Exhibit 10(c)
ASSET PURCHASE AGREEMENT
THIS ASSET PURCHASE AGREEMENT (the "Agreement") is made this 16th day of
November, 1998, by and between ROSEMOUNT AEROSPACE INC., a Delaware corporation
("Buyer"), and ROBOTIC VISION SYSTEMS, INC., a Delaware corporation ("Seller").
RECITALS
A. Seller has developed certain ice detector products as described in Exhibit
A to this Agreement, and associated components, technology, intellectual
property, and items of Seller's Aircraft Safety Division ("Division")
(collectively, "Products).
B. Buyer desires to purchase and acquire from Seller and Seller desires to
sell and transfer to Buyer all of Seller's rights in and with respect to
the Products and all technology related to the Products, and those certain
assets of Seller related to the research, know-how, development,
production and sale of the Products identified in this Agreement on the
terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the mutual covenants, agreements and
representations herein contained, Buyer and Seller agree to the foregoing and as
follows:
ARTICLE I
PURCHASE AND SALE
1.1 Purchase and Sale. Seller agrees to sell and transfer to Buyer and Buyer
agrees to purchase and accept from Seller on the Closing Date, as hereinafter
defined, free and clear of any and all claims, liens or encumbrances of any kind
whatsoever, the Products and all of the following (hereinafter collectively
referred to as the "Assets"):
a) Contract Rights. Seller's rights under the contracts and relationships
listed in Exhibit B hereto ("the Contacts"), including without limitation
Seller's rights to supplies and materials ordered, and accounts receivable
and other rights to payment with respect to the Contracts;
b) Tooling and Equipment. All of those certain items of machinery, tooling,
test equipment and/or other personal property listed on Exhibit C hereto
(the "Tooling and Equipment"), with an aggregate value of not less than
the amount set forth in Section 7.3(a);
c) Inventory. All inventories of raw materials, supplies, parts, components,
finished Products and other items related to the Products (including
without limitation those items listed on Exhibit D hereto) held by the
Seller on the Closing Date for use by Seller in connection with the
Products or for sale to customers (the "Inventory"), with an aggregate
value of not less than the amount set forth in Section 7.3(a);
d) Intellectual Property. All patents and patent applications, trademarks,
service marks, trade names, trademark, service xxxx and trade name
registrations, copyrights, (and applications therefor), product names,
designations, descriptions and identifiers, logos, product literature,
marketing materials, price lists, trade secrets, and all of the technical
and business information used or possessed by or on behalf of Seller
whether in tangible or intangible form (including all originals and copies
thereof), including, without limitation, designs, drawings, design data,
plans, specifications, test specifications and procedures, cost and
pricing data, customer lists and contacts, customer history information,
market information, data, charts, graphs, blueprints, sketches, models,
prototypes, samples, engineering drawings, engineering and R & D notebooks
and embodiments thereof, reports, analyses, assembly instructions,
procedures, product literature, quality control documentation, maintenance
and modification manuals, training installation and operation manuals,
processes, formulae, manufacturing techniques and processes, forms,
records, manuals, software, hardware, source codes, object codes, systems,
technical libraries, data bases, studies, know-how, knowledge, experience
base, CDRH and other government, regulatory and/or industry submissions or
approvals and applications therefor (if applicable to the Products, and
all information, rights, and data related thereto), and all other research
and development, projects, inventions, discoveries, improvements, trade
secrets, ideas, know-how, technical data and information, whether written
or unrecorded and whether in human readable, machine readable, electronic
format or other format, which pertain or relate to or arise
from the Products, Product derivatives, Division-led research projects
and/or Contracts, and/or the manufacture, research, development approvals,
marketing, sale, warranty, operation, failure, return, repair and/or
performance of the Products, Product derivatives and/or Division-led
research projects together with all information, rights, and data in
whatever form related thereto, and the sole and exclusive ownership and
right to make, have made, develop, certify, operate, use and sell the same
(the "Intellectual Property"). The Intellectual Property includes, without
limitation, those items described in Exhibit E hereto; and
e) Related Rights. All claim, warranty or indemnification rights, causes of
action, rights of recovery and rights of set off of whatever kind of
description, (but not the responsibility or any obligation with respect
thereto) against third parties, arising out of or relating to the
Products, Contracts, Tooling and Equipment, Intellectual Property or
Inventory, and/or all applicable insurance coverages related thereto.
Assets do not include, and Seller will be solely responsible for, and will
defend, indemnify and hold Buyer harmless against, all claims, demands,
liabilities and obligations of any kind, in any manner arising from or
relating to the Assets or Products with respect to events occurring,
matters existing, or conditions or circumstances arising prior to the
Transfer Date (as defined below), all real estate and real estate related
matters (including without limitation, leases and environmental matters),
regardless of whether used in the production or sale of the Products,
performance of the Contracts, or use of the Inventory or Intellectual
Property, and all liabilities or obligations which are not expressly
assumed in Section 1.3 of this Agreement by Buyer. Seller will, at its
sole cost and expense, maintain its lease and operation of the Division's
facility located at 000 Xxxx Xxxxxx Xxxxx, Xxxxx 00, Xxxxxxxxx, Xxx Xxxx
(the "Facility"), and continue to assume all responsibilities therefor,
both before and after the Closing and the period of the Transition
Services Agreement.
1.2 Retained Liabilities. Notwithstanding anything to the contrary, Seller
retains and, Buyer does not assume, any liability or obligation in any manner
arising from or related to (1) the Division, Seller or Facility at any time; or
(2) the Assets or Products for any event occurring, matter existing, or
condition or circumstance arising prior to the first to occur of (i) twenty-one
(21) days after the date on which substantially all of the Assets are received
at Buyer's Minnesota facility to allow for the production of the Products by
Buyer, or (ii) the termination of the Transition Services Agreement (attached as
Exhibit F) pursuant to Section 4.1(i) thereof (the "Transfer Date"). Without
limiting the foregoing, Seller shall retain, and Buyer shall not assume, the
foregoing and following liabilities and obligations (the "Retained
Liabilities"):
a) Taxes on the transfer, or any income, gain or profits realized by Seller,
as a result of the sale of the Assets under this Agreement;
b) All of Seller's federal, state, local and foreign taxes, charges, and/or
duties of all types, together with interest and penalties thereon;
c) All warranty, return, service and/or other obligations with respect to
goods or services of the Division; all warranty, return, service, and/or
other obligations with respect to the Products provided or sold on or
prior to the Transfer Date or Products which were held in Inventory on the
Transfer, subject to Section 5.8;
d) All claims alleging product defect, injury or death to persons or damage
to property arising out of Products manufactured or sold prior to the
Transfer Date;
e) Obligations and liabilities relating to or arising out of or incurred in
connection with the Contracts which accrue or relate to periods,
circumstances or events arising prior to the Transfer Date, and any costs
or liabilities arising from noncompliance by Seller with applicable laws
and regulations (including without limitation any increased costs or
additional liabilities imposed on Buyer in connection with any of the
Contracts as a result of such noncompliance by Seller).
f) Liabilities arising out of the sale or use of the Products or Assets or
conduct of the Division prior to the Transfer Date, or based on
occurrences, facts, or circumstances occurring or in existence on or prior
to the Transfer Date, whenever the liability arises or the claim is made;
g) Environmental, waste disposal or handling, and/or employee or occupational
health and safety related claims pertaining in any manner to the Facility,
the Division, or other assets or properties owned or operated by Seller;
h) Any current or future obligation with respect to loans to or from Seller,
and liens against the Products or Assets created prior to the Transfer
Date;
i) Liabilities under Seller's or the Division's plans or arrangements for
wages, compensation, severance, retirement, vacation, medical disability,
or other employee benefits or obligations to employees (whether to current
or retired employees or their beneficiaries) of any kind including without
limitation any claims, liabilities or obligations relating to or arising
in connection with the actual or constructive termination of employment of
any employee of Seller; and
j) Any litigation, arbitration or other adversarial proceeding concerning the
Seller or the Division at any time, and with respect to the Products or
the Assets, arising in any manner from events, circumstances or condition
prior to the Transfer Date.
1.3 No Assumption of Liabilities. Except for liabilities or obligations of
Buyer's ownership of the Assets relating solely to events, circumstances or
occurrences after the Transfer Date, Buyer shall not assume and has not assumed
any liabilities or obligations of any kind or nature whatsoever, fixed or
contingent, known or unknown, due or not yet due. Except to the extent of
liabilities or obligations expressly assumed by Buyer in this Section 1.3,
Seller retains, continues to assume, and protects Buyer from, all obligations,
liabilities, debts and responsibilities of any kind with respect to the
Products, Assets, Division, Facility, or other operations or activities of
Seller.
1.4 Buyer agrees to grant to Seller a license after the Closing Date (defined
below) to that portion of the Intellectual Property necessary for certain
current uses by Seller (other than the Products) upon the terms of Exhibit 1.4.
ARTICLE II
PAYMENTS
2.1 Payment. Subject to the terms and conditions of this Agreement, the purchase
price for the Products and the Assets is $4,500,000.00 (four million five
hundred thousand dollars), subject to adjustments as described herein. Buyer
shall pay Seller on the Closing Date, by certified check or wire transfer (at
Buyer's option) the amount of $4,050,000.00 (four million fifty thousand
dollars) ("Base Purchase Price"), subject to adjustment at Closing pursuant to
Section 7.3(a). Buyer shall retain the $450,000.00 (four hundred fifty thousand
dollars) balance of the Purchase Price ("Balance") to be maintained in an
interest bearing account and distributed pursuant to the terms of Exhibits B and
G.
2.2 Allocation. The Purchase Price described in Section 2.1 above shall be
allocated among the Assets and the non-competition covenant of Section 5.2 as
provided in Exhibit H hereto. The parties agree that such allocation reflects
accurate, fair values for the Assets listed therein and the non-competition
covenant, and further agree to use such values for tax purposes and furnish each
other, upon request, such data and documentation as may be available to support
such values. Buyer and Seller agree to report this allocation for tax and other
purposes as may be required by law, and will not voluntarily take any position
inconsistent therewith in any judicial or administrative proceeding.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF SELLER
Seller represents and warrants to Buyer that the following are true and correct
as of the date hereof, will be true and correct as of the Closing Date, (as
hereinafter defined), will survive the Closing, and no claim has been made or
threatened which asserts a position contrary to these representations and
warranties:
3.1 Organization and Good Standing. Seller is a corporation duly organized,
validly existing and in good standing under the laws of the State of Delaware
and has full corporate power and authority to enter into this Agreement and
consummate the transactions contemplated hereby.
3.2 Power and Authority; No Default. The execution, delivery and performance of
this Agreement by Seller and the transfers, conveyances, assignments and
deliveries contemplated hereby have been duly authorized by all necessary
corporate action of Seller's board of directors, which constitutes all required
corporate action. This Agreement is the valid and binding obligation of Seller,
enforceable in accordance with its terms. Neither the execution and delivery of
this Agreement nor the consummation of the transactions
contemplated hereby will conflict with or violate the Articles of Incorporation
or By-laws of Seller or result in a violation or breach of, or permit any third
party to modify or rescind any term or provision of, or constitute a default
under, any indenture, mortgage, deed of trust, promissory note, contract,
license or other agreement to which Seller is a party or to which any of the
Assets relate, including without limitation the Contracts, other than the "FAA
Contract" described on Exhibit B, which requires consent of the Federal Aviation
Administration, and under Seller's bank credit agreement where the consent of
the lender is required, which Seller shall obtain prior to Closing.
3.3 Title to Assets. Seller is the sole owner of, and has good and marketable
title to, all of the Assets, free and clear of any mortgage, conditional sale
agreement, security interest, lease, pledge, hypothecation, financing statement,
license, adverse claim, lien or other encumbrance, of any kind or nature. The
Assets are not and have not been transferred, conveyed, licensed or encumbered
in any respect, and no Products or Assets are controlled by, licensed to or
from, or in the possession of, any other party, other than Products purchased
and paid for by customers consistent with past practice, and a lien on the
Assets in favor of The Bank of New York, which shall be fully and finally
released at Closing.
3.4 Condition and Sufficiency of the Tooling and Equipment. All of the Tooling
and Equipment has been well maintained and is in good operating condition, free
from defects (reasonable wear and tear excepted) and sufficient for the conduct
of normal operations to manufacture, develop, use, maintain, sell, operate, and
repair the current Products, continue research, development and other technical
efforts, and fully perform the Contracts.
3.5 Inventory. All Inventory is merchantable, suitable, useable and sufficient
in the manner consistent with the good business conduct and regular good faith
operation of Seller and the Division during the 12 month period prior to the
date of this Agreement ("past practice"), and is not obsolete, excessive or
below standard quality or outside of Seller's or customer's specification.
