ASSET PURCHASE AND SALE AGREEMENT
THIS ASSET PURCHASE AND SALE AGREEMENT (this "Agreement") is made and
entered into as of the 8 day of December, 1999, by and between Xxxxxxxx,
Inc., a Minnesota corporation ("Seller"), and Radtec Engineering, Inc., a
Colorado corporation ("Buyer").
RECITALS:
A. Seller is engaged in the business (the "Business") of manufacturing,
marketing, selling, installing and servicing a line of Klystron and TWT-based
Doppler weather radar systems known as the Triton Doppler Radar Series (the
"Meteorological Equipment") which is marketed to users including broadcast
television, aviation, universities, governments and militaries.
B. Seller desires to sell certain of the fixed assets, inventory and
intellectual property used in the conduct of the Business, and Buyer desires to
acquire such assets.
In consideration of the mutual covenants and agreements set forth
herein, and for other good and valuable consideration the receipt and
sufficiency of which are hereby acknowledged, Seller and Buyer, intending to be
legally bound, agree as follows:
1. Purchase and Sale. Buyer agrees to purchase from Seller, and Seller
agrees to sell to Buyer, all right, title and interest in and to the following
property and assets of Seller (collectively the "Assets"):
(a) All of Seller's machinery and equipment, supplies, tools,
promotional materials and other tangible personal property
(other than inventory) used solely in the conduct of the
Business, the principal items of which are listed on Schedule
1(a) attached hereto;
(b) All of Seller's right, title and interest in the SCAMP
software programs and applications and related documentation
(the "SCAMP Software") which represents all of the principal
items of software included in the Meteorological Equipment
(other than the Storm Pro Software referred to in Section
13(a) and those software programs owned by third parties);
(c) Those items of Seller's raw materials inventory,
work-in-process inventory, and finished goods inventory of
Meteorological Equipment listed on Schedule 1(c) attached
hereto, which excludes inventory items for the KABC (Los
Angeles) and KMA (Korea) projects;
(d) All right, title and interest in and to the registered
trademark TRITON DOPPLER RADAR (the "Trademark"), but, without
limitation, excluding the other registered and unregistered
trademarks of Seller including, but not limited to, Triton,
Triton X, Triton Art Paint, Triton i7, and Triton RT;
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(e) All assignable or conveyable rights of Seller under contracts
or agreements with sales agents, written or oral, listed on
Schedule 1(e);
(f) All assignable or conveyable licenses, permits, approvals or
qualifications issued or to be issued to Seller with respect
to the Business by any government or any agency or
instrumentality thereof, listed on Schedule 1(f);
(g) All of Seller's intellectual information, files, records,
data, plans, and recorded knowledge related solely to the
Meteorological Equipment, including maintenance manuals,
electronic schematics, mechanical drawings, assembly drawings,
test data, customer and supplier lists, and similar or related
data; and
(h) All of Seller's goodwill pertaining to or arising out of the
Business.
Without limitation, the Assets shall not include (i) Seller's cash and cash
equivalents, accounts receivable, notes receivable, credits, prepaid expenses,
deferred charges, securities, contracts and contract rights, causes of action,
furniture, trade fixtures, motor vehicles, and real property and fixtures,
whether or not derived from or used in connection with the Business, (ii)
Seller's assets used exclusively in its numerous other businesses other than the
Business, (iii) Seller's assets used jointly by the Business and any of Seller's
other businesses, except to the extent specifically identified above or in
Schedules 1 or 2 attached hereto, (iv) any records not relating to the Business
and all corporate, accounting and tax records relating to the Business, and (v)
refunds for taxes, insurance premiums, insurance policies and employee benefit
plans.
2. Purchase Price. Buyer agrees to pay, and Seller agrees to accept, as
the entire aggregate purchase price for the Assets of Seller being acquired by
Buyer pursuant to Section 1, the sum of Eight Hundred Sixty Four Thousand
Dollars ($864,000) (hereinafter referred to as the "Purchase Price"). Sixty Four
Thousand Dollars ($64,000) of the Purchase Price shall be paid by Buyer to
Seller on the Closing. The balance of the Purchase Price shall be paid to Seller
by delivery to Seller at Closing of Buyer's promissory note in the form attached
hereto as Exhibit A (the "Promissory Note"). The Promissory Note shall be
co-signed by Xxxxxx Xxxxxxxxxx and Xxxxx X. Xxxxx. The Purchase Price shall be
allocated among the Assets as described in Schedule 2. Seller and Buyer each
agree that they will not take a position on any income tax return, before any
governmental agency charged with the collection of any income tax, or in any
judicial proceeding which is in any way inconsistent with such allocation.
3. Assumption of Liabilities. Buyer shall assume, agree to perform, and
discharge when due those obligations of Seller with respect to the period from
and after the Closing Date (i) to provide the warranty services and materials
under the customer contracts listed on Schedule 3(i), (ii) to supply parts and
repair services under the customer contracts listed on Schedule 3(ii), and (iii)
under sales agency contracts, written or oral, listed on Schedule 1(e)
(collectively the "Assumed Liabilities"); provided, however, the provision of
such warranty services and materials under each contract identified in Schedule
3(i) shall not begin until after the applicable Meteorological Equipment has
been installed and accepted by the customer. Buyer shall be compensated for such
warranty services and materials as provided in Section 13(e). Seller and Buyer
agree that, other than the Assumed Liabilities, Buyer does not agree to assume
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and shall have no responsibility for any of the debts, obligations or
liabilities of Seller (the "Excluded Liabilities"), all of which shall remain
the sole responsibility of and shall be paid and discharged by Seller as they
become due. The Excluded Liabilities include without limitation all of the
following:
(a) Any tax liability or tax obligation of Seller, its directors,
officers, shareholders and agents which has been or may be
asserted by any taxing authority, other than any such
liability or obligation arising out of or in connection with
transfer of the Assets as contemplated by this Agreement.
(b) Any liability or obligation of Seller or any contract
obligation of Seller (other than the Assumed Liabilities)
whether incurred prior to, at or subsequent to the Closing
Date, arising out of Seller's operation of the Business.
(c) Any liability or obligation arising out of any litigation,
suit, proceeding, action, claim or investigation, at law or in
equity or in arbitration, related to Seller's operation of the
Business prior to the Closing Date.
(d) Any claim, liability or obligation, known or unknown,
contingent or otherwise, the existence of which is a breach
of, or inconsistent with, any representation, warranty or
covenant of Seller set forth in this Agreement.
(e) Any liability or obligation specifically stated in this
Agreement or the Schedules hereto as not to be assumed by
Buyer.
4. Transfer and Assumption Documents. Seller shall sell, transfer,
assign, convey, and deliver to Buyer at the Closing the Assets by (i) a warranty
xxxx of sale and assignment in the form of Exhibit B hereto, (ii) an Assignment
of Trademark for submission to the Patent and Trademark Office in the form of
Exhibit C hereto to transfer the Trademark, and (iii) such other good and
sufficient instruments of sale, assignment, conveyance and transfer as shall be
required to effectively vest in Buyer all of Seller's right, title, and interest
in and to the Assets, free and clear of all liens, encumbrances, security
interests, actions, claims and equities of any kind whatsoever. At the Closing,
Buyer shall execute and deliver to Seller such instruments of assumption,
satisfactory in form and substance to Seller, as shall be reasonably necessary
to evidence Buyer's assumption of the Assumed Liabilities. Buyer shall be
entitled to possession of the Assets upon the Closing and Buyer shall have until
February 28, 2000 to remove the Assets from Seller's premises. Buyer shall, at
its expense, remove the pedestal, antenna and radome from the tower attached to
the roof of Seller's building, and Seller shall be responsible for the disposal
of the tower and all repair to the building not negligently caused by Buyer's
removal of the pedestal, antenna and radome. From time to time after the
Closing, at Buyer's request and without further consideration, Seller agrees to
execute and deliver such other instruments of conveyance and transfer and take
such other action as Buyer reasonably may require more effectively to convey,
transfer to and vest in Buyer, and to put Buyer in possession of, any of the
Assets. From time to time after the Closing, at Seller's request and without
further consideration, Buyer agrees to execute and deliver such other
instruments of assumption and take such other action as Seller reasonably may
require to more effectively evidence Buyer's assumption of the Assumed
Liabilities.
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5. Closing. Subject to the termination of this Agreement as provided in
Section 10, the closing of the transactions provided for in this Agreement (the
"Closing") shall take place at the offices of Seller in Burnsville, Minnesota,
at 10:00 a.m. on December 31, 1999 (the "Closing Date"), or such other place,
time and date as the parties may agree. Time is of the essence of this
Agreement.
6. Obligations to Employees. Without the consent of Seller, Buyer will
not communicate with Seller's employees of the Business in respect of the
transactions contemplated hereby. Seller agrees that it shall be responsible for
any obligations to any of its employees which heretofore may have arisen or
hereafter may arise by reason of any services rendered by such employees,
including but not limited to salaries, bonuses, vacation pay, retirement
benefits, and other fringe benefits; and Seller hereby agrees to pay all of such
obligations directly to the employees involved when due.
7. Representations and Warranties of Seller. Seller warrants,
represents and covenants to and with Buyer as follows:
(a) Seller is a corporation duly organized, validly existing and
in good standing under the laws of the State of Minnesota.
Seller possesses all requisite corporate power and authority
to own, operate and lease its properties and carry on its
business, and to execute and deliver, and perform its
obligations under, this Agreement.
(b) The execution and delivery of this Agreement and performance
by Seller of its obligations hereunder, and all transactions
contemplated hereby, have been duly and validly authorized by
all necessary corporate action. This Agreement has been, and
the other agreements and documents required to be delivered by
Seller in accordance with the provisions hereof (the "Seller's
Documents") will be, duly executed and delivered on behalf of
Seller by duly authorized officers of Seller; and this
Agreement constitutes, and Seller's Documents when executed
and delivered will constitute, the valid and binding
obligations of Seller, enforceable in accordance with their
respective terms, except as enforcement may be limited by
applicable bankruptcy, insolvency, reorganization or similar
laws from time to time in effect affecting creditor's rights
generally and by legal and equitable limitations on the
availability of specific remedies.
(c) Neither the execution and delivery by Seller of this Agreement
and the Seller's Documents, nor the consummation by Seller of
the transactions contemplated hereby and thereby, will, with
or without the giving of notice or passage of time, or both,
be contrary to or violate, breach, or constitute a default
under, or permit the termination or acceleration of maturity
of, or result in the imposition of any lien, claim or
encumbrance on any property or asset of Seller pursuant to any
provision of, any note, bond, indenture, mortgage, deed of
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trust, evidence of indebtedness or lease agreement, other
agreement or instrument or any judgment, order, injunction or
decree by which Seller is bound, to which Seller is a party,
or to which the assets of Seller are subject; nor is the
effectiveness or enforceability of this Agreement or such
other documents adversely affected by any provision of the
certificate of incorporation or bylaws of Seller.
(d) Except as otherwise set forth herein, no authorization or
approval of, or filing with, any governmental agency,
authority or other body or any other third persons will be
required in connection with Seller's execution and delivery of
this Agreement and Seller's Documents or its consummation of
the transactions contemplated hereby and thereby.
(e) Seller is the sole and lawful owner of and has good and
marketable title to all of the Assets, free and clear of any
liens, encumbrances, security interests, actions, claims, and
equities of any kind whatsoever, except for the security
interest granted to First National Bank of Omaha as agent for
a group of lenders, which security interest will be released
prior to Closing.
(f) That there are no suits, arbitrations or other legal or
governmental proceedings pending or threatened against Seller
which might conceivably affect the title to the Assets.
(g) Except for Seller's other trademarks of or including the word
"Triton" and Seller's right to continue use of such marks and
any new variations thereof, to Seller's knowledge, no other
person has an interest in or right or license to use, or the
right to license others to use the Trademark. There are no
claims or demands of any other person pertaining thereto and
no proceedings have been instituted or, to Seller's knowledge,
are pending or threatened, which challenge Seller's rights in
respect of the Trademark. The Trademark is not subject to any
outstanding order, decree, judgment or stipulation or, to the
knowledge of Seller, is being infringed by others.
(h) Seller has delivered to Buyer true, correct and complete
copies of all written contracts with WPTV, KABC, WHO, WRDW,
KMA and Haikou Airport.
(i) Except as otherwise expressly set forth in this Agreement, the
Assets shall be conveyed to Buyer on an "as-is, where-is"
basis without any representations or warranties of any kind,
express or implied, either oral or written, made by Seller or
any agent or representative of Seller with respect to the
physical or structural condition or sufficiency or adequacy of
the Assets. Except as otherwise expressly set forth in this
Agreement, Seller has made and hereby makes no warranty or
representation whatsoever and hereby disclaims any implied
warranty regarding the fitness for particular purpose, quality
or merchantability of the Assets or any portion thereof.
