EXHIBIT 10.2
THIS AGREEMENT is made the day of 1998
BETWEEN:
(1) XXXXXXX EQUIPMENT LIMITED a company registered in England and Wales
(Company No: 697744) whose registered office is at Xxxxxxx Xxxx, Xxxx,
Xxxxxxxxxx, Xxxxxxxxxx XX00 0XX (trading as Xxxxxxx Xxxxxx) ("the
Purchaser"); and
(2) BISON INSTRUMENTS INC a company registered in the State of Minnesota
(Federal Identification No: 00-0000000) whose principal place of
business is at 0000 Xxxxxxx Xxxx, Xxxxxxxxxxx, XX 00000-0000 ("the
Vendor").
WHEREAS:
The Vendor wishes to sell the Assets (as defined below) and the Purchaser wishes
to purchase the Assets upon the terms and subject to the conditions hereinafter
appearing.
NOW IT IS HEREBY AGREED as follows:-
1. INTERPRETATION
1.1. In this Agreement the following words and expressions shall
have the following meanings, unless they are inconsistent with
the context:
"THE ASSETS" means the Intellectual Property Rights, the
Stock, the four (4) completed Ultra Chassis Friction Meters,
the Designs, the Software and the Records and any other
property, rights and assets relating to the Business as set
out in Schedule 1;
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"A BUSINESS DAY" means Mondays to Fridays (inclusive) except
any day which is a public holiday in England or the United
States of America;
"THE BUSINESS" means the Vendor's business associated with the
sale of the Vendor's friction measurement product line as
carried on by the Vendor prior to Completion;
"COMPLETION" means the actual completion of the sale of the
Assets to the Purchaser;
"THE COMPLETION DATE" means 2 November 1998 or three Business
Days after the Vendor has obtained Shareholder approval in
accordance with clause 8.1 hereof whichever is the later;
"THE CONTRACTS" means all those contracts and licences of any
nature entered into by the Vendor with agents or distributors
under which such agents or distributors sell, sub-license or
distribute the Software or any friction measurement equipment;
"THE DESIGNS" means the mechanical and electronic design of
the MK4 and MK5 equipment, the mechanical and electrical
design of the Bison Self Watering System (ie speed related
system part number B707 and Dual Speed system part number
B706) and the mechanical design of the Ultra Chassis Friction
Meters;
"THE ESCROW AMOUNT" means the sum of $US 50,000 payable by the
Purchaser to the Purchaser's Solicitors in accordance with
clause 3.2 and to be dealt with in accordance with clause 3.3;
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"GROUP" means a group as defined in section 53(1) of the
Companies Xxx 0000;
"THE INTELLECTUAL PROPERTY RIGHTS" means the Trade Xxxx and
all and any patents, patent applications, copyrights, trade
marks, service marks, registered designs, design rights,
business names, know-how, database rights and any other
industrial or intellectual property rights (and applications
for any of these) and any similar or analogous rights in any
jurisdiction anywhere in the world subsisting in any of the
Records, the Software or the Designs with the exception of
those intellectual property rights possessed by the Purchaser
or any Company in its Group prior to the date hereof and with
the exception of those intellectual property rights set out in
clause 2.5 of this Agreement;
"THE PURCHASER'S SOLICITORS" means Manches & Co of 0 Xxxxxxxxx
Xxxxxx, Xxxxxx XX0 0XX;
"THE RECORDS" means all and any drawings, papers, documents,
samples, reports, specifications, designs, manuals, drawings,
statistics, accounts, documentation, know-how, marketing or
promotional material and any other material including any
drafts, scraps or work in progress or any other information
relating to the Stock, the Designs, the Software or the
Business, including without limitation:
(i) records of all customers to whom sales have been made;
(ii) contact names and addresses of the Vendor's agents and
distributors in the United States, Canada, Central America and
South
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America and the rest of the world; and
(iii) full details of all suppliers of any and all components
of any equipment to which any of the Designs relate;
"THE SOFTWARE" means the source code and the object code of
the Mu-Meter software and all versions and releases thereof
(including without limitation the MK4 and MK5 versions) and
all specifications and documentation relating to that
software;
"THE STOCK" means the stock of the Business including all the
test equipment as determined under clause 2.1 below;
"THE TRADE XXXX" means the trade xxxx registered in the United
States details of which are set out in Schedule 3 including
all common law rights connected therewith together with all
goodwill relating to that trade xxxx.