3.6 Intellectual Property. The Intellectual Property is sufficient to enable
Buyer to make, have made, use, manufacture, develop, maintain, sell, operate,
and repair the current Products consistent with past practice, and all Product
specifications, continue Division research, development and other technical
efforts, and fully perform the Contracts. Full ownership and all other rights to
and under such Intellectual Property will be conveyed to Buyer under this
Agreement without alteration, limitation or impairment. No past or present
employees, officers, directors, shareholders or affiliates of Seller or any
other third party has any rights in any such Intellectual Property by ownership,
license or otherwise. All rights of Seller's past and present employees have
been fully assigned to Seller. No license or other rights from or to any third
parties exist regarding the Intellectual Property (except to the extent of
rights of the U.S. Government pursuant to the FAA Contract, as specifically
described in Exhibit E). Seller is not liable, and has not made any contract or
arrangement or action whereby it may become liable, to any person for any
royalty, infringement, or other payment, compensation or claim for the use of
any Intellectual Property or the production and sale of the Products. No person
or entity other than Seller has any legal right, license or power to design,
manufacture and/or sell the Products or to use, apply or possess the
Intellectual Property (except to the extent of rights of the U.S. Government, as
specifically described in Exhibit E, pursuant to the FAA Contract). The
Intellectual Property does not infringe any intellectual property rights of
others, and Seller has not been charged or threatened with any infringement or
improper or unauthorized use or disclosure. To the best of Seller's knowledge
after due inquiry, no use of the Intellectual Property is being made or has been
made by any one other than Seller. All patents, trademarks and trade names have
been duly and timely filed and all fees have been properly paid, are free of any
claim or threat of infringement, are in full force and effect, and will be fully
valid and enforceable by Buyer after the Closing, subject to Buyer's maintenance
thereafter of such patents, trademarks and tradenames.
3.7 Completeness of Assets. The Assets constitute all of the property, items,
know-how and assets necessary to permit Buyer to manufacture, develop, use,
maintain, sell, operate, and repair the Products, perform the Contracts and
conduct and continue research and development efforts of the Division,
consistent with Seller's past practice. There are no other tangible or
intangible properties, or assets or intellectual property, necessary for Buyer
to produce and sell the Products, fully perform the Contracts (except for the
limitations with respect to the FAA Contract as described on Exhibit B), and
continue research and development efforts.
3.8 Functional Compliance. The Products, Tooling and Equipment, Inventory and
Intellectual Property correctly process, provide, store, and receive data prior
to, during and after the year 2000. All Products
previously sold, in Inventory or hereafter produced or sold based on the
Intellectual Property will maintain full functionality and performance
consistent with specifications and contract requirements, and operate without
error before, during and after January 1, 2000, including but not limited to,
accepting data input, providing data output, storing and manipulating data,
providing calculations, recognizing the year 2000 as a leap year, and to the
best of Seller's knowledge after due inquiry, interfacing with other products.
3.9 Employees. No employees, agents or other affiliates of Seller have rights in
the Assets or are otherwise necessary for Buyer to manufacture, develop, use,
maintain, sell, operate, and repair the Products and fully perform the
Contracts. Seller acknowledges that Buyer is assuming no contract, payment,
compensation, benefits, royalty payment, or other obligation of or to any
employee, agent, contractor or affiliate of Seller. All current and former
employees of Seller involved in any way with the Division or the Assets have
executed and have currently effective a Confidentiality, Inventions and
Non-competition Agreement, substantially in the form attached as Exhibit 3.9.
Seller will take all action necessary and appropriate to enforce those
agreements and prosecute any violations thereof, and defend any claim arising
from any breach or violation of such agreement, at Seller's sole cost and
expense, for a period of five (5) years after the Closing Date. Seller shall
engage counsel and other representatives reasonably acceptable to Buyer, or at
Buyer's election, shall promptly authorize Buyer's direct assumption of such
claim and/or defense and shall promptly and fully reimburse Buyer's reasonable
costs and expenses thereof, including attorney's consultant's and investigator's
fees in connection with such enforcement or defense by Buyer.
3.10 Contracts. All Contracts are in full force and effect and enforceable in
accordance with their terms. All parties to such Contracts have performed all
obligations required to be performed by them. Seller and all other parties to
any such Contract are not and have not been in default thereunder, nor has there
occurred any other event which, with the passage of time or giving of notice or
both, would constitute default thereunder. Except as expressly set forth in
Exhibit B, no party to any Contract is required to consent, nor will anyone
otherwise object to the transfer and assignment of such Contracts to Buyer, nor
do any contracts grant any rights or license in the Assets to any government,
the contracting party or any other party. Seller will take all necessary action
to novate, assign and transfer Seller's rights under such Contracts to Buyer.
Seller will assume, accept and be fully responsible for all obligations of any
kind under the Contracts, or any other contract, warranty or other commitment or
liability, arising from events, circumstances or occurrences prior to the
Transfer Date. The assignment of the Contracts to Buyer under this Agreement
will not constitute a breach or default thereunder (subject to the novation,
described on Exhibit B, of the FAA Contract), and will not alter the prices,
duration or other terms contained therein. All of Seller's Contracts including
customer and vendor Contracts, are listed on Exhibit B. Copies of the Contracts
will be provided to Buyer at least 14 days prior to Closing, will be true and
complete, and will not be amended or modified.
No supplier Contract provides for any long-term obligation (in excess of a
single pending purchase order) or any quantity in excess of normal quantities
ordered consistent with past practice and Seller's standard terms and conditions
of purchase (attached as Exhibit 3.10A). Except as expressly set forth on
Exhibit B, all Contracts with customers are pursuant to Seller's standard terms
and conditions of sale (attached as Exhibit 3.10B). No customers of Seller in
respect of the Contracts are entitled to discounts, volume rebates, or similar
reduction in price except as provided by the express terms of the Contracts, nor
do such Contracts provide or allow for "most favored customer" or other price
warranty terms. No supplier or vendor contracts are single source or subject to
threat of termination. Seller has complied with all applicable laws and
regulations in the performance of the Contracts and the manufacture,
distribution, warranty and sale of the Products. There are no facts or
circumstances that have resulted in or could reasonably serve as the basis for
(i) any notice pursuant to any Contract default or warranty claim provisions or
notices of default, however termed, (ii) any Contract termination, whether for
default, convenience, cancellation or lack of funding (except for conditions of
government appropriations, described in Exhibit B, under the FAA Contract,) or
other reasons, (iii) any final decision or modification assessing a price
modification or claim for damages or other remedy or modification, however
described, (iv) any claim including without limitation claims based on
assertions of defective pricing or assertions of violations of Government cost
accounting standards or cost, principles, (v) any request for an equitable
adjustment of or claim concerning the Contracts submitted by or through Seller
or its customers or brought by any subcontractors or suppliers against Seller,
(vi) disallowance of cost (direct or indirect) or related claims, (vii) any
claim, litigation, demand, or proceeding concerning the Products, the Contracts,
or their performance or related technology, (viii) any claim, investigation,
enforcement or grand jury proceeding of any criminal, civil or administrative
nature by any investigative or enforcement agency of the U.S. Government or any
bureau or agency thereof or in the nature of a "Qui Tam" action by a private
party, or (ix) any allegation that any of the foregoing is or was applicable.
3.11 Finders' Fees. Seller has not dealt with any broker or finder or incurred
any liability for brokerage fees, finders' fees, agents' commissions or other
similar forms of compensation in connection with this Agreement or the
transaction contemplated hereby.
3.12 Approvals. No authorization, approval or consent of any governmental
department, bureau or agency or other public board or authority, or any third
party is required for the consummation by Seller of the transfer of the Products
or Assets to Buyer and other transactions contemplated by this Agreement except
for consent of the FAA to novate and transfer the FAA Contract to Buyer and the
lien in favor of the Bank of New York, which Seller shall cause to be released
prior to Closing.. No FAA or other government certification or approval is
required to use, operate, market or sell the Products consistent with past
practice. No customer ice safety or management program has disapproved, nor has
the use or inclusion of the Products in such a program been rejected or
disapproved.
3.13 Claims. Except as provided in Exhibit 3.13, there are no claims, actions,
suits, or proceedings of any nature which have been made, or are currently
existing or threatened arising from the Products or the Assets, or the
ownership, use, marketing, sale, warranty or other matter relating thereto.
Seller has taken all reasonable action to protect the Assets and prevent loss,
damage, waste or unauthorized use of the Assets. Seller will defend, indemnify
and hold harmless Buyer from all such claims, actions, suits or proceedings of
any kind or nature arising from or relating in any way to design, production,
use, marketing, sale, handling, warranty or any other matter arising from any
circumstance, event, omission or occurrence prior to the Transfer Date.
3.14 Facility. Seller is the sole lessee and operator of the Facility. Seller
and its employees exercise full control of the activities and operations of the
Facility. The Products, Tooling and Equipment, Inventory and the Facility have
not used and do not use asbestos, PCB's, radioactive materials, or any material
not properly registered and approved under applicable law.
3.15 Disclaimer. EXCEPT AS SET FORTH IN THIS AGREEMENT, SELLER MAKES NO EXPRESS
OR IMPLIED WARRANTIES TO BUYER, INCLUDING NO IMPLIED WARRANTIES OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, WITH RESPECT TO THE ASSETS.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF BUYER
Buyer represents and warrants to Seller that the following are true and correct
as of the date hereof and will be true and correct as of the Closing Date, will
survive the Closing, and that no claim has been made or threatened which asserts
a position contrary to these representations or warranties:
4.1 Organization and Good Standing. Buyer is a corporation duly organized,
validly existing and in good standing under the laws of the State of Delaware
and has full corporate power and authority to enter into this Agreement and
consummate the transaction contemplated hereby.
4.2 Power and Authority; No Default. The execution, delivery and performance of
this Agreement by Buyer have been duly authorized by all necessary corporate
action. This Agreement is the valid and binding obligation of Buyer, enforceable
against it in accordance with these terms. Neither the execution and delivery of
this Agreement, or the consummation of the transactions contemplated hereby will
conflict with or violate the Certificate of Incorporation or By-Laws of Buyer.
4.3 Finders' Fees. Buyer has not dealt with any broker or finder or incurred any
liability for brokerage fees, finders' fees, agents' commissions or other
similar forms of compensation in connection with this Agreement or the
transactions contemplated hereby.
4.4 Approvals. No authorization, approval or consent of any governmental
department, bureau or agency or other public board or authority is required for
the consummation by Buyer of the transaction contemplated by this Agreement. No
consent of third parties, other than Buyer's Board of Directors, is required by
Buyer to consummate the transactions contemplated by this Agreement.
4.5 EXCEPT AS SET FORTH IN THIS ARTICLE 4, BUYER MAKES NO EXPRESS OR IMPLIED
WARRANTY OR REPRESENTATION OF ANY KIND.
ARTICLE V
COVENANTS
5.1 Confidentiality Covenant.
a) Seller for itself, and on behalf of its affiliates, officers, directors,
and (to the extent set forth in Section 3.9) employees (collectively
"affiliates"), at any time from and after the date of execution of this
Agreement, directly or indirectly, without the prior written consent of
Buyer, will not disclose or, except as set forth in Section 1.4 and
Exhibit F, use any Intellectual Property or confidential information
involving or relating to the Assets or this Agreement including without
limitation any information derived from the Intellectual Property or the
Contracts.
b) Seller and Buyer will not disclose the specific terms of this Agreement
except to parent and affiliated companies, or as required by law or
regulations, or as set forth in a mutually agreed press release or other
industry announcement
5.2 Non-Competition Covenant. Seller, for itself and on behalf of its
Affiliates, will not for a period of ten (10) years after the Closing Date,
directly or indirectly, whether for its own benefit or not, own, manage,
operate, control or participate in, or be connected as an officer, employee,
partner, director or otherwise with, or have any financial interest in, or aid
or assist any one in the conduct of, (i) any entity or business which competes
with Buyer or Buyer's parent or affiliated companies in the design, production,
manufacture, use or sale of the Products or any derivatives thereof (whether for
use as original equipment, spares, replacement parts or otherwise), or of any
items which utilize the Intellectual Property (a) in the "aerospace market" (as
defined below), or (b) for the protection against, or detection or sensing of,
ice or other frozen elements or contaminants in any market, within the
geographic area in which the Products are offered for sale, it being understood
and agreed that such geographic area is worldwide; and/or (ii) any interference
with or attempt to divert or entice away from Buyer, any customer, supplier or
business related to the Products or Intellectual Property or derivatives
therefrom. Notwithstanding anything to the contrary herein, mere ownership of
not more than five percent (5%) of the voting stock of any publicly-held
corporation, or uses of the Intellectual Property by Seller as expressly set
forth in Exhibit 1.4, shall not constitute a violation of this Section 5.2. For
the purpose of this Section 5.2, the "aerospace market" is the market for
products, components and/or other items and services for use, incorporation,
interface, testing, repair, replacement, upgrade or other application in
aircraft, other fixed and/or rotary wing vehicles, spacecraft, missiles,
satellites, airports, spaceports and other ground-based uses, and other aviation
related application, whether as original equipment, or for replacement, spares
or maintenance.