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8. Representations and Warranties of Buyer. Buyer warrants, represents
and covenants to and with Seller as follows:
(a) Buyer is a corporation duly organized, validly existing and in
good standing under the laws of the State of Colorado. Buyer
possesses all requisite corporate power and authority to own,
operate and lease its properties and carry on its business,
and to execute and deliver, and perform its obligations under,
this Agreement.
(b) The execution and delivery of this Agreement and performance
by Buyer of its obligations hereunder, and all transactions
contemplated hereby, have been duly and validly authorized by
all necessary corporate action. This Agreement has been, and
the other agreements and documents required to be delivered by
Buyer in accordance with the provisions hereof (the "Buyer's
Documents") will be, duly executed and delivered on behalf of
Buyer by duly authorized officers of Buyer; and this Agreement
constitutes, and Buyer's Documents when executed and delivered
will constitute, the valid and binding obligations of Buyer,
enforceable in accordance with their respective terms, except
as enforcement may be limited by applicable bankruptcy,
insolvency, reorganization or similar laws from time to time
in effect affecting creditor's rights generally and by legal
and equitable limitations on the availability of specific
remedies.
(c) Neither the execution and delivery by Buyer of this Agreement
and the Buyer's Documents, nor the consummation by Buyer of
the transactions contemplated hereby and thereby, will, with
or without the giving of notice or passage of time, or both,
be contrary to or violate, breach, or constitute a default
under, or permit the termination or acceleration of maturity
of, or result in the imposition of any lien, claim or
encumbrance on any property or asset of Buyer pursuant to any
provision of, any note, bond, indenture, mortgage, deed of
trust, evidence of indebtedness or lease agreement, other
agreement or instrument or any judgment, order, injunction or
decree by which Buyer is bound, to which Buyer is a party, or
to which the assets of Buyer are subject (including, without
limitation, Buyer's contract with Baron Services, Inc.); nor
is the effectiveness or enforceability of this Agreement or
such other documents adversely affected by any provision of
the certificate of incorporation or bylaws of Buyer.
(d) Except as otherwise set forth herein, no authorization or
approval of, or filing with, any governmental agency,
authority or other body or any other third persons will be
required in connection with Buyer's execution and delivery of
this Agreement and Buyer's Documents or its consummation of
the transactions contemplated hereby and thereby.
(e) Buyer has conducted or has had the opportunity to conduct and
will conduct its own inspection and investigation of the
Assets and, except as otherwise expressly set forth in this
Agreement, is purchasing the Assets on an "as-is, where-is"
basis with no warranties of any kind, express or implied,
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either oral or written, made by Seller or any agent or
representative of Seller with respect to the physical or
structural condition or sufficiency or adequacy of the Assets.
9. Indemnification By Seller. Seller agrees to indemnify Buyer and hold
Buyer harmless from and against any and all liability, loss, litigation, expense
or claim (including reasonable attorney fees) to the extent arising out of,
resulting from, or caused by:
(a) Any breach of any representation, warranty, covenant or
agreement made by Seller in this Agreement or the Seller's
Documents or in connection with the transactions contemplated
herein or therein;
(b) The ownership or operation of the Assets or the Business prior
to the Closing Date (except to the extent included in the
Assumed Liabilities); and
(c) The Excluded Liabilities.
Notwithstanding any provision to the contrary contained in this Agreement, in no
event shall Seller's total cumulative liability to Buyer, if any, for all claims
of any kind resulting from Seller's breach of its representations, warranties or
covenants contained in this Agreement, including but not limited to Seller's
indemnification obligations hereunder, or otherwise arising from or relating to
the subject matter of this Agreement, exceed the amount of the Purchase Price.
10. Indemnification By Buyer. Buyer agrees to indemnify Seller and hold
Seller harmless from and against any and all liability, loss, litigation,
expense or claim (including reasonable attorney fees) to the extent arising out
of, resulting from, or caused by:
(a) Any breach of any representation, warranty, covenant or
agreement made by Buyer in this Agreement or the Buyer's
Documents or in connection with the transactions contemplated
herein or therein;
(b) The Assumed Liabilities; and
(c) Any sales, transfer or similar tax imposed upon the transfer
of the Assets to Buyer pursuant to this Agreement.
11. Conditions to Buyer's Obligations at Closing. The obligations of
Buyer to purchase the Assets hereunder and consummate the transactions
contemplated hereby are conditioned on the satisfaction, unless waived, of the
following conditions at the Closing:
(a) The representations and warranties made by Seller in Section 7
shall be true and correct in all material respects as of the
Closing Date and Seller shall execute and deliver a
certificate to such effect to Buyer at Closing.
(b) Buyer shall have determined in its sole discretion that the
Assets being transferred to Buyer hereunder are free and clear
of any liens, claims, encumbrances, charges and the like.
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(c) Seller shall have in all material respects performed and
complied with all of its agreements and obligations hereunder
which are to be performed or complied with prior to or on the
Closing Date.
12. Conditions to Seller's Obligations at Closing. The obligations of
Seller to sell the Assets hereunder and consummate the transactions contemplated
hereby are conditioned on the satisfaction, unless waived, of the following
conditions at the Closing:
(a) The representations and warranties made by Buyer in Section 8
shall be true and correct in all material respects as of the
Closing Date and Buyer shall execute and deliver a certificate
to such effect to Seller at Closing.
(b) Buyer shall have in all material respects performed and
complied with all of its agreements and obligations hereunder
which are to be performed or complied with prior to or on the
Closing Date, and Xxxxxx Xxxxxxxxxx and Xxxxx X. Xxxxx shall
have executed the Promissory Note at Closing.
(c) Seller shall have received the written approval of this
Agreement and the transactions contemplated hereby by its
lenders and the release or termination by such lenders of
their security interests in the Assets.
13. Related Agreements and Post-Closing Matters.
(a) At the Closing, Buyer and Seller shall each execute and
deliver to each other the License Agreement in the form
attached hereto as Exhibit D, pertaining to the license by
Seller to Buyer of the Storm Pro software.
(b) At the Closing, Buyer and Seller shall each execute and
deliver to each other the Subcontract Agreement in the form
attached hereto as Exhibit E, pertaining to the services to be
performed by Buyer under Seller's contract with the Supply
Administration of the Republic of Korea.
(c) For a period of two weeks following the Closing Date, Seller
shall provide at its office in Burnsville, Minnesota, informal
training with respect to the Meteorological Equipment for
representatives of Buyer. Such training shall consist of one
week of training regarding the Klystron Doppler weather radar
systems and one week of training regarding the TWT-based
Doppler weather radar systems. Such training will cover system
operations, documentation review, test procedures, and
assembly procedures. Buyer will select its representatives for
training (which number shall not exceed 10) and will be
responsible for the costs of their travel, lodging and meals
while attending the training.
(d) For a period of fifteen (15) years following the Closing Date,
Buyer agrees to provide professional customer service and
support for the Meteorological Equipment sold by Seller prior
to the Closing Date using a skilled staff fully qualified to
perform their respective duties. During such period, Buyer
shall maintain an inventory of spare parts or equivalents for
the Meteorological Equipment in the manner similar to which it
maintains an inventory of spare parts for its existing lines
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of weather radar systems. Buyer agrees to charge for such
spare parts the net invoice cost of such parts plus Buyer's
then current xxxx-up and international fees, if applicable.
Buyer agrees to charge its then current labor rates for such
customer service. Promptly after the Closing, Buyer shall
contact each of such customers directly and furnish to them
the addresses, phone numbers and related information needed
for such customers to contact Buyer directly for such customer
service.
(e) As set forth in Section 3, Buyer will provide from and after
the Closing Date the warranty services (labor and materials)
pursuant to the customer contracts listed on Schedule 3(i) and
for the respective warranty periods set forth for such
contracts on Schedule 3(i). At the Closing, Buyer, Seller and
an escrow agent mutually agreeable to Buyer and Seller (the
"Escrow Agent") shall execute and deliver the Escrow Agreement
in the form attached hereto as Exhibit F (the "Escrow
Agreement"). At the Closing, Seller shall pay $185,000 to the
Escrow Agent representing the contributions for the contracts
(other than the contract with the Supply Administration of the
Republic of Korea; the "Korean Contract") listed on Schedule
3(i). With respect to the Korean Contract, (i) if a 5650 MHz
system is to be installed, then Seller shall pay $200,000 to
the Escrow Agent upon receipt of the payment due to Seller
upon final acceptance of the goods under such contract and
(ii) if a 5300 MHz system is to be installed, then no
additional funds are to be paid to the Escrow Agent for the
Korean Contract. During the respective warranty periods, Buyer
shall submit applications to Seller for reimbursement of its
actual direct costs incurred in providing such warranty
services and Seller shall authorize the Escrow Agent to
release funds in payment of such applications; except in the
event a 5300 MHz system is to be installed pursuant to the
Korean Contract, in which case Buyer will not receive
reimbursement for warranty services in connection with the
Korean Contract, but will instead be compensated entirely
pursuant to the Subcontract Agreement attached hereto as
Exhibit E. With respect to the labor provided by Buyer to
perform such warranty services, the direct costs thereof shall
consist of the actual time spent by the employees of Buyer at
the standard hourly wages paid to such employees by Buyer,
without inclusion of fringe benefits or other indirect or
overhead costs incurred by Buyer. With respect to the
materials provided by Buyer to perform such warranty services,
the direct costs thereof shall be the actual net invoice cost
of such materials. In the event the initial contribution by
Seller to the Escrow Agent with respect to a contract as
specified on Schedule 3(i) is used up prior to the expiration
of the applicable warranty period, Buyer and Seller shall each
contribute equally to the Escrow Agent the additional funds
needed to reimburse Buyer for the direct costs of providing
such warranty services. At the end of the warranty period
applicable to a contract as specified on Schedule 3(i), any
portion of the contributions with respect to such contract
which remains with the Escrow Agent shall be distributed
equally to Seller and Buyer.
(f) For a period of up to 90 days after the Closing Date Seller
shall, as reasonably requested by Buyer, use its commercially
reasonable efforts (without the requirement of expenditure of
funds) to assist Buyer in obtaining (i) the approvals of the
FCC and other governmental agencies necessary for Buyer to use
the licenses and permits listed on Schedule 1(f) and (ii) the
consents of any third parties needed for the assignment of
those contracts and agreements with sales agents listed on
Schedule 1(e).
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14. Termination.
(a) Termination by Mutual Consent. At any time prior to the
Closing, this Agreement may be terminated by mutual written
consent of Buyer and Seller.
(b) Termination by Buyer. Buyer may terminate this Agreement at
any time prior to the Closing by delivery of written notice to
Seller if:
(i) Seller has failed to perform any of its covenants under
this Agreement or has violated this Agreement in any material respect;
or
(ii) Any representation or warranty made by Seller in this
Agreement is false or inaccurate in any material respect or there is
any material misrepresentation or material omission by Seller.
(c) Termination by Seller. Seller may terminate this Agreement at
any time prior to the Closing by delivery of written notice to
Buyer if:
(i) Buyer has failed to perform any of its covenants under
this Agreement of has violated this Agreement in any material respect;
or
(ii) Any representation or warranty made by Buyer in this
Agreement is false or inaccurate in any material respect or there is
any material misrepresentation or material omission by Buyer.
(d) Effect of Termination. In the event of termination as provided
above, this Agreement shall then become of no further force or
effect, all parties hereto shall bear their own costs
associated with this Agreement and all transactions mentioned
herein, and there shall be no obligation on the part of Buyer
or Seller or the officers, directors or shareholders of Buyer
or Seller.
15. Survival. The representations, warranties, and covenants on the
part of Seller and Buyer contained in this Agreement shall survive the Closing
and shall be binding upon Seller and Buyer and their heirs, legal
representatives, successors and assigns.
16. Transfer Taxes. Buyer shall pay all sales and other similar taxes
imposed on or collectible by Seller or Buyer by reason of the transfer of the
Assets.
17. Entire Agreement. This document constitutes the entire agreement of
the parties with respect to the subject matter hereof and may not be modified,
amended, or terminated except by a written agreement specifically referring to
this Agreement and signed by all of the parties hereto.
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18. Binding Agreement. This Agreement shall be binding upon and inure
to the benefit of the parties hereto and their respective heirs, legal
representatives, successors and assigns.
19. Further Instruments. The parties hereto shall execute and deliver
such additional instruments and documents as may be reasonably requested by any
of them in order to carry out the purposes and intent of this Agreement and to
fulfill their respective obligations.
20. Governing Law. This agreement shall be construed in accordance with
the laws of the State of Minnesota.
21. Severability. In the event that one or more of the provisions
contained in this Agreement shall for any reason be held invalid, illegal or
unenforceable in any respect, such invalidity, illegality or unenforceability
shall not affect any of the other provisions contained in this Agreement, which
provisions shall remain in full force and effect.