1.2. Reference to any statute, statutory provision or statutory
instrument shall be construed as including a reference to that
statute, statutory provision or statutory instrument (together
with all rules and regulations made under them) as may from
time to time be amended, consolidated or re-enacted.
1.3. References to persons shall include bodies corporate,
unincorporated associations and partnerships.
1.4. References to clauses and Schedules are to clauses of and
Schedules of this Agreement.
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2. SALE AND PURCHASE
2.1. The Vendor shall, on the Completion Date, sell and the
Purchaser shall purchase such of the Stock as the Purchaser
requires and notifies in writing to the Vendor prior to the
Completion Date at the actual cost that the Vendor purchased
that Stock from third parties and the four completed Ultra
Chassis Friction Meters for US $16,000 each.
2.1.1. The Vendor will forthwith make available to the
Purchaser and its authorised representatives the
Stock and the four (4) completed Ultra Chassis
Friction Meters, for review and inspection purposes
in order to allow the Purchaser to determine that
such Stock and the four (4) completed Ultra Chassis
Friction Meters are of merchantable quality and
reasonably fit for their usual purposes. The
Purchaser shall notify the Vendor by the Completion
Date of any obvious defects which render such
defective stock or any of the four (4) completed
Ultra Chassis Friction Meters not of merchantable
quality or reasonably fit for their usual purposes,
as soon as reasonably possible and shall have the
right to return such defective Stock and any of the
four (4) Ultra Chassis Friction Meters, provided such
notice is received by the Completion Date. In such
event, the Purchaser will not be obliged to purchase
such defective Stock or the defective Ultra Chassis
Friction Meters on Completion.
2.1.2. Subject to the Purchaser's rights under clause 2.1.1,
the Purchaser acknowledges that the Stock and the
four (4) completed Ultra Chassis Friction meters are
purchased on an
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"as is, where is" basis, and without warranty,
express or implied.
2.2. Subject to the terms and conditions of this Agreement, on the
Completion Date the Vendor will sell and the Purchaser will
purchase the Assets.
2.3. Subject to the terms and conditions contained in this
Agreement the Assets are sold by the Vendor with full title
guarantee without any liens, charges, claims, encumbrances or
adverse claims.
2.4. The Vendor shall on the Completion Date:
2.4.1. transfer title to all the Assets to the Purchaser;
and
2.4.2. arrange for the shipment of all the Assets to the
Purchaser at the Purchaser's expense and all such
items shall be at the risk of the Purchaser from the
Completion Date; and
2.4.3. deliver to the Purchaser all documents of title
relating to the Assets including without limitation
assignments or the Trade Xxxx and other Intellectual
Property Rights in the form set out in Schedule 4 and
transfers or assignments of any other of the Assets
which are not transferable by delivery; and
2.4.4. deliver to the Purchaser deeds in the form set out in
Schedule 2 from respectively, the Vendor, Androcan
Inc, and Autrex Inc.
2.5. The Vendor retains the right, title and interest in (i) the
name "Bison Instruments Inc", (ii) the Bison trade xxxx,
service xxxx and trade
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name (the "Bison Word Xxxx") and (iii) the Bison graphic logo
(the "Bison Logo") (together the "Retained Intellectual
Property"). The Purchaser shall have no rights in or to the
Bison Logo, including, without limitation, the right to use
the Bison Logo. All rights in the Bison Word Xxxx are reserved
to the Vendor. The Purchaser acknowledges that the Bison Word
Xxxx is the property of the Vendor. The Purchaser shall not,
during the term of this Agreement or thereafter, adopt or use
any service xxxx, trade name, or trade xxxx confusingly
similar to the Bison Word Xxxx. The Purchaser acknowledges
that strict observance and performance of the terms of this
section of the Agreement are necessary to protect the Vendor
and the Bison Word Xxxx.