5.3 Enforcement. Seller acknowledges and agrees that, because the legal remedies
of Buyer may be inadequate in the event of a breach of, or other failure to
perform, any of the covenants and obligations set forth in Sections 5.1 or 5.2
hereof by Seller or its affiliates, Buyer may, in addition to obtaining any
other remedy or relief available to it (including without limitation damages at
law), enforce the provisions of Sections 5.1 or 5.2 hereof by injunction or any
other equitable remedy. Seller will be liable for, and will assist Buyer's
actions against, any violation of the obligations of this Agreement by Seller's
affiliates. Seller also acknowledges and agrees that no breach by the Buyer of,
or other failure by the Buyer to perform, any of the covenants and obligations
of the Buyer under this Agreement shall relieve Seller or its affiliates of any
of its or their obligations under this Agreement. In the event of any such
alleged breach or failure of performance, Seller will seek no remedy other than
liability for direct damages at law.
5.4 Severability. The parties agree that the provisions with respect to
duration, geographic scope and other restriction set forth in Sections 5.1
and/or 5.2 hereof are reasonable to protect the legitimate interests of the
Buyer. The provisions of this Agreement are severable. In the event that any
provision should, for any reason, be finally determined by a court of competent
jurisdiction to be invalid or unenforceable in any respect, it shall not
invalidate, render unenforceable or otherwise affect any other provision hereof.
Such invalid or unenforceable provision shall be deemed to be modified to
accomplish the most similar purpose in a valid and enforceable manner to the
maximum extent possible under applicable law.
5.5 Taxes.
a) Seller shall be fully responsible for and pay any and all federal, state
and local sales, use, transfer or other taxes or charges or increases
thereof which may be imposed by reason of the sale, use or transfer of the
Assets to Buyer pursuant to the terms of this Agreement. Under no
circumstances will Buyer be liable for
any income, gross receipts or other similar tax measured or computed in
reference to income or proceeds of Seller. Seller shall be solely
responsible for, and shall indemnify and hold Buyer harmless from and
against, any and all federal, state or local income, gross receipts or
other similar tax measured or computed in reference to gross or net
income, the Purchase Price or the allocation pursuant to Exhibit G.
b) All personal property taxes assessed against or attributable to the Assets
prior to the current property tax year will be the sole responsibility of
Seller. Any personal property taxes assessed against the Assets for the
current property tax year shall be apportioned between the parties based
on the number of days each party possessed the Assets during the current
tax year. If either party pays any amount which the other is obligated to
pay pursuant to this Section 5.5, then the party so paying shall be
promptly reimbursed in cash by the other party within 14 days after
presentation of such overpayment documentation. Possession of the Assets
will be determined by the date all Assets are actually delivered to Buyer
pursuant to Section 6.4.
5.6 Technical Assistance. To assist Buyer in the design, start-up, and
manufacturing of the Products and use of the Assets, Seller shall provide to
Buyer, at times mutually agreeable to Seller and Buyer, the services of
qualified engineering and technical employees of Seller who are familiar with
the Products and the Assets, for up to an aggregate of 60 hours after
termination of the Transition Services Agreement. Upon submission of reasonable
supporting documentation on forms requested by Buyer, Buyer will promptly
reimburse Seller for such technical and engineering assistance for reasonable
travel, lodging and related out of pocket expenses (excluding charges for wages
or salaries of such employees).
5.7 Access to Information. Prior to the Closing, Seller shall provide Buyer and
its representatives with access during normal business hours to the books,
records and facilities of Seller to permit Buyer to familiarize itself with the
Assets, Products and matters related to Buyer's purchase thereof, provided that
such review shall not unreasonably interfere with the operations of Seller.
Seller shall also furnish Buyer prior to Closing with such information
concerning the Assets and Products as Buyer may from time to time reasonably
request. At Buyer's request, Seller shall assist Buyer, with respect to the
purposes described in Sections 6.1(d) through (j), including without limitation,
establishing joint contact with appropriate customer representatives and each of
Seller's third party vendors which supply Seller with items not produced by
Seller and/or which are necessary for production of the Products. Seller's
complete and accurate list of its most significant customers and vendors is
included in Exhibit B attached hereto.
5.8 Maintenance and Repair. All responsibility for Products produced prior to
the Transfer Date shall remain a Retained Liability of Seller. However, Buyer
will provide routine maintenance and repair services with respect to ID-1H ice
detector products for an eighteen (18) month warranty period for such Products
manufactured the between the Closing Date and the Transfer Date, at Buyer's
expense, up to, but in no event in an amount exceeding, the cost to manufacture
the particular Product under warranty. Buyer will also provide maintenance and
repair services with respect to Seller's ID-1 and ID-1H ice detection Products
sold prior to the Closing Date, at Seller's sole cost and expense. Seller shall
reimburse all of Buyer's costs, expenses and other charges and amounts incurred
pursuant to the terms of this Section 5.8 within 14 days after receipt of
Buyer's invoice, without reduction or set-off.
ARTICLE VI
CONDITIONS OF CLOSING
6.1 Conditions to Obligations of Buyer. The obligations of Buyer under this
Agreement are subject to the satisfaction prior to and at the Closing Date of
all the following conditions:
a) All representations and warranties of Seller shall be true and correct as
of the Closing Date;
b) Seller shall have performed and satisfied all terms, covenants and
conditions required by this Agreement to be performed or satisfied by it
on or prior to the Closing Date;
c) Seller shall have tendered and delivered the required documents and
instruments at the Closing as set forth in Section 7.2 of this Agreement;
d) Buyer shall be satisfied that it can procure from Seller's vendors or
other third parties, if any, all of those certain items not produced by
Seller and which are necessary or convenient for the proper manufacture,
development, use, maintenance, sale, operation and repair of the Products
as required by the Contracts, and on terms and conditions consistent with
past practice;
e) Buyer shall have met with appropriate representatives of its choice of
customers, potential customers, vendors, suppliers and other parties to
the Contracts as Buyer deems necessary, and Buyer shall be satisfied that
such parties are willing to continue to do business with Buyer after the
Closing on terms and conditions consistent with the Contracts and/or
otherwise consistent with past practice;
f) Seller's Tooling and Equipment shall have demonstrated to Buyer's
satisfaction that it is in good operating condition, fully functional, and
capable of using, testing, storing, and handling the Intellectual Property
and the manufacture, development, use, maintenance, sale, operation, and
repair of the current Products and continuation of Division research,
development and other technical efforts, in full compliance with all
applicable technical specifications of customer and/or Seller, and the
Contracts and customer requirements, and has an aggregate value of at
least that set forth in Section 7.3(a);
g) Buyer shall be satisfied that the Inventory is in good, marketable, and
merchantable condition, with an aggregate value of at least that set forth
in Section 7.3(a);
h) Buyer shall have determined to its satisfaction that the current Products
and all Division research, development and other technical efforts have
fully satisfied all customer and/or Seller qualification tests, standards
and requirements applicable to such Products and the Contracts, and that
all consents, assignments and novations have been obtained with respect to
the Contracts, or will, to Buyer's satisfaction, be obtained regarding the
FAA Contract;
i) Seller's employees listed on Exhibit G continue to be employed full time
by Seller prior to the Closing Date, and Buyer receives adequate
assurances such Employees will continue to be employed by Seller during
and subject to the period of the Transition Services Agreement, with all
obligations relating to such employees' employment with Seller at all
times being retained by Seller;
j) Buyer shall be satisfied that the Intellectual Property is sufficient for
Buyer's purposes, has not been disclosed to, used by or infringed by any
third party, and is fully sufficient for the proper manufacture,
development, use, maintenance, sale, test, operation and repair of the
current Products, and the continuation of research, development and other
technical efforts.
k) Buyer shall be satisfied with the results of investigation of the claims
described in Section 3.13 and other due diligence, and that liens have
been released and consents of Seller's lender has been obtained;
l) The Transition Services and other agreements (if any) which are Exhibits
hereto, are completed and signed by Seller;
m) The insurance to be provided pursuant to Section 8.4 shall be maintained
in full force and effect;
n) Buyer shall have received written approval (or with respect to the FAA
Contract, shall be satisfied that written approval will be received) from
all appropriate government agencies, industry organizations and/or other
third parties to authorize the transfer, assignment and/or novation
without restriction of all certifications, authorities and other
governmental, industry and/or third party approvals and recognitions with
respect to the Products and the Assets to Buyer.
6.2 Conditions to Seller's Obligations. The obligations of Seller hereunder are
subject to the satisfaction at or prior to the Closing Date of all of the
following conditions:
a) All representations and warranties of Buyer contained in this Agreement
shall be true and correct as of the Closing Date;
b) Buyer shall have performed and satisfied all covenants and conditions
required by this Agreement to be performed or satisfied by it on or prior
to the Closing Date;
c) Buyer shall have tendered and delivered the required documents on the
Closing Date as set forth in Section 7.3 of this Agreement;
d) Buyer shall have tendered and delivered the Base Purchase Price pursuant
to Section 2.1, subject to adjustment pursuant to Section 7.3(a);
e) Transition Services and other agreements (if any) which are Exhibits hereto,
are completed and signed by Buyer.
6.3 Conditions to the Obligations of Both Parties. The respective obligations of
Buyer and Seller to consummate the transactions contemplated by this Agreement
shall be subject to the conditions that (i) there shall not be in effect any
statute, regulation, order, decree or judgment that would prohibit the
transactions contemplated by this Agreement, (ii) no action shall have been
taken or threatened by any governmental entity which would make it illegal or
destructive of the fundamental purposes of this Agreement to complete the
transactions contemplated by this Agreement, and (iii) the conditions to Closing
of the other party as set forth in this Article 6 are satisfied.
6.4 Transfer of Assets. Seller shall be responsible for the careful delivery of
the Products and Assets. Copies of tangible Intellectual Property will be
delivered to such Buyer within two (2) days after the Closing Date or such
longer time as Buyer may agree. Unless otherwise directed by Buyer, all Products
and Assets shall remain only at Seller's Nesconset, New York facility for the
period of the Transition Services Agreement for the sole purpose to allow Seller
to perform the obligations of Transition Services Agreement for the benefit of
the Buyer. Transfer of title to the Products and Assets to Buyer and ownership
thereto shall be effective at 12:01 AM eastern time on the Closing Date. Risk of
loss and responsibility for the care, protection and control of the Assets will,
however, transfer only after delivery to and acceptance of the Assets by Buyer
at Buyer's designated facility in Minnesota. In any event, all Assets will be
safely delivered to Buyer's designated facility when directed by Buyer at
Buyer's expense, but no later than termination of the Transition Services
Agreement, including without limitation, originals and all copies of tangible
Intellectual Property in whatever form.
ARTICLE VII
CLOSING
7.1 Closing. The Closing ("Closing") shall occur upon completion of the
deliveries and performances required by Sections 7.2 and 7.3. The Closing
hereunder shall be held at Buyer's Akron, Ohio offices on December 4, 1998 at
10:00 a.m. local time ("Closing Date") or at such other place or on such other
date as Buyer and Seller shall agree, provided that such Closing shall take
place on or before December 31, 1998.
7.2 Seller's Obligations. At the Closing, Seller shall deliver or cause to be
delivered to Buyer the following:
a) A Xxxx of Sale in form and substance acceptable to Buyer conveying the
Assets to Buyer subject only to the limitations permitted in this
Agreement;
b) Assignments, novations and/or consents, in form and substance acceptable
to Buyer assigning and/or novating the Contracts to Buyer;
c) Written release of all liens and encumbrances upon the Products and Assets
in form and substance satisfactory to Buyer;
d) Executed assignments of patents and patent applications (in the form of
Exhibit 7.2(d)), and any other instruments of conveyance that counsel for
Buyer may reasonably deem necessary or desirable to effect or evidence the
transfers contemplated hereby;
e) A Certificate dated the Closing Date, signed by the President of Seller
certifying that the conditions specified in Sections 6.1(a), (b) and (c)
have been satisfied;
f) Seller's executed copies of the Transition Services Agreement and such
other documents, certifications and other items required to be delivered
by the Seller at Closing by this Agreement;
g) Opinion letter of Seller's counsel providing that the patents and patent
applications set forth on Exhibit E are timely and properly filed and
maintained, will be fully valid and enforceable by Buyer, and to counsel's
knowledge after due inquiry do not infringe the rights of any party; and
h) Seller's insurance endorsements, waivers and other applicable documents as
described in Section 8.4.
7.3 Buyer's Obligations. At the Closing, Buyer shall deliver or cause to be
delivered to Seller the following:
a) The Base Purchase Price required to be paid under Section 2.1 hereof;
provided however, if, at Closing, the aggregate book value of the
Inventory is less than $350,000, or the aggregate book value of the
Tooling and Equipment is less than $450,000 each amount respectively
defined as the "Minimum Value"), the amount of the Base Purchase Price
will be reduced by the same amount by which the actual book aggregate
value of such Asset is less than its corresponding Minimum Value;
b) A Certificate executed by an officer of Buyer dated the Closing Date
certifying that the conditions specified in Sections 6.2(a), (b) and (c)
hereof have been satisfied; and
c) Buyer's executed copies of the Transition Services Agreement, and such
other documents and items required to be delivered by Buyer to Seller at
Closing by this Agreement.