22. Counterparts. This Agreement may be executed in one or more
counterparts and by the different parties hereto in separate counterparts, each
of which shall be deemed an original but all of which together shall constitute
one and the same instrument.
23. Schedules and Exhibits. All references to Schedules and Exhibits
herein, unless otherwise stated, means the schedules and exhibits attached to
this Agreement which are hereby incorporated by reference.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as of the day and year first above written.
RADTEC ENGINEERING, INC., a
Colorado corporation
By:/s/ Xxxxx X. Xxxxx
----------------------------
Xxxxx X. Xxxxx, President
XXXXXXXX, INC., a Minnesota corporation
By:/s/ Xxxxx Xxxxxx
----------------------------
Xxxxx Xxxxxx, Vice President
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SCHEDULE 1(a)
List of Certain Tangible Personal Property
"The reporting person agrees to furnish supplementally a copy of this omitted
schedule to the Securities & Exchange Commission upon request."
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SCHEDULE 1(c)
List of Inventory
"The reporting person agrees to furnish supplementally a copy of this omitted
schedule to the Securities & Exchange Commission upon request."
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SCHEDULE 1(e)
List of Sales Agency Contracts
"The reporting person agrees to furnish supplementally a copy of this omitted
schedule to the Securities & Exchange Commission upon request."
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SCHEDULE 1(f)
List of Licenses and Permits
Type Acceptance
Non Broadcast Transmitter MPDTDR4370A-C1
Non Broadcast Transmitter MPDZDR4370A-C2
Non Broadcast Transmitter MPDTDRFP70B-C1
Non Broadcast Transmitter MPDTDR3070A-C1
Experimental XD FX KQ2XSX 4662-EX-R-97
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SCHEDULE 2
Allocation of Purchase Price
"The reporting person agrees to furnish supplementally a copy of this omitted
schedule to the Securities & Exchange Commission upon request."
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SCHEDULE 3(i)
List of Contracts for Warranty Services and Materials
"The reporting person agrees to furnish supplementally a copy of this omitted
schedule to the Securities & Exchange Commission upon request."
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SCHEDULE 3(ii)
List of Contracts for Services and Parts
The following are international contracts that promise Service and Parts.
Sanya China Repairs after installation are required. If repair is required
on site, the field engineer must arrive within 20 days of request.
Barcelona, Spain Service 24 hours per day, 7 days a week
Jindezhen and Ganzhou Airport, China
Service 24 hours per day, 7 days a week and free software
upgrades.
Beijing, China Spares parts available for 15 years.
Haikou, China Spares parts available for 15 years.
18
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EXHIBIT A
PROMISSORY NOTE
$800,000.00 Date: December 13, 0000
Xxxxxxxxxx, Xxxxxxxxx
1. Makers' Promise to Pay. For value received, the undersigned makers
(whether one or more, the "Maker") jointly and severally promise to pay to
Xxxxxxxx, Inc. (the "Holder") the principal sum of Eight Hundred Thousand
Dollars ($800,000.00), in twenty (20) equal, consecutive monthly payments of
$40,000.00 commencing on the date one month after the date of this Note and
continuing on the same day of each month thereafter until fully paid. All
payments and any other sums due under this Note shall be paid to the Holder at
its address at 00000 Xxxx Xxxxx, Xxxxxxxxxx, Xxxxxxxxx 00000-0000, or at such
other address as the Holder may from time to time designate.
2. Default by Maker. Should default be made in the payment of any
installment due under this Note, all sums due or not yet due under this Note,
being the sum of all unpaid installments, immediately shall be due and payable
in full without further notice by Holder. Following any default hereunder,
interest shall accrue on the unpaid principal balance at the rate of eighteen
percent (18%) per annum and shall be due and payable upon demand.
3. Note Payable in U.S. Dollars. Principal, interest, and any other
charges due under this Note are payable in lawful money of the United States.
4. Late Charge. Maker agrees: (a) to pay immediately, without demand,
to the Holder, in the event any installment required under this Note is not
received by the Holder within three (3) days after its due date, an amount equal
to one and one-half percent (1.5%) of the then unpaid principal balance of this
Note; (b) that it would be impractical or extremely difficult to fix the
Holder's actual damages in the event that any installment shall not be paid when
due; and (c) that such amount shall be presumed to be the amount of damages for
such late payment and is reasonable.
5. Assumption of this Note. This Note may not be assumed or assigned by
Maker without the express written consent of the Holder hereof, which consent
may be withheld in Holder's sole and absolute discretion.
6. Maximum Interest. In no event whatsoever shall the amount paid, or
agreed to be paid, to the Holder for the use, forbearance, or retention of the
money evidenced hereby ("Interest") exceed the maximum amount permissible under
applicable law. If the performance or fulfillment of any provision hereof shall
result in Interest exceeding the limit for interest prescribed by law, then the
amount of such Interest shall be reduced to the maximum rate which may lawfully
be charged or collected by the Holder. If, from any circumstances whatsoever,
the Holder should receive as Interest an amount which would exceed the highest
19
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lawful rate, the amount which would be excessive Interest shall be applied to
the reduction of the principal balance owing hereunder (or, at the option of the
Holder, be paid over to Maker) and not to the payment of Interest.
7. Costs of Collection. Maker promises to pay: (a) all costs and
expenses of collection, including without limitation, attorneys' fees, in the
event this Note or any portion of this Note is placed in the hands of attorneys
for collection and such collection is effected without suit; (b) attorneys'
fees, as determined by the judge of the court, and all other costs, expenses,
and fees incurred by the Holder in the event suit is instituted to collect this
Note or any portion of this Note; (c) all costs and expenses incurred by or on
behalf of the Holder in connection with collecting or otherwise enforcing any
right of the Holder under this Note; and (d) all costs and expenses, including,
without limitation, attorneys' fees incurred by the Holder in connection with
any bankruptcy, insolvency, or reorganization proceeding or receivership in
which the Maker is involved, including, without limitation, attorneys' fees
incurred in making any appearances in any such proceeding or in seeking relief
from any stay or injunction issued in or arising out of any such proceeding.
8. Certain Waivers. Maker waives diligence, grace, demand, presentment
for payment, exhibition of this Note, protest, notice of protest, notice of
dishonor, notice of demand, notice of nonpayment, and any and all exemption
rights against the indebtedness evidenced by this Note, and agrees to any and
all extensions or renewals from time to time without notice and to any partial
payments of this Note made before or after maturity and that no such extension,
renewal, or partial payment shall release Maker from the obligation of payment
of this Note or any installment of this Note.
9. Governing Law. This Note shall be construed under and governed by
the substantive laws of the State of Minnesota.
10. Obligations of Persons Under this Note. In this Note, the singular
shall include the plural and this Note shall be the joint and several obligation
of each Maker.
EXECUTED as of the date first above written.
RADTEC ENGINEERING, INC.
By: /s/ Xxxxx X. Xxxxx
--------------------------
Xxxxx X. Xxxxx
Title: President
/s/ Xxxxxx Xxxxxxxxxx
-------------------------
Xxxxxx Xxxxxxxxxx
/s/ Xxxxx X. Xxxxx
-------------------------
Xxxxx X. Xxxxx
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EXHIBIT B
GENERAL XXXX OF SALE AND ASSIGNMENT
KNOW ALL MEN BY THESE PRESENTS, that Xxxxxxxx, Inc., a Minnesota
corporation (the "Seller"), pursuant to and in consideration of the terms and
conditions of the Asset Purchase and Sale Agreement dated December 8, 1999 (the
"Asset Purchase Agreement") among Seller and Radtec Engineering, Inc., a
Colorado corporation ("Buyer"), and in consideration of the sum of One Dollar
($1.00) and other good and valuable consideration, the receipt of which is
hereby acknowledged, has sold, granted, assigned, conveyed, transferred and set
over to, and by these presents does sell, grant, assign, convey, transfer and
set over to Buyer, its successors and assigns, all of Seller's right, title and
interest in and to the "Assets" as such term is defined in Section 1 of the
Asset Purchase Agreement.
TO HAVE AND TO HOLD, the same unto Buyer, its successors and assigns
forever.
Seller hereby represents and warrants to Buyer that it has good and
marketable title to the Assets, free and clear of all liens and encumbrances,
except as otherwise disclosed in the Asset Purchase Agreement.
Seller, for itself and its successors and assigns, covenants and agrees
with Buyer to warrant and defend the sale of the Assets hereby sold to Buyer,
its successors and assigns, against the lawful claims and demands of all
persons, except as set forth in the Asset Purchase Agreement, and agrees to take
all steps necessary to put Buyer, its successors and assigns, in actual
possession and operating control of the Assets.
IN WITNESS WHEREOF, Seller has caused this General Xxxx of Sale and
Assignment to be executed as of the 13th day of December, 1999.
XXXXXXXX, INC., a
Minnesota corporation
By: /s/ Xxxxx Xxxxxx
-------------------------
Xxxxx Xxxxxx
Printed Name:
Title: Vice President
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EXHIBIT C
ASSIGNMENT OF TRADEMARK
THIS ASSIGNMENT is made this 13th day of December, 1999, by XXXXXXXX,
INC., a Minnesota corporation ("Assignor"), of 00000 Xxxx Xxxxx, Xxxxxxxxxx,
Xxxxxxxxx 00000-0000, to RADTEC ENGINEERING, INC., a Colorado corporation
("Assignee"), of 0000 Xxxx 0xx Xxxxxx, Xxxxxxxxxx, XX 00000.
RECITALS:
A. Assignor uses the trademark "Triton Doppler Radar" and (the "Xxxx").
B. Assignee is acquiring the portion of Assignor's business pertaining
to the manufacture, sale, installation and service of a line of Klystron and
TWT-based Doppler weather radar systems know as the Triton Doppler Radar Series
(the "Business") and in connection therewith all of Assignor's right, title and
interest in and to the Xxxx and the registration thereof.
NOW THEREFORE, for valuable consideration, receipt of which is hereby
acknowledged:
Assignor hereby assigns to Assignee all of Assignor's right, title and
interest in and to the Xxxx, together with all of the goodwill of the Business
in connection with which the Xxxx is used and which is symbolized by the Xxxx,
the registration of the Xxxx, and the right to recover for past infringement of
the Xxxx; provided, however, this Assignment does not include the other
registered and unregistered trademarks and service marks of Assignor which
include the word "Triton" (the "Excluded Marks"), including, without limitation,
the marks "Triton", "Triton i7", and "Triton RT". This Assignment is subject to
the retention by Assignor of all of its rights, title and interest in and to the
Excluded Marks and the registrations and applications for registration therefor.
XXXXXXXX, INC., a Minnesota corporation
By: /s/ Xxxxx Xxxxxx
-------------------------------
Xxxxx Xxxxxx, Vice President
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EXHIBIT D
LICENSE AGREEMENT
THIS LICENSE AGREEMENT (the "Agreement"), effective as of December 13,
1999 (the "Effective Date"), is by and between XXXXXXXX , INC., a Minnesota
corporation, having its principal place of business at 00000 Xxxx Xxxxx,
Xxxxxxxxxx, Xxxxxxxxx 00000-0000 ("Xxxxxxxx") and RADTEC ENGINEERING, INC., a
Colorado corporation having a place of business at 0000 Xxxx 0xx Xxx, Xxxx X,
Xxxxxxxxxx, XX 00000 ("Radtec"). Capitalized terms shall have the meanings set
forth in Section 3 or otherwise defined in the body of the Agreement.
1. Scope. This Agreement governs Radtec's authorization to distribute
to its customers certain Software Products which it licenses from Xxxxxxxx on
the terms and conditions set forth in this Agreement.
2. Appointment. Xxxxxxxx hereby authorizes Radtec to market and
distribute the Software Products solely in connection with Radtec's sale of
Meteorological Equipment to End Users.
3. Definitions. The following terms shall have a defined meaning as
used in this Agreement:
(a) "End User" means a licensee of Software Products which
acquires such products in connection with such licensee's purchase of
Meteorological Equipment from Radtec, for its own use rather than
distribution or resale.
(b) "Intellectual Property Rights" means all intellectual
property rights worldwide arising under statutory law, common law or by
contract, and whether or not perfected, including, without limitation,
all (i) patents, patent applications and patent rights; (ii) rights
associated with works of authorship including copyrights, copyright
applications, copyright registrations, mask work rights, mask work
applications, mask work registrations; (iii) rights relating to the
protection of trade secrets and confidential information; (iv) any
right analogous to those set forth in this Section 3(b) and any other
proprietary rights relating to intangible property (but specifically
excluding trademark, trade dress, trade name, design patent or service
xxxx rights); and (v) divisions, continuations, renewals, reissues and
extensions of the foregoing (as and to the extent applicable) now
existing, hereafter filed, issued or acquired.
(c) "Xxxxxxxx Marks" shall mean the Xxxxxxxx trademarks, trade
names and logos, including but not limited to the trade name "Storm
Pro," supplied by Xxxxxxxx to Radtec in the splash screen and windows
of the Software Products.