3. PAYMENT
3.1. In consideration of the Vendor carrying out its obligations
under this Agreement and subject to the Vendor complying with
clause 2.4 above, the Purchaser shall pay the Vendor the sums
set out in Schedule 1 within 24 hours after the Completion
Date via an electronic bank transfer to the Purchaser's
account number 0000000 with Richfield Bank and Trust, 0000
Xxxxxxx Xxxxxx Xxxxx, Xxxxxxxxx, Xxxxxxxxx 00000 XXX, Main
Routing 000000000 less the Escrow amount.
3.2. The Purchaser shall pay the Escrow Amount to the Purchaser's
Solicitors on 2 November 1998.
3.3. The parties irrevocably instruct Manches & Co that in the
event that the Vendor shall notify the Purchaser's Solicitors
that the Vendor has received shareholders consent as required
under clause 8.1 of this Agreement, the Purchaser's Solicitors
shall if such notice is received
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more than two Business Days prior to 2 November 1998 pay the
Escrow Amount to the Vendor on 2 November 1998 or if such
notice is received on the date two Business Days prior to 2
November 1998 or any date thereafter pay the Escrow Amount to
the Vendor on the Completion Date. The Purchaser's Solicitors
shall pay the Escrow Amount to the Vendor by electronic
transfer to the account specified in clause 3.1.
3.4. The Vendor may only instruct the Purchaser's Solicitors under
clause 3.3 above if it has obtained its shareholders' consent
in accordance with clause 8.1.
3.5. All sums stated herein are inclusive of any value added, sales
or export taxes (if any) in the United States but is exclusive
of any value added, sales or import taxes in the United
Kingdom.
3.6. The Purchaser will pay the Vendor, within 30 days after any
sale to any third party of any of the four completed Ultra
Chassis Friction Meters included in the Assets, half of the
difference between the price at which it sells any Ultra
Chassis Friction Meter included in the Assets to that third
party and the price it has paid the Vendor for any Ultra
Chassis Friction Meter included in the Assets (as set out in
Schedule 1) provided that:
3.6.1. the sale of any Ultra Chassis Friction Meter to the
third party occurs within 3 years after the date of
this Agreement; and
3.6.2. the third party purchasing any Ultra Chassis Friction
Meter pays the Purchaser more than the price that the
Purchaser has paid the Vendor for that Ultra Chassis
Friction Meter.
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3.7. Subject to clause 3.8, the Purchaser agrees that it shall act
in good faith regarding the sale of the Ultra Chassis Friction
Meters to third parties and, in particular, that:
3.7.1. the Purchaser acting reasonably will attempt to sell
the Ultra Chassis Friction Meters purchased under
this Agreement before any other Ultra Chassis
Friction Meters that the Purchaser acquires later
than those acquired under this Agreement; and
3.7.2. the price at which the Purchaser sells any of the
Ultra Chassis Friction Meters to a third party will
not be unfairly discounted by the Purchaser by
comparison with the discounts offered by the
Purchaser on other meters; and
3.7.3. following the reasonable request of the Vendor, the
Purchaser will inform the Vendor how many of the
Ultra Chassis Friction Meters purchased from the
Vendor under this Agreement have been sold.
3.8. The obligations of the Purchaser in clause 3.7 shall not
prevent the Purchaser from selling any other type of friction
meter to any third party before the Ultra Chassis Friction
Meters purchased under this Agreement, and shall not prevent
the Purchaser from selling any of the Ultra Chassis Friction
Meters at such price as it deems to be appropriate acting
reasonably.
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4. OBLIGATIONS OF THE VENDOR
4.1. Subject to the Purchaser's review of the source code of the
Software to be provided to the Purchaser forthwith, the Vendor
shall procure that the services of Karina Rasyaeva, Xxxx Xxxxx
or Xxxx Xxxxxxxxxx are made available to the Purchaser for 30
hours (10 hours a day on 3 consecutive days) and that the
services of Karina Rasyaeva or Xxxx Xxxxx are made available
to the Purchaser for 18 hours of the total 30 hour period (6
hours a day on 3 consecutive days), at a time to be arranged
between the parties , in order to transfer to a representative
of the Purchaser the Vendor's information and knowledge
relating to the Software and the structure and operation of
the source code for the Software.