7.4 Further Assurances. From time to time at or after the Closing, Seller shall,
as soon as reasonably practicable after request therefor by Buyer and without
further consideration, execute and deliver or cause to be executed and delivered
to Buyer, in proper form for relevant recording, filing or registration, such
instruments of conveyance, transfer and assurances with respect to the Products
and/or Assets. Seller shall also provide such other documents and take such
other action, as may be reasonably necessary or desirable to transfer to and
vest and confirm in Buyer any and all rights and properties in the Assets sold
or intended to be sold, conveyed or transferred hereunder or otherwise to carry
out the intent of this Agreement.
ARTICLE VIII
SURVIVAL AND INDEMNIFICATION
8.1 Survival. The representations, warranties, covenants and continuing
obligations of Seller and Buyer provided in this Agreement shall survive the
Closing.
8.2 Indemnity.
a) Seller agrees to hold harmless, indemnify and defend Buyer and its
employees, insurers, shareholders, representatives, successors, affiliated
companies and assigns, from and against any loss, claim, cause of action,
damage, liability, expense or cost of any kind or amount whatever, whether
known or unknown, including without limitation court costs and reasonable
attorney's and consultant's fees, that relate to or arise out of (i) any
alleged or actual breach of any representation or warranty of Seller made
in this Agreement, (ii) violation of any other term or condition of this
Agreement by Seller, (iii) any act, omission or operation of Seller, the
Division or their respective employees, agents, officers, directors or
representatives, (iv) the Retained Liabilities, or (v) the Assets and/or
the Products, the Seller's or Division's ownership, design, manufacture,
use, maintenance, sale, condition, warranty or any other aspect, event or
circumstances occurring, initiated or existing to any extent prior to the
Transfer Date, (regardless of whether or not discovered or continuing
after the Transfer Date), including without limitation, any alleged or
actual infringement of a third party's rights resulting from Buyer's use
of the Intellectual Property, excluding however, infringement that results
solely from Buyer's material modification of the Intellectual Property or
the design or specification of the Product;
b) Buyer agrees to hold harmless, indemnify and defend Seller and its
employees, insurers, shareholders, representatives, successors, affiliated
companies, and assigns, from and against any loss, claim, cause of action,
damage, liability, expense or cost of any kind or amount whatever,
including court costs and reasonable attorney's and consultant's fees,
that relate to or arise out of (i) any alleged or actual breach of any
representation or warranty of Buyer made in this Agreement, (ii) violation
of any other term or condition of this Agreement by Buyer, and (iii)
Buyer's ownership, design, manufacture, use, sale, condition, warranty or
any other aspect, event or circumstance with respect to the Assets and/or
Products if designed, used, manufactured, sold and warranted by Buyer
after the Transfer Date and the risk of loss to the Assets has been
transferred to Buyer pursuant to Section 6.4.
8.3 Indemnification Procedure. With respect to any matter covered by the above
indemnifications, the party to be indemnified will give prompt written notice of
the claim or demand to be indemnified, and will thereafter cooperate fully with
the indemnifying party in the defense of the claim or demand, which defense
shall be paid by the indemnifying party, with counsel and consultants to be
mutually agreed upon. No settlement or compromise of such claim or demand shall
be binding on the indemnifying party unless it shall have consented in writing
to such settlement or compromise. All amounts determined to be due and owing
under this Article VIII will be paid within thirty (30) days after such final
determination. All invoices for defense, consultant's and attorney's fees shall
be paid within thirty (30) days after receipt. All such amounts and invoices
shall be paid in full when due as stated herein without reduction or set off.
The indemnified party shall cooperate with and assist the indemnifying party's
defense of any indemnified matter, with all out of pocket costs to be paid by
the indemnifying party. Either party may retain additional counsel and
consultants to assist with any indemnified matter, at its own expense.
8.4 Insurance. Seller shall name Buyer as additional insured under Seller's (i)
business interruption insurance and employee liability insurance, through the
Transfer Date, and (ii) general liability (including contractual liability), and
product liability insurance applicable to Seller's indemnification pursuant to
this Article VIII. With respect to indemnified matters, Seller's insurance shall
be primary and Seller's insurers shall waive all claims of subrogation against
Buyer. Seller will provide Buyer with documentation evidencing the additional
insured endorsements and waivers of subrogation upon Buyers request and pursuant
to Section 7.2 (g). Seller shall not reduce the coverage or limits of (1)
business interruption or employee liability insurances prior to the Transfer
Date, or (2) general liability or products liability insurances until the
earlier of seven (7) years after the Transfer Date or when all Product units
produced prior to the Transfer Date have been destroyed or returned to and
retired by Buyer. Upon written request by Seller, Buyer will provide information
regarding the approximate number of Product units produced prior to the Transfer
Date that have not been returned to and retired by Buyer.
ARTICLE IX
TERMINATION
9.1 Termination. This Agreement may be terminated and abandoned at any time
prior to the Closing, without liability of any party, by either Buyer or Seller,
upon written agreement, or upon written notice to the other if the Closing shall
not have occurred on or before December 31, 1998.
ARTICLE X
MISCELLANEOUS
10.1 Costs and Expenses. Each party hereto shall bear its own costs and
expenses, including attorney's fees, in the preparation of this Agreement.
10.2 Notices. All notices required or permitted hereunder shall be in writing
and shall be deemed to be properly given when received either by personal
delivery, next day delivery by a national courier or by delivery certified U.S.
mail, return receipt requested, properly addressed to the party entitled to
receive such notice at the address stated below:
To Buyer: Rosemount Aerospace Inc.
00000 Xxxxxxxx Xxxx
Xxxxxxxxxx, Xxxxxxxxx 00000-0000
Attention: Vice President -- Commercial Transport
With a Copy to: BFGoodrich Aerospace
000 X. Xxxxxxxxx-Xxxxxxxxx Xxxx
Xxxxx, XX 00000
Attention: Law Department
To Seller: Robotic Vision Systems, Inc.
0 Xxxxxxx Xxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Chief Financial Officer
With a Copy to: Xxxxxxxxx Xxxxxx Xxxxxxxx Xxxxxx & Xxxxxx
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxx Xxxxxxx
10.3 Entire Agreement. This Agreement, including the Exhibits hereto, shall
constitute the entire agreement between the parties with respect to the subject
matter hereof and shall supersede all previous negotiations, commitments and
writings. Each Party shall cooperate and assist the other for all purposes
contemplated by this Agreement. All headings and captions are for convenience
only and shall not be used in the interpretation of this Agreement.
10.4 Waiver. Discharge, Etc. This Agreement may not be released, discharged or
modified except by an instrument in writing signed by a duly authorized officer
on behalf of each of the parties hereto. The failure of any party to enforce any
provision of this Agreement shall not be a waiver of such provision or
subsequent breach of the same or any other obligation hereunder.
10.5 Governing Law. This Agreement shall be construed and the rights of the
parties hereunder shall be governed by the laws of the State of Minnesota and
without regard to conflicts of laws. Any unresolved disputes shall be submitted
to the Federal Courts of Minnesota.
10.6 Counterparts. This Agreement may be executed by one or more counterparts,
each of which shall be deemed to be an original, but all of which shall
constitute one Agreement.
10.7 Severability. If any provision of this Agreement is held to be invalid or
unenforceable, for any reason, it shall not invalidate or render unenforceable
or otherwise affect any other provision hereof, and such invalid or
unenforceable provision shall be construed by limiting it so as to be valid and
enforceable to the maximum extent compatible with, and possible under,
applicable law.
10.8 Successors and Assigns. This Agreement will be binding upon and inure to
the benefit of the parties hereto and their permitted successors and assigns;
provided, however, that the Buyer may assign its rights without the consent of
any of the parties hereto to any affiliate of the Buyer, but no such assignment
will relieve Buyer of its obligations under this Agreement.
IN WITNESS WHEREOF, each of the parties hereto has caused this Agreement to be
executed as of the date first above written.
ROSEMOUNT AEROSPACE INC. ROBOTIC VISION SYSTEMS, INC.
By: /s/ Xxxx X. Xxxxxx By: /s/ Xxx X. Xxxxx
---------------------- -----------------------
Name: Xxxx X. Xxxxxx Name: Xxx X. Xxxxx
---------------------- -----------------------
Title: Chairman Title: Chairman, President and
Chief Executive Officer
---------------------- -----------------------
EXHIBIT A
Products
- All ice detection technology and equipment.
- Ice detection products known as ID-1 and ID-1H, as described below and all
derivatives thereof
- All mechanical vision-based inspection and measurement systems, and
electro-optical sensing technology, relating to the detection, protection,
and/or measurement of ice or other frozen elements or contaminants.
- All products and derivatives arising from the Contracts.
EXHIBIT B
Contracts
Federal Aviation Administration Contract Number DTFAO3-97-C-00005, "Research and
Development leading to the Fabrication and Testing of a Demonstrator Aircraft
Mounted Broad Area Ice Detection System."
Contract #66688 with Delta Air Lines, "Domestic Service and Training Contract".
P.0./Contract #1107834 with Delta Airlines for the purchase of Products (ID-1H).
Customers (contracts in accordance with RVSI standard terms and conditions of
sale other than Delta and FAA contracts described above)
Delta Air Lines
FedEx
Boeing
Transport Canada
Federal Aviation Administration
Top Vendors (in accordance with RVSI standard terms and conditions of purchase)
Salina
EG&G
Xxxxxxxx
3M
Loughlin
Kaman Bearings
Westview
National
Precision Metals
JML Optics
Phase 1
CVI Laser
Euro Precision
Melles Griot
Xxxxxx
Xxxxxx Scientific
Accufab
Radisys
Description of FAA Contract: Consent of the FAA is necessary to novate the
current contract between Seller and the FAA. Seller anticipates that such
consent will be obtained, but not prior to Closing. Seller will formally request
such consent prior to Closing and will provide Buyer with copies of all
documents regarding such request and application to novate. Seller will continue
to provide its best effort, before and after Closing, to novate and transfer the
benefits of the FAA Contract to Buyer.
Buyer shall retain $75,000 of the Balance of the Purchase Price. Buyer shall pay
such amount to Seller within 14 days after receipt of all documentation
completing the novation of the FAA Contract to Buyer. Buyer shall retain such
amount of the Balance (in addition to all other rights and remedies) free and
clear of any claim of Seller or any other party if, within one (1) year after
the Closing Date, (i) all rights, research, development, intellectual property,
funding and other amounts and benefits under the FAA Contract is not exclusively
transferred to Buyer by Seller, or (ii) novation of the FAA Contract to Buyer is
not completed, fully executed, and delivered to Seller. In any event, all
amounts paid to or received by Seller after the Closing Date pursuant to the FAA
Contract shall be paid and assigned in full, without reduction or offset, to
Buyer.
EXHIBIT C
Tooling and Equipment
Production Support Equipment Quantity
Environmental Chamber 1
Vibration Table 1
Tektronix TDS540A 4 Channel Digitizing Scope, 500MHz, 1GS/s 1
Tektronix TDS644A 4 Channel Digitizing Scope, 500MHz, 2GS/s 1
HP 8116A Pulse/Function Generator, 50MHz 2
Tektronix PS280 DC Power Supply 2
Kikusui Triple Output DC Power Supply 2
Melles Griot 13PEM001 Broadband Power/Energy Meter 1
Xxxxxxxx Fiber Optics 1185A 150Watt Illuminator 1
FJW Optical System IR Viewer 1
Fluke Multimeters 4
Field Service Laptop 1
Field Service Tool Kits 2
Clamp on Meter 1
Leica Disto Laser Ranger 1
Humidity Sensor 1
RVSI Xxxx Box Power Supplies 2
EM Test Cables 6 sets
Kepco RBX12-50A 12V, 50A Switching Power Supply 2
Glendale Protective Technologies Laser Protective Eyeware 2
Wire Harness Tester 1
APD Test Fixture 1
SM CCA Test Fixture 1
TOF Test Fixture 1
Test Rail wt Target 1
Test Targets
Device Programmer 1
Data Logger 1
Camera & Video Monitor 1
Pace Soldering System 1
Development Software
Turbo C 2
RD SVGA 1
RD FONTS 1
AutoCad12 2
OrCAD 2
XXXX-6 and PLD Fitters 1
R&D Equipment
Xxxxx D-40D Deicing Truck 1
Fog Tunnel 1
Ice Detection R&D Test Apparatus 1
Wireless Transmitter & Receiver 2
Production Support Equipment Quantity
Personal computers and monitors 11 sets
Laser Diodes 8
Optical Components
Electro-Optical Components
Electronic Components
Lenses
Narrow Band IF
Polarizing Beam Splitters
Waveplates
Mirrors
Optical Fiber
Power Supplies
Audio-visual Equipment
Ice Detection Systems (Engineering, Marketing, etc.)