(d) "Meteorological Equipment" shall mean Klystron and
TWT-based Doppler weather radar systems known as the Triton Doppler
Radar Series the technology for which was acquired by Radtec from
Xxxxxxxx pursuant to an Asset Purchase Agreement between the parties
dated December 8, 1999.
23
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(e) "Software Products" means the software products, in object
code form, as well as related supporting documentation ("User
Documentation") marketed by Xxxxxxxx under the "Storm Pro" trade name,
and which are provided to Radtec for distribution in accordance with
Section 4(a) of this Agreement.
(f) "Update" means modifications of releases that pertain to
the Software Products that incorporate corrections of minor functional
errors and problems and also provide minor functional improvements.
4. Grant of Rights.
(a) Xxxxxxxx Marks. Subject to the conditions and restrictions
set forth herein, Xxxxxxxx hereby grants to Radtec a nontransferable,
nonexclusive and limited right and license to reproduce, copy and
publicly display the Xxxxxxxx Marks on the splash screen and windows of
the Software Products. Radtec may not use the Xxxxxxxx Marks for any
other purpose.
(b) Software Products Distribution License. Subject to and in
consideration of the conditions and restrictions set forth herein and
payment to Xxxxxxxx of the applicable royalties set forth herein,
Xxxxxxxx hereby grants to Radtec a personal, nontransferable,
nonexclusive and limited right and license to reproduce and distribute
the Software Products to End Users in connection with such End User's
purchase of Meteorological Equipment from Radtec, including the right
to use the Software Products to test the performance of the
Meteorological Equipment. Radtec may distribute the Software Products
on CD-ROM, or other standard media.
(c) User Documentation Modification and Distribution License.
Subject to and in consideration of the conditions and restrictions set
forth herein and payment to Xxxxxxxx of the applicable fees set forth
herein, Xxxxxxxx hereby grants to Radtec a personal, nontransferable,
nonexclusive and limited right and license to: (i) make such
modifications to the User Documentation as are reasonably required to
permit customization of the User Documentation; and (ii) distribute the
User Documentation to End Users in connection with such End User's
purchase of Meteorological Equipment from Radtec. Notwithstanding the
foregoing, all Xxxxxxxx copyright and restricted rights notices shall
be reproduced and maintained in all Radtec versions of the User
Documentation.
(d) End User Agreements. Radtec will take all steps necessary
to protect Xxxxxxxx' proprietary rights in the Software Products and to
ensure that each copy of the Software Products distributed by Radtec
will be accompanied by a localized copy of Radtec's standard software
license agreement applicable to such software. Such license will
include terms and conditions substantially equivalent to those set
forth in Exhibit A to this Agreement. The license specified above may
24
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be (i) a written agreement signed by the End User; (ii) a written
agreement in the package containing the Software Products that the End
User accepts by opening the package; or (iii) an electronic license
agreement provided that Radtec ensures that upon the initial use of the
Software Products, the End User is presented with a copy of the End
User agreement and is required to electronically accept the terms of
the End User agreement prior to accessing use of the functions of the
Software Product.
(e) Enforcement. Radtec shall use its best efforts to enforce
any End User agreements. If an End User materially fails to fulfill any
of its obligations under any such agreement, Xxxxxxxx may, upon its
election and in addition to any other remedies that it may have, notify
Radtec in writing of such breach and require Radtec to terminate all
the rights granted, with respect to the Software Products, in such
agreement. Radtec shall terminate such rights by not more than sixty
(60) days notice to the End User, if the breach is not cured within
such notice period. If Radtec, in Xxxxxxxx' sole discretion, fails to
perform its obligations stated in this section, Xxxxxxxx may, in
addition to any other remedies it may have, terminate the agreement
with the End User, and/or undertake appropriate enforcement directly on
Xxxxxxxx' behalf. Radtec shall pay all reasonable costs incurred by
Xxxxxxxx, including but not limited to, attorneys' fees, in connection
with such enforcement actions undertaken by Xxxxxxxx.
(f) Internal Use License. Subject to the terms and conditions
set forth herein, Xxxxxxxx grants to Radtec a non-exclusive,
non-transferable license to reproduce and distribute and/or
electronically distribute within Radtec the Software Products for
non-production, internal marketing purposes (such as internal training,
centers of excellence, demonstrations and other non-billable/non-client
specific prototyping) only. Radtec agrees that it will not use the
Software Products for any other internal purpose, including but not
limited to (i) use for internal application development and (ii) except
as provided in Section 4(b), use to test applications that will be
deployed by an End User. All copyright and restricted rights notices
shall be reproduced in all Radtec internal use copies.
(g) Training. Subject to and in consideration of the
conditions and restrictions set forth, Xxxxxxxx hereby grants to Radtec
a personal, nontransferable, nonexclusive and limited right and license
to: (i) offer and provide Xxxxxxxx' training materials to End Users and
prospective End Users of the Software Products; (ii) make such
modifications to the Xxxxxxxx training materials as are reasonably
required to permit customization and expansion of the training
materials, including removing all Xxxxxxxx trademarks and trade names;
and (iii) reproduce and distribute the Radtec version(s) of the
training materials to End Users and prospective End Users which have
purchased such training from Radtec. Notwithstanding the foregoing
right to customize the training materials, all Xxxxxxxx copyright and
restricted rights notices shall be reproduced and maintained in all
Radtec versions of such materials. A copy of the Radtec version(s) of
the training materials shall be provided to Xxxxxxxx and Radtec hereby
grants to Xxxxxxxx an unlimited right and license to use, copy,
reproduce, publicly display, publicly perform and distribute such
Radtec version(s) of the training materials.
25
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(h) No Publicity. Radtec agrees that it will not (i) publish
findings in the press of any evaluation of the Software Products
against competitive products or (ii) publish to any third party the
results of any benchmark tests or other evaluation of the Software
Products without prior written notice and pre-approval by Xxxxxxxx.
(i) No Other Rights. Other than what is stated herein, and in
the Exhibits hereto, no other license, right or interest is granted to
Radtec for any other purpose.
5. Commercial Terms.
(a) Delivery. Promptly after the Effective Date, Xxxxxxxx
shall deliver to Radtec a copy of the Software Products and any related
User Documentation electronically, on CD-ROM or on such other mutually
agreeable standard media. Radtec acknowledges and agrees that it has
had an opportunity to test the Software Products prior to the Effective
Date and that the Software Products and related Xxxxxxxx User
Documentation shall therefore be accepted upon delivery, and shall not
be subject to any rights of rejection or revocation on behalf of the
Radtec. All User Documentation delivered under this Agreement shall be
in the form generally provided by Xxxxxxxx. Radtec shall be responsible
for any required modification of the User Documentation and shall make
such modifications in accordance with Section 4(c).
(b) Product Royalties. In consideration of the distribution
rights granted to Radtec hereunder, Radtec shall pay to Xxxxxxxx a
royalty of $10,000.00 for each copy of the Software Products which it
distributes; provided, however, no royalty shall be payable to Xxxxxxxx
for the initial six (6) copies of the Software Products which are
licensed for use by End Users. Xxxxxxxx and Radtec acknowledge and
agree that Radtec shall be free to set the price of any license of the
Software Products to End Users so long as such price is not less than
$35,000.
(c) Support Pricing. In consideration of the rights granted to
Radtec and the obligations of Xxxxxxxx hereunder, Radtec shall pay to
Xxxxxxxx a support fee of $1,000 per year for each copy of the Software
Products which are supported by Updates.
(d) Updates. The fees specified herein are for the current
release of the Software Products and for those Updates provided by
Xxxxxxxx to Radtec for distribution to its End Users during the term of
this Agreement. Xxxxxxxx may, at its sole discretion, modify the
Software Products. For purposes of this Agreement, Xxxxxxxx shall have
the sole discretion as to whether and how often an Update is made to
the Software Products. During the term of this Agreement, Xxxxxxxx
shall deliver to Radtec all Updates to the Software Products provided
under the terms of this Agreement. Upon receipt of any Updates, Radtec
has thirty (30) days (i) to make any required modifications to the
updated User Documentation in accordance with Section 4(c) of this
Agreement; (ii) to cease distribution of the existing version of the
Software Products; and (iii) to commence distribution of such Updates.
Payment to Xxxxxxxx as provided in Section 5(c) is required for
Radtec's distribution of Updates to existing End Users.
26
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(e) Payment Terms. All payments required under Sections 5(b)
and 5(c) shall be made on a quarterly basis within thirty (30) days
following the end of the fiscal quarter to which they relate, and shall
be accompanied by the records required pursuant to Section 5(g) below.
Within thirty (30) days following the end of the fiscal quarter, Radtec
shall submit records pursuant to Section 5(g) below, even if no royalty
or support payment is required.
(f) Taxes. The fees listed in this Agreement are exclusive of
all federal, state, municipal or other government excise, sales, use,
occupational, or like taxes or duties now in force or enacted in the
future. Any such tax, fee, or charge of any nature whatsoever imposed
by any governmental authority on, or measured by, the transactions
between Xxxxxxxx and Radtec (exclusive of taxes based on Xxxxxxxx' net
income) shall be paid by Radtec in addition to the prices invoiced. All
payments to Xxxxxxxx shall be made free and clear of, and without
reduction for, any withholding taxes. In the event that Xxxxxxxx pays
any such tax, fee, or charge, at the time of sale or thereafter, Radtec
shall promptly reimburse Xxxxxxxx therefor.
(g) Records. Radtec shall maintain and provide to Xxxxxxxx,
along with any payments made in accordance with Section 5(e), a
quarterly report of royalty and support payments. The quarterly report
shall specify, the product name, number of units, total royalty due,
total support payments due and any additional information as may
reasonably be requested by Xxxxxxxx. Such quarterly report shall be
provided by Radtec even if no royalty or support payments are due. As
part of its records, Radtec shall maintain a listing of all Radtec End
Users and shall provide such listing to Xxxxxxxx, upon Xxxxxxxx'
reasonable request.
(h) Audit Rights. Xxxxxxxx shall have the right to audit the
records and accounts of Radtec kept in accordance with Section 5(g)
above. Any such audit shall be performed only during Radtec's normal
business hours and shall be performed in such a manner as to avoid
unreasonable interference with Radtec's business operations. Xxxxxxxx
shall bear costs and expenses associated with the exercise of its right
to audit except that in the event of an underpayment of more than ten
percent (10%) of the amount due for the period audited, Radtec shall
pay all costs associated with such audit. In the event that any errors
in payment shall be determined, such errors shall be corrected by
appropriate adjustment in payment (plus interest at the highest rate
permitted by law) for the quarterly period during which the error is
discovered.
6. Radtec Obligations.
(a) Indemnity. Radtec agrees to indemnify and hold Xxxxxxxx
harmless from and against all claims from Radtec's End Users or other
third parties arising out of any acts and/or omissions of Radtec or its
employees or representatives.
(b) Fair Representation. Radtec shall display, demonstrate,
and represent the Software Products fairly and shall make no
representations concerning Xxxxxxxx or the Software Products which are
false, misleading, or inconsistent with those representations set forth
27
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in promotional materials, literature and manuals published and supplied
by Xxxxxxxx.
(c) Notification of Infringement. Radtec shall immediately
inform Xxxxxxxx by telephone, telex or facsimile, with written
confirmation by mail, if it becomes aware of any facts indicating that
any person is infringing any Intellectual Property Rights of Xxxxxxxx
and its suppliers or is engaging in unauthorized distribution of any
Software Products.
(d) Registrations and Licenses. Radtec will obtain, at its own
expense, all registrations, licenses, and approvals from any
authorities and agencies which may be needed in order for Radtec to
export, import, market or sell the Software Products. Any such
applications will identify the Software Products as originating from
Xxxxxxxx.
(e) Compliance with Laws. In exercising its rights and
performing its obligations under this Agreement, Radtec shall comply
with all applicable international, national, and local laws and
regulations. Radtec further agrees not to violate any provisions of the
U.S. Foreign Corrupt Practices Act of 1977 as amended, which generally
prohibits the payment of monies or anything of value to government
officials in order to obtain benefits from such government officials or
their governments.
(f) Restrictions on Use. Radtec agrees not to translate the
Software Products into another computer language, in whole or in part.
Except as set forth in this Agreement, Radtec shall not make copies or
make media translations of the Software Products, including, without
limitation, the User Documentation, in whole or in part, without
Xxxxxxxx' prior written approval. Radtec agrees that if, for any
reason, it comes into possession of any source code, or portion
thereof, for any Xxxxxxxx product, which source code is not generally
provided by Xxxxxxxx as a part of a Software Products, it will
immediately deliver all copies of such source code to Xxxxxxxx. Unless
Radtec pays for an End User license, Radtec shall not use the Software
Products as an End User. Radtec shall not rent or timeshare the
Software Products or otherwise license or distribute the Software
Products other than as specified in this Agreement. Radtec shall not
reverse compile, disassemble, or otherwise reverse engineer the
Software Products. Nothing contained in this Agreement shall be
interpreted so as to exclude or prejudice the rights (if any) of Radtec
or any End User under the European Directive 91/250 on the Legal
Protection of Computer Programs (14 May 1991, OJ 1991 (122/42) as
implemented in the relevant jurisdiction) with respect to the Software
Products.
