(a) All Accounts Receivable (as defined in Section 1.1(a) of the Asset
Purchase Agreement);
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(b) The Customer Contracts (as defined in Section 1.1(c) of the Asset
Purchase Agreement) listed on the Schedule of Assigned Assets attached hereto as
Exhibit "A."
(c) The Equipment Leases (as defined in Section 1.1(d) of the Asset
Purchase Agreement) listed on the Schedule of Assigned Assets attached hereto as
Exhibit "A";
(d) All Governmental Airworthiness Approvals (as defined in Section
1.1(e) of the Asset Purchase Agreement);
(e) All Manufacturers' Warranties (as defined in Section 1.1(h) of the
Asset Purchase Agreement);
(f) The Other Assets (as defined in Section 1.1(i) of the Asset
Purchase Agreement) listed on the Schedule of Assigned Assets attached hereto as
Exhibit "A";
(g) The Software Licenses (as defined in Section 1.1(j) of the Asset
Purchase Agreement) listed on the Schedule of Assigned Assets attached hereto as
Exhibit "A";
(h) The Vendor Contracts (as defined in Section 1.1(n) of the Asset
Purchase Agreement) listed on the Schedule of Assigned Assets attached hereto as
Exhibit "A";
2.2 CONSENTS TO ASSIGNMENT. Seller represents and warrants that the
Assigned Assets, as reasonably required by Purchaser including without
limitation the Customer Contracts, are assumable by Purchaser according to their
terms. Seller shall, as a condition of the Closing, obtain all necessary
consents for the assignment of the Assigned Assets as required in Section 5.2(g)
of the Asset Purchase Agreement.
2.3 SELLING PARTIES' CONTINUING OBLIGATION. From and after the Closing,
Selling Parties shall promptly refer all inquiries with respect to the Assigned
Assets to Purchaser. In addition, Selling Parties shall execute such documents
and financing statements as Purchaser may reasonably request from time to time
to evidence transfer of the Assigned Assets to Purchaser, including any
necessary assignments of financing statements affecting the Assigned Assets.
2.4 ASSUMPTION BY PURCHASER. Subject to all the terms and conditions of
this Agreement and the Asset Purchase Agreement, Purchaser hereby accepts the
assignment of the Assigned Assets and agrees to assume all of the terms,
covenants, obligations and conditions imposed upon Seller in its capacity as a
contracting party with respect to the Assigned Assets, except for those
obligations and liabilities set forth on the Schedule of Excluded Liabilities.
ARTICLE 3
ASSIGNMENT AND ASSUMPTION OF LIABILITIES
3.1 ASSIGNMENT BY SELLER. Subject to the Closing of the transaction
contemplated in the Asset Purchase Agreement and subject to the terms and
conditions set forth herein and in the Asset
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Purchase Agreement, Seller hereby assigns to Purchaser the Assumed Liabilities
listed on the Schedule of Assumed Liabilities attached hereto as Exhibit "B."
3.2 ASSUMPTION BY PURCHASER. Subject to all the terms and conditions of
this Agreement and the Asset Purchase Agreement, Purchaser hereby assumes from
Seller the Assumed Liabilities and agrees to assume all of the terms covenants,
obligations and conditions imposed upon Seller with respect to the Assumed
Liabilities.
3.3 SELLING PARTIES' CONTINUING OBLIGATION. From and after the Closing,
Selling Parties shall promptly refer all inquiries with respect to the Assumed
Liabilities to Purchaser. In addition, Selling Parties shall execute such
documents and financing statements as Purchaser may reasonably request from time
to time to evidence transfer of the Assumed Liabilities to Purchaser, including
any necessary assignments of financing statements affecting the Assumed
Liabilities.
3.4 AMOUNT OF ASSUMED LIABILITIES. The amount of the Assumed Liabilities
shall be as set forth on the Pre-Closing Date Balance Sheet as approved by
Seller and Purchaser pursuant to Section 1.2(c) of the Asset Purchase Agreement
and as adjusted under the Post-Closing Accounting Adjustments. The aggregate
amount of the Assumed Liabilities as of the Closing shall not exceed the amount
determined in accordance with Section 1.2(c) of the Asset Purchase Agreement.
3.5 NO LIABILITY FOR EXCLUDED LIABILITIES. Selling Parties shall be
responsible for paying or otherwise satisfying the Excluded Liabilities and
Purchaser shall have no liability of any kind, contingent or otherwise, with
respect to the Excluded Liabilities.
3.6 CONDITION TO ASSIGNMENT AND ASSUMPTION. Any obligations of Purchaser to
assume the Assumed Liabilities are subject to the fulfillment (or the written
waiver thereof by Purchaser) of each of the conditions precedent set forth in
Section 5.2 of the Asset Purchase Agreement. Purchaser may waive any or all of
the conditions in whole or in part without prior notice; provided, however, that
no such waiver of a condition shall constitute a waiver by Purchaser of any of
Purchaser's other rights or remedies, at law or in equity, if Selling Parties
are in default of any of their representations, warranties, or covenants
contained in the Asset Purchase Agreement.
3.7 INDEMNIFICATION. This Agreement is subject to the indemnification
provisions set forth in Article 8 of the Asset Purchase Agreement.
ARTICLE 4
MISCELLANEOUS PROVISIONS
4.1 ASSIGNMENT BY PURCHASER. Purchaser shall have the right to assign this
Agreement and to assign its rights and delegate its duties under this Agreement,
either in whole or in part, at any time and without Seller's consent. Purchaser
shall give Seller written notice of any such assignment. The assignment shall
neither affect or diminish any rights or duties that Seller or Purchaser may
have under this Agreement. Absent an express signed written agreement between
the parties to the contrary, no assignment of any of the rights or obligations
under this Agreement shall result in a
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novation or in any way release the Selling Parties from their obligations under
this Agreement.
4.2 JOINT AND SEVERAL LIABILITY. Selling Parties and Seller shall be
jointly and severally liable for the obligations of Selling Parties or Seller
pursuant to this Agreement.
4.3 COSTS AND EXPENSES. Except for liabilities expressly assumed by
Purchaser in this Agreement, each of the parties will bear its own expenses in
connection with negotiation and the consummation of the transactions
contemplated by this Agreement. Each party shall be solely responsible for its
respective legal, accounting, and other out-of-pocket expenses.
4.4 GOVERNING LAW AND VENUE. This Agreement and any interpretation hereof
and the resolution of any dispute hereunder shall be governed by the laws of the
State of California, and subject to the parties' obligation to arbitrate and
dispute any action to enforce any provision of this Agreement or to obtain any
remedy with respect hereto may be brought in the appropriate state or federal
court in San Diego County, California. For this purpose each party hereto hereby
expressly and irrevocably consents to the jurisdiction of said court, it being
understood and agreed that the parties are obligated to arbitrate disputes
between them pursuant to Section 4.13 below.
4.5 INTERPRETATION. This Agreement shall not be interpreted against a party
by virtue of such party's participation in the drafting of the Agreement or any
provisions herein.
4.6 AMENDMENT. This Agreement may be amended, modified, or supplemented
only by an instrument in writing signed by all parties to this Agreement whose
rights or obligations are affected by such amendment, modification or
supplement.
4.7 INUREMENT. This Agreement shall be binding upon and inure to the
benefit to the successors and/or assigns of the parties hereto.
4.8 NOTICES.
(A) METHOD OF DELIVERY. Any notice, request, demand, consent, approval
or other communication (hereafter "notice") required or permitted under this
Agreement or by law shall be in writing and delivered by any of the following
means: (1) personally delivering the notice to a senior officer or duly
authorized representative of the other party, (2) depositing the notice in the
United States mail, postage prepaid, duly certified (return-receipt requested),
(3) sending the notice by a commercial overnight delivery service (such as
FedEx) which maintains delivery records, or (4) sending the notice by electronic
facsimile or telecopier ("fax") (with the sending party retaining evidence of
the time and date of transmission). Confirmations of any notices sent by fax
shall be sent by mail as provided above.
(B) ADDRESSES. Notices shall be addressed as follows:
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If to Selling Parties: Simula, Inc.
0000 Xxxxx Xxxxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, XX 00000
Att.: Xxxxxxx X. First
Fax No.: (000) 000-0000
If to Purchaser: Xxxxx Aircraft, Inc.
0000 Xxxxx Xxxxx
Xxxxxxxxxxx, XX 00000
Attn.: Xxxxxx Xxxxxxx
Fax No. (000) 000-0000
With a copy to: Zodiac S.A.
0, Xxx Xxxxxxx Xxxxxx
00000, Xxxx-xxx-Xxxxxxxxx Xxxxx
Xxxxxx
Att.: Xxxx-Xxxxxxx Xxxxx
Fax No: (000-000) 00 00 00 00
With a copy to: Xxxxxxx & Xxxxx
000 Xxxx X Xxxxxx, 00xx Xxxxx
Xxx Xxxxx, XX 00000
Attn: Xxxxxxx X. Xxxxxx, Esq.
Fax No. (000) 000-0000
Any party may, from time to time, by written notice to the other, designate a
different address which shall be substituted for that specified above.
(C) EFFECTIVENESS. All notices shall be deemed effective upon receipt.
If personally delivered, notices shall be deemed received at the time of
delivery. If sent by mail, notices shall be deemed fully delivered and received
three (3) business days after the date of the postmark on the certified mail
receipt. If sent by commercial overnight delivery service, notices shall be
deemed fully delivered and received one (1) business day after the date of
deposit with such commercial overnight delivery service. If sent by fax, notices
shall be deemed received twenty-four (24) hours after transmission. Notices may
not be sent by e-mail. Rejection or other refusal to accept a notice or the
inability to deliver the same because of a changed address of which no notice
was given shall be deemed to be receipt of the notice sent. In the event of a
postal strike, all notices shall be personally delivered, sent by commercial
overnight delivery service, or sent by fax.
4.9 HEADINGS. The headings of the sections of this Agreement are for the
convenience of reference only, and do not form a part hereof, and in no way
modify, interpret or construe the meanings of the parties.
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4.10 COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original and all of which shall
constitute one Agreement. The facsimile signatures of the parties shall be
deemed to constitute original signatures, and facsimile copies hereof shall be
deemed to constitute duplicate original counterparts.
4.11 WAIVER. Any term or provision of this Agreement may be waived at any
time by the party entitled to the benefit thereof by a written instrument duly
executed by such party. The failure of any of the parties to this Agreement to
require the performance of term or obligation under this Agreement or the waiver
by any of the parties to this Agreement of any breach hereunder shall not
prevent subsequent enforcement of such term or obligation or be deemed a waiver
of any subsequent breach hereunder.
4.12 SEVERABILITY. In case any one or more of the provisions of this
Agreement shall for any reason be held to be invalid, illegal or unenforceable
in any respect, such invalidity, illegality or unenforceability shall not affect
any other provision of this Agreement but this Agreement shall be construed as
if such invalid or illegal or unenforceable provision or part of a provision had
never been contained herein. In the event of any inaccuracy or breach of any
representation, warranty, covenant or agreement contained in this Agreement, the
rights and remedies of the aggrieved party shall not be impaired or limited by
reason of the fact that the act, omission, occurrence, or other statement of
facts giving rise to such inaccuracy or breach may also be the subject matter of
any other representation, warranty, covenant or agreement contained in this
Agreement (or any other agreement between the parties) as to which there is no
inaccuracy or breach.
4.13 ARBITRATION.
(A) GENERAL. Any controversy, claim, or dispute among the parties
hereto arising out of or related to this Agreement or the breach thereto, which
cannot be settled amicably by the parties, shall be submitted for binding
arbitration in accordance with the provisions contained herein and in accordance
with the Commercial Arbitration Rules of the American Arbitration Association
("Rules"); provided, however, that notwithstanding any provisions of such Rules,
the parties shall have the right to take depositions and obtain discovery
regarding the subject matter of the arbitration, as provided in Title III of
Part 4 (commencing with Section 1985) of the California Code of Civil Procedure.
Judgment upon the award rendered by the arbitrator may be entered in any court
having jurisdiction. The arbitrator shall determine all questions of fact and
law relating to any controversy, claim, or dispute hereunder, including but not
limited to whether or not any such controversy, claim, or dispute is subject to
the arbitration provisions contained herein.
(B) THIRD PARTY CONTROVERSY. If a controversy, claim, or dispute arises
among the parties hereto which is subject to the arbitration provisions
hereunder, and there exists or later arises a controversy, claim, or dispute
between the parties hereto and any third party, which controversy, claim, or
dispute arises out of or relates to the same transaction or series of
transactions, said third party controversy, claim, or dispute shall be
consolidated with the arbitration proceedings
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hereunder; provided, however, that any such third party must be a party to an
agreement with a party hereto which provides for arbitration of disputes
thereunder in accordance with rules and procedures substantially the same in all
material respects as provided for herein or, if not, must consent to arbitration
as provided for hereunder.
(C) VENUE. All arbitration proceedings shall be held in San Diego,
California.
(D) NOTICES. Notice of the demand for arbitration shall be filed in
writing with the other party to this Agreement and with the American Arbitration
Association.
4.14 ATTORNEYS' FEES. Should any party hereto employ an attorney for the
purpose of enforcing or construing this Agreement, or any judgment based on this
Agreement, in any legal proceeding whatsoever, including insolvency, bankruptcy,
arbitration, declaratory relief or other litigation, the prevailing party shall
be entitled to receive from the other party or parties thereto reimbursement for
all attorneys' fees and all costs, including but not limited to service of
process costs, filing fees, court and court reporter costs, investigative costs,
expert witness fees and the cost of any bonds, whether taxable or not. Any such
reimbursement shall be included in any judgment or final order or award issued
in that proceeding. "Prevailing Party" means the party determined to most nearly
prevail and not necessarily the one in whose favor a judgment or award is
rendered. Attorneys' fees incurred in enforcing any judgment or award are
recoverable as a separate item, and this provision for post-judgment or
post-award attorneys' fees shall survive any judgment or award and shall not be
deemed merged into any judgment or award.
4.15 CONSTRUCTION. Whenever the context so requires in this Agreement, all
words used in the singular shall be construed to have been used in the plural
(and vice versa), each gender shall be construed to include any other genders,
and the word "person" shall be construed to include a natural person, a
corporation, a firm, a partnership, a joint venture, a trust, an estate, or any
other entity.
4.16 AUTHORITY OF SIGNATORIES. Each individual signing this Agreement on
behalf of a corporation warrants that he or she is duly authorized to execute
and deliver this Agreement on behalf of the corporation, in accordance with a
duly adopted resolution of the board of directors of the corporation or in
accordance with the bylaws of the corporation, and that this Agreement is
binding on the corporation in accordance with its terms.
4.17 ENTIRE AGREEMENT. This Agreement is one of a series of agreements
executed as part of an integrated transaction described in the Asset Purchase
Agreement. This Agreement, together with the Asset Purchase Agreement and with
all other agreements, assignments and exhibits expressly referred to therein or
herein, constitutes the entire agreement between the parties hereto with respect
to the subject matter of this Agreement. All prior agreements, representations,
negotiations and understandings of the parties hereto, oral or written, express
or implied, are hereby superseded and merged herein. To the maximum extent
permitted by law, each party expressly waives any right of
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rescission and all claims for damages by reason of any statement,
representation, warranty, promise and/or agreement, if any, not contained or
referenced to in this Agreement.