ID-1 6
ID-1H 8
Custom Transport Cases 4
=========
EXHIBIT
D
INVENTORY
=========
---------------------------------------------------------------------------------------------------------------------------------
T U
R Y QTY N
E P ON I UNIT TL QTY
PN V DESC E NHA HAND PO NO T COST VENDOR ON HAND CUM %
=================================================================================================================================
ID-1H ICE
DETECTION
51500 C SYSTEM SA 51500 I 2 25750.00 MAKE 51500.00 51500.00 16%
---------------------------------------------------------------------------------------------------------------------------------
EPC34 COMPUTER
486DX4 CPU SINGLE BD PA 51511X 13 IE6210(n EA 1584.00 RADISY 20592.00 72092.00 22%
---------------------------------------------------------------------------------------------------------------------------------
APD MODULE 5mm
52784 B [96] option OP 51511X 9 IF0120(n EA 2216.00 ADV PH 19944.00 92036.00 29%
---------------------------------------------------------------------------------------------------------------------------------
ELECTRONICS
51511 E MODULE ASSY AY 51501 M 2 EA 8985.66 MAKE 17971.32 110007.32 34%
---------------------------------------------------------------------------------------------------------------------------------
51606 A HOUSING LOWER MP 51510 S 5 010085 EA 1500.00 SALMA 7500.00 117507.32 37%
---------------------------------------------------------------------------------------------------------------------------------
LCD DISP COLR
SHARP w/blt-in
5LU4E inverter PA 51510 S 8 IF1097 EA 695.00 XXXXXX 5560.00 123067.32 38%
---------------------------------------------------------------------------------------------------------------------------------
51688mati CCA EM PWR
only B2 SUPPLY AY 51511 E 6 EA 804.03 4824.18 127891.50 40%
---------------------------------------------------------------------------------------------------------------------------------
CONV DC/DC 12V
24S12.4XT 40W EC 51688 P 31 051788 EA 146.00 SERVOF 4526.00 132417.50 41%
---------------------------------------------------------------------------------------------------------------------------------
PHOTODIODE
C30872E 3MM OP 53688 A 6 022001 EA 745.00 EG&G O 4470.00 136887.50 43%
---------------------------------------------------------------------------------------------------------------------------------
HOUSING RECEIVER,
53686 K SHORT MP 51529 R 20 032825 EA 218.00 LOUGHL 4360.00 141247.50 44%
---------------------------------------------------------------------------------------------------------------------------------
LASER DIODE
100mw @ 852+/-
SDL-5412-H1 4nm EC 51574 L 5 021409 EA 710.00 SDL 3550.00 144797.50 45%
---------------------------------------------------------------------------------------------------------------------------------
FT-800-LMT CABLE FIBER OPTIC OP 51625X 669 IE9090 FT 4.76 THOR LA 3182.62 147980.12 46%
---------------------------------------------------------------------------------------------------------------------------------
CONV DC/DC
3005S12 5V/5A `G' case EC 51688 P 26 IF1118 EA 121.30 CDI 3153.80 151133.92 47%
---------------------------------------------------------------------------------------------------------------------------------
DRIVE HARD DISK
ST9810AG 2.5in 810MB XXX XX 00000 E 7 IF1459 EA 358.00 VANTAG 2506.00 153639.92 48%
---------------------------------------------------------------------------------------------------------------------------------
CABLE POWER
51796 C custom PA 52134 P 1000 050651 FT 2.50 NATION 2500.00 156139.92 49%
---------------------------------------------------------------------------------------------------------------------------------
CABLE FIBER
FT-1.0-EMT OPTIC OP 51501 M 869 051945 FT 2.58 3M 2241.38 158381.31 49%
---------------------------------------------------------------------------------------------------------------------------------
FILTER BANDPASS
MOUNTED
CWL=854+/-6NM
53712 C BW=40+6NM OP 51647 P 50 051943 EA 42.00 CVI LAS 2100.00 160481.31 50%
---------------------------------------------------------------------------------------------------------------------------------
only B CCA MAIN LOGIC AY 51511 E 4 EA 504.91 2019.64 162500.95 51%
---------------------------------------------------------------------------------------------------------------------------------
52180 B CAMERA ASSY AY 51510 S 5 EA 394.52 MAKE 1972.60 164473.55 51%
---------------------------------------------------------------------------------------------------------------------------------
INSTALLATION KIT
CABLE
52770 A RETRACTOR AY LGA 1 EA 1922.94 MAKE 1922.94 166396.49 52%
---------------------------------------------------------------------------------------------------------------------------------
XXXXXXXX XX
00000 B ASSY AY 51500 I 8 EA 236.31 MAKE 1890.48 168286.97 52%
---------------------------------------------------------------------------------------------------------------------------------
HOUSING 5mm
51786-01 L LENS MP 51529 R 40 051935 EA 45.00 SALMA 1800.00 170086.97 53%
---------------------------------------------------------------------------------------------------------------------------------
SCANNER
51763 G OPTICAL AY 51641 S 5 IF1393 EA 355.00 ELECTR 1775.00 171861.97 53%
---------------------------------------------------------------------------------------------------------------------------------
Page 1
PERCENT
---------------------------------------------------------------------------------------------------------------------------------
CAP CHIP .1uF 50V
ECU- cer X7R dialectric
V1H104KBW 1206 EC 51542 S 3900 IE2731 EA 0.45 DIGIKEY 1755.00 173616.97 54%
---------------------------------------------------------------------------------------------------------------------------------
only C CCA LASER DR AY 51574 L 8 EA 211.53 1692.24 175309.21 55%
---------------------------------------------------------------------------------------------------------------------------------
51605 + HOUSING UPPER MP 51510 S 3 BLNKT EA 550.00 SALMA 1650.00 176959.21 55%
---------------------------------------------------------------------------------------------------------------------------------
LCD DISP COLR
SHARP w/INVRTR
XX0XX00 & XXXX XXX XX 00000X 2 IE8553 EA 794.30 XXXXXX 1588.60 178547.81 56%
---------------------------------------------------------------------------------------------------------------------------------
51515 B LOGAMP ASSY AY 51511 E 5 EA 291.78 MAKE 1458.90 180006.71 56%
---------------------------------------------------------------------------------------------------------------------------------
BAS16 DIODE smt EC 51542 S 2990 IF1325 EA 0.48 ALLIED 1435.20 181441.91 56%
---------------------------------------------------------------------------------------------------------------------------------
CCBM35A CAMERA CARD PA 52180 C 6 IF1244(n EA 238.30 PHASE1 1429.80 182871.71 57%
---------------------------------------------------------------------------------------------------------------------------------
HOUSING
52102 RECEIVER MP 51529 R 4 IF1600 EA 350.00 LOUGHL 1400.00 184271.71 57%
---------------------------------------------------------------------------------------------------------------------------------
XXXXX XXXX
XXXXX000 XXXXXX XXXXX XX 00000 E 4 IE7118 EA 350.00 VANTAG 1400.00 185671.71 58%
---------------------------------------------------------------------------------------------------------------------------------
51636 B3 CCA MAIN LOGIC AY 51511 E 4 020057- EA 349.90 ACCUFA 1399.60 187071.31 58%
---------------------------------------------------------------------------------------------------------------------------------
ECU- CAP CHIP 270pF
V1H271KBM XXX XX 00000 L 4944 IF1323 EA 0.26 DIGIKEY 1285.44 188356.75 59%
---------------------------------------------------------------------------------------------------------------------------------
51608 Q HOOD WELDMENT MP 51510 S 6 IF1405(n EA 210.00 PRECISI 1260.00 189616.75 59%
---------------------------------------------------------------------------------------------------------------------------------
FOG RECEIVER
52759 C ASSY AY 51510 S 4 EA 311.62 MAKE 1246.48 190863.23 59%
---------------------------------------------------------------------------------------------------------------------------------
PWB TIME OF
51639 C1 FLIGHT RANGER PC 51638 T 25 051762 EA 48.95 TEKNICI 1223.75 192086.98 60%
---------------------------------------------------------------------------------------------------------------------------------
51542matl CCA SENSOR
only B CTRL AY 51510 S 6 EA 199.04 1194.24 193281.22 60%
---------------------------------------------------------------------------------------------------------------------------------
XXX/XX XXXXX
XX0000 0xx color XX/XX XX 00000 I 4 020013 EA 296.00 WESTVI 1184.00 194465.22 60%
---------------------------------------------------------------------------------------------------------------------------------
52117 K ENCL EM MP 51511 E 8 IF1019(n EA 143.00 GENERA 1144.00 195609.22 61%
---------------------------------------------------------------------------------------------------------------------------------
HOLDER 5MM
53699 A LENS MP 53700 H 40 051935 EA 28.00 SALMA 1120.00 196729.22 61%
---------------------------------------------------------------------------------------------------------------------------------
51545matl CCA MOTOR
only B1 DRIVE AY 51510 S 6 EA 181.18 1087.08 197816.30 62%
---------------------------------------------------------------------------------------------------------------------------------
00000 X XXX XXXXX XX XX 00000 G 27 021956 EA 38.70 TEKNICI 1044.90 198861.20 62%
---------------------------------------------------------------------------------------------------------------------------------
00000 X XXX XXXX XX 00000 M 26 021957 EA 40.00 PROTOT 1040.00 199901.20 62%
---------------------------------------------------------------------------------------------------------------------------------
51689 B PWB PS2 (EM) PC 51688 P 26 021957 EA 40.00 PROTOT 1040.00 200941.20 62%
---------------------------------------------------------------------------------------------------------------------------------
CONV DC/DC 25V
24S5.7XT 35W EC 51688X 7 IE2995 EA 144.00 SERVOF 1008.00 201949.20 63%
---------------------------------------------------------------------------------------------------------------------------------
00000 X XXX XXXXXXXXX XX 00000 B 26 IF1610 EA 38.55 TEKNICI 1002.30 202951.50 63%
---------------------------------------------------------------------------------------------------------------------------------
53711 F APD COUPLING MP 10 051935 EA 100.00 SALMA 1000.00 203951.50 63%
---------------------------------------------------------------------------------------------------------------------------------
PWB SENSOR
51543 B CTRL PC 51542 S 26 021956 EA 36.70 TEKNICI 954.20 204905.70 64%
---------------------------------------------------------------------------------------------------------------------------------
LASER DIODE
SDL-5422-H1 150mW EC 51574X 1 IF1098 EA 929.00 SDL 929.00 205834.70 64%
---------------------------------------------------------------------------------------------------------------------------------
00000 X XXX XXXXX XX XX 00000 L 24 051715 EA 38.70 TEKNICI 928.80 206763.50 64%
---------------------------------------------------------------------------------------------------------------------------------
SG-145 DESICCANT SG-
PROTO 145 PAPER
PACK 12inx12in 5pc NM 19 IF1317 EA 46.85 ROYCO 890.15 207653.65 65%
---------------------------------------------------------------------------------------------------------------------------------
51548matl CCA SM PWR
only B SUPPLY AY 51510 S 4 EA 221.04 884.15 208537.81 65%
---------------------------------------------------------------------------------------------------------------------------------
RES POT 500
3224J-1-501 11 turn smt EC 51552 L 455 IF1441 EA 1.90 MAST DI 864.50 209402.31 65%
---------------------------------------------------------------------------------------------------------------------------------
DRIVE HARD DISK
ST9420AG 2.5in 420 MB XXX XX 00000 X 3 IE8687 EA 285.00 VANTAG 855.00 210257.31 65%
---------------------------------------------------------------------------------------------------------------------------------
Page 2
PERCENT
-----------------------------------------------------------------------------------------------------------------------------------
PRINTED WIRING
BOARD APD
POWER SUPPLY
53695 A FILTER EC 53694 46 051932 EA 18.00 PROTOT 828.00 211085.31 66%
-----------------------------------------------------------------------------------------------------------------------------------
00000 X XXX XXXXX XX XX 00000 M 26 021956 EA 29.70 772.20 211857.51 66%
-----------------------------------------------------------------------------------------------------------------------------------
51549 B PWB PS1 (SM) PC 51548 P 26 021956 EA 29.70 TEKNICI 772.20 212629.71 66%
-----------------------------------------------------------------------------------------------------------------------------------
HK5272R13.6
X00X XXXXXX XXXXX XX 00000 O 28 051926 EA 27.50 MINCO 770.00 213399.71 66%
-----------------------------------------------------------------------------------------------------------------------------------
POLY POLYCARB
PLATE/RODS XXXXX/XXXX XX 00000X 0 IE3967 LO 3000.00 COMME 750.00 214149.71 67%
-----------------------------------------------------------------------------------------------------------------------------------
HIGH VOLTAGE
C05 POWER SUPPLY 53690 A 5 051910 EA 149.00 EMCO 745.00 214894.71 67%
-----------------------------------------------------------------------------------------------------------------------------------
CABLE SIGNAL
51797 C custom PA 52135 S 274 020222- FT 2.68 NATION 734.32 215629.03 67%
-----------------------------------------------------------------------------------------------------------------------------------
XXXXXX GLASS
2.5india x 1.52mm
52197 C thk OP 52196 S 16 050558 EA 45.70 XXXXXX 731.20 216360.23 67%
-----------------------------------------------------------------------------------------------------------------------------------
00000 X XXX XXX XX 00000-0 27 021956 EA 27.00 TEKNICI 729.00 217089.23 68%
-----------------------------------------------------------------------------------------------------------------------------------
PINHOLE LENS
51788 J FILTER XXX XX 00000 P 16 051935 EA 45.00 SALMA 720.00 217809.23 68%
-----------------------------------------------------------------------------------------------------------------------------------
XXX XX XXX
00000 B2 SUPPLY AY 51510 S 6 IF1911 EA 119.85 ACCUFA 719.10 218528.33 68%
-----------------------------------------------------------------------------------------------------------------------------------
CABLE ASSY
51632 B MOTOR AY 51682 G 6 IF1076 EA 119.75 MICROM 718.50 219246.83 68%