(g) Other Government Agreements. Radtec will take all
reasonable steps in making proposals and agreements with governments
other than the United States which involve the Software Products to
ensure that Xxxxxxxx' proprietary rights in such Software Products
receive the maximum protection available from such governments for
commercial computer software and related documentation developed at
private expense.
(h) Failure to Comply. Failure to comply with any of the
foregoing obligations will constitute a material breach of this
Agreement.
28
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7. Trademarks, Logos and Product Designs. Except as provided in Section
4(a) of this Agreement, Radtec is granted no right, title or license to, or
interest in, any Xxxxxxxx trademarks, trade names, logos or product designs.
Radtec acknowledges Xxxxxxxx' rights in the Xxxxxxxx Marks and agrees that any
use of the Xxxxxxxx Marks by Radtec shall inure to the sole benefit of Xxxxxxxx.
Radtec agrees not to: (i) challenge Xxxxxxxx' ownership or use of; (ii)
register; or (iii) infringe any Xxxxxxxx Marks nor shall Radtec, without the
prior written consent of Xxxxxxxx, incorporate any Xxxxxxxx Marks into Radtec's
trademarks, service marks, company names, Internet addresses, domain names, or
any other similar designations. If Radtec acquires any rights in any Xxxxxxxx
Marks by operation of law or otherwise, it will immediately at no expense to
Xxxxxxxx assign such rights to Xxxxxxxx along with any associated goodwill,
applications and/or registrations. This section does not limit in any manner the
rights of Radtec to use the trademark "Triton Doppler Radar" which it acquired
from Xxxxxxxx.
8. Ownership of Intellectual Property Rights. Radtec acknowledges that
the structure, organization and code of the Software Products are proprietary to
Xxxxxxxx or its suppliers and that Xxxxxxxx or its suppliers retain exclusive
ownership of the Software Products. Radtec will take reasonable measures to
protect Xxxxxxxx' Intellectual Property Rights in the Software Products,
including such assistance and measures as are reasonably requested by Xxxxxxxx
from time to time. Except as provided herein, Radtec is not granted any other
Intellectual Property Rights, or any other rights, franchises or licenses, with
respect to the Software Products.
9. Confidential Information. The Software Products provided to Radtec
under this Agreement shall be held in confidence. Radtec may not disclose
Xxxxxxxx' confidential or proprietary information and may use it only for
purposes specifically contemplated in this Agreement. Xxxxxxxx will treat
tangible business and financial information of Radtec that has been previously
identified as confidential, with the same degree of care as it does its own
similar information. The foregoing obligations do not apply to information
which: (i) is or becomes known by recipient without an obligation to maintain
its confidentiality, (ii) is or becomes generally known to the public through no
act or omission of recipient, or (iii) is independently developed by recipient
without use of confidential or proprietary information. This section will not
affect any other confidential disclosure agreement between the parties.
10. No Warranty. THE SOFTWARE PRODUCT(S) ARE PROVIDED "AS IS." XXXXXXXX
DOES NOT MAKE AND HEREBY DISCLAIMS ANY EXPRESS OR IMPLIED WARRANTIES,
REPRESENTATIONS OR CONDITIONS, INCLUDING, BUT NOT LIMITED TO, THE WARRANTIES OR
CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE,
NON-INFRINGEMENT AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE OR
TRADE PRACTICE.
11. Limitation of Liability. XXXXXXXX AND ITS SUPPLIERS WILL NOT BE
LIABLE FOR ANY LOSS OF USE, INTERRUPTION OF BUSINESS, COST OF PROCUREMENT OF
SUBSTITUTE GOODS, TECHNOLOGY OR SERVICES OR ANY INDIRECT, SPECIAL, INCIDENTAL,
29
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OR CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING LOST PROFITS) REGARDLESS OF THE
FORM OF ACTION WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT PRODUCT
LIABILITY OR ANY OTHER LEGAL OR EQUITABLE THEORY EVEN IF XXXXXXXX HAS BEEN
ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL XXXXXXXX' AGGREGATE
CUMULATIVE LIABILITY TO RADTEC FOR ANY CLAIMS ARISING OUT OF OR RELATED TO THIS
AGREEMENT EXCEED THE ROYALTIES PAID BY RADTEC TO XXXXXXXX UNDER THIS AGREEMENT.
THE LIMITATIONS IN THIS SECTION SHALL APPLY WHETHER OR NOT THE ALLEGED BREACH OR
DEFAULT IS A BREACH OF A FUNDAMENTAL CONDITION OR TERM, OR A FUNDAMENTAL BREACH,
OR IF ANY LIMITED WARRANTY OR LIMITED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
12. Discontinuance of Software Products. If, during the term of this
Agreement, Xxxxxxxx discontinues one or more of the Software Products provided
to Radtec under this Agreement, Xxxxxxxx shall continue to provide support for
the then-current version of such discontinued Software Products in accordance
with Xxxxxxxx' obligations under this Agreement and only for the remaining term
of this Agreement.
13. Indemnification. Xxxxxxxx will defend or settle at its option and
expense any legal proceeding brought against Radtec or affecting its right to
use the Software Products as provided herein (including, but not limited to, the
pending lawsuit filed by Baron Services, Inc. against Xxxxxxxx), to the extent
that it is based on a claim that the Software Products directly infringe a
copyright or U.S. patent, and will pay all damages and costs awarded by a court
of final appeal attributable to such claim, provided that Radtec: (i) gives
written notice of the claim promptly to Xxxxxxxx, (ii) gives Xxxxxxxx sole
control of the defense and settlement of the claim, (iii) provides to Xxxxxxxx
all available information and assistance, and (iv) has not compromised or
settled such a claim. If any Software Products is found to infringe, or in
Xxxxxxxx' opinion is likely to be found to infringe, Xxxxxxxx may elect to: (i)
obtain for Radtec the right to use such Software Products in accordance with the
terms of this Agreement, (ii) replace or modify the Software Products so that it
becomes non-infringing; or if neither of these alternatives is reasonably
available, (iii) refund to Radtec all royalties paid by Radtec for such Software
Products. Xxxxxxxx has no obligation under this section for any claim which
results from: (i) use of the Software Products in combination with any equipment
other than Meteorological Equipment; (ii) Xxxxxxxx' compliance with designs or
specifications of Radtec; (iii) modification of the Software Products; or (iv)
use of allegedly infringing Software Products, if the alleged infringement could
be avoided by the use of a different version of the Software Products made
available to Radtec. THIS SECTION STATES THE SOLE AND EXCLUSIVE REMEDY OF RADTEC
AND THIRD PARTIES AND THE ENTIRE LIABILITY AND OBLIGATION OF XXXXXXXX WITH
RESPECT TO INFRINGEMENT OR CLAIMS OF INFRINGEMENT OF ANY INTELLECTUAL PROPERTY
RIGHT BY THE SOFTWARE PRODUCTS OR ANY PART THEREOF.
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14. Term and Termination.
(a) Term. The term of this Agreement shall commence as of the
Effective Date and shall continue for ten (10) years or until
terminated pursuant to Section 14(b) or (c) below.
(b) Without Cause. This Agreement may be terminated by Radtec
without cause, for any reason, on written notice to Xxxxxxxx.
(c) Termination With Cause. This Agreement may be terminated
by either party (i) immediately, by notice, upon material breach by the
other party, if such breach cannot be remedied; (ii) by notice, if the
other party fails to cure any material remedial breach of this
Agreement within thirty (30) days notice of such breach; or (iii)
immediately, by notice, upon the second commission of a previously
remedied material breach. Xxxxxxxx may also terminate this Agreement
immediately, by notice, in the event that Radtec makes an unauthorized
distribution or use of the Software Products.
(d) Effect of Termination. Upon any termination or expiration
of this Agreement, Radtec shall no longer be authorized to use,
reproduce or distribute the Software Products. Notwithstanding the
foregoing, End User licenses already granted by Radtec shall not be
affected by any the termination or expiration of this Agreement.
(e) Acceleration of the Payment Date. The payment date of all
monies due to Xxxxxxxx shall automatically be accelerated so that they
shall become due and payable on the effective date of termination, even
if longer terms had been provided previously.
(f) Surviving Terms. The provisions of Sections 3, 5(g), 5(h),
6(a), 6(e), 7, 8, 9, 10, 11, 12, 13, 14(d), 14(e) and 15 shall survive
the expiration or termination of this Agreement by either party for any
reason. All other rights and obligations under this Agreement which by
their nature should survive, will remain in effect after termination or
expiration hereof.
(g) Return of Software Products Upon Termination. Radtec shall
certify to Xxxxxxxx within one (1) month after expiration or
termination that Radtec has destroyed or has returned to Xxxxxxxx the
Software Products in all types of media and computer memory, and
whether or not modified or merged into other materials.
15. Miscellaneous.
(a) Export Control. All Software Products and technical data
delivered under this Agreement are subject to U.S. export control laws
and may be subject to export or import regulations in other countries.
Radtec agrees to comply strictly with all such laws and regulations and
acknowledges that it has the responsibility to obtain such licenses to
export, re-export or import as may be required after delivery to
Radtec.
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(b) Notices. All written notices required by this Agreement
must be delivered in person or by means evidenced by a delivery receipt
and will be effective upon receipt. If notice is sent to Xxxxxxxx, it
shall be sent to the person bearing the title set forth below Xxxxxxxx'
signature to this Agreement.
(c) Force Majeure. A party is not liable under this Agreement
for non-performance caused by events or conditions beyond that party's
control, if the party makes reasonable efforts to perform. This
provision does not relieve Radtec of its obligation to make payments
then owing.
(d) Assignment. Radtec may not assign or otherwise transfer
any of its rights or obligations under this Agreement, without the
prior written consent of Xxxxxxxx.
(e) Waiver. Any express waiver or failure to exercise promptly
any right under this Agreement will not create a continuing waiver or
any expectation of non-enforcement.
(f) Severability. In the event that any provision of this
Agreement shall be unenforceable or invalid under any applicable law or
be so held by applicable court decision, such unenforceability or
invalidity shall not render this Agreement unenforceable, or invalid as
a whole, and, in such event, any such provision shall be changed and
interpreted so as to best accomplish the objectives of such
unenforceable or intended provision within the limits of applicable law
or applicable court decisions.
(g) Injunctive Relief. It is understood and agreed that
notwithstanding any other provisions of this Agreement, a breach by
Radtec of this Agreement will cause Xxxxxxxx irreparable damage for
which recovery of money damages would be inadequate, and that, in
addition to any and all remedies available at law, Xxxxxxxx shall be
entitled to seek timely injunctive relief to protect Xxxxxxxx' rights
under this Agreement.
(h) Attorneys' Fees. In the event any proceeding or lawsuit is
brought by Xxxxxxxx, its suppliers, or Radtec in connection with this
Agreement, the prevailing party in such proceeding shall be entitled to
receive its costs, expert witness fees, and reasonable attorneys fees,
including costs and fees on appeal.
(i) Controlling Law. Any action related to this Agreement will
be governed by Minnesota law and controlling U.S. federal law. No
choice of law rules of any jurisdiction will apply. The United Nations
Convention on the International Sale of Goods shall not apply to this
Agreement.
(j) No Agency. This Agreement is not intended to create a
relationship such as a partnership, franchise, joint venture, agency or
employment relationship. Neither party may act in a manner which
expresses or implies a relationship other than that of independent
contractor, nor bind the other party.
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(k) Headings. The section headings appearing in this Agreement
are inserted only as a matter of convenience and in no way define,
limit, construe or describe the scope or extent of such section or in
any way affect such section.
(l) Warranty. Each party warrants that it has full power and
authority to enter into and perform this Agreement, and the person
signing this Agreement on such party's behalf has been duly authorized
and empowered to enter into this Agreement. Each party further
acknowledges that it has read this Agreement, understands it and agrees
to be bound by it.
(m) Counterparts. This Agreement may be executed
simultaneously in two or more counterparts, each of which will be
considered an original, but all of which together will constitute one
and the same instrument.
(n) Entire Agreement. This Agreement is the parties' entire
agreement relating to its subject matter. It supersedes all prior or
contemporaneous proposals, conditions, representations and warranties
and prevails over any conflicting or additional terms of any quote,
order, acknowledgment, or other communication between the parties
relating to its subject matter during the term of this Agreement. No
modification to this Agreement will be binding unless in writing and
signed by an authorized representative of each party.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
Effective Date.