[SIGNATURES APPEAR ON FOLLOWING PAGE]
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IN WITNESS WHEREOF, the parties hereto have caused this Assignment and
Assumption Agreement to be executed effective as of the date first set forth
above.
"SELLER:" AIRLINE INTERIORS, INC., an Arizona
corporation
By: /s/ Xxxxxxx X. Xxxxx
Printed Name: Xxxxxxx X. Xxxxx
Its: Secretary
"SIMTEC:" SIMULA TRANSPORTATION EQUIPMENT
CORPORATION, an Arizona corporation
By: /s/ Xxxxxxx X. Xxxxx
Printed Name: Xxxxxxx X. Xxxxx
Its: Secretary
"SIMULA:" SIMULA, INC., an Arizona corporation
By:/s/ Xxxxx X. Xxxx
Printed Name: Xxxxx X. Xxxx
Its: CFO
"PURCHASER:" XXXXX AIRCRAFT, INC.,
a Delaware corporation
By: /s/ Xxxxxxx Xxxxxxx
Printed Name: Xxxxxxx Xxxxxxx
Its: President
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EXHIBIT "A"
SCHEDULE OF ASSIGNED ASSETS
1. All Accounts Receivable (as defined in Section 1.1(a) of the Asset
Purchase Agreement).
2. The Customer Contracts to be assigned to and assumed by Purchaser shall
consist of those Customer Contracts identified as assumed with an indication of
"yes" on Schedule 1.1(c).
3. No Equipment Leases shall be assigned to and assumed by Purchaser.
4. All Governmental Airworthiness Approvals (as defined in Section 1.1(e)
of the Asset Purchase Agreement).
5. All Manufacturers' Warranties (as defined in Section 1.1(h) of the Asset
Purchase Agreement).
6. There are no Other Assets that will be assigned to and assumed by
Purchaser.
7. The Software Licenses to be assigned and assumed by Purchaser shall
consist of those Software Licenses identified as assumed with an indication of
"yea" on Schedule 1.1(j).
8. The Vendor Contracts to be assigned to and assumed by Purchaser shall
consist of those Vendor Contracts identified as assumed on Schedule 1.1(n).
88
EXHIBIT "B"
SCHEDULE OF ASSUMED LIABILITIES
Purchaser shall assume only those liabilities set forth on Schedule 0.3(e).
89
EXHIBIT "C"
SCHEDULE OF EXCLUDED LIABILITIES
Purchaser shall not assume any liabilities that are not specifically
identified on Schedule 0.3(e), including without limitation those liabilities
listed on Schedule 0.3(v), the Schedule of Excluded Liabilities.
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Exhibit 10.40d
XXXX OF SALE
(Section 0.3(p)(3))
This XXXX OF SALE (the "Xxxx of Sale") is made as of this 1st day of
February 2000 by and between AIRLINE INTERIORS, INC., an Arizona corporation
("Seller"), and XXXXX AIRCRAFT, INC., a Delaware corporation ("Purchaser"), with
reference to the facts set forth in the Recitals below.
RECITALS
A. Seller and Purchaser are parties to that certain Asset Purchase
Agreement dated December 24, 1999, as amended (the "Asset Purchase Agreement").
This Xxxx of Sale is being executed pursuant to Section 0.3(p)(3) of the Asset
Purchase Agreement.
B. Seller owns all right, title and interest to and in the following
personal property (the "Personal Property"):
(1) The Books and Records (as defined in Section 1.1(b) of the
Asset Purchase Agreement);
(2) The Included Inventories (as defined in Section 1.1(f) of
the Asset Purchase Agreement);
(3) The Software Licenses (as defined in Section 1.1(j) of the
Asset Purchase Agreement);
(4) The Supplies (as defined in Section 1.1(k) of the Asset
Purchase Agreement);
(5) The Tangible Personal Property (as defined in Section
1.1(l) of the Asset Purchase Agreement); and
(6) The Tooling (as defined in Section 1.1(m) of the Asset
Purchase Agreement).
C. Section 1.1 of the Asset Purchase Agreement provides that, as a part
of the sale of the
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assets contemplated in the Asset Purchase Agreement, Seller shall convey to
Purchaser all of its right, title and interest in and to the Personal Property.
D. The parties are executing this Xxxx of Sale in order to convey the
Personal Property from Seller to Purchaser pursuant to the provisions of the
Asset Purchase Agreement.
AGREEMENT
NOW, THEREFORE, in consideration of the Asset Purchase Agreement, the
above Recitals and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties agree as follows:
1. INTERPRETATION. This Xxxx of Sale is intended to implement the terms
and conditions of the Asset Purchase Agreement. In the event of a conflict
between the provisions of this Xxxx of Sale and those of the Asset Purchase
Agreement, the Asset Purchase Agreement shall control. Terms with initial
capital letters are defined terms which shall have the respective meanings given
them in the Asset Purchase Agreement, unless the context of this Xxxx of Sale
requires otherwise.
2. TRANSFER OF PERSONAL PROPERTY. Subject to all the terms and
conditions of the Asset Purchase Agreement and this Xxxx of Sale, Seller does
hereby give, grant, bargain, sell, transfer, set over, assign, convey, release,
confirm and deliver to Purchaser, free and clear of all liens, charges and
encumbrances, and Purchaser hereby accepts, all of Seller's right, title and
interest in and to the Personal Property.
3. FURTHER ASSURANCES. Seller agrees, without cost to Purchaser, to
execute all instruments and documents and take all actions as may be reasonably
required to effectuate this Xxxx of Sale, including without limitation to
execute all rightful oaths, assignments, powers of attorney and other documents
which Purchaser shall consider desirable or necessary for vesting title to the
Personal Property.
4. EFFECTIVE DATE. This Xxxx of Sale shall be effective as of the
Closing.
5. SELLER'S WARRANTIES.
(A) SELLER'S AUTHORITY. Seller represents, warrants and covenants
that the persons executing this Xxxx of Sale on behalf of Seller have been duly
authorized to do so by requisite corporate action and that this Xxxx of Sale
shall be binding and enforceable against Seller.
(B) DEFENSE OF TITLE. Seller does, for itself, its successors and
assigns, covenant and agree to warrant and defend the title to the Personal
Property against any and all claims and demands against the Personal Property.
6. GOVERNING LAW AND VENUE. This Xxxx of Sale and any interpretation
hereof and the
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resolution of any dispute hereunder shall be governed by the laws of the State
of California. Disputes arising out of this Xxxx of Sale shall be arbitrated as
provided in the Asset Purchase Agreement.
7. ATTORNEYS' FEES. Should any party hereto employ an attorney
for the purpose of enforcing or construing this Xxxx of Sale, or any judgment
based on this Xxxx of Sale, in any legal proceeding whatsoever, including
insolvency, bankruptcy, arbitration, declaratory relief or other litigation, the
prevailing party shall be entitled to receive from the other party or parties
thereto reimbursement for all attorneys' fees and all costs, including but not
limited to service of process costs, filing fees, court and court reporter
costs, investigative costs, expert witness fees and the cost of any bonds,
whether taxable or not. Any such reimbursement shall be included in any judgment
or final order or award issued in that proceeding. "Prevailing Party" means the
party determined to most nearly prevail and not necessarily the one in whose
favor a judgment or award is rendered. Attorneys' fees incurred in enforcing any
judgment or award are recoverable as a separate item, and this provision for
post-judgment or post-award attorneys' fees shall survive any judgment or award
and shall not be deemed merged into any judgment or award.
IN WITNESS WHEREOF, Seller and Purchaser have caused their duly
authorized representatives to execute and deliver this Xxxx of Sale as of the
day and year first above written.
"SELLER": AIRLINE INTERIORS, INC,
an Arizona corporation
By: /s/ Xxxxxxx X. Xxxxx
________________________________
Printed name: Xxxxxxx X. Xxxxx
______________________
Its: Secretary
_______________________________
"PURCHASER": XXXXX AIRCRAFT, INC.,
a Delaware corporation
By: /s/ Xxxxxxx XxXxxxx
________________________________
Printed Name: Xxxxxxx XxXxxxx
______________________
Its: President
_______________________________
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EXHIBIT 10.40e
NON-COMPETITION AGREEMENT
(SECTION 5.2(l))
This NON-COMPETITION AGREEMENT (the "Agreement") is made as of this 1st
day of February 2000, by and between AIRLINE INTERIORS, INC., an Arizona
corporation ("Seller"), SIMULA TRANSPORTATION EQUIPMENT CORPORATION, an Arizona
corporation ("Simtec"), SIMULA TECHNOLOGIES, INC., an Arizona corporation
("STI"), SIMULA, INC., an Arizona corporation ("Simula"), and XXXXX AIRCRAFT,
INC., a Delaware corporation ("Xxxxx"), with reference to the facts set forth in
the Recitals below.
RECITALS
A. Simula, Simtec and Seller are sometimes collectively referred to as
the "Selling Parties."
B. STI is an affiliate of Simula.
C. Selling Parties and Xxxxx are parties to that certain Asset Purchase
Agreement dated December 24, 1999, as amended (the "Asset Purchase Agreement").
Pursuant to the terms and conditions of the Asset Purchase Agreement, Seller has
sold the Included Assets to Seller.
D. Selling Parties and Xxxxx are also parties to that certain
Assignment of Intellectual Property Of even date herewith (the "IP Assignment").
X. Xxxxxx, STI and Xxxxx are also parties to that certain Patent
License Agreement of even date herewith (the "Patent License Agreement")
concerning the Shared Use Patent.
F. As a material part of the transactions contemplated by the Asset
Purchase Agreement, the IP Assignment, and the Patent License Agreement, Selling
Parties desire to protect Xxxxx, and Xxxxx desires to be protected, against
certain competitive activities on the part of Selling Parties and STI so that
Xxxxx will obtain the full benefit of the Included Assets, including without
limitation, the Intellectual Property.
G. The parties are executing this Agreement in order to memorialize
their understanding concerning the foregoing.
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AGREEMENT
NOW, THEREFORE, in consideration of the Asset Purchase Agreement, the
above Recitals, the mutual covenants contained below in this Agreement and other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties agree as follows:
1. INTERPRETATION. This Agreement is intended to implement the terms
and conditions of the Asset Purchase Agreement. In the event of a conflict
between the provisions of this Agreement and those of the Asset Purchase
Agreement, the Asset Purchase Agreement shall control. Terms with initial
capital letters are defined terms which shall have the respective meanings given
them in the Asset Purchase Agreement unless the context of this Agreement
requires otherwise.
2. CERTAIN DEFINITIONS.
(a) BUSINESS JET MARKET. The term "Business Jet Market" shall
mean the executive or business jet aircraft market.
(b) COMMERCIAL AIRLINE MARKET. The term "Commercial Airline
Market" shall mean the commercial airline market, which expressly includes
commuter airliners.
(c) CONFIDENTIAL INFORMATION. The term "Confidential
Information" shall mean any information which is proprietary or unique to the
Business, including without limitation, customer lists or other customer
information, trade secrets, matters of a technical nature such as processes,
devices, techniques, data and formulas, research subjects and results, know-how,
or marketing methods, plans or strategies, financial information, or any
observations, data, written plans or proposals, records or documents used by or
relating to the Business, or the reasonably foreseeable business of Xxxxx,
whether or not such information was developed, devised or otherwise created in
whole or in part by the efforts of Selling Parties, unless such information is a
matter of public knowledge, except as a result of unauthorized disclosure to the
general public by Selling Parties.
(d) RESTRICTED BUSINESS. The term "Restricted Business" shall
mean any business activity relating to (1) the design, development,
manufacturing, marketing, distribution or sale of any passenger seats of any
type or design (regardless of the technology involved) in or for the use in
Commercial Airline Market in any part of the Territory and (2) the design,
development, manufacturing, marketing, distribution or sale of any products
utilizing the technology and inventions covered by the Shared Use Patent in the
Commercial Airline Market or the Business Jet Market in any part of the
Territory.
(e) PERSON. The term "Person" shall mean and include an
individual, a partnership, a corporation, an association, a company, a trust, a
joint venture, an unincorporated organization or a governmental entity.
(f) TERRITORY. The term "Territory" shall mean any territory
or country in the world.
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3. COVENANT NOT TO COMPETE. Subject to all the terms and conditions of
this Agreement, for a period of ten (10) years commencing with the Closing Date,
Selling Parties and STI covenant and agree that they shall not, directly or
indirectly, either as principal, agent, manager, owner, partner, shareholder, or
otherwise as a participant in any other capacity:
(a) NO INVESTMENT IN RESTRICTED BUSINESS. Own, manage,
operate, engage in, control, assist, give or lend funds to or otherwise finance,
consult with, be employed by or an agent for, participate in, or be connected in
any manner with, or acquire any ownership or equity interest in any Person
involved, engaged in or participating in the Restricted Business, directly or
indirectly.
(b) NO SOLICITATION OF CUSTOMERS. Solicit, divert, or take
away or attempt to solicit, divert or take away from Xxxxx any of the Business,
or any present customer of the Business, or any customer who does business with
Xxxxx during said period.
(c) NO PRODUCT DEVELOPMENT. Design, develop, manufacture,
assemble, distribute, sell, market, service, support, assist with or modify any
product for use in the Restricted Business; provided, however, that the Selling
Parties may retain their current repair and refurbishment business for
commercial airline aircraft passenger seats and retain their current testing
services business at STI.
4. NON-DISCLOSURE COVENANT. For a period of ten (10) years commencing
with the Closing Date, Selling Parties and STI covenant and agree that they will
not disclose, reveal, divulge or make known to any Person (other than Xxxxx or
its affiliates) any Confidential Information that relates to the Business or the
reasonably foreseeable business of Xxxxx or any of its affiliates.
5. NON-INTERFERENCE COVENANT. For a period of ten (10) years commencing
with the Closing Date, Selling Parties and STI covenant and agree that they will
not, whether for their own account or for the account of any other Person,
directly or indirectly, (a) hire, offer to hire, induce or attempt to induce any
Person who is an employee of Xxxxx or employ such individual for a period of six
(6) months after the Person terminates employment with Xxxxx; or (b) solicit any
supplier to Xxxxx to purchase or distribute information, products or services of
or on behalf of Selling Parties and/or STI that are competitive with the
information, products or services provided by Xxxxx.
6. PERMITTED COMPETITION. Notwithstanding anything in this Agreement to
the contrary, it is agreed that Selling Parties and STI may (a) use the
technology covered by the Shared Use Patent to design, develop, manufacture,
market, distribute or sell passenger seats for use in the military aviation
business or executive helicopter and the general aviation markets, as more fully
provided in the Patent License Agreement, (b) design, develop, manufacture,
market, distribute or sell any products not utilizing the technology covered by
the Shared Use Patent for use in the Business Jet Market, and (c) complete a
certain amended purchase order dated December 21, 1999 issued to STI by Britax
Contours for four hundred and seventy (470) 16G load limiting energy absorber
devices for installation in said customer's commercial airline aircraft
passenger seats. it is agreed that said Britax order shall be completed no later
than september 30, 2000. STI shall be solely responsible for resolving all
warranty and other claims that may arise out of said Britax order. STI shall not
accept any additional follow-up orders for such devices from Britax Contours.