-----------------------------------------------------------------------------------------------------------------------------------
8500-1758 CONT F 20ga EC ASSY 520 050842 EA 1.30 CTI 676.00 219922.83 68%
-----------------------------------------------------------------------------------------------------------------------------------
CONN PLUG SMA
0000-0000-00 RA XX000 XX 00000X 44 IF1295 EA 15.36 COMPU 675.84 220598.67 69%
-----------------------------------------------------------------------------------------------------------------------------------
00000 X XXXX XXXX XXX XX 00000 L 25 BLNKT EA 27.00 SALMA 675.00 221273.67 69%
-----------------------------------------------------------------------------------------------------------------------------------
FERRULE 1mm
52149 F FIBER MP 51501 M 50 051935 EA 13.00 SALMA 650.00 221923.67 69%
-----------------------------------------------------------------------------------------------------------------------------------
XXX-000 XXX x/XX-000 PA LAB 1 IE6040(n EA 650.00 INTELEM 650.00 222573.67 69%
-----------------------------------------------------------------------------------------------------------------------------------
FITTING XX
XX000-00 (00xxx) XX 00000X 19 IF1653 EA 34.00 COLEMA 646.00 223219.67 69%
-----------------------------------------------------------------------------------------------------------------------------------
FOAM 24inx48inML
1/8 MDK ADHES
METALIZED
XXXXXX00 XXXXX XX 00000 I 120 050517 SF 5.18 SOUNDC 621.00 223840.67 70%
-----------------------------------------------------------------------------------------------------------------------------------
only B CCA BACKPLANE AY 51510 S 6 EA 102.44 614.64 224455.31 70%
-----------------------------------------------------------------------------------------------------------------------------------
AD880JR IC smt EC 51554 S 26 051565 EA 23.12 FUTURE 601.12 225056.43 70%
-----------------------------------------------------------------------------------------------------------------------------------
51598 M FRAME ISOLATION MP 51570 O 20 051935 EA 30.00 SALMA 600.00 225656.43 70%
-----------------------------------------------------------------------------------------------------------------------------------
XXXXXX GLASS
COATED ANTI-
52196 D REFL RG-780 AY 51510 S 16 050835 EA 37.50 SPECTR 600.00 226256.43 70%
-----------------------------------------------------------------------------------------------------------------------------------
52292 C SPACER HEATER MP 51510X 12 010085 EA 50.00 SALMA 600.00 226856.43 71%
-----------------------------------------------------------------------------------------------------------------------------------
LENS AUTOIRIS
CCLM07XE 7.5mm OP 52180 C 6 IF1244(n EA 100.00 PHASE1 600.00 227456.43 71%
-----------------------------------------------------------------------------------------------------------------------------------
CCA TIME of
51638 C1 FLIGHT RANGER AY 51511 E 2 EA 292.52 MAKE 585.04 228041.47 71%
-----------------------------------------------------------------------------------------------------------------------------------
52844 EM HANGER MP 52853 P 10 051944 EA 58.00 SALMA 580.00 228621.47 71%
-----------------------------------------------------------------------------------------------------------------------------------
XX XXXX XXXXX
XX000XX xxx XX 00000 G 101 IF1290 EA 5.70 FUTURE 575.70 229197.17 71%
-----------------------------------------------------------------------------------------------------------------------------------
Page 3
PERCENT
-----------------------------------------------------------------------------------------------------------------------------------
PLATE LOGAMP
51663 D XXX XX 00000 E 23 011128 EA 25.00 SALMA 575.00 229772.17 71%
-----------------------------------------------------------------------------------------------------------------------------------
TCM1D2258 CAP CHIP 2.2uF
T 20V xxxx XX 51542 S 1742 IE3374 EA 0.33 CCE CAL 574.86 230347.03 72%
-----------------------------------------------------------------------------------------------------------------------------------
QM20540EU- DRIVE HARD DISK
A 2.5in 540MB XXX XX 00000X 2 IE8235 EA 285.00 VANTAG 570.00 230917.03 72%
-----------------------------------------------------------------------------------------------------------------------------------
BRACKET STRAIN
00000 X XXXXXX XX 00000 S 10 010085 EA 55.00 SALMA 550.00 231467.03 72%
-----------------------------------------------------------------------------------------------------------------------------------
XXX-000 XXX 00X XX 00000X 2 IE7665 EA 275.00 INTELEM 550.00 232017.03 72%
-----------------------------------------------------------------------------------------------------------------------------------
DRIVE
MMX-PCM-Q- MINIMODULE/
72 PCMCIA XXXX XX 00000 E 3 IE7119 EA 182.00 AMPRO 546.00 232563.03 72%
-----------------------------------------------------------------------------------------------------------------------------------
GROMMET
G-411-4 LOTEMP BI 51511 E 2925 IE8734 EA 0.19 EAR SP 541.13 233104.15 72%
-----------------------------------------------------------------------------------------------------------------------------------
52151 PWB SHUTTER PC 52150 F 35 IF1349 EA 15.45 TEKNICI 540.75 233644.90 73%
-----------------------------------------------------------------------------------------------------------------------------------
RELAY SOLID ST
682-0070 DC INPUT EC 52141 J 11 IF1303 EA 48.00 ALLIED 528.00 234172.90 73%
-----------------------------------------------------------------------------------------------------------------------------------
GRIP CORD
074011057 XXXXXX XX 00000X 12 IF1384 EA 43.85 COLEMA 526.20 234699.10 73%
-----------------------------------------------------------------------------------------------------------------------------------
TCM1C105A CAP CHIP 1uF 16V
T xxxx XX 51544 G 1868 IE3374 EA 0.28 CCE CAL 523.04 235222.14 73%
-----------------------------------------------------------------------------------------------------------------------------------
00000 X XXXX XXXXX XXX XX 00000 G 6 BLNKT EA 85.00 SALMA 510.00 235732.14 73%
-----------------------------------------------------------------------------------------------------------------------------------
CONT COAX socket
O602-47 XX000 XX 00000 X 00 XX0000 XX 00.00 XXX TE 508.50 236240.64 73%
-----------------------------------------------------------------------------------------------------------------------------------
WP02R12S05 CONV DC/OC
L 5V/.4A EC 51688 P 23 051787 EA 21.83 INSIGHT 502.09 236742.73 74%
-----------------------------------------------------------------------------------------------------------------------------------
CCA EM PWR
51688 B2 SUPPLY AY 51511 E 3 020057- EA 167.25 ACCUFA 501.75 237244.48 74%
-----------------------------------------------------------------------------------------------------------------------------------
BEAMSPLITTER
00000-0xx0- XXXX 8mm3-
X exped. del. chg OP 51535X 1 IF0960 LO 500.00 JML OPT 500.00 237744.48 74%
-----------------------------------------------------------------------------------------------------------------------------------
52118 K COVER EM MP 51511 E 8 IF1019(n EA 60.29 GENERA 482.32 238226.80 74%
-----------------------------------------------------------------------------------------------------------------------------------
85108RC162
0XX00 XXXX 00xxx XX 00000X 10 IF1763 EA 47.38 CONN T 473.80 238700.60 74%
-----------------------------------------------------------------------------------------------------------------------------------
CONDUIT 0/0 XXX
XXX-00 XXXXXXXXX
XXXXX XXXXXXXX 00000X 228 IF1384 FT 2.05 COLEMA 467.40 239168.00 74%
-----------------------------------------------------------------------------------------------------------------------------------
CABLE 5 cond
52768 A CUSTOM PA 52769 C 307 050645 FT 1.52 NATION 466.64 239634.84 75%
-----------------------------------------------------------------------------------------------------------------------------------
LEXAN 103 blk GE
LEXAN 103 12inX48in annealed
xxx 0.0xx x0 XX 00000 H 2 IF1691 SF 233.00 COMME 466.00 240100.64 75%
-----------------------------------------------------------------------------------------------------------------------------------
1616E012ST MOTOR/GEARBOX
123 / PA 51632 M 6 IE6311 EA 76.45 MICROM 458.70 240559.34 75%
-----------------------------------------------------------------------------------------------------------------------------------
51544matl CCA GALVO
only B DRIVER AY 51510 S 2 EA 225.29 450.58 241009.92 75%
-----------------------------------------------------------------------------------------------------------------------------------
CONN SMA XXXX
0000-000-00 STR EC 51636 M 73 IF1295 EA 6.16 COMPU 449.68 241459.60 75%
-----------------------------------------------------------------------------------------------------------------------------------
AD590LH IC TEMP XDUCER EC 51548 P 25 IF1042 EA 17.64 FUTURE 441.00 241900.60 75%
-----------------------------------------------------------------------------------------------------------------------------------
MIRROR QTZ
POLISHED .250 dia
.050 thk flatness 1
52269 A wave/in OP 52271 M 58 IF0439 EA 7.50 HERAEU 435.00 242335.60 75%
-----------------------------------------------------------------------------------------------------------------------------------
53691 C APD BRACKET AY 53717 A 12 051971 EA 35.00 SALMA 420.00 242755.60 75%
-----------------------------------------------------------------------------------------------------------------------------------
Page 4
EXHIBIT E
Intellectual Property
----------------------------------------------------------------------------------------------
Document Type Identification Comment
----------------------------------------------------------------------------------------------
R&D Notebooks Quantity = approximately 15-21*
----------------------------------------------------------------------------------------------
Various Engineering Files Quantity approximately 200-325*
----------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------
US Patent Patent No. 5,475,370
----------------------------------------------------------------------------------------------
US Patent Patent No. 5,532,738
----------------------------------------------------------------------------------------------
US Patent Patent No. 5,528,287
----------------------------------------------------------------------------------------------
US Patent Patent No. 5,589,822 Change in Small Entity Status was
mailed on November 2, 1998.
----------------------------------------------------------------------------------------------
US Patent Patent No. 5,617,076
----------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------
US Patent Application Serial No. 08/712,059 Application was allowed on January
16, 1998. Issue Fee was mailed April
14, 1998.
----------------------------------------------------------------------------------------------
US Patent Application Serial No. 08/487,249 Application was allowed on July 6,
1998. Issue fee was mailed October 6,
1998. Letter Regarding Erroneous
Small Entity Status was mailed
October 30, 1998.
----------------------------------------------------------------------------------------------
US Patent Application Serial No. 08/677,785 Application was allowed on June 12,
1998. Issue fee was mailed _______.
----------------------------------------------------------------------------------------------
US Patent Application Attorney Docket No. Application was filed October 9, 1998.
1905-40
----------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------
European Patent Convention Serial No. 93924961.1 Application was filed April 10, 1995
Application
----------------------------------------------------------------------------------------------
European Patent Convention Serial No. 95119992.6 Published.
Application
----------------------------------------------------------------------------------------------
European Patent Convention Serial No. 96306480.3 Published.
Application
----------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------
Australian Patent Patent No. 681607
----------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------
Canadian Patent Application Serial No. 2,147,462 Application was filed April 20, 1995.
----------------------------------------------------------------------------------------------
*To be specifically determined prior to closing.
EXHIBIT F
TRANSITION SERVICES AND SUPPLY AGREEMENT
THIS AGREEMENT is made and is effective as of the ______ day of_____________
1998 ("Effective Date") by and between Rosemount Aerospace Inc., the Aircraft
Sensors Division of The BFGoodrich Company, ("BFG"), a Delaware corporation
having its place of business at 00000 Xxxxxxxx Xxxx, Xxxxxxxxxx, Xxxxxxxxx,
00000, and Robotic Vision Systems, Inc. ("RVSI"), a Delaware corporation having
its place of business at 0 Xxxxxxx Xxxx, Xxxxxx, Xxxxxxxxxxxxx 00000.
BFG and RVSI agree as follows:
WHEREAS, contemporaneous with the Effective Date, BFG and RVSI, have entered
into an agreement ("Purchase Agreement") under which selected assets of RVSI's
Aircraft Safety Division ("Division") and the associated research, development,
know-how, manufacture, production, sale, and all related rights and intellectual
property to electro-optical ice detection products ("Products" and "Assets" as
defined in the Purchase Agreement) are to be sold by RVSI and purchased by and
transferred to BFG; and
WHEREAS, BFG will use the Assets and develop and manufacture the Products in the
future subject to the terms and conditions of the Purchase Agreement; and
WHEREAS until this Agreement terminates or expires, BFG requires a reliable and
predictable supply of the Products, and the continuation of manufacture,
research, development, customer service, and other activities to enable BFG to
continue to respond to customer, supplier and market needs, and serve customer
and supplier requirements; and
WHEREAS, RVSI will employ personnel, provide facilities and continue the
research, development, manufacture, distribution, supply, and transition and
customer service for the Products for BFG and/or its customers, and take all
other action necessary to assist BFG in assuming and protecting the Assets,
transferring the purchasing, production, marketing, and other processes and
Intellectual Property (as defined in the Purchase Agreement), maintaining
goodwill with such customers, suppliers, potential customers and others in the
market, performing the Contracts ( as defined in the Purchase Agreement), and
providing to BFG consultation, advice, assistance and recommendations with
respect to (i) application, know-how and use of Intellectual Property and
Products by BFG and its customers, and (ii) transfer, start up and production of
Product formulation, and manufacturing processes, and equipment and product
testing, and quality assurance (collectively, "Services").