XXXXXXXX, INC.: RADTEC ENGINEERING, INC.:
/s/ Xxxxx Xxxxxx /s/ Xxxxxx Xxxxxxxxxx
------------------------- --------------------------
Authorized Signature Authorized Signature
------------------------- --------------------------
Printed Name Printed Name
Vice President Vice President
Title Title
December 13, 1999 December 13, 1999
Date Date
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Exhibit A
MINIMUM TERMS OF END USER AGREEMENTS
This package may contain the following materials provided by Licensor
to Licensee: software and related explanatory written materials
("Documentation"). The term "Software" shall include any upgrades, modified
versions, additions, and copies of the Software.
Licensor grants to Licensee a nonexclusive license to use the Software
and Documentation, provided that Licensee agrees to the following:
1. License Grant. Licensee may use the Software in object code form
only and only in connection with Licensee's use of Klystron or TWT-based Doppler
weather radar systems which have been purchased by Licensee from Licensor.
Licensee may copy the Software only for backup purposes, provided that Licensee
reproduce all copyright and other proprietary notices that are on the original
copy of the Software.
2. Documentation. Licensor will deliver a master copy of the end user
documentation for the Software (the "Documentation") to Licensee. Licensee shall
have the right to use, reproduce and distribute internally, the Documentation
solely in connection with Licensee's authorized use of the Software.
3. Restrictions. Licensee may not use, copy, modify, or transfer the
Software, or any copy thereof, in whole or in part, except as expressly provided
for in this Agreement. Licensee may not reverse engineer, disassemble,
decompile, or translate the Software, or otherwise attempt to derive the source
code of the Software, except to the extent allowed under any applicable law. Any
attempt to transfer any of the rights, duties or obligations hereunder is void.
Licensee may not rent, lease, load, resell for profit, or distribute the
Software, or any part thereof.
4. Ownership. The Software is licensed, not sold, to Licensee for use
only under the terms of this Agreement, and Licensor and its suppliers reserve
all rights not expressly granted to Licensee. Licensee owns the media, if any,
on which the Software or Documentation is recorded, but Licensor and its
suppliers retain ownership of all copies of the Software and Documentation
itself.
5. Reservation of Rights. Except as stated above, this Agreement does
not grant Licensee any intellectual property rights in the Software or
Documentation.
6. Term. This Agreement will terminate immediately upon notice to
Licensee if Licensee materially breaches any term or condition of this
Agreement. Licensee agrees upon termination to promptly destroy the Software and
all copies.
7. Warranty Disclaimer. NEITHER LICENSOR NOR ANY OF ITS REPRESENTATIVES
OR SUPPLIERS MAKES OR PASSES ON TO LICENSEE OR OTHER THIRD PARTY ANY WARRANTY OR
REPRESENTATION ON BEHALF OF LICENSOR'S SUPPLIERS, INCLUDING BUT NOT LIMITED TO
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ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
8. Limitation of Liability. IN NO EVENT WILL LICENSOR OR LICENSOR'S
SUPPLIERS BE LIABLE TO LICENSEE FOR ANY CONSEQUENTIAL, INCIDENTAL OR SPECIAL
DAMAGES, INCLUDING ANY LOST PROFITS OR LOST SAVINGS, EVEN IF LICENSOR HAS BEEN
ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR FOR ANY CLAIM BY ANY THIRD PARTY.
Some states or jurisdictions do not allow the exclusion or limitation of
incidental, consequential or special damages, so the above limitations may not
apply to Licensee.
9. Notice to Government End Users. The Software is a "commercial item"
as that term is defined at 48 C.F.R. 2.101 (OCT 1995), consisting of "commercial
computer software" and "commercial computer software documentation," as such
terms are used in 48 C.F.R. 12.212 (SEP 1995). Consistent with 48 C.F.R. 12.212
and 48 C.F.R. 227.7202-1 through 227.7202-4 (JUN 1995), all U.S. Government End
Users acquire the Software with only those rights set forth herein.
10. General. This Agreement will be governed by the laws of the State
of Minnesota without regard to or application of conflicts of law rules or
principles. This Agreement will not be governed by the United Nations Convention
on Contracts for the International Sale of Goods, the application of which is
expressly excluded. If any part of this Agreement is found void and
unenforceable, it will not affect the validity of the balance of the Agreement,
which shall remain valid and enforceable according to its terms. Licensee agrees
that the Software will not be shipped, transferred or exported into any country
or used in any manner prohibited by the United States Export Administration Act
or any other export laws, restrictions or regulations. This Agreement shall
automatically terminate upon failure by Licensee to comply with its terms. This
Agreement may only be modified in writing signed by an authorized officer of
Licensor and its suppliers.
11. Third-Party Beneficiary. Licensee is hereby notified that Xxxxxxxx,
Inc., having its principal place of business at 00000 Xxxx Xxxxx, Xxxxxxxxxx,
Xxxxxxxxx 00000-0000 ("Xxxxxxxx"), is a third-party beneficiary to this
agreement to the extent that this agreement contains provisions which relate to
Licensee's use of the Software and Documentation licensed hereby. Such
provisions are made expressly for the benefit of Xxxxxxxx and are enforceable by
Xxxxxxxx in addition to Licensor.
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EXHIBIT E
SUBCONTRACT AGREEMENT
This Agreement is made and entered into this 13th day of December,
1999, by and between Xxxxxxxx, Inc., a Minnesota corporation, having a principal
place of business at 00000 Xxxx Xxxxx, Xxxxxxxxxx, Xxxxxxxxx 00000-0000
(hereinafter "Contractor"), and Radtec Engineering, Inc., a Colorado
corporation, having a principal place of business at 0000 Xxxx 0xx Xxxxxx, Xxxx
X, Xxxxxxxxxx, XX 00000. (hereinafter "Subcontractor").
Recitals:
A. Contractor has entered into a contract dated July 23, 1999 with the
Supply Administration, the Republic of Korea ("SAROK") for Contractor to
manufacture, assemble, deliver, install, test, provide spare parts for, and
service a weather radar system for operation in Korea. Such contract, as amended
and supplemented by the bid documents and the drawings, plans, specifications,
statements, certifications and addenda to or incorporated by reference in such
contract, is hereinafter referred to as the "Contract Documents". Copies of the
Contract Documents are attached to this Agreement and incorporated herein by
this reference.
B. Contractor and SAROK are negotiating whether the weather radar
system to be installed pursuant to the Contract Documents is to be a TDR 4384
5650 MHz system (the "5650 MHz System") or a TDR 4384 5300 MHz system (the "5300
MHz System"). The duties of Contractor and Subcontractor under this Agreement
vary depending on whether the 5650 MHz System or the 5300 MHz System is to be
installed.
C. Contractor agrees to engage Subcontractor to perform all of the work
and provide all of the materials pursuant to the Contract Documents, other than
the Xxxxxxxx Work and the Xxxxxxxx Work Product (as each are defined in Article
2), and Subcontractor agrees to accept such engagement, subject to the
provisions of this Agreement.
Article 1
TERM AND TERMINATION
1.1 Term. This Agreement will become effective on the date first
shown above and will continue in effect through the completion of the Work (as
described in Section 3.1 hereof), unless earlier terminated pursuant to Section
1.2 hereof.
1.2 Termination of Work. Should Subcontractor refuse to replace
defective materials or Work, fail to perform the Work with diligence, or violate
any covenant or condition of this Agreement or the Contract Documents and such
failure continues for thirty (30) days after written notice thereof to
Subcontractor, or should Subcontractor make a general assignment for the benefit
of creditors, or should a receiver of any of Subcontractor's property be
appointed, or should a petition be filed, either by or against Subcontractor, in
any bankruptcy or insolvency proceedings, then Contractor may, in addition to
36
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any other rights or remedies Contractor may have, terminate this Agreement,
enter Subcontractor's premises to gain possession of the Work, and complete or
employ any other person or persons to complete the Work at the expense of
Subcontractor. In the event of the termination of this Agreement, as provided in
this Section 1.2, Subcontractor shall prepare a statement of cost to that date
with respect to the Work, plus all obligations incurred by Subcontractor in the
interests of the Work but not yet due.
1.3 Survival. In the event of any termination of this Agreement,
Articles 4, 5 and 7 hereof shall survive and continue in effect.
Article 2
DUTIES OF CONTRACTOR
2.1 5650 MHz System. Contractor has partially performed the
Contract Documents by manufacturing and assembling a portion of the 5650 MHz
System at its office in Burnsville, Minnesota (the "Xxxxxxxx Work Product"). If
the 5650 MHz System is to be installed, Contractor will provide the payment,
performance and warranty bonds and the contract administration by Contractor
pursuant to the Contract Documents and will furnish the Xxxxxxxx Work Product.
2.2 5300 MHz System. If the 5300 MHz System is to be installed,
Contractor will negotiate the terms of SAROK's letter of credit, organize and
present documents as required to draw on SAROK's letter of credit, provide the
payment and performance bonds (but not the warranty bond), and receive the
proceeds paid by SAROK and handle the disbursements of such proceeds as provided
in this Agreement.
2.3 Xxxxxxxx Work. For purposes of this Agreement, the term
"Xxxxxxxx Work" shall mean those duties described in Section 2.1 if a 5650 MHz
System is to be installed and those duties described in Section 2.2 if a 5300
MHz System is to be installed.
Article 3
SERVICES TO BE PERFORMED BY SUBCONTRACTOR
3.1 Work. Subcontractor agrees to furnish all supervision, labor,
equipment, materials, and incidentals and perform all work under the Contract
Documents, other than the Xxxxxxxx Work, in strict compliance with the Contract
Documents (the "Work"). Subcontractor agrees to assume all obligations
Contractor has under the Contract documents as they relate to the Work.
Subcontractor further agrees to fulfill such obligations without default of any
kind or nature whatsoever and agrees to perform all of the affirmative covenants
set forth in the Contract Documents applicable to the Work without further
notice of any kind or nature from Contractor. If a 5650 MHz System is to be
installed, Contractor will provide Subcontractor with access to the premises of
Contractor for the purpose of removing the Xxxxxxxx Work Product, which removal
37
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will be the responsibility and expense of Subcontractor. If a 5300 MHz System is
to be installed, the parties agree to amend the Contract Documents as reasonably
requested by SAROK, and Subcontractor agrees to provide an interim radar system
as required in Section 6.1(b).
3.2 Method of Performing Services. Consistent with the
requirements of the Work, Subcontractor, in conjunction with its personnel, will
determine the means of performing the work to be carried out for Contractor.
Contractor, however, shall be entitled to exercise a general power of
supervision and control over the results of work performed by Subcontractor to
ensure satisfactory performance. This power of supervision shall include the
right to inspect, stop work, and make suggestions or recommendations as to the
details of the work.
3.3 Place of Work. Subcontractor's personnel will perform all work
for Contractor at Subcontractor's premises or as provided in the Contract
Documents.
Article 4
COMPENSATION
4.1 Compensation if 5650 MHz System. This Section 4.1 shall apply
to this Agreement if and only if the 5650 MHz System is to be installed. For
full and complete performance of the Work by Subcontractor as provided in this
Agreement, Contractor agrees to pay to Subcontractor a portion of the Net
Proceeds (as hereinafter defined) as determined in accordance with this Section
4.1. The term "Net Proceeds" means the funds received by Contractor pursuant to
the terms of the Contract Documents, less any brokerage fees or commissions due
to third parties and less the amount contributed to the warranty escrow as
provided below. The Net Proceeds shall first be distributed to Contractor and
Subcontractor to reimburse them for their portion of the Total Costs (as
hereinafter defined); provided, however, if the Total Costs exceeds the Net
Proceeds, then the Net Proceeds shall be distributed between Contractor and
Subcontractor proportionately based upon their respective portion of the Total
Costs. The term "Total Costs" means the sum of the actual direct costs and
expenses incurred by Subcontractor in performing the Work, the actual direct
costs and expenses incurred by Contractor in performing the Xxxxxxxx Work and,
with respect to the Xxxxxxxx Work Product, the book value of such inventory on
the books of Contractor as of the date of this Agreement (which book value was
$453,000 as of November 19, 1999); provided, however, with respect to the labor
provided to perform the Work or Xxxxxxxx Work, the direct costs thereof shall
consist of the actual time spent by the employees at the standard hourly wages
paid to such employees by Contractor or Subcontractor, without inclusion of
fringe benefits or other indirect or overhead costs incurred by the employer
and, with respect to the materials provided in the Work, the direct costs
thereof shall be the actual net invoice cost of such materials to Contractor.