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7. REASONABLENESS OF RESTRICTIONS; REMEDIES. Selling Parties and STI
have carefully read all of the terms and conditions of this Agreement and have
given careful consideration to the covenants and restrictions imposed upon them
herein, and agree that the same are necessary for the reasonable and proper
protection of Xxxxx and the Business and have been separately bargained for and
agree that Xxxxx has been induced to enter into the Asset Purchase Agreement and
the Patent License Agreement by the representations of Selling Parties and STI
that they will abide by and be bound by each of the covenants and restrictions
that apply to them. Selling Parties and STI further acknowledge that each and
every one of the covenants and restrictions contained in this Agreement is
reasonable with respect to the subject matter, length of time and area embraced
therein, and agree that said covenants and restrictions shall be operative
during the full period or periods herein mentioned and throughout areas herein
described.
8. SEVERABILITY AND ENFORCEABILITY. The covenants contained in this
Agreement shall be construed as if each covenant is divided into separate and
distinct covenants with respect to the Business, each capacity in which Selling
Parties and STI are prohibited from competing, and each part of the Territory.
Each such covenant shall constitute a separate and several covenant distinct
from all other such covenants. Each of the parties hereto recognizes that the
territorial restrictions contained herein are properly required for the adequate
protection of Xxxxx. In the event that any covenant or any provision contained
in this Agreement shall for any reason be deemed invalid, illegal, or
unenforceable in any respect, any such invalidity, illegality, or
unenforceability shall not affect any other provision of this Agreement, and
this Agreement shall be construed as if such invalid, illegal, or unenforced
provision has been limited or modified (consistent with its general intent) to
the extent necessary so that it shall be valid, legal and enforceable. If it
shall not be possible to so limit or modify such invalid or illegal or
unenforceable provision or part of a provision, this Agreement shall be
construed as if such invalid or illegal or unenforceable provision or part of a
provision had never been contained herein, and the parties will use their best
efforts to substitute a valid, legal, and enforceable provision which, insofar
as practicable, implements the purpose and intention thereof.
9. BREACH. Each provision of this Agreement to be performed by Selling
Parties and STI shall be deemed both a covenant and a condition and shall be a
material consideration for the performance of Xxxxx'x obligations under the
Asset Purchase Agreement and the Patent License Agreement. Any breach hereof by
Selling Parties and STI shall be deemed a material default under the Asset
Purchase Agreement, the Patent License Agreement, and this Agreement.
10. REMEDIES. Selling Parties, STI and Xxxxx acknowledge that (1) the
covenants and the restrictions contained in this Agreement are necessary,
fundamental and are required for the protection of Xxxxx; (2) such covenants
relate to matters which are of a special, unique and extraordinary character
that gives each of such covenants a special, unique, and extraordinary value;
and (3) a breach of any covenants or any other provision of this Agreement will
result in irreparable harm and damages to Xxxxx which cannot be adequately
compensated by a monetary reward. Accordingly, it is expressly agreed that in
addition to all other remedies available at law or in equity, Xxxxx shall be
entitled to the immediate remedy of a temporary restraining order, preliminary
injunction, or such other form of injunctive or equitable relief as maybe used
by any court of competent jurisdiction to restrain and enjoin Selling Parties
and STI from breaching any such covenant or provision or to specifically enforce
the provisions hereof. All rights, remedies,
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undertakings, obligations, options, covenants, conditions and agreements
contained in this Agreement or provided by law shall be cumulative and no one of
them shall be exclusive of any other. A party may pursue any one or more of its
rights, options or remedies hereunder or may seek damages or specific
performance in the event of the other party's breach hereunder, or may pursue
any other remedy by law or equity, whether or not stated in this Agreement.
11. COSTS AND EXPENSES. Each of the parties will bear its own expenses
in connection with the negotiation and the consummation of the transactions
contemplated by this Agreement. Each party shall be solely responsible for its
respective legal, accounting, and other out-of-pocket expenses.
12. GOVERNING LAW AND VENUE. This Agreement and any interpretation
hereof and the resolution of any dispute hereunder shall be governed by the laws
of the State of California, and subject to the parties' obligation to arbitrate
and dispute any action to enforce any provision of this Agreement or to obtain
any remedy with respect hereto may be brought in the appropriate state or
federal court in San Diego County, California. For this purpose each party
hereto hereby expressly and irrevocably consents to the jurisdiction of said
court, it being understood and agreed that the parties are obligated to
arbitrate disputes between them pursuant to Section 21.
13. INTERPRETATION. This Agreement shall not be interpreted against a
party by virtue of such party's participation in the drafting of the Agreement
or any provisions herein.
14. AMENDMENT. This Agreement may be amended, modified, or supplemented
only by an instrument in writing signed by all parties to this Agreement whose
rights or obligations are affected by such amendment, modification or
supplement.
15. INUREMENT. This Agreement shall be binding upon and inure to the
benefit to the successors and/or assigns of the parties hereto.
16. NOTICES.
(a) METHOD OF DELIVERY. Any notice, request, demand, consent,
approval or other communication (hereafter "notice") required or permitted under
this Agreement or by law shall be in writing and delivered by any of the
following means: (1) personally delivering the notice to a senior officer or
duly authorized representative of the other party, (2) depositing the notice in
the United States mail, postage prepaid, duly certified (return-receipt
requested), (3) sending the notice by a commercial overnight delivery service
(such as FedEx) which maintains delivery records, or (4) sending the notice by
electronic facsimile or telecopier ("fax") (with the sending party retaining
evidence of the time and date of transmission). Confirmations of any notices
sent by fax shall be sent by mail as provided above.
(b) ADDRESSES. Notices shall be addressed as follows:
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If to Seller: Airline Interiors, Inc.
0000 Xxxxx Xxxxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, XX 00000
Attn: Xxxxxxx X. Xxxxx, Esq.
Fax No.: (000) 000-0000
If to Simula: Simula, Inc.
0000 Xxxxx Xxxxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, XX 00000
Attn: Xxxxxxx X. Xxxxx, Esq.
Fax No.: (000) 000-0000
If to Simtec: Simula Transportation Equipment Corporation
0000 Xxxxx Xxxxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, XX 00000
Attn: Xxxxxxx X. Xxxxx, Esq.
Fax No.: (000) 000-0000
If to STI: Simula Technologies, Inc.
0000 Xxxxx Xxxxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, XX 00000
Attn: Xxxxxxx X. Xxxxx, Esq.
Fax No.: (000) 000-0000
If to Xxxxx: Xxxxx Aircraft, Inc.
0000 Xxxxx Xxxxx
Xxxxxxxxxxx, Xxxxx 00000
Attn: Xxxxxx Xxxxxxx
Fax: (000) 000-0000
With copies to: Zodiac, S.A.
0, xxx Xxxxxxx Xxxxxx
00000, Xxxx-xxx-Xxxxxxxxxx Xxxxx
Xxxxxx
Attn: Xxxx-Xxxxxxx Xxxxx
Fax No: (000-000) 00 00 00 00
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Xxxxxxx & Xxxxx
000 Xxxx X Xxxxxx, 00xx Xxxxx
Xxx Xxxxx, XX 00000
Attn: Xxxxxxx X. Xxxxxx, Esq.
Fax No.: (000) 000-0000
Any party may, from time to time, by written notice to the other, designate a
different address which shall be substituted for that specified above. It is
agreed that separate notices need not be sent to Simtec. Notices sent to Simula
shall be deemed to have been sent to Simtec.
(c) EFFECTIVENESS. All notices shall be deemed effective upon
receipt. If personally delivered, notices shall be deemed received at the time
of delivery. If sent by mail, notices shall be deemed fully delivered and
received three (3) business days after the date of the postmark on the certified
mail receipt. If sent by commercial overnight delivery service, notices shall be
deemed fully delivered and received one (1) business day after the date of
deposit with such commercial overnight delivery service. If sent by fax, notices
shall be deemed received twenty-four (24) hours after transmission. Notices may
not be sent by e-mail. Rejection or other refusal to accept a notice or the
inability to deliver the same because of a changed address of which no notice
was given shall be deemed to be receipt of the notice sent. In the event of a
postal strike, all notices shall be personally delivered, sent by commercial
overnight delivery service, or sent by fax.
17. HEADINGS. The headings of the sections of this Agreement are for
the convenience of reference only, and do not form a part hereof, and in no way
modify, interpret or construe the meanings of the parties.
18. COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original and all of which shall
constitute one Agreement. The facsimile signatures of the parties shall be
deemed to constitute original signatures, and facsimile copies hereof shall be
deemed to constitute duplicate original counterparts.
19. WAIVER. Any term or provision of this Agreement may be waived at
any time by the party entitled to the benefit thereof by a written instrument
duly executed by such party. The failure of any of the parties to this Agreement
to require the performance of term or obligation under this Agreement or the
waiver by any of the parties to this Agreement of any breach hereunder shall not
prevent subsequent enforcement of such term or obligation or be deemed a waiver
of any subsequent breach hereunder.
20. SEVERABILITY. In case any one or more of the provisions of this
Agreement shall for any reason be held to be invalid, illegal or unenforceable
in any respect, such invalidity, illegality or unenforceability shall not affect
any other provision of this Agreement but this Agreement shall be construed as
if such invalid or illegal or unenforceable provision or part of a provision had
never been contained herein. In the event of any inaccuracy or breach of any
representation, warranty, covenant or agreement contained in this Agreement, the
rights and remedies of the aggrieved party shall not be impaired or limited by
reason of the fact that the act, omission, occurrence, or other statement of
facts giving rise to such inaccuracy or breach may also be the subject matter of
any
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other representation, warranty, covenant or agreement contained in this
Agreement (or any other agreement between the parties) as to which there is no
inaccuracy or breach.
21. ARBITRATION.
(a) GENERAL. Any controversy, claim, or dispute among the
parties hereto arising out of or related to this Agreement or the breach
thereto, which cannot be settled amicably by the parties, shall be submitted for
binding arbitration in accordance with the provisions contained herein and in
accordance with the Commercial Arbitration Rules of the American Arbitration
Association ("Rules"); provided, however, that notwithstanding any provisions of
such Rules, the parties shall have the right to take depositions and obtain
discovery regarding the subject matter of the arbitration, as provided in Title
III of Part 4 (commencing with Section 1985) of the California Code of Civil
Procedure. Judgment upon the award rendered by the arbitrator may be entered in
any court having jurisdiction. The arbitrator shall determine all questions of
fact and law relating to any controversy, claim, or dispute hereunder, including
but not limited to whether or not any such controversy, claim, or dispute is
subject to the arbitration provisions contained herein.
(b) THIRD-PARTY CONTROVERSY. If a controversy, claim, or
dispute arises among the parties hereto which is subject to the arbitration
provisions hereunder, and there exists or later arises a controversy, claim, or
dispute between the parties hereto and any third party, which controversy,
claim, or dispute arises out of or relates to the same transaction or series of
transactions, said third party controversy, claim, or dispute shall be
consolidated with the arbitration proceedings hereunder; provided, however, that
any such third party must be a party to an agreement with a party hereto which
provides for arbitration of disputes thereunder in accordance with rules and
procedures substantially the same in all material respects as provided for
herein or, if not, must consent to arbitration as provided for hereunder.
(c) VENUE. All arbitration proceedings shall be held in San
Diego, California.
(d) NOTICES. Notice of the demand for arbitration shall be
filed in writing with the other parties to this Agreement and with the American
Arbitration Association., it being understood, however, that notices intended
for the Selling Parties need only be given to Simula and that separate notices
need not be given to AI or Simula.
22. ATTORNEYS' FEES. Should any party hereto employ an attorney for the
purpose of enforcing or construing this Agreement, or any judgment based on this
Agreement, in any legal proceeding whatsoever, including insolvency, bankruptcy,
arbitration, declaratory relief or other litigation, the prevailing party shall
be entitled to receive from the other party or parties thereto reimbursement for
all attorneys' fees and all costs, including but not limited to service of
process costs, filing fees, court and court reporter costs, investigative costs,
expert witness fees and the cost of any bonds, whether taxable or not. Any such
reimbursement shall be included in any judgment or final order or award issued
in that proceeding. "Prevailing Party" means the party determined to most nearly
prevail and not necessarily the one in whose favor a judgment or award is
rendered. Attorneys' fees incurred in enforcing any judgment or award are
recoverable as a separate item, and this provision for post-judgment or
post-award attorneys' fees shall survive any judgment or award and shall not be
deemed merged into any judgment or award.
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23. CONSTRUCTION. Whenever the context so requires in this Agreement,
all words used in the singular shall be construed to have been used in the
plural (and vice versa), each gender shall be construed to include any other
genders, and the word "person" shall be construed to include a natural person, a
corporation, a firm, a partnership, a joint venture, a trust, an estate, or any
other entity.
24. FURTHER ASSURANCES. Each party to this Agreement shall execute all
instruments and documents and take all actions as may be reasonably required to
effectuate this Agreement.
25. AMENDMENTS. No addition to or modification of any provision
contained in this Agreement shall be effective unless fully set forth in a
writing signed by all parties.
26. AUTHORITY OF SIGNATORIES. Each individual signing this Agreement on
behalf of a corporation warrants that he or she is duly authorized to execute
and deliver this Agreement on behalf of the corporation, in accordance with a
duly adopted resolution of the board of directors of the corporation or in
accordance with the bylaws of the corporation, and that this Agreement is
binding on the corporation in accordance with its terms.
27. ENTIRE AGREEMENT. This Agreement is one of a series of agreements
executed as part of an integrated transaction described in the Asset Purchase
Agreement. This Agreement, together with the Asset Purchase Agreement and with
all other agreements, assignments and exhibits expressly referred to therein or
herein, constitutes the entire agreement between the parties hereto with respect
to the subject matter of this Agreement. All prior agreements, representations,
negotiations and understandings of the parties hereto, oral or written, express
or implied, are hereby superseded and merged herein. To the maximum extent
permitted by law, each party expressly waives any right of rescission and all
claims for damages by reason of any statement, representation, warranty, promise
and/or agreement, if any, not contained or referenced to in this Agreement.
[SIGNATURES APPEAR ON FOLLOWING PAGE]
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IN WITNESS WHEREOF, the parties have caused their duly authorized
representatives to execute and deliver, this Non-Competition Agreement as of the
day and year first above written.