NOW THEREFORE, the specific terms, promises, covenants and conditions of the
parties are as follows:
ARTICLE I - SCOPE
1.1 RVSI will provide the Services to BFG through the term of this Agreement.
In providing these Services, RVSI and its employees shall act in a
thorough, professional and diligent manner, use their best efforts to
promote the purpose of this Agreement, secure for BFG the full benefit of
the Purchase Agreement, preserve and protect the Assets, comply with all
laws, regulations and contractual obligations, and facilitate the use and
understanding by, and transfer of the Assets to, BFG.
1.2 RVSI is an independent contractor. The individuals performing the Services
pursuant to this Agreement are employees of RVSI and not of BFG. In no
event will RVSI or its shareholders, officers, agents or employees be
considered employees or agents of BFG, and all claims to the contrary are
and will be denied and waived by RVSI. RVSI is solely responsible for the
payment of all salaries, wages, withholding, FICA and other amounts, and
for the direction and control of its employees, and will defend, indemnify
and hold BFG harmless from any claim or obligation arising therefrom.
ARTICLE II- PRODUCTION AND TRANSITION OBLIGATIONS
2.1 During the term of this Agreement, RVSI shall continue to produce,
research, develop, support, manufacture and supply Products and services
in accordance with past practice as hereinafter defined (unless otherwise
directed by Buyer) including, without limitation, the ID-1 and ID-1H Ice
Detection Systems and their derivatives, contract #DTFA03-97-C-00005 with
DOT/FAA Xxxxxx X. Xxxxxx Technical Center, Contract #6668 8 with Delta
Airlines, experimental products and other products or concepts previously
researched, under development and/or manufactured by RVSI's Aircraft
Safety Division. As part of the Services, RVSI will provide all necessary
transition assistance to BFG and/or BFG customers, in response to needs
and requests of BFG and/or customers and potential customers for the
Products. During the term of this Agreement, the Products shall be
manufactured and other Services provided at the Division's current
facilities at Nesconset, New York, consisting of leased real estate and
other improvements owned or leased by RVSI (the "Facility").
2.2 Any and all Intellectual Property (as defined in the Purchase Agreement)
resulting from the Services performed under this Agreement shall be the
sole and exclusive property of BFG, subject only to the grant to RVSI of a
nonexclusive license thereto as set forth in Article 1.4 of the Purchase
Agreement.
ARTICLE III - PRICING
BFG will establish and publish all Product pricing, and all purchasing, sales,
marketing, distribution and customer and supplier materials and policies for the
Products. RVSI will cooperate with BFG and follow BFG instructions regarding
such matters. RVSI hereby authorizes and consents to BFG's use and distribution
of Product literature, marketing materials, price lists and other documents
bearing RVSI's name, marks, logos or other identifiers during the term of this
Agreement.
ARTICLE IV - TERM AND TERMINATION
4.1 This Agreement shall commence on the Effective Date and shall continue in
effect for a term expiring no later than six (6) months following the
Effective Date or immediately (i) upon thirty (30) days prior written
notice to RVSI by BFG that BFG deems itself fully capable of manufacturing
and supplying Products and servicing BFG's customers, or (ii) if the
Closing (as defined in the Purchase Agreement) does not occur.
4.2 In the event of a default by a party of a material term under this
Agreement, the non-defaulting party shall provide to the defaulting party
written notice describing the default, and the defaulting party shall have
seven (7) days from the receipt of such notice to cure such default.
Should the defaulting party fail within the seven (7) days to fully cure
such default, then the
other party may terminate or suspend its obligations under this Agreement,
effective upon written notice to the defaulting party. Termination or
suspension under this Section 4.2 is in addition to all other rights
available to the non-defaulting party at law or equity.
4.3 Termination, suspension or expiration of this Agreement shall not operate
to relieve BFG of the obligation to pay for Services (pursuant to Article
V) compliant with this Agreement prior to sending notice of default.
ARTICLE V - OPERATING SERVICES
During the term of this Agreement, RVSI shall provide the following as part of
the Services contemplated by this Agreement:
5.1 RVSI shall pay employee wages and salary for those Division employees
listed in Appendix A ("Employees"), plus a burden of 30% on such wages and
salaries representing employee benefit costs, to perform manufacturing,
operations, physical distribution, storage, inventory, shipping,
administrative, technical, marketing, sales, research and development,
know-how transfer, clerical and other services necessary to manufacture
Products and provide the Services contemplated by this Agreement, in a
manner consistent with good business practice and the regular good faith
operation of RVSI and the Division during the twelve (12) month period
prior to the Effective Date ("past practice"), and in accordance with BFG
instructions.
5.2 RVSI shall provide and pay for all necessary and ordinary utility expenses
for the operation of the Facility to perform the Services, such as natural
gas, electricity, water, rent, insurance for the Facility, telephone, and
waste disposal, consistent with past practice.
5.3 RVSI shall provide and pay for all necessary office and ordinary
equipment, office supplies, office services and day-to-day "xxxxx cash"
items necessary to provide the Services under this Agreement, consistent
with past practice.
5.4 RVSI shall provide and pay for all necessary and ordinary miscellaneous
operating expenses including, office consumables, supplies, lubricants,
safety equipment, employee work uniforms, equipment maintenance, refuse
disposal, freight charges, reasonable travel expenses, and other operating
expenses, consistent with past practice.
5.5 Based upon information prepared in good faith and supplied by RVSI to BFG,
RVSI's estimated expenses pursuant to Sections 5.1, 5.2, 5.3 and 5.4 for
each two (2) week period during the term of this Agreement are as follows
(collectively, "Expenses")
a. Section 5.1 Expenses - $ 29,579
b. Section 5.2 Expenses - $ 3,930
c. Section 5.3 Expenses - $ 2,408
d. Section 5.4 Expenses - $ 10,096
Total estimated two (2) week Expenses - $ 46.013
5.6 After the end of each two (2) week period during the term of this
Agreement, RVSI will provide BFG with detailed documentation itemizing all
Expenses incurred pursuant to Sections 5.1, 5.2, 5.3 and 5.4 during that
two (2) week period. Upon receipt and approval of that documentation,
and confirmation of payment of Expenses by RVSI consistent with past
practice, BFG will reimburse the applicable Fund (as defined below)
account for those Expenses properly paid by RVSI. This reimbursement shall
be made by check or wire transfer (at BFG's option) at BFG normal
vendor/supplier payment. The reimbursement shall be the lesser of the
amounts specified in Section 5.5 above, or the actual total amount of
Section 5.1 Expenses (to be paid to RVSI's existing account for payment of
payroll expenses) and Section 5.2, 5.3 and 5.4 Expenses (to be paid to a
new, zero balance account opened by RVSI) for the sole purpose of paying
Expenses incurred by RVSI for providing the Services (the "Fund"). Only
those expenses specifically described in this Article V will be paid by
BFG, and only up to the amount of each particular Expense set forth above
in this Section 5.5 or the corresponding actual amount, if less. In no
event will BFG be responsible, whether by reimbursement or otherwise, for
amounts in excess of the total estimated Expenses for any two (2) week
period, or for the individual limit on each particular category Expenses
as set forth in Section 5.5 without the prior written approval of BFG
authorized employees, expressly waiving the requirements of this Section
5.6. Expenses shall not include, and RVSI shall be solely responsible for,
all employee and retiree benefits, severance, vacation, disability,
withholdings, deductions, worker compensation, medical, dental and other
insurance and other employment related costs and expenses (other than as
subject to reimbursement pursuant to Section 5.1).
5.7 RVSI shall pay for, provide and maintain current insurance coverages on
the building, property, improvements, fixtures and other real property and
assets of RVSI at the Facility (subject to reimbursement of the cost of
such coverages to the extent applicable to the Facility pursuant to
Section 5.2). Further, all repairs and maintenance to such property of
RVSI shall be an expense of RVSI without reimbursement by BFG. RVSI shall,
at its own expense, maintain such fire and other property perils insurance
consistent with past practice to protect its interest in its personal and
real property, and shall name BFG as loss payee to the extent of BFG's
interest in the Assets at the Facility. RVSI waives, releases, defends and
indemnifies BFG from and against all claims for loss or damage to its
personal or real property at the Facility caused by BFG, its employees,
agents, successors, assigns, or related to any environmental
responsibility, or arising out of any event insurable under a standard
form all risk property insurance policy, regardless of the limits of that
policy or whether or not RVSI has maintained that policy (except for
willful damage to or theft of any of the Assets caused by Buyer or its
employees). RVSI shall obtain the proper endorsement to reflect the
foregoing waiver of subrogation and deliver evidence of such waiver to BFG
upon execution of the Purchase Agreement.
5.8 Those Employees who have continuously provided the Services for BFG,
consistent with past practice, at least forty (40) hours per week during
each week of the term of this Agreement, and are employed by RVSI on the
termination of this Agreement described in Section 4.1 (unless termination
is pursuant to Section 4.1 (ii) or Section 4.2), ("employed"), shall be
paid a bonus by RVSI. RVSI shall supply BFG with an itemized statement
indicating the amount of the bonus and to whom the bonus was paid. BFG
shall reimburse RVSI for such bonuses paid to employees up to the amount
set forth in Appendix B, pursuant to Buyer's normal vendor/supplier
payment cycle, provided that proper documentation is supplied.
Prior to termination of this Agreement and upon 30 days written notice to
RVSI, BFG may require that any employee listed on Appendix A no longer
provide the Services. In that case, or if such employee is no longer
employed by RVSI for any reason, such employee's compensation and other
amounts will not be included in the calculation or reimbursement of any of
the expenses of Article V from the date of such notice. If such employee
is employed up to the date
of notice by BFG and is paid a bonus by RVSI, BFG shall reimburse RVSI up
to the amounts set forth in Appendix B pursuant to this Section 5.8;
provided, however, if (i) BFG has requested such employee no longer
provide the Services for just cause, or (ii) this Agreement has been
terminated pursuant to Section 4.1 (ii) or 4.2, then no reimbursement
shall be paid.
5.9 Except for reimbursement of certain costs of RVSI as specifically provided
by this Article V of this Agreement, BFG shall have no responsibility,
liability or obligation of any kind with respect to RVSI, its employees,
agents, shareholders, successors or assigns, or with respect to the
Facility or other cost or obligation. In no event will BFG be responsible
for any amount in excess of estimated amounts specifically set forth for
each item of Expense in Section 5.5, or Expenses as actually incurred by
RVSI, whichever is less. Any cost, expense, liability, or other amount in
excess thereof, shall be the sole responsibility of RVSI, unless and to
the extent specifically otherwise agreed in writing by Xxxxx XxXxxxxx or
Xxxx Xxxxxxxx of BFG, (subject to change by notice from BFG) specifically
referring to and waiving the terms and limitations of this Agreement. RVSI
shall directly pay such amounts and seek reimbursement from BFG pursuant
to this Article V.
5.10 If Closing does not occur (except if due to default by BFG), RVSI will
reimburse BFG for all amounts paid by BFG under this Agreement, within 14
days.
ARTICLE VI - ORDER ENTRY AND SUPPORT SERVICES
6.1 From and after the Effective Date and until the day of termination as
provided by Article IV, RVSI shall continue to receive orders from
customers. RVSI shall immediately turn such orders to BFG and await BFG
instructions as to credit and other suitability of the customer order.
After the order is confirmed and accepted by BFG, the order shall be
entered as instructed by BFG, provided that all such orders shall be for
the account of and in the name of BFG, and not RVSI. In the performance of
such activities, RVSI, only as an independent contractor of BFG, shall be
acting on behalf of BFG and shall have no authority to bind or commit BFG.
RVSI shall fill all orders accepted by BFG on behalf of BFG and on the
basis of "Sold by BFGoodrich." RVSI shall accommodate such orders and
effect such shipments in a manner consistent with past practice except as
otherwise provided in this Agreement or by BFG. After suspension,
termination or expiration set forth in Article IV, RVSI's limited
authority pursuant to this Section 6.1 shall automatically terminate and
RVSI shall have no authority to act on behalf of BFG in connection with
the purchase of materials or the sale or distribution of Products to
customers of BFG, whether or not the same are former customers of RVSI.
6.2 In addition to Section 6.1, at all times during the terms of this
Agreement, BFG may place or direct Product or service orders from RVSI for
drop shipment to customers (or for inventory shipment to BFG), and RVSI
shall accommodate such orders and effect such shipments in a manner
consistent with past practice as if such order(s) had been made by an RVSI
customer.