4.2. In the event that the Purchaser considers that the transfer of
information set out in clause 4.1 from Karina Rasyaeva or Xxxx
Xxxxx has not been achieved within 30 hours, the Vendor shall
make the Services of Karina Rasyaeva or Xxxx Xxxxx available
to the Purchaser for a further 18 hours (6 hours a day on 3
consecutive days ) at a time to be arranged between the
parties for the purpose as set out in clause 4.1 above.
4.3. The Vendor shall provide such information as the Purchaser may
require to enable the Purchaser to carry out effective after
sales support to the Purchaser's customers including, without
limitation, full details of the type and xxxx of any friction
measurement product supplied to individual customers of the
Vendor, the agent (if any) that was involved in that supply
and the contact names, addresses and company names of any such
customers.
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5. LIABILITIES, CONTRACTS AND CLAIMS
For the avoidance of doubt, the Purchaser shall not be liable to pay,
satisfy or discharge any liabilities (whether accrued, actual or
contingent) of the Vendor in connection with the Business or any of the
Assets arising from any act or omission or event occurring prior to
Completion.
6. WARRANTIES
6.1. The Vendor represents and warrants that:
6.1.1. it has terminated all of the Contracts prior to the
date hereof and no third party shall have any rights
to sell, distribute or sub-license the Software or
any of the Assets, or to use the Trade Xxxx or any
similar xxxx in connection with any goods or services
within the class[es] in which the Trade Xxxx is
registered or used or use any of the other
Intellectual Property Rights in any way whatsoever;
6.1.2. it will not, and will procure that each company in
its Group will not, hereafter use or permit the use
of any of the Intellectual Property Rights (or any
part thereof) without a licence from the Purchaser;
6.1.3. it will promptly provide on request all reasonable
assistance and technical information to the Purchaser
(including allowing reasonable site visits before
Completion) for the purpose of enabling the Purchaser
to grant licences of or assign the Intellectual
Property Rights (or any part thereof) to any third
party but the Vendor will only be obliged to provide
assistance
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where the Vendor is able to do so;
6.1.4. it has caused to be waived irrevocably all moral
rights which may exist in relation to any of the
Assets anywhere in the world;
6.1.5. the Vendor is the sole and legal owner of the
Intellectual Property Rights, has full power to enter
into this Agreement and has not previously assigned
or licensed any of the Intellectual Property Rights
or otherwise encumbered any of the Intellectual
Property Rights;
6.1.6. to the best of the Vendor's knowledge the Assets (or
part thereof) or the possession or use of the Assets
(or part thereof) by the Purchaser, will not infringe
any intellectual property right or any other right of
any third party in any way whatsoever, provided that
no warranty is given under this clause 6.1.6 in
respect of any part of the Software developed by the
Purchaser;
6.1.7. the Software is and will be Year 2000 compliant. For
the purposes of this clause, "Year 2000 compliant"
means neither the performance, operation or
functionality of the Software is or will be affected
by any dates prior to, during or after 1 January 2000
and in particular:
(i) no value for current date causes or will
cause any interruption in the operation,
performance or functionality of the
Software;
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(ii) date based functionality in the Software
does and will behave consistently for dates
prior to, during and after the Year 2000;
(iii) in all interfaces to and data storage in the
Software, the century in any date is and
will be specified either explicitly or by
unambiguous algorithms or inferencing rules;
(iv) the year 2000 is and will be recognised by
the Software as a leap year;
6.1.8. it is the registered proprietor of the Trade Xxxx and
nothing has been done or omitted to be done which
entitles any person to cancel or rectify or otherwise
modify any registration of the Trade Xxxx;
6.1.9. no claim concerning any infringement of any of the
Intellectual Property Rights has been made against or
by the Vendor, the Vendor has not considered making
any such claim and, to the best of the Vendor's
knowledge and belief, there has been no infringement
of any of the Intellectual Property Rights; and
6.1.10. the Vendor uses no assets other than the Assets in
relation to the Business and no marks or names
(registered or otherwise) have been used by the
Vendor in relation to the Assets or the Business
other than those names, logos or marks included in
the Vendor's Retained Intellectual Property.