The excess of the Net Proceeds over the Total Costs of Contractor and
Subcontractor, if any, shall be distributed equally between Contractor and
Subcontractor. Contractor shall contribute $200,000 of the proceeds from SAROK
pursuant to the Contract Documents to the escrow agent under the Escrow
Agreement dated the same date as this Agreement among Contractor, Subcontractor
and such escrow agent (the "Escrow Agreement") to fund the warranty work to be
performed by Subcontractor under the Contract Documents. Subcontractor shall be
compensated for such warranty work in accordance with the terms of the Escrow
Agreement and Section 13(e) of the Asset Purchase and Sale Agreement between
Contractor and Subcontractor. Subcontractor shall submit statements of its
portion of the Total Costs to Contractor monthly.
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4.2 Compensation if 5300 MHz System. This Section 4.2 shall apply
to this Agreement if and only if the 5300 MHz System is to be installed. For
full and complete performance of the Work by Subcontractor as provided in this
Agreement, Contractor agrees to pay to Subcontractor all of funds received by
Contractor pursuant to the terms of the Contract Documents, less (i) the sum of
$150,000 to be retained by Contractor (the "Contractor Fee") and (ii) any
brokerage fees or commissions due to third parties with respect to the sale to
SAROK.
4.3 Date for Payment of Compensation. If the 5650 MHz System is to
be installed, Contractor shall distribute the Net Proceeds between Contractor
and Subcontractor as provided in Section 4.1 hereof from time to time within
fifteen (15) days after receipt. Any interim distributions shall be made
proportionately based upon the Total Costs incurred by Contractor and
Subcontractor prior to the end of the calendar month preceding such distribution
and adjusted for the prior distributions already received by the respective
parties. The parties agree to make any final adjustments to the allocations upon
the final settlement of the Total Costs when the Work is fully completed. If the
5300 MHz System is to be installed, Contractor shall distribute to itself the
Contractor Fee from the first draw on SAROK's letter of credit upon acceptance
of the order, pay the brokerage fees and commissions from the proceeds received
from SAROK as they become due, and remit to Subcontractor the remaining proceeds
with fifteen (15) days after receipt.
4.4 Expenses. Except as otherwise agreed in this Agreement,
Subcontractor shall be responsible for all costs and expenses incident to the
performance of services for Contractor, including all costs incurred by
Subcontractor to do business.
4.5 Sale of Xxxxxxxx Work Product. If the 5300 MHz System is to be
installed, then Subcontractor agrees to purchase from Contractor, and Contractor
agrees to sell to Subcontractor, the Xxxxxxxx Work Product for the purchase
price of $400,000.00 (the "Purchase Price") as provided in this section.
Contractor will provide Subcontractor with access to the premises of Contractor
for the purpose of removing the Xxxxxxxx Work Product, which removal will be the
responsibility and expense of Subcontractor. Subcontractor will pay the Purchase
Price to Contractor, without interest, in ten (10) equal, consecutive monthly
payments of $40,000 each commencing on the date twenty one months after the date
of this Agreement and continuing on the same day of each month thereafter until
fully paid; provided, however, the entire unpaid portion of the Purchase Price
shall be paid in full upon the sale or other conveyance of the Xxxxxxxx Work
Product by Subcontractor. Subcontractor agrees to use its commercial best
efforts to sell the Xxxxxxxx Work Product to a customer and agrees that the
Xxxxxxxx Work Product will be the first TDR 4384 5650 MHz weather radar system
sold by Subcontractor. Upon request of Contractor, Subcontractor agrees to
execute and deliver a promissory note to Contractor to evidence the payment
obligations under this section. Contractor will convey the Xxxxxxxx Work Product
to Subcontractor by a warranty xxxx of sale; provided that Subcontractor is
purchasing the Xxxxxxxx Work Product on an "as-is, where-is" basis with no
warranties of any kind, express or implied, made by Contractor with respect to
the physical or structural condition or sufficiency of the Xxxxxxxx Work
Product.
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Article 5
TREATMENT OF SUBCONTRACTOR'S PERSONNEL
5.1 Compensation of Subcontractor's Personnel. Subcontractor shall
bear sole responsibility for payment of compensation to its personnel.
Subcontractor shall pay and report, for all personnel assigned to Contractor's
work, federal and state income tax withholding, social security taxes, and
unemployment insurance applicable to such personnel as employees of
Subcontractor. Subcontractor shall bear sole responsibility for any health or
disability insurance, retirement benefits, or other welfare or pension benefits,
if any, to which such personnel may be entitled. Subcontractor agrees to defend,
indemnify, and hold harmless Contractor, Contractor's officers, directors,
employees and agents, and the administrators of Contractor's benefit plans, from
and against any claims, liabilities, or expenses relating to such compensation,
tax, insurance, or benefit matters; provided that Contractor shall (1) promptly
notify Subcontractor of each such claim when and as it comes to Contractor's
attention; (2) cooperate with Subcontractor in the defense and resolution of
such claim; and (3) not settle or otherwise dispose of such claim without
Subcontractor's prior written consent, such consent not to be unreasonably
withheld.
5.2 Workers' Compensation. Notwithstanding any other workers'
compensation or insurance policies maintained by Contractor, Subcontractor shall
procure and maintain workers' compensation coverage sufficient to meet the
statutory requirements of every state in which Subcontractor's personnel are
engaged in Contractor's work.
5.3 State and Federal Taxes. As neither Subcontractor nor its
personnel are Contractor's employees, Contractor shall not take any action or
provide Subcontractor's personnel with any benefits or commitments inconsistent
with any of such undertakings by Subcontractor. In particular:
o Contractor will not withhold FICA (Social Security) from
Subcontractor's payments.
o Contractor will not make state or federal unemployment insurance
contributions on behalf of Subcontractor or its personnel.
o Contractor will not withhold state and federal income tax from
payment to Subcontractor.
o Contractor will not make disability insurance contributions on
behalf of Subcontractor.
o Contractor will not obtain workers' compensation insurance on
behalf of Subcontractor or its personnel.
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Article 6
TIMING; NO ASSIGNMENT
6.1 Time is of the Essence. Subcontractor acknowledges that it
understands the terms of the Contract Documents and agrees that those terms are
a part of this Agreement. If the 5650 MHz System is to be installed pursuant to
the Contract Documents, then Subsection 6.1(a) shall apply to this Agreement;
and if the 5300 MHz System is to be installed pursuant to the Contract
Documents, then Subsection 6.1(b) shall apply to this Agreement.
(a) Subcontractor agrees to start the Work promptly and to
complete the Work in accordance with the time frames provided for
in the Contract Documents. If Contractor incur any damages,
liquidated or otherwise, because Subcontractor does not complete
the Work on time, Subcontractor will be obligated to reimburse
Contractor for those damages. Time is of the essence of this
Agreement.
(b) Subcontractor agrees to start the Work promptly and to use its
commercially reasonable best efforts to complete the Work as soon
as practicable, including the delivery and installation of an
interim weather radar system no later than May 1, 2000. Such
interim system will allow SAROK to operate with substantially all
of the essential functions to be provided by the 5300 MHz System
until the 5300 MHz System is installed. If despite the
commercially reasonable best efforts of Subcontractor the Work is
not completed in accordance with the time frames provided for in
the Contract Documents, Contractor shall be responsible for any
damages, liquidated or otherwise, due under the Contract Documents
as a result of the Work not being completed before December 31,
2000, to the extent such damages exceed the maximum liquidated
damages set forth in the Contract Documents, and Subcontractor
will be obligated to reimburse Contractor for any damages,
liquidated or otherwise, due under the Contract Documents as a
result of the Work being competed after December 31, 2000.
Contractor may pay the liquidated damages using the proceeds
received under the Contract Documents or, if such proceeds have
already been paid to Subcontractor, Subcontractor will be
obligated to reimburse Contractor for such liquidated damages.
Time is of the essence of this Agreement.
6.2 No Assignment. Subcontractor agrees not to assign or sublet
any of the Work without the written consent of Contractor.
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Article 7
OTHER OBLIGATIONS OF SUBCONTRACTOR
7.1 Compliance with Laws. Subcontractor agrees to comply with all
applicable laws and regulations relating in any way to its performance under
this Agreement. Subcontractor shall be solely responsible for the procurement
from governmental agencies of all authorizations, licenses, certificates or
other approvals necessary to perform its obligations pursuant to this Agreement.
Subcontractor shall notify Contractor within ten (10) days of any action,
proceeding, suit, decree or order which may adversely affect the validity of any
such authorizations, licenses, certificates or other approvals.
7.2 Indemnification. Subcontractor hereby agrees to protect,
defend, indemnify and save Contractor, its principals, subsidiaries, affiliates,
directors, officers, employees, agents and attorneys free and harmless from any
and all claims, actions, suits, liabilities, costs and expenses, including but
not limited to reasonable attorneys' fees and costs of settlement, of any nature
arising out of: (i) the breach of any obligations of Subcontractor under this
Agreement or any Work; or (ii) the negligent performance or failure to perform
any obligation by Subcontractor, its agents or employees, under this Agreement
or any Work.
Article 8
GENERAL PROVISIONS
8.1 Notices. Any notices to be given hereunder by either party to
the other may be effected either by personal delivery in writing or by mail,
registered or certified, postage prepaid with return receipt requested. Mailed
notices shall be addressed to the parties at the addresses appearing in the
introductory paragraph of this Agreement, but each party may change such address
by written notice in accordance with this paragraph. Notices delivered
personally will be deemed communicated as of actual receipt. Mailed notices will
be deemed communicated as of two days after mailing.
8.2 No Discrimination. Subcontractor agrees that in the
performance of this Agreement it will not discriminate or permit discrimination
against any person or group of persons on the grounds of sex, race, color,
religion, or natural origin in any manner prohibited by the laws of the United
States.
8.3 Entire Agreement of the Parties. This Agreement supersedes any
and all agreements, either oral or written, between the parties hereto with
respect to the rendering of services by Subcontractor for Contractor and
contains all the covenants and agreements between the parties with respect to
the rendering of such services in any manner whatsoever. Each party to this
Agreement acknowledges that no representations, inducements, promises, or
agreements, orally or otherwise, have been made by any party, or anyone acting
on behalf of any party, that are not embodied herein, and that no other
agreement, statement, or promise not contained in this Agreement shall be valid
or binding. Any modification of this Agreement will be effective only if it is
in writing signed by the party to be charged.
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8.5 Partial Invalidity. If any provision in this Agreement is held
by a court of competent jurisdiction to be invalid, void, or unenforceable, the
remaining provisions will nevertheless continue in full force without being
impaired or invalidated in any way.
8.6 Parties in Interest. This Agreement is enforceable only by
Subcontractor and Contractor. The terms of this Agreement are not a contract or
assurance regarding compensation, continued employment, or benefit of any kind
to any of Subcontractor's personnel assigned to Contractor's work, or any
beneficiary of any such personnel, and no such personnel, or any beneficiary
thereof, shall be a third-party beneficiary under or pursuant to the terms of
this Agreement.
8.7 Governing Law. This Agreement will be governed by and
construed in accordance with the laws of the State of Minnesota.
8.8 Successors. This Agreement shall inure to the benefit of, and
be binding upon, Subcontractor and Contractor, their successors and permitted
assigns.
8.9 Independent Contractor Status. It is the intention of the
parties that Subcontractor be an independent contractor and not an employee,
agent, joint venturer, or partner of Contractor. Nothing in this Agreement shall
be interpreted or construed as creating or establishing the relationship of
employer and employee between Contractor and either Subcontractor or any
employee or agent of Subcontractor. Subcontractor shall retain the right to
perform work for others during the terms of this Agreement. Contractor shall
retain the right to cause work of the same or a different kind to be performed
by its own personnel or other contractors during the term of this Agreement.
Subcontractor:
Radtec Engineering, Inc.
By: /s/Xxxxxx Xxxxxxxxxx
-------------------------
Xxxxxx Xxxxxxxxxx
Title: Vice President
Social Security or Taxpayer
Identification Number 00-000-0000
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Xxxxxxxx, Inc.
By: /s/ Xxxxx Xxxxxx
--------------------------
Xxxxx Xxxxxx
Title: Vice President
44
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EXHIBIT F
ESCROW AGREEMENT
THIS ESCROW AGREEMENT ("Escrow Agreement") is made this December 13,
1999, by and among XXXXXXXX, INC., a Minnesota corporation ("Xxxxxxxx"), RADTEC
ENGINEERING, INC., a Colorado corporation ("Radtec"), and First National Bank of
Omaha ("Escrow Agent").
All capitalized terms used herein and not otherwise defined herein
shall have the meanings given them, respectively, in the Asset Purchase and Sale
Agreement (the "Asset Purchase Agreement") dated December 8, 1999, as it may be
amended, among Xxxxxxxx and Radtec.
RECITALS:
A. This Escrow Agreement is entered into in conjunction with the
closing of the Asset Purchase Agreement, effective this date, and as required by
Section 13(e) of the Asset Purchase Agreement.
B. Pursuant to Section 13(e) of the Asset Purchase Agreement, Xxxxxxxx
has paid the sum of One Hundred Eighty Five Thousand Dollars ($185,000) (the
"Escrow Funds") to Escrow Agent to be held and distributed by Escrow Agent upon
the terms and conditions set forth in this Escrow Agreement.