6.3 Unless expressly delegated to RVSI in writing by authorized officers of
BFG, BFG shall be responsible for invoicing customers for all such orders
filled by RVSI on behalf of BFG. RVSI shall timely provide BFG with
sufficient and accurate information to enable BFG to prepare and send such
invoices. Any payments for the Products or services received by RVSI shall
not be deposited or held by RVSI, but shall immediately be endorsed "Pay
to the order of Rosemount Aerospace Inc." and forwarded to BFG. RVSI
shall, in addition, maintain all shipping and manufacturing records
sufficient to enable BFG to verify orders, prices and other terms, verify
receipt by the customer of such orders, and resolve quality, quantity and
other disputes such as may arise. RVSI shall maintain storage,
transportation and shipping relationships, and prices, terms and
conditions thereof, in a manner consistent with past practice, to the
extent practicable and reasonable. If such relationships, terms and
conditions cannot be maintained, RVSI shall so advise and coordinate with
BFG.
6.4 RVSI shall utilize existing Inventory (as defined in the Purchase
Agreement) and production and research and development materials located
at the Facility and to be owned by BFG as of the Closing to manufacture
the Products. As RVSI anticipates additional materials for the Products or
for research and development efforts with respect to the Products
("Materials") will be needed, RVSI shall timely advise BFG. Unless
expressly delegated to RVSI in writing, BFG will order the Materials for
shipment directly to RVSI at the Facility; provided, however: (i) RVSI may
order up to $1,000.00 per purchase order, up to an aggregate of $5,000.00
every two weeks, of Materials without BFG consent; and (ii) materials (not
to exceed $20,000) ordered prior to the Effective Date and not yet paid
for by RVSI, and not reflected in Inventory, shall be considered Materials
for the purpose of the Section 6.4. BFG will be the sole and unencumbered
owner of, and will be responsible for payment for, Materials ordered
pursuant to this Section 6.4. Materials shall only be used for the
production of Products ordered by BFG, for customer orders accepted by
BFG, or for research and development services under this Agreement.
Materials and finished goods inventory shall be maintained at quantity and
quality levels consistent with past practice, unless otherwise directed in
writing by BFG.
6.5 All Products, Materials, Inventory, and other Assets at the Facility will
be kept free of all liens, charges or encumbrances of any kind created or
caused by RVSI. RVSI will execute all documents necessary or requested and
will otherwise cooperate with BFG to establish, confirm and protect BFG's
ownership of the Products and Assets after the Closing.
ARTICLE VII - SPECIFICATIONS
7.1 Materials used and Products supplied by RVSI to BFG or its customers shall
at all times be of good quality, in accordance with BFG and/or customer
quality standards, within applicable shelf life, and manufactured to meet
the customer and RVSI specifications and warranty for the particular
Product.
7.2 During the term of this Agreement, the specifications and/or components of
the Products may be modified, supplemented, changed or revised only upon
written agreement between BFG and RVSI and execution of appropriate
engineering change orders.
ARTICLE VIII - ENVIRONMENTAL, FACILITY AND INDEMNITY
RVSI does not and shall not manufacture any Products using asbestos, PCB's,
radioactive materials, ozone depleting substances or any material that is not
properly registered under the Toxic Substance Control Act or is not otherwise
properly documented or approved by law, rule or regulation. RVSI is the lessee
of the Facility, and RVSI and its employees have and will continue to have full
and exclusive control over the Facility and the operations and activities
thereon. RVSI will defend, indemnify and hold harmless BFG, its employees,
agents, insurers, successors and assigns from and against any and all loss,
claims, damages, fines and expenses (including, without limitation, a reasonable
legal fees) at any time arising from (i) any accident or other occurrence on or
about the Facility, (ii) any environmental
remediation, liability, payment or action required by applicable laws,
regulations or directives of governmental authorities as a result of the release
at any time of any toxic or hazardous substance or waste, petroleum product or
other regulated substance on or about the Facility (iii) the generation,
handling, transportation or disposal of any hazardous or other materials by
RVSI,, and/or (iv) any governmental investigation or action relating to RVSI,
the Division or the Facility.
ARTICLE IX - GENERAL
9.1 Each party represents and warrants to the other that it has the authority
to enter into and perform all the provisions of this Agreement, and that
the execution and performance of this Agreement by such party will not
constitute a breach of, or conflict with, any other agreement, contract,
undertaking or arrangement, whether written or oral, to which that party
is bound.
9.2 Article headings are for ease of reference only and shall not affect the
substantive interpretation of this Agreement.
9.3 The parties understand and agree that each shall cooperate and assist the
other for all purposes contemplated by this agreement including, without
limitation, manufacturing the Products in accordance with specifications
and customer requirements, supplying and servicing customers,
transitioning production, Intellectual Property and operations to BFG
employees and facilities, and otherwise taking actions to fulfill the
intent of this Agreement.
9.4 If performance of this Agreement is restricted, prevented or interfered
with due to a condition or event which is covered under RVSI's business
interruption insurance, and BFG is an additional insured and receives the
benefit of such coverage pursuant to Section 6.4 of the Purchase
Agreement, RVSI upon giving prompt written notice to BFG, shall
temporarily be excused from providing further Services to the extent of
such restriction, prevention or interference. RVSI shall take all
immediate action to remove the condition or event causing such
non-performance. BFG may terminate or suspend its obligations under this
Agreement or take other action to obtain the Services.
ARTICLE X - MISCELLANEOUS
10.1 Costs and Expenses. Each party hereto shall bear its own costs and
expenses, including attorney's fees, in the preparation of this Agreement
10.2 Notices. All notices required or permitted hereunder shall be in writing
and shall be deemed to be properly given when received either by personal
delivery, next day delivery by a national courier or by delivery certified
U.S. mail, return receipt requested, properly addressed to the party
entitled to receive such notice at the address stated below:
To Buyer: Rosemount Aerospace Inc.
00000 Xxxxxxxx Xxxx
Xxxxxxxxxx, Xxxxxxxxx 00000-0000
Attention: Vice President -- Commercial Transport
With a Copy to: BFGoodrich Aerospace
000 X. Xxxxxxxxx-Xxxxxxxxx Xxxx
Xxxxx, Xxxx 00000
Attention: Law Department
To Seller: Robotic Vision Systems, Inc.
0 Xxxxxxx Xxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Chief Financial Officer
With a Copy to: Xxxxxxxxx Xxxxxx Xxxxxxxx Xxxxxx & Xxxxxx
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxx Xxxxxxx
10.3 Entire Agreement, This Agreement, including the Exhibits hereto, shall
constitute the entire agreement between the parties with respect to the
subject matter hereof and shall supersede all previous negotiations,
commitments and writings.
10.4 Waiver. Discharge, Etc. This Agreement may not be released, discharged or
modified except by an instrument in writing signed by a duly authorized
officer on behalf of each of the parties hereto. The failure of any party
to enforce any provision of this Agreement shall not be a waiver of such
provision or subsequent breach of the same or any other obligation
hereunder.
10.5 Governing Law. This Agreement shall be construed and the rights of the
parties hereunder shall be governed by the laws of the State of Minnesota
and without regard to conflicts of laws. Any unresolved disputes shall be
submitted to the Federal Courts of Minnesota.
10.6 Counterparts. This Agreement may be executed by one or more counterparts,
each of which shall be deemed to be an original, but all of which shall
constitute one Agreement.
10.7 Severability. If any provision of this Agreement is held to be invalid or
unenforceable, for any reason, it shall not invalidate or render
unenforceable or otherwise affect any other provision hereof, and such
invalid or unenforceable provision shall be construed by limiting it so as
to be valid and enforceable to the maximum extent compatible with, and
possible under, applicable law.
10.8 Successors and Assigns. This Agreement will be binding upon and inure to
the benefit of the parties hereto and their permitted successors and
assigns; provided, however, that the Buyer may assign its rights without
the consent of any of the parties hereto to any affiliate of the Buyer,
but no such assignment will relieve Buyer of its obligations under this
Agreement.
IN WITNESS WHEREOF, each of the parties hereto has caused this Agreement to be
executed as of the date first above written.
ROSEMOUNT AEROSPACE INC. ROBOTIC VISION SYSTEMS, INC.
By: _________________________________ By: ________________________________
Name: _______________________________ Name: ______________________________
Title: ______________________________ Title: _____________________________
Appendix A
Xxxxxx Xxxxxxxxxx
Xxxx Xxxxxxxx
Xxxxxx Xx Xxxx
Xxxxxx Xxxxxxxxxx
Xxxxxx Xxxxxxxx
Xxxxx Xxxxx
Xxxxxx Held
Xxxxxxx Musimecci
Xxxxxxx Xxxxxxx
Appendix B
--------------------------------------------------------------------------------
EMPLOYEE BONUS
--------------------------------------------------------------------------------
Xxxxxx Xxxxxxxxxx 15%
--------------------------------------------------------------------------------
Xxxx Xxxxxxxx 15%
--------------------------------------------------------------------------------
Xxxxxx XxXxxx i5%
--------------------------------------------------------------------------------
Xxxxxxx Xxxxxxx 15%
--------------------------------------------------------------------------------
Xxxxxx Xxxxxxxxxx 10%
--------------------------------------------------------------------------------
Xxxxxx Xxxxxxxx 10%
--------------------------------------------------------------------------------
Xxxxx Xxxxx 10%
--------------------------------------------------------------------------------
Xxxxxx Held 5%
--------------------------------------------------------------------------------
Xxxxxxx Musimecci 5%
--------------------------------------------------------------------------------
The bonus percentage set forth above is to be applied only to the Employee's
base wages or salary (exclusive of bonues, benefits, vacation, insurance and
workers compensation payments, commissions and other cash and non-cash
compensation) for the period from November 1, 1997 to October 31, 1998.
EXHIBIT G
Employee Retention
Table G-1, attached, lists the defined "Employees" of Seller as used in this
Exhibit ("Employees"). The Employees are agreed by Buyer and Seller to be
critical to Buyer's receipt of the benefits of this Agreement and the
performance of Seller's obligations hereunder. Therefore, Buyer shall retain the
Balance of the Purchase Price less the amount set forth in Exhibit B ($375,000,
hereinafter, the "Adjusted Balance") to encourage the retention of, or
compensate for the failure to retain, such Employees upon the following terms
and conditions:
1. If all Employees are employed continuously by Seller for at least 120 days
after the Closing Date, Buyer will pay Seller the full amount of the
Adjusted Balance.
2. If none of the Employees are employed continuously by Seller for the 60
day period following the Closing Date, Buyer shall retain the full amount
of the Adjusted Balance, free of any claim or right of Seller or others,
and the Base Purchase Price as adjusted shall become the final Purchase
Price.
3. For those Employees who are employed continuously by Seller for at least
60 days after the Closing Date, Buyer will pay Seller the applicable
percentage of the Adjusted Balance corresponding to such Employee as shown
on Table G-1. The percentage of the Adjusted Balance with respect to those
Employees who have not remained employed by Seller for such period shall
be retained by Buyer, free and clear of all claim of right of Seller or
others.
4. For those Employees who are employed continuously by Seller for at least
120 days after the Closing Date, Buyer will pay Seller the applicable
percentage of the Adjusted Balance corresponding to such Employee as shown
on Table G-1. The percentage of the Adjusted Balance with respect to those
Employees who have not remained employed by Seller for such period shall
be retained by Buyer, free and clear of all claims or right of Seller or
others.
As used herein, "employed" means:
The continuous, exclusive, full time (minimum 40 hours per week)
employment by Seller of Employees to provide to Buyer the Services
described in the Transition Service Agreement and otherwise to
facilitate Seller's performance of this Agreement and Buyer's
acquisition and full use of the Assets and Products;
An Employee who was "employed" as defined above up from the Effective Date to
the time of death prior to the Transfer Date, or 30 days after the date of
Buyer's notice pursuant to the second paragraph of Section 5.8 of the Transition
Services Agreement, shall be considered "employed" by Seller for all payments
pursuant to this Exhibit G;
The employment by Buyer prior to the Transfer Date of an Employee who was
"employed" as defined above up to the time hired by Buyer shall be considered
"employed" by Seller for all payments pursuant to this Exhibit G;
The substitution of another employee or employees of Seller for the listed
Employee, subject to Buyer's discretion, and as approved in writing by Buyer and
as shown by an agreed amendment to Table G-1.
Table G-l Percentage of the Adjusted Balance Reimbursement Schedule
--------------------------------------------------------------------------------
Continuous Employment 60 Days or Greater 120 Days or Greater
(% of Adjusted Balance) (% of Adjusted Balance)
--------------------------------------------------------------------------------
Xxxxxx Xxxxxxxxxx 19% 11%
Xxxx Xxxxxxxx 19% 11%
Xxxxxx XxXxxx 14% 6%
Xxxxxxx Xxxxxxx 14% 6%
--------------------------------------------------------------------------------
EXHIBIT H
Allocation
Inventory $ 350,000
----------
Tooling and Test Equipment $ 450,000
----------
Contract and Intellectual Property $1,800,000
----------
Noncompetition Covenant $ 900,000
----------
Goodwill $1,000,000
----------
TOTAL $4,500,000
----------
The allocation for Tooling and Equipment and for Inventory, shall be adjusted as
provided by Section 7.3(a). If the Purchase Price is further adjusted pursuant
to Exhibits B or G, the allocation to Contract and Intellectual Property,
Non-competition covenant and Goodwill shall be reduced in equal amounts.