"SELLER" AIRLINE INTERIORS, INC., an Arizona corporation
By: /s/ Xxxxxxx X. Xxxxx
Printed Name: Xxxxxxx X. Xxxxx
Its: Secretary
"SIMTEC" SIMULA TRANSPORTATION EQUIPMENT CORPORATION, an Arizona
corporation
By: /s/ Xxxxxxx X. Xxxxx
Printed Name: Xxxxxxx X. Xxxxx
Its Secretary
"SIMULA" SIMULA, INC., an Arizona corporation
By: /s/ Xxxxx X. Xxxx
Printed Name: Xxxxx X. Xxxx
Its: CFO
"STI" SIMULA TECHNOLOGIES, INC., an Arizona corporation
By: /s/ Xxxxxxx X. Xxxxx
Printed Name: Xxxxxxx X. Xxxxx
Its: Secretary
"XXXXX" XXXXX AIRCRAFT, INC., a Delaware corporation
By: /s/ Xxxxxx Xxxxxxx
Xxxxxx Xxxxxxx
President
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PATENT LICENSE AGREEMENT
(SECTION 6.6)
This PATENT LICENSE AGREEMENT (the "Agreement") is made as of the 1st day
of February 2000 by and between XXXXX AIRCRAFT, INC., a Delaware corporation
("Licensor"), and SIMULA, INC., an Arizona corporation ("Licensee"), and SIMULA
TECHNOLOGIES, INC., an Arizona corporation ("STI"), with reference to the
following Recitals:
RECITALS
A. Licensor and Licensee, among others, are parties to that certain Asset
Purchase Agreement dated December 24, 1999, as amended (the "Asset Purchase
Agreement") and that certain Non-Competition Agreement of even date herewith
(the "Non-Compete Agreement").
B. Licensee is the inventor and the former owner of United States Patent
No. 5,730,492 entitled "16 G Load-Limiting Seat Technology" issued on March 24,
1998 (the "Patent"). The Patent is referred to as the "Shared Use Patent" in the
Asset Purchase Agreement.
C. Pursuant to the terms and conditions of the Asset Purchase Agreement,
Licensee has sold the Patent, and has assigned all of its right, title and
interest in and to the Patent to Licensor. Section 6.6 of the Asset Purchase
Agreement provides that Licensor shall grant Licensee and its affiliates a
license to utilize the Patent in the Included Markets (as defined below).
D. STI is an affiliate of Licensee.
E. The parties are executing this Agreement in order to memorialize their
understanding concerning the foregoing matters.
AGREEMENT
NOW, THEREFORE, in consideration of the Asset Purchase Agreement, the sale
of the Patent to Licensor, the above Recitals, the mutual covenants contained
below in this Agreement and other valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties agree as follows:
104
1. INTERPRETATION. This Agreement is intended to implement Section 6.6 and
other provisions of the Asset Purchase Agreement referring to the licensing of
the Patent by Licensee. In the event of a conflict between the provisions of
this Agreement and those of the Asset Purchase Agreement, this Agreement shall
control. In the event of a conflict between this Agreement and the Non-Compete
Agreement, the Non-Compete Agreement shall control. Terms with initial capital
letters are defined terms which shall have the respective meanings given them in
the Asset Purchase Agreement, unless the context of this Agreement requires
otherwise.
2. GRANT. Subject to all the terms and conditions of this Agreement,
including without limitation Section 3 below, Licensor hereby grants, and
Licensee and hereby accepts, a perpetual, worldwide, exclusive license (the
"License") to make, use, market and sell products utilizing the technology and
inventions set forth in the Patent. The grant of the License is extended only to
Licensee and not to STI or any other affiliates of Licensee. Notwithstanding the
foregoing, it is agreed that STI shall have the right to use the technology
covered by the Patent as provided in Section 6 of the Non-Competition Agreement.
3. SCOPE. The scope of the License shall be limited to the military
aviation, executive and business helicopter and general aviation aircraft
markets anywhere in the world (collectively, the "Included Markets"). The
Included Markets shall not include either the Business Jet Market (as defined in
the Non-Compete Agreement) or the Commercial Airline Market (as defined in the
Non-Compete Agreement) (collectively, the "Excluded Markets"). Licensee shall
not design, develop, manufacture, market, distribute or sell any products
utilizing the technology or inventions covered by the Patent in, or for use in,
the Excluded Markets. Licensor shall not design, develop, manufacture, market,
distribute or sell any products utilizing the technology or inventions covered
by the Patent in, or for use in, the Included Markets.
4. ROYALTIES. The License shall be royalty free and Licensee shall not be
obligated to make any payments to Licensor for the utilization of the technology
and inventions covered by the Patent.
5. OWNERSHIP AND LICENSE OF IMPROVEMENTS. The parties agree that all
enhancements or betterments of the Patent or the technology set forth in the
Patent (collectively, the "Improvements") developed or acquired by Licensee, its
employees or agents during the term of this Agreement shall be considered a part
of the technology covered by the Patent and shall be owned solely by Licensor.
Licensee, its employees and agents shall not have any right, title or interest
in or to any Improvement; provided, however, that all Improvements shall be
licensed to Licensee subject to all the same terms and conditions of this
Agreement, including without limitation Section 3 and Section 4 above. None of
Licensee, its employees or agents shall, at any time during or after the term of
this Agreement, dispute or contest, directly or indirectly, Licensor's exclusive
right and title to the Improvements. Licensee agrees (a) to take, or cause to be
taken, all actions, (b) to do, or cause to be done, all things, and (c) to
execute, or cause to be executed, any documents, instruments or conveyances of
any kind which may be necessary, proper or advisable (y) to evidence Licensor's
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105
sole right, title and interest in and to any Improvement, or (z) to register
such Improvement in Licensor's name.
6. INFRINGEMENT/ LITIGATION.
(A) THIRD PARTY INFRINGEMENT. During the term of this Agreement, each
party agrees to notify the other promptly in the event such party becomes aware
of any infringement or potential infringement of the Patent by a third party.
Licensor shall have the sole and exclusive right to pursue, at its expense and
in its own name, all actions for damages or equitable relief against third
parties who infringe the Patent. Licensee shall not pursue independently on any
lawsuits or causes of action for infringement of the Patent unless its licensed
use is infringed and Licensor elects not to enforce the License after having
received notice of such infringement. Licensor shall not be obligated to pursue
any action for infringement of the Patent, and Licensor may settle or otherwise
dispose of any action brought by it in any manner it sees fit, including without
limitation consenting to the entry of any judgement or binding judicial
determination, notwithstanding that such entry of judgement or binding judicial
determination might impair the validity of or materially adversely affect the
Patent or any claims thereof and provided it is not detrimental to Licensee's
rights hereunder. Licensor shall be entitled to all money or property awarded or
paid during or after the term of this Agreement from any judgment or settlement
resulting from any action or counterclaim brought by Licensor concerning the
Patent.
(B) PATENT DEFENSE. In the event any action or proceeding is filed
against Licensor or Licensee alleging that the Patent is invalid or infringes on
any other patent or intellectual property right of any third party, Licensor
may, but shall not be obligated to defend such action or proceeding at its sole
expense. If Licensor elects to defend such action or proceeding, Licensee agrees
to cooperate fully with Licensor and its representatives in the defense of any
such action. Licensor may settle or otherwise dispose of any action brought by
it in any manner it sees fit, including without limitation consenting to the
entry of any judgement or binding judicial determination, notwithstanding that
such entry of judgement or binding judicial determination might impair the
validity of or materially adversely affect the Patent or any claims thereof.
7. TERM. This Agreement shall become effective on the Effective Date and
shall terminate automatically without notice in the event that (a) Licensor
elects to not further maintain the Patent (in which case the License shall be
considered fully paid-up and irrevocable), or (b) Licensee (i) designs,
develops, manufactures, markets, distributes or sells any products utilizing the
technology or inventions covered by the Patent in, or for use in, the Excluded
Markets, other than specifically allowed under this Agreement, (ii) attempts to
assign or transfer its rights under this Agreement or the License, (iii)
attempts to sublicense the technology and inventions covered by the Patent in
contravention of Section 8 below, (iv) fails to maintain insurance as required
under this Agreement, or (v) files a petition in bankruptcy or is adjudicated
bankrupt or insolvent, or makes an assignment for the benefit of creditors, or
an arrangement pursuant to any bankruptcy law, or discontinues or dissolves its
business, or if a receiver is appointed for the Licensee or for the Licensee's
business.
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106
8. ASSIGNMENT. Licensee shall not be entitled to assign its rights under
this Agreement or to sublicense the technology or the inventions covered by the
Patent, except as permitted in this Section 8. Notwithstanding anything in this
Agreement to the contrary, it is agreed that (a) Licensee may sublicense the
License to a Simula Affiliate (as defined below) subject to all the terms and
conditions of this Agreement and (b) Licensee (or a permitted sublicensee), may
assign the License (or a permitted sublicense) in conjunction with the sale of
the business of a Simula Affiliate to whom the License has been sublicensed,
provided Licensee first obtains Licensor's prior written consent to such
assignment. Licensor's consent to such assignment of the License (or a permitted
sublicense) in conjunction with the sale of the business of a Simula Affiliate
shall not be unreasonably withheld. The term "Simula Affiliate" shall mean any
corporation which is owned by, controlled by, or under common control of Simula,
Inc.
9. INSURANCE. As a material inducement to Licensor to grant the License,
Licensee agrees to provide and maintain throughout the term of this Agreement,
at its own cost and expense, Comprehensive General Liability insurance including
Blanket Contractual Liability and Broad Form Property damage coverage in an
amount not less than Ten Million Dollars ($10,000,000) combined single limit,
per occurrence ("CGL Insurance") endorsed to include products liability
coverage, insuring the Licensee, its officers, directors, agents and employees
against injury, harm or damage, whether to persons or property, arising out of
Licensee's marketing, selling, or using products utilizing the technology or the
inventions covered by the Patent, and designating Licensor as an additional
named insured. All CGL Insurance shall be primary and be required to respond and
pay prior to any other available coverage. Not later than ten (10) days upon
written request by Licensor to Licensee, Licensee shall furnish evidence of such
coverage as well as notice of renewal, cancellation or change in such coverage
to Licensor
10. INDEMNIFICATION. In addition to any and all duties of Licensee set
forth in the Asset Purchase Agreement and this Agreement and as material
inducement to Licensor to grant the License to Licensee, Licensee hereby agrees
to defend, indemnify, and hold harmless Licensor against all Claims (as defined
below) and any costs, damages, liabilities, losses, lawsuits, and expenses
(including without limitation interest, penalties and reasonable attorneys'
fees) arising out of or relating to such Claims. For the purpose of this Section
10, the term "Claims" shall mean any costs, expenses, claims and liabilities
(including without limitation reasonable attorneys' fees) arising from or
pertaining to Licensee's marketing or selling of products or devices utilizing
the technology or inventions covered by the Patent.
11. COSTS AND EXPENSES. Each of the parties will bear its own expenses in
connection with the negotiation and the consummation of the transactions
contemplated by this Agreement. Each party shall be solely responsible for its
respective legal, accounting, and other out-of-pocket expenses.
12. GOVERNING LAW AND VENUE. This Agreement and any interpretation hereof
and the resolution of any dispute hereunder shall be governed by the laws of the
State of California, and
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subject to the parties' obligation to arbitrate and dispute any action to
enforce any provision of this Agreement or to obtain any remedy with respect
hereto may be brought in the appropriate state or federal court in San Diego
County, California. For this purpose each party hereto hereby expressly and
irrevocably consents to the jurisdiction of said court, it being understood and
agreed that the parties are obligated to arbitrate disputes between them
pursuant to Section 21.
13. INTERPRETATION. This Agreement shall not be interpreted against a party
by virtue of such party's participation in the drafting of the Agreement or any
provisions herein.
14. AMENDMENT. This Agreement may be amended, modified, or supplemented
only by an instrument in writing signed by all parties to this Agreement whose
rights or obligations are affected by such amendment, modification or
supplement.
15. INUREMENT. This Agreement shall be binding upon and inure to the
benefit to the successors and/or assigns of the parties hereto.
16. NOTICES.
(A) METHOD OF DELIVERY. Any notice, request, demand, consent, approval
or other communication (hereafter "notice") required or permitted under this
Agreement or by law shall be in writing and delivered by any of the following
means: (1) personally delivering the notice to a senior officer or duly
authorized representative of the other party, (2) depositing the notice in the
United States mail, postage prepaid, duly certified (return-receipt requested),
(3) sending the notice by a commercial overnight delivery service (such as
FedEx) which maintains delivery records, or (4) sending the notice by electronic
facsimile or telecopier ("fax") (with the sending party retaining evidence of
the time and date of transmission). Confirmations of any notices sent by fax
shall be sent by mail as provided above.
(B) ADDRESSES. Notices shall be addressed as follows:
If to Licensee: Simula, Inc.
0000 Xxxxx Xxxxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, XX 00000
Attn: Xxxxxxx X. Xxxxx, Esq.
Fax No.: (000) 000-0000
If to STI: Simula Technologies, Inc.
0000 Xxxxx Xxxxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, XX 00000
Attn: Xxxxxxx X. Xxxxx, Esq.
Fax No.: (000) 000-0000
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If to Licensor: Xxxxx Aircraft, Inc.
0000 Xxxxx Xxxxx
Xxxxxxxxxxx, Xxxxx 00000
Attn: Xxxxxx Xxxxxxx
Fax: (000) 000-0000
With copies to: Zodiac, S.A.
0, xxx Xxxxxxx Xxxxxx
00000, Xxxx-xxx-Xxxxxxxxxx Xxxxx
Xxxxxx
Attn: Xxxx-Xxxxxxx Xxxxx
Fax No: (000-000) 00 00 00 00
Xxxxxxx & Xxxxx
000 Xxxx X Xxxxxx, 00xx Xxxxx
Xxx Xxxxx, XX 00000
Attn: Xxxxxxx X. Xxxxxx, Esq.
Fax No.: (000) 000-0000
Any party may, from time to time, by written notice to the other, designate a
different address which shall be substituted for that specified above. It is
agreed that separate notices need not be sent to Simtec. Notices sent to Simula
shall be deemed to have been sent to Simtec and STI.
(C) EFFECTIVENESS. All notices shall be deemed effective upon receipt.
If personally delivered, notices shall be deemed received at the time of
delivery. If sent by mail, notices shall be deemed fully delivered and received
three (3) business days after the date of the postmark on the certified mail
receipt. If sent by commercial overnight delivery service, notices shall be
deemed fully delivered and received one (1) business day after the date of
deposit with such commercial overnight delivery service. If sent by fax, notices
shall be deemed received twenty-four (24) hours after transmission. Notices may
not be sent by e-mail. Rejection or other refusal to accept a notice or the
inability to deliver the same because of a changed address of which no notice
was given shall be deemed to be receipt of the notice sent. In the event of a
postal strike, all notices shall be personally delivered, sent by commercial
overnight delivery service, or sent by fax.
17. HEADINGS. The headings of the sections of this Agreement are for the
convenience of reference only, and do not form a part hereof, and in no way
modify, interpret or construe the meanings of the parties.
18. COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original and all of which shall
constitute one Agreement. The facsimile signatures of the parties shall be
deemed to constitute original signatures, and facsimile copies hereof shall be
deemed to constitute duplicate original counterparts.
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109
19. WAIVER. Any term or provision of this Agreement may be waived at any
time by the party entitled to the benefit thereof by a written instrument duly
executed by such party. The failure of any of the parties to this Agreement to
require the performance of any term or obligation under this Agreement or the
waiver by any of the parties to this Agreement of any breach hereunder shall not
prevent subsequent enforcement of such term or obligation or be deemed a waiver
of any subsequent breach hereunder.