6.2. The Vendor will indemnify and keep the Vendor indemnified
against
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all and any costs, expenses, liabilities, damages, losses and
claims incurred or suffered by the Purchaser which are
notified to the Vendor during the 3 years following Completion
as a result of or arising from any breach of the above
warranties by the Vendor.
7. FURTHER ASSURANCE
7.1. The Vendor will, at the reasonable request of the Purchaser
and at the Purchaser's expense for out of pocket costs:
7.1.1. do all acts, and execute and swear all documents that
are reasonably necessary to vest absolute legal and
beneficial ownership of the Intellectual Property
Rights in the Purchaser or to perfect the Purchaser's
title thereto anywhere in the world; and
7.1.2. give to the Purchaser such reasonable assistance as
the Purchaser may request in evidencing the
Purchaser's title to and enforcing and defending the
Intellectual Property Rights anywhere in the world.
7.2. The Vendor hereby appoints the Purchaser as its attorney on
behalf of the Vendor to complete and execute such documents
and do such things as the Purchaser may reasonably require to
perfect the assignment and transfer of the Intellectual
Property Rights to the Purchaser pursuant to clause 2 and the
Vendor hereby agrees to ratify and confirm such acts of the
Vendor and declares this power to be irrevocable pursuant to
section 4 of the Powers of Xxxxxxxx Xxx 0000.
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The Purchaser shall not exercise the power of attorney hereby
granted if
7.2.1. the Vendor advises the Purchaser that it disagrees
with the assignment or transfer within 14 days after
the Purchaser's request; and
7.2.2. unless the Vendor shall have failed to execute and
deliver such documents or do such things within 14
days after the Purchaser's request to do so.
In the event that the Purchaser disagrees with the Vendor then
the provisions of clause 13 shall apply.
7.3. The Vendor may keep one copy of any of the Records that it is
required to keep by law for accounting, legal or tax purposes
and that copy may only be used for such purposes.
7.4. The Vendor will remain liable to any third party under any
warranties it has given to that third party in relation to the
Business or any of the Assets and will indemnify and keep
indemnified the Purchaser against all and any costs, expenses,
liabilities, damages, losses and claims incurred by the
Purchaser as a result of or arising from any breach of the
warranties referred to in this clause.
7.5. Subject to clause 7.4, for a period of 12 months after
Completion the Purchaser will use reasonable endeavours to
fulfil any warranty obligations of the Vendor in relation to
the Software or any Ultra Chassis Friction Meters provided
that the Vendor shall pay and reimburse the Purchaser at the
Purchaser's then standard time and
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material rates for any work carried out under this clause and
will reimburse to the Purchaser all other reasonable direct
expenses incurred in connection with that work, and provided
that the Purchaser shall have no liability to any third party
or to the Vendor for any failure to fulfil such warranty
obligations.
7.6. The Vendor shall use its reasonable endeavours after the
Completion Date to pass onto the Purchaser any enquiries
relating to the Business, the Assets or any sales of any
friction measurement product that it receives from third
parties.
8. CONDITIONS
8.1. The completion of the transfer and assignment of the Assets to
the Purchaser is conditional upon the passing at a duly
convened and held special meeting of the Vendor's shareholders
of a resolution to approve the sale of the Assets. The Vendor
shall procure that all necessary steps are taken so that that
meeting is held on or before the date 30 days from 2 November
1998. The Vendor shall notify the Purchaser and the
Purchaser's Solicitors that it has obtained its shareholders'
consent in accordance with this clause within one Business Day
of obtaining that consent.
8.2. In the event of such resolution not being passed on or before
the date 60 days from 2 November 1998 , this Agreement shall
terminate and neither party shall be liable to the other in
respect of such termination, provided that termination shall
not affect either party's accrued rights at termination.