NOW, THEREFORE, in consideration of the above recitals and the mutual
agreements set forth in this Escrow Agreement, the parties hereto agree as
follows:
ARTICLE I - ESCROW
1.1 Deposit of Escrow Funds. Pursuant to Section 13(e) of the Asset
Purchase Agreement, Xxxxxxxx has delivered to Escrow Agent the Escrow Funds.
Escrow Agent hereby acknowledges receipt of the Escrow Funds. Escrow Agent shall
place the Escrow Funds in a segregated account (the "Escrow Account"). Pursuant
to Section 13(e) of the Asset Purchase Agreement, Xxxxxxxx and Radtec may from
time to time deliver additional funds to Escrow Agent for deposit in the Escrow
Account, which funds shall be considered part of the Escrow Funds for all
purposes. Any earnings in respect of the Escrow Funds shall be solely for the
account of Xxxxxxxx, shall not be considered a part of the Escrow Funds, and
shall be distributed to Xxxxxxxx from time to time at its request.
1.2 Purpose of Escrow. The Escrow Funds are to be distributed to Radtec
from time to time as reimbursement for warranty services (labor and materials)
performed by Radtec under certain of Xxxxxxxx' customer contracts, with any
remaining funds relating to a contract being distributed equally to Xxxxxxxx and
Radtec upon completion of the applicable warranty period, all in accordance with
Section 13(e) of the Asset Purchase Agreement.
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1.3 Duration of Escrow. The Escrow Agent shall hold the Escrow Funds in
the Escrow Account until authorized or directed hereunder to deliver all or a
portion thereof as provided in Section 1.4. This Escrow Agreement shall
terminate when the Escrow Agent shall have delivered all of the Escrow Funds
pursuant to Section 1.4.
1.4 Application or Release of Escrow Funds. The Escrow Agent shall
deliver the Escrow Funds from time to time pursuant to Sections 1.4.1, 1.4.2 and
1.4.3.
1.4.1 Payment of Warranty Services. The Escrow Agent shall deliver
funds from the Escrow Funds to Radtec in payment of warranty services rendered
by Radtec within five (5) business days after receipt of any of the following:
(a) A statement signed by Xxxxxxxx stating that reimbursement for
warranty services rendered by Radtec shall be paid out of the Escrow
Funds, indicating the amount to be applied to payment of such services;
or
(b) An award rendered by an arbitrator, pursuant to an arbitration
conducted in accordance with Section 1.4.4 of this Escrow Agreement,
directing that reimbursement for warranty services rendered by Radtec
shall be paid out of the Escrow Funds in accordance with Section 13(e)
of the Asset Purchase Agreement, indicating the amount to be applied to
payment of such services; or
(c) An order of a court of competent jurisdiction, which has not
been appealed within the applicable time period or is non-appealable,
directing that reimbursement for warranty services rendered by Radtec
shall be paid out of the Escrow Funds in accordance with Section 13(e)
of the Asset Purchase Agreement, indicating the amount to be applied to
payment of such services.
1.4.2 Interim Payments. The Escrow Agent shall deliver from time to
time equally to Xxxxxxxx and Radtec from the Escrow Funds within five (5)
business days after receipt of a joint statement signed by Xxxxxxxx and Radtec
stating the amount to be paid to them from excess Escrow Funds relating to a
certain contract upon completion of the warranty period in connection with such
contract in accordance with Section 13(e) of the Asset Purchase Agreement.
1.4.3 Release of Escrow Funds. Unless a dispute has already been
referred to arbitration by written notice pursuant to Section 1.4.4(b), on
December 31, 2003, the Escrow Agent shall release equally to Xxxxxxxx and Radtec
from the Escrow Funds the remaining amount of Escrow Funds then held by Escrow
Agent.
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1.4.4 Resolution of Dispute.
(a) Good Faith Efforts. It is agreed that Xxxxxxxx and Radtec
shall endeavor to reach agreement with respect to any reimbursement to
Radtec for warranty services rendered in accordance with the Asset
Purchase Agreement as soon as practicable after Radtec submits to
Xxxxxxxx an application for reimbursement. In furtherance thereof,
Xxxxxxxx and Radtec agree that they shall negotiate in good faith and
use all reasonable efforts to agree upon the rights of the respective
parties with respect to payment of such warranty services. If Xxxxxxxx
and Radtec so agree, a statement setting forth such agreement shall be
furnished to the Escrow Agent by Xxxxxxxx as provided in Section
1.4.1(a).
(b) Submission to Arbitration. If Xxxxxxxx and Radtec have not
reached final agreement upon such claim for payment of warranty
services, as evidenced by Xxxxxxxx signing and delivering to Escrow
Agent a statement in accordance with Section 1.4.1(a) setting forth
such agreement, then such dispute shall be settled by arbitration in
Omaha, Nebraska, before a single arbitrator pursuant to the rules of
the American Arbitration Association. Arbitration may be commenced at
any time by any party hereto giving written notice to each other party
to a dispute that such dispute has been referred to arbitration under
this Section 1.4.4. With respect to all matters referred to arbitration
under this Section 1.4.4, Xxxxxxxx and Radtec shall use all reasonable
efforts to obtain expeditious arbitration. The arbitrator shall be
selected by the joint agreement of Xxxxxxxx and the Radtec, but if they
do not so agree within twenty (20) days after the date of the notice
referred to above, the selection shall be made pursuant to the rules of
the Association from the panel of arbitrators maintained by such
Association. Any award rendered by the arbitrator shall be conclusive
and binding upon the parties hereto; provided, however, that any such
award shall be accompanied by a written opinion of the arbitrator
giving the reasons for the award. This provision for arbitration shall
be specifically enforceable by the parties and the decision of the
arbitrator in accordance herewith shall be final and binding and there
shall be no right of appeal therefrom. Each party shall pay its own
expenses of arbitration and the expenses of the arbitrator shall be
equally shared; provided, however, that if in the opinion of the
arbitrator any claim for payment of warranty services or any defense or
objection thereto was unreasonable, the arbitrator may assess, as part
of his award, all or any part of the arbitration expenses of the other
party (including reasonable attorneys' fees) and of the arbitrator
against the party raising such unreasonable claim, defense or
objection.
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ARTICLE II - INVESTMENT OF ESCROW FUNDS
2.1 Types of Investments. Subject to the conditions set forth in this
Section 2.1 and any conditions imposed by Escrow Agent, Xxxxxxxx may direct the
investment of the Escrow Funds from time to time. The Escrow Funds shall be
invested in interest bearing accounts or certificates of deposit with
appropriate maturity dates to satisfy the anticipated release of Escrow Funds
pursuant to this Escrow Agreement.
ARTICLE III - MISCELLANEOUS
3.1 Fees and Expenses. The Escrow Agent shall be paid at its published
rates from time to time as compensation for its services hereunder and
reimbursed for all expenses, including counsel fees, reasonably incurred by it
in connection with the performance of its duties and obligations under this
Escrow Agreement. Such compensation shall be paid one-half by Xxxxxxxx and
one-half by Radtec.
3.2 Limitation of Liability of Escrow Agent. The Escrow Agent shall not
be responsible for the genuineness of any certificate or signature and may rely
conclusively upon and shall be protected when acting upon any notice, affidavit,
request, consent, instruction, check or other instrument believed by it in good
faith to be genuine or to be signed or presented by the proper person or duly
authorized or properly made. The Escrow Agent shall not be bound in any way by
any agreement between Xxxxxxxx and Radtec (whether or not the Escrow Agent has
knowledge thereof) and the only duties and responsibilities of the Escrow Agent
shall be to hold the Escrow Funds received hereunder and to deliver and release
such Escrow Funds in accordance with the terms of this Escrow Agreement. The
Escrow Agent shall not be responsible or liable for any act or omission on its
part in the performance of its duties as Escrow Agent under this Agreement
except to the extent such act or omission constitutes bad faith or fraud or
gross negligence or willful misconduct. The Escrow Agent may consult with legal
counsel in the event of any dispute or question as to the construction of any of
the provisions of this Escrow Agreement or its duties hereunder and it shall
incur no liability and shall be fully protected in acting in accordance with the
advice of such counsel. Xxxxxxxx and Radtec each agree to indemnify, hold
harmless and defend Escrow Agent, as to one-half each, from and against any and
all losses, claims, liabilities and reasonable expenses of its counsel, which it
may incur hereunder or in connection herewith, except such as shall result
solely and directly from Escrow Agent's own gross negligence or willful
misconduct.
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3.3 Successor Escrow Agent. The Escrow Agent may resign and be
discharged from its duties hereunder at any time by giving notice of such
resignation to Xxxxxxxx and Radtec specifying a date (not less than thirty (30)
days after the giving of such notice) when such resignation shall take effect.
Promptly after such notice, Xxxxxxxx and Radtec shall appoint a mutually
agreeable successor escrow agent, such successor escrow agent to become Escrow
Agent hereunder upon the resignation date specified in such notice. If Xxxxxxxx
and Radtec are unable to agree upon a successor escrow agent within thirty (30)
days after such notice, the Escrow Agent shall continue to serve until its
successor accepts the escrow and receives the Escrow Funds or until the Escrow
Agent deposits the Escrow Funds with a court of competent jurisdiction. Xxxxxxxx
and Radtec may agree at any time to substitute a new escrow agent by giving
fifteen (15) days' written notice thereof to the Escrow Agent then acting. Any
successor escrow agent appointed hereunder shall be a bank or trust company or
escrow company located in Omaha, Nebraska.
3.4 Non-Limitation of Liability. Nothing in this Escrow Agreement shall
be construed to limit the liability of the parties hereto for any breach of the
warranties, representations or covenants of the Asset Purchase Agreement to the
amount of the Escrow Funds or for the duration of this Escrow Agreement.
3.5 Notices. Any notice, request, demand, waiver, consent, approval or
other communication which is required or permitted hereunder shall be in writing
and shall be deemed given only if delivered personally or sent by telegram or by
registered mail, postage prepaid, as follows:
(a) If to Xxxxxxxx, to:
Xxxxxxxx, Inc.
00000 Xxxx Xxxxx
Xxxxxxxxxx, Xxxxxxxxx 00000
Attention: Xxxxx Xxxxxx
With a required copy to:
Xxxxxxxx, Xxxxxx & Xxxxxxx
0000 Xxxx Xxxxx Xxxx
Xxxxx 000
Xxxxx, Xxxxxxxx 00000
Attention: R. Xxxxx Xxx
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(b) If Radtec, to:
Radtec Engineering, Inc.
0000 Xxxx 0xx Xxxxxx, Xxxx X
Xxxxxxxxxx, XX 00000
Xxxxx X. Xxxxx
(c) If to Escrow Agent, to:
First National Bank of Omaha
Trust Department
One First Xxxxxxxx Xxxxxx
Xxxxx, XX 00000-0000
Xxxx X. Xxxxxxx
or to such other address as the addressee may have specified in a notice duly
given to the sender as provided herein. Such notice, request, demand, waiver,
consent, approval or other communication will be deemed to have been given as of
the date so delivered, telegraphed or mailed.
3.6 Binding Effect. In accordance with its terms, this Escrow Agreement
shall be binding upon and inure to the benefit of the respective successors and
assigns of Xxxxxxxx, Radtec and the Escrow Agent.
3.7 Governing Law. This Escrow Agreement shall be interpreted and
enforced in accordance with the laws of the State of Minnesota applicable
thereto.
3.8 Acceptance by Escrow Agent. By its signature below, the undersigned
Escrow Agent hereby agrees to act as Escrow Agent under this Escrow Agreement.
3.9 Counterparts. This Agreement may be executed in several
counterparts, each of which will be deemed to be an original, and which together
will constitute but one and the same instrument.
3.10 Capitalized Terms. Unless otherwise defined herein, all
capitalized terms used herein shall have the meaning given to such terms in the
Asset Purchase Agreement.
3.11 Controlling Provisions. This Escrow Agreement may contain certain
provisions which are additional to or different from the provisions in the Asset
Purchase Agreement. In the event of any perceived conflict or silence on any
particular issue which is the subject of this Escrow Agreement, the provisions
of this Escrow Agreement shall control over Section 13(e) of the Asset Purchase
Agreement.
[Signature page follows]
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IN WITNESS WHEREOF, the parties hereto have caused this Escrow
Agreement to be signed as of the date first above written.
XXXXXXXX, INC., a Minnesota corporation
By:/s/ Xxxxx Xxxxxx
----------------------------
Xxxxx Xxxxxx, Vice President
RADTEC ENGINEERING, INC.,
a Colorado corporation
By: /s/Xxxxxx Xxxxxxxxxx
---------------------------
Xxxxxx Xxxxxxxxxx, President
(Escrow Agent)
By: Xxxx X.Xxxxxxx
51
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