20. SEVERABILITY. In case any one or more of the provisions of this
Agreement shall for any reason be held to be invalid, illegal or unenforceable
in any respect, such invalidity, illegality or unenforceability shall not affect
any other provision of this Agreement but this Agreement shall be construed as
if such invalid or illegal or unenforceable provision or part of a provision had
never been contained herein. In the event of any inaccuracy or breach of any
representation, warranty, covenant or agreement contained in this Agreement, the
rights and remedies of the aggrieved party shall not be impaired or limited by
reason of the fact that the act, omission, occurrence, or other statement of
facts giving rise to such inaccuracy or breach may also be the subject matter of
any other representation, warranty, covenant or agreement contained in this
Agreement (or any other agreement between the parties) as to which there is no
inaccuracy or breach.
21. ARBITRATION.
(A) GENERAL. Any controversy, claim, or dispute among the parties
hereto arising out of or related to this Agreement or the breach thereto, which
cannot be settled amicably by the parties, shall be submitted for binding
arbitration in accordance with the provisions contained herein and in accordance
with the Commercial Arbitration Rules of the American Arbitration Association
("Rules"); provided, however, that notwithstanding any provisions of such Rules,
the parties shall have the right to take depositions and obtain discovery
regarding the subject matter of the arbitration, as provided in Title III of
Part 4 (commencing with Section 1985) of the California Code of Civil Procedure.
Judgment upon the award rendered by the arbitrator may be entered in any court
having jurisdiction. The arbitrator shall determine all questions of fact and
law relating to any controversy, claim, or dispute hereunder, including but not
limited to whether or not any such controversy, claim, or dispute is subject to
the arbitration provisions contained herein.
(B) THIRD PARTY CONTROVERSY. If a controversy, claim, or dispute arises
among the parties hereto which is subject to the arbitration provisions
hereunder, and there exists or later arises a controversy, claim, or dispute
between the parties hereto and any third party, which controversy, claim, or
dispute arises out of or relates to the same transaction or series of
transactions, said third party controversy, claim, or dispute shall be
consolidated with the arbitration proceedings hereunder; provided, however, that
any such third party must be a party to an agreement with a party hereto which
provides for arbitration of disputes thereunder in accordance with rules and
procedures substantially the same in all material respects as provided for
herein or, if not, must consent to arbitration as provided for hereunder.
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(C) VENUE. All arbitration proceedings shall be held in San Diego,
California.
(D) NOTICES. Notice of the demand for arbitration shall be filed in
writing with the other party to this Agreement and with the American Arbitration
Association.
22. ATTORNEYS' FEES. Should any party hereto employ an attorney for the
purpose of enforcing or construing this Agreement, or any judgment based on this
Agreement, in any legal proceeding whatsoever, including insolvency, bankruptcy,
arbitration, declaratory relief or other litigation, the prevailing party shall
be entitled to receive from the other party or parties thereto reimbursement for
all attorneys' fees and all costs, including but not limited to service of
process costs, filing fees, court and court reporter costs, investigative costs,
expert witness fees and the cost of any bonds, whether taxable or not. Any such
reimbursement shall be included in any judgment or final order or award issued
in that proceeding. "Prevailing Party" means the party determined to most nearly
prevail and not necessarily the one in whose favor a judgment or award is
rendered. Attorneys' fees incurred in enforcing any judgment or award are
recoverable as a separate item, and this provision for post-judgment or
post-award attorneys' fees shall survive any judgment or award and shall not be
deemed merged into any judgment or award.
23. CONSTRUCTION. Where appropriate in this Agreement, words in the
singular shall include the plural, and words in the masculine shall include the
feminine.
24. AUTHORITY OF SIGNATORIES. Each individual signing this Agreement on
behalf of a corporation warrants that he or she is duly authorized to execute
and deliver this Agreement on behalf of the corporation, in accordance with a
duly adopted resolution of the board of directors of the corporation or in
accordance with the bylaws of the corporation, and that this Agreement is
binding on the corporation in accordance with its terms.
25. ENTIRE AGREEMENT. This Agreement is one of a series of agreements
executed as part of an integrated transaction described in the Asset Purchase
Agreement. This Agreement, together with the Asset Purchase Agreement and with
all other agreements, assignments and exhibits expressly referred to therein or
herein, constitutes the entire agreement between the parties hereto with respect
to the subject matter of this Agreement. All prior agreements, representations,
negotiations and understandings of the parties hereto, oral or written, express
or implied, are hereby superseded and merged herein. To the maximum extent
permitted by law, each party expressly waives any right of rescission and all
claims for damages by reason of any statement, representation, warranty, promise
and/or agreement, if any, not contained or referenced in this Agreement.
26. CAPACITY OF STI. STI is not acquiring any rights in the Patent or the
License by virtue of this Agreement. STI is executing this Agreement for the
limited purpose of confirming its agreement with the foregoing.
[SIGNATURES APPEAR ON FOLLOWING PAGE]
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IN WITNESS WHEREOF, the parties hereto have caused this Patent License
Agreement to be executed effective as of the date set forth above.
"LICENSEE:" SIMULA, INC.,
an Arizona corporation
By:/s/ Xxxxx X. Xxxx
Printed Name: Xxxxx X. Xxxx
Its: CFO
"STI" SIMULA TECHNOLOGIES, INC.,
an Arizona corporation
By: /s/ Xxxxxxx X. Xxxxx
Printed Name: Xxxxxxx X. Xxxxx
Its: Secretary
"LICENSOR:" XXXXX AIRCRAFT, INC.,
a Delaware corporation
By: /s/ Xxxxxxx Xxxxxxx
Printed Name: Xxxxxxx Xxxxxxx
Its: President
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Exhibit 10.40g
ASSIGNMENT OF INTELLECTUAL PROPERTY
(Section 5.2(j))
This ASSIGNMENT OF INTELLECTUAL PROPERTY (the "Assignment") is made as of
the 1st day of February 2000, by and between AIRLINE INTERIORS, INC., an Arizona
corporation, SIMULA, INC., an Arizona corporation (collectively the
"Assignors"), and XXXXX AIRCRAFT, INC., a Delaware corporation ("Assignee"),
with reference to the facts set forth in the Recitals below.
RECITALS
A. Assignors and Assignee are parties to that certain Asset Purchase
Agreement dated December 24, 1999, as amended (the "Asset Purchase Agreement").
This Agreement is being executed pursuant to Section 5.2(j) of the Asset
Purchase Agreement.
X. Xxxxxx, Inc. owns all right, title and interest in and to United States
Patent No. 5,730,492 entitled " Load-Limiting Seat" issued March 24, 1998 (the
"Patent"). Airline Interiors, Inc. owns all right, title and interest to and in
the remaining intellectual property The Patent and the remaining intellectual
property are collectively referred to as the "Intellectual Property," and is
defined more fully in Section 1.1(g) of the Asset Purchase Agreement and listed
in the Schedule of Intellectual Property attached hereto as Exhibit "A."
C. Section 1.1(g) of the Asset Purchase Agreement provides that, as a part
of the sale of the assets contemplated in the Asset Purchase Agreement,
Assignors shall assign to Assignee all of their right, title and interest in and
to the Intellectual Property.
D. The parties are executing this Assignment in order to memorialize their
understanding concerning the assignment of the Intellectual Property.
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AGREEMENT
NOW, THEREFORE, in consideration of the Asset Purchase Agreement, the above
Recitals and other good and valuable consideration, the receipt and legal
sufficiency of which are hereby acknowledged, the parties agree as follows:
1. INTERPRETATION. This Assignment is intended to implement the terms and
conditions of the Asset Purchase Agreement. In the event of a conflict between
the provisions of this Assignment and those of the Asset Purchase Agreement, the
Asset Purchase Agreement shall control. Terms with initial capital letters are
defined terms which shall have the respective meanings given them in the Asset
Purchase Agreement, unless the context of this Assignment requires otherwise.
2. TITLE TO INTELLECTUAL PROPERTY. Assignors own all right, interest and
title, legal and equitable, as to the (a) the Intellectual Property, (b) all
intellectual property rights (the "Associated Rights") associated with such
Intellectual Property in the United States and in all foreign countries
throughout the world (including any reissues, renewals, divisions continuations,
or foreign counterparts of such Intellectual Property), (c) all causes of
action, claims, damages and other rights (the "Ownership Rights") arising out of
or relating to the Intellectual Property or ownership thereof, including but not
limited to any and all claims for current or past infringement and the right to
xxx therefor, and (d) all goodwill (the "Goodwill") associated with or related
to the Intellectual Property. Assignors have the right to use, free and clear of
claims or rights of others, the Intellectual Property, the Associated Rights the
Ownership Rights and the Goodwill and the same are freely transferable by
Assignors. Assignors have not entered into any license agreement or similar
agreement that would entitle any other person than Assignors to use the
Intellectual Property, the Associated Rights the Ownership Rights and the
Goodwill.
3. NO INFRINGEMENT. Assignors are not aware, to the best of their
knowledge, of any infringement by others of Assignors' proprietary rights in the
Intellectual Property, the Associated Rights, the Ownership Rights and the
Goodwill, nor of any other current unauthorized use by other persons. There are
no claims or demands of any other person pertaining to the Intellectual Property
and no proceedings have been instituted, or are pending or threatened, which
challenge Assignors' right, title or interest to and in the Intellectual
Property, the Associated Rights the Ownership Rights and the Goodwill. Simula,
Inc. has paid all maintenance fees required to be paid in order to keep the
Patent in effect. The Patent is in full force and effect.
4. ASSIGNMENT BY ASSIGNORS. Subject to all of the terms and conditions of
the Asset Purchase Agreement and this Assignment, Assignors hereby assign to
Assignee all of Assignors' right, title and interest to and in the following:
(a) the Intellectual Property, (b) Associated Rights , (c) all Ownership Rights
arising out of or relating to the Intellectual Property or ownership thereof,
including but not limited to any and all claims for current or past infringement
and the right to xxx therefor, and (d) the Goodwill associated with or related
to the Intellectual Property.
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5. ACCEPTANCE BY ASSIGNEE. Subject to all the terms and conditions of the
Asset Purchase Agreement and this Assignment, Assignee hereby accepts the
assignment of the Intellectual Property, the Associated Rights and the Ownership
Rights.
6. FURTHER ASSURANCES. Assignors agree, without cost to Assignee, to
execute all instruments and documents and take all actions as may be reasonably
required to effectuate this Assignment, including without limitation to execute
all rightful oaths, assignments, powers of attorney and other documents which
Assignee shall consider desirable or necessary for (a) vesting title to the
Intellectual Property, the Goodwill, the Associated Rights and the Ownership
Rights in Assignee, or (b) for registering such rights with governmental
authorities in Assignee's name in the United States or worldwide.
7. EFFECTIVE DATE. This Assignment shall be effective as of the Closing.
8. BINDING EFFECT. This Assignment shall be binding upon, and inure to the
benefit of the respective successors and assignees of Assignee and
Assignors.
9. GOVERNING LAW AND VENUE. This Agreement and any interpretation hereof
and the resolution of any dispute hereunder shall be governed by the
laws of the State of California, and subject to the parties' obligation
to arbitrate and dispute any action to enforce any provision of this
Agreement or to obtain any remedy with respect hereto may be brought in
the appropriate state or federal court in San Diego County, California.
For this purpose each party hereto hereby expressly and irrevocably
consents to the jurisdiction of said court, it being understood and
agreed that the parties are obligated to arbitrate disputes between
them pursuant to Section 16 below.
10. INTERPRETATION. This Agreement shall not be interpreted against a party
by virtue of such party's participation in the drafting of the
Agreement or any provisions herein.
11. AMENDMENT. This Agreement may be amended, modified, or supplemented
only by an instrument in writing signed by all parties to this
Agreement whose rights or obligations are affected by such amendment,
modification or supplement.
12. INUREMENT. This Agreement shall be binding upon and inure to the
benefit to the successors and/or assigns of the parties hereto.
13. NOTICES.
(a) METHOD OF DELIVERY. Any notice, request, demand, consent, approval
or other communication (hereafter "notice") required or permitted under this
Agreement or by law shall be in writing and delivered by any of the following
means: (1) personally delivering the notice to a senior officer or duly
authorized representative of the other party, (2) depositing the notice in the
United States mail, postage prepaid, duly certified (return-receipt requested),
(3) sending the notice by a commercial overnight delivery service (such as
FedEx) which maintains delivery records, or (4) sending the notice by electronic
facsimile or telecopier ("fax") (with the sending party retaining
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evidence of the time and date of transmission). Confirmations of any notices
sent by fax shall be sent by mail as provided above.
(B) ADDRESSES. Notices shall be addressed as follows:
If to Assignors: Simula, Inc.
0000 Xxxxx Xxxxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, XX 00000
Attn: Xxxxxxx X. Xxxxx
Fax No.: (000) 000-0000
If to Assignee: Xxxxx Aircraft, Inc.
0000 Xxxxx Xxxxx 0
Xxxxxxxxxxx, XX 00000
Attn: Xxxxxx Xxxxxxx
Fax No. (000) 000-0000
With a copy to: Zodiac S.A.
0, Xxx Xxxxxxx Xxxxxx
00000, Xxxx-xxx-Xxxxxxxxx Xxxxx
Xxxxxx
Attn: Xxxx-Xxxxxxx Xxxxx
Fax No: (000-000) 00 00 00 00
With a copy to: Xxxxxxx & Xxxxx
000 Xxxx X Xxxxxx, 00xx Xxxxx
Xxx Xxxxx, XX 00000
Attn: Xxxxxxx X. Xxxxxx, Esq.
Fax No. (000) 000-0000
Any party may, from time to time, by written notice to the other, designate a
different address which shall be substituted for that specified above. Notices
sent to Simula, Inc. shall be deemed to have been sent to Airline Interiors,
Inc.
(C) EFFECTIVENESS. All notices shall be deemed effective upon receipt.
If personally delivered, notices shall be deemed received at the time of
delivery. If sent by mail, notices shall be deemed fully delivered and received
three (3) business days after the date of the postmark on the certified mail
receipt. If sent by commercial overnight delivery service, notices shall be
deemed fully delivered and received one (1) business day after the date of
deposit with such commercial overnight delivery service. If sent by fax, notices
shall be deemed received twenty-four (24) hours after transmission. Notices may
not be sent by e-mail. Rejection or other refusal to accept a notice or the
inability to deliver the same because of a changed address of which no notice
was given shall be deemed to be receipt of the notice sent. In the event of a
postal strike, all notices
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shall be personally delivered, sent by commercial overnight delivery service, or
sent by fax.
14. HEADINGS. The headings of the sections of this Agreement are for the
convenience of reference only, and do not form a part hereof, and in no way
modify, interpret or construe the meanings of the parties.
15. COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original and all of which shall
constitute one Agreement. The facsimile signatures of the parties shall be
deemed to constitute original signatures, and facsimile copies hereof shall be
deemed to constitute duplicate original counterparts.
16. WAIVER. Any term or provision of this Agreement may be waived at any
time by the party entitled to the benefit thereof by a written instrument duly
executed by such party. The failure of any of the parties to this Agreement to
require the performance of term or obligation under this Agreement or the waiver
by any of the parties to this Agreement of any breach hereunder shall not
prevent subsequent enforcement of such term or obligation or be deemed a waiver
of any subsequent breach hereunder.