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8.3. The Vendor undertakes that with effect from the date hereof
until Completion or the termination of this Agreement under
clause 8.2, it will act in concert with the Purchaser in all
matters relating to the Business and the Assets and in
particular it will:
8.3.1. pass all live enquiries relating to the Business or
the Assets to the Purchaser as soon as reasonably
practical;
8.3.2. obtain the prior written approval of the Purchaser
before any quotation is made to any potential
customer or purchaser of any of the Assets or any
friction measurement product; and
8.3.3. will send the Purchaser a copy of all correspondence
which it intends to send to its customers or to its
potential customers for review by the Purchaser and
will alter such correspondence as the Purchaser
reasonably requires.
Any sales of any product (including any of the Assets) to any
third party shall enure for the benefit of the Purchaser
provided that this transaction is completed.
9. INSURANCE
For a period of three years after the date of this Agreement, the Purchaser
shall maintain products liability insurance covering the sale of the Assets to
third parties in a minimum amount of 5 million US dollars.
10. LITIGATION
Each party shall immediately notify the other affected party of any claim of
which it
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becomes aware and for which it is entitled to indemnification from the other
party under this Agreement. The indemnifying party shall be obliged to defend at
the indemnifying party's sole expense any litigation or other administrative or
adversarial proceeding against the indemnified party relating to any claim for
which the indemnifying party has agreed to indemnify and hold the indemnified
party harmless under this Agreement. However, the indemnified party shall have
the right to participate with the indemnifying party in the defence of any such
claim at its own expense.
11. NOTICES
11.1. Any demand, notice or communication shall be deemed to have
been duly served:-
11.1.1. if delivered by hand, when left at the address for
service provided for in this clause 11;
11.1.2. if sent by prepaid first class post, 96 hours after
being posted (excluding Saturdays, Sundays and other
days which are not business days); or
11.1.3. if sent by facsimile, on the next business day after
transmission
provided that where, in the case of delivery by hand such
delivery or transmission occurs on a day which is not a
Business Day or after 4.00 p.m. on a Business Day, service
will be deemed to occur on the next following Business Day.
11.2. Any demand, notice or communication must be made in writing
addressed to the addresses set out below, or sent to the
following fax
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numbers:
the Vendor: Bison Instruments Inc, 0000 Xxxxxxx Xxxx,
Xxxxxxxxxxx, Xxxxxxxxx XX 00000-0000
(Facsimile Number: 001 612 931 0997) with a
copy to Androcan Inc, 00 Xxxxxx Xxxx,
Xxxxxxx, Xxxxxx X0X 0X0 (Facsimile Number:
001 000 000 0000)
the Purchaser: Xxxxxxx Equipment Limited, Xxxxxxx Xxxx,
Xxxx, Xxxxxxxxxx, Xxxxxxxxxxxxxxx XX00 0XX
(Facsimile Number: 01242 221198)
12. GENERAL
12.1. Neither party may assign this Agreement in whole or in part
without first obtaining the written consent of the other but,
subject thereto, this Agreement shall be binding on and shall
enure for the benefit of each party's permitted successors and
assigns, as the case may be.
12.2. Except for any obligation fully performed at or prior to
Completion, each of the agreements, covenants, obligations,
warranties, indemnities and undertakings contained in this
Agreement shall continue in full force and effect
notwithstanding Completion but in any event the Vendor's
liability for any of the agreements, covenants, obligations,
warranties, indemnities, or undertakings under this Agreement
shall not survive beyond three years following the Completion
Date, and provided that the maximum liability of the Vendor
under this Agreement is limited to the sums paid to the Vendor
by the Purchaser under this Agreement.
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12.3. Failure or delay by either party in exercising any right or
remedy of that party under this Agreement shall not in any
circumstances operate as a waiver of it, nor shall any single
or partial exercise of any right or remedy in any
circumstances preclude any other or further exercise of it or
the exercise of any other right or remedy. Any waiver of a
breach of, or default under, any of the terms of this
Agreement shall not be deemed a waiver of any subsequent
breach or default and shall in no way affect the other terms
of this Agreement.
12.4. The headings to the clauses of this Agreement shall not affect
its construction.
12.5. This Agreement shall be subject to the laws of England and
Wales and subject to clause 13 each party shall submit to the
exclusive jurisdiction of the English Courts.
13. DISPUTE RESOLUTION
13.1. If any dispute arises between the parties arising from or
relating to this Agreement, the Vendor or the Purchaser shall
refer the dispute to their respective representatives, who
shall promptly discuss the dispute with a view to its
resolution.