17. SEVERABILITY. In case any one or more of the provisions of this
Agreement shall for any reason be held to be invalid, illegal or unenforceable
in any respect, such invalidity, illegality or unenforceability shall not affect
any other provision of this Agreement but this Agreement shall be construed as
if such invalid or illegal or unenforceable provision or part of a provision had
never been contained herein. In the event of any inaccuracy or breach of any
representation, warranty, covenant or agreement contained in this Agreement, the
rights and remedies of the aggrieved party shall not be impaired or limited by
reason of the fact that the act, omission, occurrence, or other statement of
facts giving rise to such inaccuracy or breach may also be the subject matter of
any other representation, warranty, covenant or agreement contained in this
Agreement (or any other agreement between the parties) as to which there is no
inaccuracy or breach.
18. ARBITRATION.
(a) GENERAL. Any controversy, claim, or dispute among the parties
hereto arising out of or related to this Agreement or the breach thereto, which
cannot be settled amicably by the parties, shall be submitted for binding
arbitration in accordance with the provisions contained herein and in accordance
with the Commercial Arbitration Rules of the American Arbitration Association
("Rules"); provided, however, that notwithstanding any provisions of such Rules,
the parties shall have the right to take depositions and obtain discovery
regarding the subject matter of the arbitration, as provided in Title III of
Part 4 (commencing with Section 1985) of the California Code of Civil Procedure.
Judgment upon the award rendered by the arbitrator may be entered in any court
having jurisdiction. The arbitrator shall determine all questions of fact and
law relating to any controversy, claim, or dispute hereunder, including but not
limited to whether or not any such controversy, claim, or dispute is subject to
the arbitration provisions contained herein.
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(b) THIRD PARTY CONTROVERSY. If a controversy, claim, or dispute arises
among the parties hereto which is subject to the arbitration provisions
hereunder, and there exists or later arises a controversy, claim, or dispute
between the parties hereto and any third party, which controversy, claim, or
dispute arises out of or relates to the same transaction or series of
transactions, said third party controversy, claim, or dispute shall be
consolidated with the arbitration proceedings hereunder; provided, however, that
any such third party must be a party to an agreement with a party hereto which
provides for arbitration of disputes thereunder in accordance with rules and
procedures substantially the same in all material respects as provided for
herein or, if not, must consent to arbitration as provided for hereunder.
(c) VENUE. All arbitration proceedings shall be held in San Diego,
California.
(d) NOTICES. Notice of the demand for arbitration shall be filed in
writing with the other party to this Agreement and with the American Arbitration
Association.
19. ATTORNEYS' FEES. Should any party hereto employ an attorney for the
purpose of enforcing or construing this Agreement, or any judgment based on this
Agreement, in any legal proceeding whatsoever, including insolvency, bankruptcy,
arbitration, declaratory relief or other litigation, the prevailing party shall
be entitled to receive from the other party or parties thereto reimbursement for
all attorneys' fees and all costs, including but not limited to service of
process costs, filing fees, court and court reporter costs, investigative costs,
expert witness fees and the cost of any bonds, whether taxable or not. Any such
reimbursement shall be included in any judgment or final order or award issued
in that proceeding. "Prevailing Party" means the party determined to most nearly
prevail and not necessarily the one in whose favor a judgment or award is
rendered. Attorneys' fees incurred in enforcing any judgment or award are
recoverable as a separate item, and this provision for post-judgment or
post-award attorneys' fees shall survive any judgment or award and shall not be
deemed merged into any judgment or award.
20. CONSTRUCTION. Whenever the context so requires in this Agreement, all
words used in the singular shall be construed to have been used in the plural
(and vice versa), each gender shall be construed to include any other genders,
and the word "person" shall be construed to include a natural person, a
corporation, a firm, a partnership, a joint venture, a trust, an estate, or any
other entity.
21. AUTHORITY OF SIGNATORIES. Each individual signing this Agreement on
behalf of a corporation warrants that he or she is duly authorized to execute
and deliver this Agreement on behalf of the corporation, in accordance with a
duly adopted resolution of the board of directors of the corporation or in
accordance with the bylaws of the corporation, and that this Agreement is
binding on the corporation in accordance with its terms.
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22. ENTIRE AGREEMENT. This Agreement is one of a series of agreements
executed as part of an integrated transaction described in the Asset Purchase
Agreement. This Agreement, together with the Asset Purchase Agreement and with
all other agreements, assignments and exhibits expressly referred to therein or
herein, constitutes the entire agreement between the parties hereto with respect
to the subject matter of this Agreement. All prior agreements, representations,
negotiations and understandings of the parties hereto, oral or written, express
or implied, are hereby superseded and merged herein. To the maximum extent
permitted by law, each party expressly waives any right of rescission and all
claims for damages by reason of any statement, representation, warranty, promise
and/or agreement, if any, not contained or referenced to in this Agreement.
[SIGNATURES APPEAR ON FOLLOWING PAGE]
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IN WITNESS WHEREOF, Assignors and Assignee have executed this Assignment of
Intellectual Property as of the date first above written.
"ASSIGNOR:" AIRLINE INTERIORS, INC.,
an Arizona corporation
By: /s/ Xxxxxxx X. Xxxxx
___________________________
Printed Name: Xxxxxxx X. Xxxxx
Its: Secretary
"ASSIGNOR:" SIMULA, INC.,
an Arizona corporation
By:/s/ Xxxxx X. Xxxx
_________________________
Printed Name: Xxxxx X. Xxxx
Its: CFO
"ASSIGNEE:" XXXXX AIRCRAFT, INC.,
a Delaware corporation
By: /s/ Xxxxxxx Xxxxxxx
___________________________
Printed Name: Xxxxxxx Xxxxxxx
Its: President
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EXHIBIT "A"
SCHEDULE OF INTELLECTUAL PROPERTY
Trademarks, Tradenames, and Service Marks
- Common Law Trademark "AIRLINE INTERIORS' (Corporate Name)
- Common Law Trademark "AIRLINE INTERIORS" plus design (Corporate Logo)
- Common Law Trademark "AI-1000" for Tourist Class Airplane Seats
- Common Law Trademark "AI-2000" for Business Class Airplane Seats
Patent Concepts or Ideas
- United States Patent No. 5,730,492 entitled "16 G Load-Limiting Seat
Technology" issued March 24, 1998 (the "Patent")
- All concepts, technology and inventions set forth in the Patent
Copyrights
- Logo "AIRLINE INTERIOR"
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Exhibit 10.40h
TRANSITION SUPPORT AGREEMENT
(Section 7.9)
This TRANSITION SUPPORT AGREEMENT (the "Agreement") is made as of the 1st
day of February 2000 by and between AIRLINE INTERIORS, INC., an Arizona
corporation ("AI"), SIMULA TRANSPORTATION EQUIPMENT CORPORATION, an Arizona
corporation ("Simtec"), SIMULA, INC., an Arizona corporation ("Simula"), and
XXXXX AIRCRAFT, INC., a Delaware corporation ("Xxxxx"), with reference to the
following Recitals:
RECITALS
A. Simula is the sole shareholder of Simtec, which is in turn the sole
shareholder of AI. AI, Simula and Simtec are sometimes collectively referred to
herein as the "Selling Parties."
B. AI is engaged in the business (the "Business") of manufacturing and
marketing new aircraft passenger seats. AI operates its main manufacturing and
service facility (the "Poway Facility") for the Business in Poway, California.
X. Xxxxx is also engaged in the business of manufacturing and marketing new
aircraft passenger seats. Xxxxx is headquartered and maintains a manufacturing
facility ("Xxxxx'x Facility") in Gainesville, Texas.
D. Selling Parties and Xxxxx are parties to that certain Asset Purchase
Agreement dated December 24, 1999, as amended (the "Asset Purchase Agreement").
E. Pursuant to the Asset Purchase Agreement, AI has sold to Xxxxx certain
assets, which are defined in the Asset Purchase Agreement as the "Included
Assets." The Included Assets are substantially all the assets currently used by
AI in connection with the Business.
F. This Agreement is being executed pursuant to Section 7.9 of the Asset
Purchase Agreement, which provides that AI will assist Xxxxx in the orderly
relocation of the Business from the Poway Facility to Xxxxx'x Facility after the
Closing.
G. The parties are executing this Agreement in order to memorialize their
understanding concerning the foregoing matters.
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AGREEMENT
NOW, THEREFORE, in consideration of the Asset Purchase Agreement, the above
Recitals, the mutual covenants contained below in this Agreement and other
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties agree as follows:
ARTICLE 1
INTRODUCTORY MATTERS
1.1 Interpretation. In the event of a conflict between the provisions of
this Agreement and those of the Asset Purchase Agreement, this Agreement shall
control. Terms with initial capital letters are defined terms which shall have
the respective meanings given them in the Asset Purchase Agreement, unless the
context of this Agreement requires otherwise.
1.2 Certain Definitions.
(a) AI's Transition Team. The term "AI's Transition Team" shall have
the meaning given it in Section 1.4 below.
(b) AT Sublease. The term "AT Sublease" shall have the meaning given it
in Section 4.1(a) below.
(c) Covered Claims.
(1) The term "Covered Claims" shall mean all liabilities (including
without limitation reasonable attorneys' fees) arising out of or pertaining to
any claim (other than an Excluded Claim) arising out of acts or circumstances
occurring or existing before or after the Closing which may be asserted at any
time against Xxxxx:
(i) By any person who was employed by AI before or after the
Closing, including without limitation claims based on employment discrimination,
workers compensation, unpaid wages, salaries or benefits, personal injury,
sexual harassment, termination of employment and payments required under the
WARN Act in laying off its employees employed in the Poway Facility;
(ii) By any governmental agency based on or arising out of AI's
alleged failure to comply with the WARN Act in laying off its employees employed
in the Poway Facility;
(iii) By the landlord under the Poway Lease for any alleged
breach of the Poway Lease at any time (except as otherwise provided in Section
3.2 below with respect to damage or destruction caused by the negligence or
willful misconduct of Xxxxx);
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(iv) By any third party arising out of the use or occupancy of
the Poway Facility; or
(v) By the subtenant under the AT Sublease.
(2) The term Covered Claims shall not include the Excluded Claims.
Notwithstanding anything in this Agreement to the contrary, it is agreed that
the Covered Claims shall, however, include claims that may be asserted by the
Temporary Personnel for injuries that occur after the Closing which are covered
by worker's compensation insurance, unless such claims are Excluded Claims.
(d) Excluded Claims. The term "Excluded Claims" shall mean (1) any
claims asserted after the Closing by Xxxxx'x Permanent Hires with respect to
acts or omissions of Xxxxx in its capacity as the new employer of Xxxxx'x
Permanent Hires; (2) any claims asserted after the Closing by the Temporary
Personnel for sexual harassment or other employment law violations by Xxxxx'x
employees, or personal injury resulting from the gross negligence or willful
misconduct of Xxxxx; (3) any claims by the landlord under the Poway Lease for
any damage or destruction of the Poway Facility caused by the negligence or
willful misconduct of Xxxxx; and (4) any claims by any third party arising out
of Xxxxx'x use or occupancy of the Poway Facility during the Transition Period
in violation of the subject lease.
(e) Prohibited Transactions. The term "Prohibited Transactions" shall
have the meaning given it in Section 3.4 below.
(f) Rent. The term "Rent" shall have the meaning given it in Section
4.1(a) below.
(g) Termination Notice. The term "Termination Notice" shall have the
meaning given it in Section 1.2(j) below.
(h) Temporary Personnel. The term "Temporary Personnel" shall have the
meaning given it in Section 2.1(b) below.
(i) Temporary Personnel Costs. The term "Temporary Personnel Costs"
shall have the meaning given it in Section 2.1(b) below.
(j) Transition Period. The term "Transition Period" shall mean a period
of time following the Closing during which Xxxxx will operate in the Poway
Facility pursuant to this Agreement in order to prepare the Business for
relocation to Xxxxx'x Facility. The Transition Period will begin immediately
after the Closing and end when Xxxxx vacates the Poway Facility, it being
agreed, however, that the Transition Period shall not extend beyond July 31,
2000. Xxxxx shall give AI written notice (the "Termination Notice") of when
Xxxxx has vacated the Poway Facility. The last day of the Transition Period
shall be the day on which AI receives the Termination Notice from Xxxxx.
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(k) Xxxxx'x Permanent Hires. The term "Xxxxx'x Permanent Hires" shall
have the meaning given it in Section 2.1(a) below.
(l) Xxxxx'x Transition Team. The term "Xxxxx'x Transition Team" shall
have the meaning given it in Section 2.1 (b) below.
1.3 Parties' Intent. Initially, the parties anticipated that Xxxxx would
continue manufacturing Products in the Poway Facility during the Transition
Period. Xxxxx no longer plans to conduct manufacturing operations in the Poway
Facility after the Closing. Instead, after the Closing, Xxxxx anticipates that
it will promptly relocate and transfer the Business and all the Included Assets
from the Poway Facility to Xxxxx'x Facility. During the Transition Period, Xxxxx
expects to shut down the Business in preparation for its immediate relocation to
Xxxxx'x Facility. Selling Parties shall assist Xxxxx in relocating the Business
and Xxxxx will reimburse Selling Parties for certain expenses related thereto,
as more fully provided below. All decisions affecting the Business shall be made
by Xxxxx. Subject to all the provisions of this Agreement, AI shall perform the
Services in the manner specified in this Agreement in order to meet the
day-to-day operational requirements of the Business during the Transition
Period, as well as the requirements for an orderly relocation of the Business to
Xxxxx'x Facility. AI shall not engage in any Prohibited Transactions without
Xxxxx'x prior written approval.
1.4 Scope of Services. Using the Temporary Personnel, AI's Transition Team,
Simula's corporate MIS support staff in Phoenix, AZ and AI's computer and
telephone systems, and other equipment of AI in the Poway Facility, Selling
Parties shall provide to Xxxxx the administrative and operational support
services (the "Services") reasonably required to cease manufacturing the
Products in the Poway Facility and to move the Business and the Included Assets
in an orderly manner to Xxxxx'x Facility. The specific Services to be provided
by Simula and AI are listed on the Schedule of Services attached hereto as
Exhibit "A" and elsewhere in this Agreement. Xxxxx shall exercise reasonable
care and supervision in assigning tasks to be performed by the Temporary
Personnel. Before the Closing, Selling Parties shall appoint a facilities
manager and a transition manager (collectively, "AI's Transition Team") to
manage the Poway Facility after the Closing and to coordinate the performance of
the Services with Xxxxx'x Transition Team. AI shall pay the cost of AI's
Transition Team. AI's Transition Team shall not be part of the Temporary
Personnel. Xxxxx shall inform and consult with AI's Transition Team on a
frequent basis during the Transition Period. AI shall not undertake any other
business activities or ventures in its Poway Facility or elsewhere which would
prevent AI from performing the Services. No compensation shall be required to be
paid to Selling Parties for providing the Services except as provided in Article
4 below.
1.5 Mutual Cooperation. The parties' respective Transition Teams shall
cooperate with one another and provide services to one another that do not
interfere with their respective primary duties as provided in this Section 1.5.
Xxxxx'x Transition Team's primary duties shall be to support Xxxxx. AI's
Transition Team's primary duties shall be to support AI. As part of the
cooperation contemplated in this Section 1.5, it is agreed that Xxxx Xxxxxxx and
Xxxxxx Xxxxxx, who will be
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assigned as Temporary Personnel to Xxxxx'x Transition Team, will provide certain
certification and DIMR Services for the benefit of Selling Parties. The parties
shall also cooperate with one another on (1) security and lock changing matters
relating to the Poway Facility and (2) the copying of AI's business records.
ARTICLE 2
PERSONNEL MATTERS
2.1 Xxxxx'x Transition Team.
(a) Xxxxx'x Permanent Hires. Prior to the Closing, Xxxxx shall identify
those employees (the "Xxxxx'x Permanent Hires") of AI whom Xxxxx desires to hire
to work in the Poway Facility (or elsewhere) during the Transition Period and
thereafter. As of the Closing, Xxxxx'x Permanent Hires shall cease to be
employees of AI and shall become employees of Xxxxx. At that time, Xxxxx shall
be solely responsible for paying all salaries, wages and benefits of Xxxxx'x
Permanent Hires in accordance with applicable law. Selling Parties shall assist
and cooperate with the transition of Xxxxx'x Permanent Hires from AI's payroll
to the payroll and benefits systems of Xxxxx. Before the Closing, Xxxxx shall
give Selling Parties notice of each offer of permanent employment made to AI's
employees and the terms thereof, whether accepted or not.
(b) Temporary Staffing. In order to supply the temporary personnel
assistance needed to help Xxxxx relocate the Business and the Included Assets,
AI shall "lease" certain of AI's employees (the "Temporary Personnel") to Xxxxx
during the Transition Period. Before the Closing, Xxxxx shall give Selling
Parties notice of each offer of temporary employment made to AI's employees and
the terms thereof, whether accepted or not. AI shall be deemed to be the
employer of record for the Temporary Personnel for all purposes. Xxxxx shall,
however, be entitled to identify the tasks to be performed by the Temporary
Personnel, subject to the supervision of appropriate AI and Xxxxx personnel. The
Temporary Personnel shall include AI personnel required to relocate the Business
and the Included Assets to Xxxxx'x facility and to operate and maintain the
Poway Facility and the telephone and computer systems located therein during the
Transition Period. Selling Parties are not obligated to provide these employees
to Xxxxx if Xxxxx is unable to induce them to continue working after the
Closing. Xxxxx shall reimburse AI for the actual amount of the Temporary
Personnel's wages, FICA and other payroll taxes, benefits and a reasonable
amount to compensate AI for the cost of health and worker's compensation
insurance premiums during the Transition Period (collectively, the "Temporary
Personnel Costs"). The cost of such insurance is listed on the Schedule of
Insurance Costs for Temporary Personnel attached hereto as Exhibit "B." Xxxxx
shall be entitled to pay - through AI's auspices - a "stay-bonus" to the
Temporary Personnel. The amount of the stay-bonus shall be determined by Xxxxx.
The stay-bonus shall not be used to offset or reduce any payments due the
Temporary Personnel under the WARN Act. Hereafter, Xxxxx'x Permanent Hires and
the Temporary Personnel may sometimes be collectively referred to as "Xxxxx'x
Transition Team."
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ARTICLE 3
OPERATION OF BUSINESS DURING TRANSITION PERIOD
3.1 Relationship of Parties - No Agency. During the Transition Period,
neither party shall be agents of the other. Neither party shall have authority
to bind, obligate or commit the other in any capacity or to execute contracts on
behalf of the other. Neither AI nor Xxxxx shall be deemed to be a partner, joint
venturer, alter ego, manager, controlling person, or other business associate or
participant of any kind of the other in connection with the Business or the
Poway Facility.
3.2 Poway Lease. During the Transition Period, AI shall, for all purposes,
remain and be deemed to be the tenant under that certain Standard
Industrial/Commercial Multi-Tenant Lease-Modified Net dated September 15, 1997
(the "Poway Lease") between AI, as tenant, and W. H. Pomerado, LLC, as landlord.
Xxxxx shall not be deemed to have either assumed the Poway Lease, or subleased
the Poway Facility (in whole or in part). AI hereby grants Xxxxx an irrevocable
license to use the Poway Facility during the Transition Period, subject to this
Agreement and the Poway Lease. Because of Xxxxx'x limited rights as a licensee,
Xxxxx shall not be deemed in control of the Poway Facility. In exercising its
rights under such license, Xxxxx shall at all times comply with the Poway Lease
and shall pay - without xxxx-up or increase - the Rent payable by AI under the
Poway Lease as specified in Section 4.1(a) below; provided, however, that in no
event shall Xxxxx be obligated to pay for any repairs or maintenance of the
Poway Facility or for any other expense which is capital in nature, unless such
repairs or maintenance work is caused by the negligence or willful misconduct of
Xxxxx, its employees, or member of Xxxxx'x Transition Team. It is understood and
agreed that Selling Parties shall have the right to show the Poway Facility to
potential tenants /subtenants during the Transition Period, but the Poway Lease
shall not be terminated or assigned (which shall be deemed to include any
subleasing of the Poway Facility) in a manner which would interfere with Xxxxx'x
rights under this Agreement until the end of the Transition Period. Xxxxx shall
not be responsible for surrendering the Poway Facility to the landlord or
delivering same to successor tenants or subtenants or for returning any leased
equipment to the lessors thereof. The Rent, premiums for insurance coverages
required under the Poway Lease, and property taxes for the Poway Facility shall
not be deemed to be part of AI's trade accounts payable to be assumed by Xxxxx
under the Asset Purchase Agreement. AI shall be solely responsible for paying
for such items out of its own funds, except as provided in this Agreement during
the Transition Period.
3.3 Operation of Business. Unless otherwise instructed by Xxxxx in writing,
during the Transition Period AI shall:
(a) Cease operating the Business during the Transition Period except as
necessary to provide the Services;
(b) Cease all manufacturing operations in the Poway Facility effective
as of the close of business on the Closing Date;
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(c) Assist Xxxxx in assuming control over the Business and in
transferring title to and possession of the Included Assets to Xxxxx;
(d) Continue to operate and maintain the Poway Facility in accordance
with the Poway Lease; and
(e) Provide the Services to Xxxxx, as provided elsewhere in this
Agreement.
3.4 Prohibited Transactions. During the Transition Period, AI shall not do,
or agree to do, any of the following acts ("Prohibited Transactions") in
connection with or relating to the operation of the Business and the transfer of
the Business to Xxxxx'x Facility without the prior written approval of Xxxxx:
(a) Issue or approve any purchase orders;
(b) Enter into any contract, commitment, or transaction on behalf of
Xxxxx, in any amount or for any purpose;
(c) Write checks drawn on accounts owned by Xxxxx;
(d) Agree to any payment arrangements (for extending credit or
deferring payment) with suppliers or vendors which are not approved in advance
by Xxxxx;
(e) Accept from vendors any non-conforming goods or merchandise, i.e.,
raw materials, supplies, or other items for which reimbursement will be sought
from Xxxxx which (1) do not comply with the standard descriptions for the
Products or such other items, or (2) do not comply with orders placed with the
vendors by AI at the direction of Xxxxx;
(f) Ship any Products;
(g) Respond to or otherwise handle any product liability claims for any
Product;
(h) Sell any Products of any kind or in any quantity;
(i) Open any new customer accounts;
(j) Resolve or compromise any customer warranty disputes or any items
listed in service bulletins; or
(k) Terminate or modify the Poway Lease, or do anything that would
prevent Xxxxx from operating in the Poway Facility during the Transition Period.
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3.5 Collection of Monies. Except as may be expressly provided otherwise in
the Asset Purchase Agreement, all monies collected by any Selling Party in
connection with or relating to the sale of the Products and/or the operation of
the Business during the Transition Period shall be deemed to be collected by any
Selling Party for the account of and benefit of Xxxxx, it being understood that
Xxxxx has purchased all of AI's accounts receivables pursuant to the Asset
Purchase Agreement . Any monies that may be collected or received by AI after
the Closing in connection with or relating to the sale of Products and/or
Business shall belong to Xxxxx and such funds shall not be commingled with funds
of Selling Parties and shall be deposited without delay into bank accounts owned
by Xxxxx.
3.6 No Conflicting Duties. During the Transition Period, AI and its
directors and officers shall not serve as officers, directors, employees,
consultants or advisors to any business which competes, directly or indirectly,
with the Business, without the prior written consent of Xxxxx. AI confirms that
it is under no contractual commitments inconsistent with its obligations set
forth in this Agreement, and that during the Transition Period, it will not
render or perform services, or enter into any contract to do so, for any other
corporation, firm, entity or person, including Simula and Simtec, which are
inconsistent with the provisions of this Agreement.
3.7 Regulatory Compliance. During the Transition Period, AI shall comply
with the internal risk management procedures and controls established by Xxxxx
and all federal, state and local licensing, certification, permit, and approval
requirements applicable to the Business or the Poway Facility.
3.8 Assistance From Selling Parties. Subject to Xxxxx'x payment of the
amounts specified in Article 4 below, Selling Parties hereby agree to use their
best efforts to take, or cause to be taken, all actions and to do, or cause to
be done, all things reasonably required by Xxxxx to consummate the relocation of
the Business to Xxxxx'x Facility and to implement the transactions contemplated
by this Agreement, including without limitation to provide adequate
administrative and computer support and to make available to Xxxxx immediately
upon Xxxxx'x request all test records, technical data, numerical dynamic models
and the like in connection with or relating to the Products, to the extent same
are part of the Included Assets.
ARTICLE 4
FINANCIAL MATTERS
4.1 Payments to AI. As compensation for the Services, Xxxxx shall pay AI
the following amounts:
(a) Rent. Xxxxx shall pay the Base Rent and the Common Area Operating
Expenses (collectively "Rent") payable by AI under the Poway Lease for the six
(6) month period beginning on the Closing and ending July 31, 2000; provided,
however, that any rental payments received by AI from Aerospace Technologies in
connection with or relating to the sublease (the "AT Sublease") of a portion of
the Poway Facility by Aerospace Technologies during said six-month
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period shall be credited to reduce the amount so payable by Xxxxx for the Rent.
The Rent shall be paid as provided in Section 4.2 below. The amount of the Rent
is specified on the Invoice dated January 6, 2000 attached hereto as Exhibit
"C." Xxxxx'x obligation to pay the Rent for the above referenced six-month
period will continue beyond the end of the Transition Period. Termination of the
Transition Period shall not reduce or end Xxxxx'x obligation to pay the Rent. If
AI should become excused from paying the rent due under the Poway Lease (due to
damage or destruction of the Poway Facility or otherwise but not for subletting
or assigning), Xxxxx'x obligation to pay the Rent shall be reduced to the same
extent.
(b) Approved Cost Items. Xxxxx shall reimburse AI for the actual amount
of the following direct, out-of-pocket costs and expenses ("Approved Cost
Items") reasonably incurred by AI in connection with or relating to the
operation of the Business during the Transition Period and the transfer of the
Business to Xxxxx'x Facility:
(1) The cost of electrical, gas, water and telephone service to the
Poway Facility during the Transition Period; provided, however, that the cost of
long distance telephone calls shall be subject to audit and review by Xxxxx in
order to verify that such calls were made in furtherance of the Business and/or
its relocation;
(2) Rent for any equipment leased by AI (to the extent not part of
the Included Assets) which is used by Xxxxx in furtherance of the Business
and/or its relocation;
(3) Property and general liability insurance premiums payable with
respect to the Poway Facility during the Transition Period;
(4) Real property taxes for the Poway Facility during the Transition
Period; and
(5) Such other out-of-pocket expenses as may be reasonably incurred
by AI in providing the Services; provided, however, that without Xxxxx'x prior
written approval, Xxxxx shall not be obligated to reimburse AI for any type or
category of cost which is not expressly listed in this Section 4.1 or on Exhibit
"A."
(c) Temporary Personnel Costs. In addition to the other items listed in
this Section 4.1, Xxxxx shall reimburse AI for the Temporary Personnel Costs.
Xxxxx and AI shall agree on a mutually satisfactory mechanism for payment of the
Temporary Personnel Costs before the Closing.
(d) Corporate Support Costs. Xxxxx shall not be required to pay Selling
Parties any additional amount for any corporate support services provided as
part of the Services by any Selling Party during the Transition Period, except
as provided in this Section 4.1(d). Xxxxx Xxxxxx and Xxx Xxxxxx will be on-site
at Poway regularly during the Transition Period and shall fully cooperate and
provide the Services without cost to Xxxxx. Notwithstanding anything to the
contrary, if Xxxxx requests that either Xxxxx Xxxxxx or Xxx Xxxxxx travel to San
Diego, California to work
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exclusively for the benefit of Xxxxx, Xxxxx shall (1) pay Simula $1,250 per day
(prorated for partial days) for each day that such individuals work in San Diego
and (2) reimburse Simula for the reasonable out-of-pocket travel costs for
airline fares, car rentals, and hotel rooms incurred by such individuals.
4.2 Time of Payment. . Xxxxx shall pay the Rent in installments on the
first day of each calendar month for which Xxxxx is obligated to pay the Rent,
beginning on February 2, 2000. The installment due on February 2, 2000 shall
cover the period beginning at midnight on the Closing Date and ending on
February 28, 2000. Unless otherwise agreed in writing, Xxxxx shall pay the other
amounts payable by it under Section 4.1 above twice monthly. In order to be
reimbursed by the fifteenth (15th) day of a calendar month, AI shall submit to
Xxxxx - not later than the fifth (5th) day of such month - invoices stating in
reasonable detail the amount of and the reason for each item for which payment
is being sought and the justification/explanation for Xxxxx'x obligation to pay
same; provided, however, that AI's failure to submit such invoices in a timely
manner shall not release Xxxxx from its obligations to make the payments
provided for in this Article 4.
ARTICLE 5
TERM AND TERMINATION
5.1 Term. This Agreement shall become effective at the Closing. The term of
this Agreement shall commence on the Closing and shall continue until the end of
the Transition Period.
5.2 Termination for Cause. Either party may terminate this Agreement for
cause with immediate effect at any time by giving written notice of the
termination to the other party. "Cause" shall include, without limitation, the
following:
(a) Appointment of a receiver or trustee to manage the assets of AI;
(b) Assignment for the benefit of creditors of the assets of AI;
(c) AI's filing for bankruptcy protection; or
(d) Any material breach of this Agreement by either party, which is not
cured to the reasonable satisfaction of the non-breaching party within five (5)
business days after the breaching party's receipt of notice of default from the
non-breaching party. Xxxxx shall be in material breach of this Agreement if it
fails to pay amounts due to AI within fifteen (15) days of notice of non-payment
from AI.
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ARTICLE 6
INDEMNIFICATION
6.1 Indemnification by AI. In addition to any and all duties of AI set
forth in the Asset Purchase Agreement and this Agreement, AI shall defend,
indemnify, and hold Xxxxx harmless from any costs, damages, liabilities, losses,
lawsuits, and expenses (including without limitation interest, penalties and
reasonable attorneys' fees) arising out of or relating to the Covered Claims.