13.2. If any dispute cannot be resolved in accordance with Clause
13.1 within 14 days, the Purchaser or the Vendor may require
in writing that the matter be referred for consultation
between the Board of the Purchaser and the Board of the
Vendor. In this event, both the Purchaser and the Vendor shall
be represented by one or more members of their respective
Boards in consultations which shall be held within twenty-one
days of the requirement.
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13.3. If any dispute can not be resolved under clauses 13.1 and
13.2, the dispute may be referred by either party to a person
agreed by the parties or in default of agreement within 10
Business Days to a person nominated by the President of the
Law Society in the United Kingdom with a request that such a
person make a decision on the dispute within 10 Business Days
of receiving the reference. The nominated person shall act as
an expert and not as an arbitrator and the decision of the
expert in the absence of manifest fraud or error, shall be
final and binding. Each party shall share the costs of
instructing the expert.
AS WITNESS the hands of the duly authorised representatives of the parties the
day and year first above written.
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SCHEDULE 1
--------------------------------------------------------------------------------
ASSETS PURCHASE PRICE
$US
--------------------------------------------------------------------------------
1. The Stock As determined
under clause 2.1
--------------------------------------------------------------------------------
2. Four complete and tested Ultra Chassis Friction Meters US$16,000 each
--------------------------------------------------------------------------------
3. The Software, the Records and the Intellectual Property US$100,000
Rights
--------------------------------------------------------------------------------
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SCHEDULE 2
THIS DEED OF COVENANT is made the day of 1998
BETWEEN:
(1) XXXXXXX EQUIPMENT LIMITED a company registered in England and Wales
(Company No: 697744) whose registered office is at Xxxxxxx Xxxx, Xxxx,
Xxxxxxxxxx, Xxxxxxxxxx XX00 0XX (trading as Xxxxxxx Xxxxxx) ("the
Purchaser"); and
(2) [ ] a company registered [ ]
(Company No: [ ]) whose principal place of business is at
[ ] ("the Covenantor").
WHEREAS
The Purchaser has agreed to enter into an agreement with Bison Instruments Inc
("the Company") under which the Company will sell certain assets to the
Purchaser for the sums set out therein ("the Agreement") and, in consideration
of the Purchaser entering into the Agreement, the Covenantor has agreed to give
the Purchaser the covenant set out below.
IT IS AGREED THAT:
1. INTERPRETATION
1.1 Words and expressions defined in the Agreement shall have the
same meaning in this Deed.
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1.2 In addition, "the Restriction Period" shall mean the period of
[five] years following the date hereof.
2. COVENANT
The Covenantor covenants with the Purchaser that it will not, and will
procure that any body corporate of which it has from time to time
control (within the meaning of Section 840 of the Income and
Corporation Taxes Act 1988) and that and any partnership or any
business in which it may be engaged or interested will not:
2.1 at any time during the Restriction Period, either by itself or
with or on behalf of any other person, firm or company,
directly or indirectly engage or participate in, or carry on
the business of, friction measurement anywhere in the United
States which is similar to or in competition with the Business
or the business carried on from time to time by the Purchaser
in relation to any of the Assets;
2.2 at any time during the Restriction Period, either by itself or
with or on behalf of any other person, firm or company,
directly or indirectly engage or participate in, or carry on
the business of friction measurement anywhere in the world
(other than the United States) which is similar to or in
competition with the Business or the business carried on from
time to time by the Purchaser in relation to the Assets;
2.3 at any time during the Restriction Period, either by itself or
with or on behalf of any other person, firm or company,
directly or indirectly solicit or entice, or endeavour to
solicit or entice, away from the Purchaser or (in relation to
any business which may in any way be in competition with any
of the businesses carried on from time to time by
Page 53 of 86
the Purchaser) deal with any person, firm or company which at
the date hereof, or at any time during the period of two years
prior to the date hereof, has directly or indirectly been a
customer, agent or supplier or otherwise in the habit of
dealing with the Company or the Purchaser in connection with
the friction measurement business;
2.4 at any time subsequent to Completion represent itself as
currently being in any way connected with or interested in any
friction management business. For the avoidance of doubt, the
Covenantor may represent itself as being connected with the
friction management business which was carried on by the
Vendor prior to Completion;
2.5 at any time disclose or use any confidential information
relating to the Business or to the Company's affairs or trade
secrets.