6.2 Indemnification by Xxxxx. In addition to any and all duties of Xxxxx
set forth in the Asset Purchase Agreement and this Agreement, Xxxxx shall
defend, indemnify, and hold AI harmless from any costs, damages, liabilities,
losses, lawsuits, and expenses (including, without limitation interest,
penalties and reasonable attorneys' fees) arising out of or relating to the
Excluded Claims.
6.3 Dispute Resolution. If the parties dispute their liability with respect
to any Covered Claim or Excluded Claim, such dispute, or any other dispute
arising out of this Agreement, shall be resolved by arbitration pursuant to
Section 7.11 below.
ARTICLE 7
MISCELLANEOUS PROVISIONS
7.1 Costs and Expenses. Each of the parties will bear its own expenses in
connection with the negotiation and the consummation of the transactions
contemplated by this Agreement. Each party shall be solely responsible for its
respective legal, accounting, and other out-of-pocket expenses.
7.2 Governing Law and Venue. This Agreement and any interpretation hereof
and the resolution of any dispute hereunder shall be governed by the laws of the
State of California, and subject to the parties' obligation to arbitrate and
dispute any action to enforce any provision of this Agreement or to obtain any
remedy with respect hereto may be brought in the appropriate state or federal
court in San Diego County, California. For this purpose each party hereto hereby
expressly and irrevocably consents to the jurisdiction of said court, it being
understood and agreed that the parties are obligated to arbitrate disputes
between them pursuant to Section 7.11 below.
7.3 Interpretation. This Agreement shall not be interpreted against a party
by virtue of such party's participation in the drafting of the Agreement or any
provisions herein.
7.4 Amendment. This Agreement may be amended, modified, or supplemented
only by an instrument in writing signed by all parties to this Agreement whose
rights or obligations are affected by such amendment, modification or
supplement.
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7.5 Inurement. This Agreement shall be binding upon and inure to the
benefit to the successors and/or assigns of the parties to this Agreement.
7.6 Notices.
(a) Method of Delivery. Any notice, request, demand, consent, approval
or other communication (hereafter "notice") required or permitted under this
Agreement or by law shall be in writing and delivered by any of the following
means: (1) personally delivering the notice to a senior officer or duly
authorized representative of the other party, (2) depositing the notice in the
United States mail, postage prepaid, duly certified (return-receipt requested),
(3) sending the notice by a commercial overnight delivery service (such as
FedEx) which maintains delivery records, or (4) sending the notice by electronic
facsimile or telecopier ("fax") (with the sending party retaining evidence of
the time and date of transmission). Confirmations of any notices sent by fax
shall be sent by mail as provided above.
(b) Addresses. Notices shall be addressed as follows:
If to AI: Airline Interiors, Inc.
00000 Xxxxxx Xxxxxx
Xxxxx, XX 00000
Attn: Xxxxxx Xxxxxx
Fax No.: (000) 000-0000
With a copy to: Simula, Inc.
0000 Xxxxx Xxxxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, XX 00000
Attn: Xxxxxxx X. Xxxxx, Esq.
Fax No.: (000) 000-0000
If to Purchaser: Xxxxx Aircraft, Inc.
0000 Xxxxx Xxxxx
Xxxxxxxxxxx, Xxxxx 00000
Attn: Xxxxxx Xxxxxxx
Fax: (000) 000-0000
With copies to: Zodiac, S.A.
0, xxx Xxxxxxx Xxxxxx
00000, Xxxx-xxx-Xxxxxxxxxx Xxxxx
Xxxxxx
Attn: Xxxx-Xxxxxxx Xxxxx
Fax No: (000-000) 00 00 00 00
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Xxxxxxx & Xxxxx
000 Xxxx X Xxxxxx, 00xx Xxxxx
Xxx Xxxxx, XX 00000
Attn: Xxxxxxx X. Xxxxxx, Esq.
Fax No.: (000) 000-0000
Any party may, from time to time, by written notice to the other, designate a
different address which shall be substituted for that specified above. It is
agreed that separate notices need not be sent to Simtec. Notices sent to Simula
shall be deemed to have been sent to Simtec.
(c) Effectiveness. All notices shall be deemed effective upon receipt.
If personally delivered, notices shall be deemed received at the time of
delivery. If sent by mail, notices shall be deemed fully delivered and received
three (3) business days after the date of the postmark on the certified mail
receipt. If sent by commercial overnight delivery service, notices shall be
deemed fully delivered and received one (1) business day after the date of
deposit with such commercial overnight delivery service. If sent by fax, notices
shall be deemed received twenty-four (24) hours after transmission. Notices may
not be sent by e-mail. Rejection or other refusal to accept a notice or the
inability to deliver the same because of a changed address of which no notice
was given shall be deemed to be receipt of the notice sent. In the event of a
postal strike, all notices shall be personally delivered, sent by commercial
overnight delivery service, or sent by fax.
7.7 Headings. The headings of the sections of this Agreement are for the
convenience of reference only, and do not form a part hereof, and in no way
modify, interpret or construe the meanings of the parties.
7.8 Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original and all of which shall
constitute one Agreement. The facsimile signatures of the parties shall be
deemed to constitute original signatures, and facsimile copies hereof shall be
deemed to constitute duplicate original counterparts.
7.9 Waiver. Any term or provision of this Agreement may be waived at any
time by the party entitled to the benefit thereof by a written instrument duly
executed by such party. The failure of any of the parties to this Agreement to
require the performance of term or obligation under this Agreement or the waiver
by any of the parties to this Agreement of any breach hereunder shall not
prevent subsequent enforcement of such term or obligation or be deemed a waiver
of any subsequent breach hereunder.
7.10 Severability. In case any one or more of the provisions of this
Agreement shall for any reason be held to be invalid, illegal or unenforceable
in any respect, such invalidity, illegality or unenforceability shall not affect
any other provision of this Agreement but this Agreement shall be construed as
if such invalid or illegal or unenforceable provision or part of a provision had
never been contained herein. In the event of any inaccuracy or breach of any
representation, warranty, covenant or agreement contained in this Agreement, the
rights and remedies of the aggrieved party
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shall not be impaired or limited by reason of the fact that the act, omission,
occurrence, or other statement of facts giving rise to such inaccuracy or breach
may also be the subject matter of any other representation, warranty, covenant
or agreement contained in this Agreement (or any other agreement between the
parties) as to which there is no inaccuracy or breach.
7.11 Arbitration.
(a) General. Any controversy, claim, or dispute among the parties
hereto arising out of or related to this Agreement or the breach thereto, which
cannot be settled amicably by the parties, shall be submitted for binding
arbitration in accordance with the provisions contained herein and in accordance
with the Commercial Arbitration Rules of the American Arbitration Association
("Rules"); provided, however, that notwithstanding any provisions of such Rules,
the parties shall have the right to take depositions and obtain discovery
regarding the subject matter of the arbitration, as provided in Title III of
Part 4 (commencing with Section 1985) of the California Code of Civil Procedure.
Judgment upon the award rendered by the arbitrator may be entered in any court
having jurisdiction. The arbitrator shall determine all questions of fact and
law relating to any controversy, claim, or dispute hereunder, including but not
limited to whether or not any such controversy, claim, or dispute is subject to
the arbitration provisions contained herein.
(b) Third-Party Controversy. If a controversy, claim, or dispute arises
among the parties hereto which is subject to the arbitration provisions
hereunder, and there exists or later arises a controversy, claim, or dispute
between the parties hereto and any third party, which controversy, claim, or
dispute arises out of or relates to the same transaction or series of
transactions, said third party controversy, claim, or dispute shall be
consolidated with the arbitration proceedings hereunder; provided, however, that
any such third party must be a party to an agreement with a party hereto which
provides for arbitration of disputes thereunder in accordance with rules and
procedures substantially the same in all material respects as provided for
herein or, if not, must consent to arbitration as provided for hereunder.
(c) Venue. All arbitration proceedings shall be held in San Diego,
California.
(d) Notices. Notice of the demand for arbitration shall be filed in
writing with the other parties to this Agreement and with the American
Arbitration Association, it being understood, however, that notices intended for
the Selling Parties need only be given to Simula and that separate notices need
not be given to AI or Simula.
7.12 Attorneys' Fees. Should any party hereto employ an attorney for the
purpose of enforcing or construing this Agreement, or any judgment based on this
Agreement, in any legal proceeding whatsoever, including insolvency, bankruptcy,
arbitration, declaratory relief or other litigation, the prevailing party shall
be entitled to receive from the other party or parties thereto reimbursement for
all attorneys' fees and all costs, including but not limited to service of
process costs, filing fees, court and court reporter costs, investigative costs,
expert witness fees and the cost of any bonds, whether taxable or not. Any such
reimbursement shall be included in any judgment or final order or award issued
in that proceeding. "Prevailing Party" means the party determined to
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most nearly prevail and not necessarily the one in whose favor a judgment or
award is rendered. Attorneys' fees incurred in enforcing any judgment or award
are recoverable as a separate item, and this provision for post-judgment or
post-award attorneys' fees shall survive any judgment or award and shall not be
deemed merged into any judgment or award.
7.13 Construction. Whenever the context so requires in this Agreement, all
words used in the singular shall be construed to have been used in the plural
(and vice versa), each gender shall be construed to include any other genders,
and the word "person" shall be construed to include a natural person, a
corporation, a firm, a partnership, a joint venture, a trust, an estate, or any
other entity.
7.14 Authority of Signatories. Each individual signing this Agreement on
behalf of a corporation warrants that he or she is duly authorized to execute
and deliver this Agreement on behalf of the corporation, in accordance with a
duly adopted resolution of the board of directors of the corporation or in
accordance with the bylaws of the corporation, and that this Agreement is
binding on the corporation in accordance with its terms.
7.15 Entire Agreement. This Agreement is one of a series of agreements
executed as part of an integrated transaction described in the Asset Purchase
Agreement. This Agreement, together with the Asset Purchase Agreement and with
all other agreements, assignments and exhibits expressly referred to therein or
herein, constitutes the entire agreement between the parties hereto with respect
to the subject matter of this Agreement. All prior agreements, representations,
negotiations and understandings of the parties hereto, oral or written, express
or implied, are hereby superseded and merged herein. To the maximum extent
permitted by law, each party expressly waives any right of rescission and all
claims for damages by reason of any statement, representation, warranty, promise
and/or agreement, if any, not contained or referenced to in this Agreement.
7.16 Calculation of Business Days. For purposes of this Agreement, the term
"business days" shall mean days of the week other than Saturdays, Sundays and
legal holidays in the United States.
7.17 Approvals by Xxxxx. The only persons authorized to grant any approval
or consent required of Xxxxx under this Agreement shall be Xxxxxx Xxxxxxx or
such other person(s) to whom he may delegate this responsibility.
[SIGNATURES APPEAR ON FOLLOWING PAGE]
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IN WITNESS WHEREOF, the parties hereto have caused this Transition
Support Agreement to be executed effective as of the date set forth above.
"AI:" AIRLINE INTERIORS, INC., an Arizona
corporation
By: /s/ Xxxxxxx X. Xxxxx
Printed Name: Xxxxxxx X. Xxxxx
Its: Secretary
"XXXXX:" XXXXX AIRCRAFT, INC., a Delaware corporation
By: /s/ Xxxxxxx XxXxxxx
Printed Name: Xxxxxxx XxXxxxx
Its: President
"SIMTEC:" SIMULA TRANSPORTATION EQUIPMENT
CORPORATION, an Arizona corporation
By: /s/ Xxxxxxx X. Xxxxx
Printed Name: Xxxxxxx X. Xxxxx
Its: Secretary
"SIMULA:" SIMULA, INC.,
an Arizona corporation
By:/s/ Xxxxx X. Xxxx
Printed Name: Xxxxx X. Xxxx
Its: CFO
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EXHIBIT "A"
(TO TRANSITION SUPPORT AGREEMENT)
SCHEDULE OF SERVICES
Subject to Xxxxx'x financial obligations under Article 4, in addition to
any Services listed elsewhere in the Agreement, Selling Parties shall provide
the following Services during the Transition Period:
1. Providing the Temporary Personnel who receive and accept offers of
employment from Xxxxx and services reasonably required to operate and maintain
the building systems in the Poway Facility, including without limitation
telephone and computer systems, facilities management, facilities security,
trash removal and other similar services;
2. During the Transition Period, Selling Parties shall also provide - at no
cost or expense to Xxxxx - necessary corporate support for all computer systems
used in the Business, including by way of illustration but not limitation: the
Man-Fact software program, the Solid Works and
3. Autocad software programs, subject, however, to Section 4.1(d) above.
Such services shall exclude data conversion to Xxxxx'x systems, but Simula shall
provide reasonable support and advice to Xxxxx'x personnel for such process;
4. Providing such administrative services deemed necessary by Xxxxx to
operate the Business and to transfer the Business and the Included Assets to
Xxxxx'x Facility;
5. Maintaining customer service support functions as deemed necessary by
Xxxxx for customers of the Business;
6. Providing after sale services to customers of the Business and end users
of the Products;
7. Providing support as reasonably required by Xxxxx to ship the Included
Assets to Xxxxx'x Facility;
8. Managing the warehouse where the Included Inventory is stored;
9. Collecting the accounts receivables included in the Included Assets as
directed by Xxxxx;
10. Providing MIS support services to computer systems in the Poway
Facility from Simula's headquarters in Phoenix, AZ, subject to Section 4.1 (d)
above; and
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11. Providing accounting support by Xxxxx Xxxxxx of Simula in Phoenix, AZ,
subject to Section 4.1 (d) above.
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EXHIBIT "B"
(TO TRANSITION SUPPORT AGREEMENT)
SCHEDULE OF INSURANCE COSTS
FOR TEMPORARY PERSONNEL
AIRLINES INTERIORS, INC.
COBRA MONTHLY INSURANCE RATES
Employee Only Employee and Family
1. Health, Life & Ancillary $ 232.73 $651.82
2. Vision $ 8.09 $ 18.03
3. Worker's Compensation $ 94.23 NA
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EXHIBIT "C"
(To Transition Support Agreement)
INVOICE
------------------------
|POMERADO LEASING NO. 1|
|P.O. BOX 12440 |
xXXX XXXXX, XX 00000 |
------------------------
------------------------ ----------------------------
|AIRLINE INTERIORS | |INVOICE DATE: JAN 06, 2000|
|ATTN: ACCOUNTS PAYABLE| | |
|12325 KERRAN ST | |REFERENCE: DECREASE IN XXXx
xXXXXX, XX 00000 | | CHARGE |
------------------------ ----------------------------
-------------------------------------------------------
|THE FOLLOWING REPRESENTS RENT DUE EFFECTIVE 01/01/00:|
| |
|CURRENT MONTHLY RENT: $55,342.|
|MONTHLY OPERATING EXPENSES: $15,120.|
|MONTHLY TENANT IMPROVEMENT CHARGE: $ 8,954.|
|MONTHLY AMOUNT DUE EFFECTIVE 01/01/00: $79,416.|
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|REMITTANCE ADVICE: |
|WE DO NOT INVOICE ON A MONTHLY BASIS. |
| |
|PLEASE MAKE CHECKS PAYABLE TO: |
|POMERADO LEASING NO. 1 |
| |
|TOTAL DUE MONTHLY (EFFECTIVE 01/01/00): $79,416. |
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