3. The covenants contained in Clause 2 hereof shall be separate and (if
necessary) severable covenants.
4. The restrictions contained in Clause 2 are considered reasonable by the
parties but in the event that any such restrictions shall be found to
be void, but would be valid if some part thereof were deleted or the
period or area of application reduced, such restriction shall apply
with such modification as may be necessary to make it valid and
effective.
5. It is hereby agreed and declared that the benefit of this Deed shall be
assignable by the Purchaser to any purchaser of its shares or any
assignee of its friction measurement business.
6. This Deed shall be subject to the laws of England and Wales and each
party shall submit to the exclusive jurisdiction of the English Courts.
Page 54 of 86
IN WITNESS whereof this Deed has been executed by the parties hereto and is
intended to be and is hereby delivered the day and year first before written.
EXECUTED as a DEED )
by Xxxxxxx Equipment )
Limited )
....................................... Director
............................. Director/Secretary
EXECUTED as a DEED )
by the Covenantor )
....................................... Director
............................. Director/Secretary
Page 55 of 86
SCHEDULE 3
DETAILS OF TRADE XXXX
------------------------------------------------------------
Trade Xxxx Date of Registration
Registration Number
------------------------------------------------------------
MU-METER 3 June 1997 1,066,264
------------------------------------------------------------
Page 56 of 86
SCHEDULE 4
FORM OF ASSIGNMENT OF INTELLECTUAL PROPERTY RIGHTS
THIS DEED OF ASSIGNMENT is made the day of 1998
BETWEEN
(1) BISON INSTRUMENTS INC a company registered in the State of Minnesota
(Federal Identification No: 00-0000000) whose principal place of
business is at 0000 Xxxxxxx Xxxx, Xxxxxxxxxxx, XX 00000-0000 ("the
Vendor");
(2) XXXXXXX EQUPMENT LIMITED a company registered in England & Wales
(Company No: 697744) whose registered office is at Xxxxxxx Xxxx, Xxxx,
Xxxxxxxxxx. Xxxxxxxxxx XX00 0XX (trading as Xxxxxxx Xxxxxx) ("the
Purchaser").
WHEREAS
The parties have entered into the Sale and Purchase Agreement (as defined below)
under which the Vendor agreed to assign the Intellectual Property Rights (as
defined below) to the Purchaser on the terms and conditions set out below.
IT IS AGREED
1. DEFINITION
In this Assignment the following words shall have the following
meanings:
Page 57 of 86
"THE BUSINESS" means the Vendor's business associated with the sale
of the Vendor's friction measurement product line as
carried on by the Vendor prior to the date hereof;
"THE DESIGNS" means the mechanical and electronic design of the MK4
and MK5 equipment, the mechanical and electrical
design of the Bison Self Watering System (ie speed
related system part number B707 and Dual Speed system
part number B706) and the mechanical design of the
Ultra Chassis Friction Meters;
"THE INTELLECTUAL means the Trade Xxxx and all and any patents, patent
PROPERTY RIGHTS" applications, copyrights, trade marks, service marks,
registered designs, design rights, business names,
know-how, database rights and any other industrial or
intellectual property rights (and applications for
any of these) and any similar or analogous rights in
any jurisdiction anywhere in the world subsisting in
any of the Records, the Software or the Designs with
the exception of those intellectual property rights
possessed by the Purchaser prior to the date of the
Sale and Purchase Agreement and with the exception of
the name "Bison Instruments Inc, the Bison trade
xxxx, service xxxx and trade name (the "Bison Word
Xxxx") and the Bison graphic logo (the "Bison Logo");
"THE RECORDS" means all and any drawings, papers, documents,
samples, reports, specifications, designs, manuals,
drawings, statistics, accounts, documentation,
know-how,
Page 58 of 86
marketing or promotional material and any other
material including any drafts, scraps or work in
progress or any other information relating to the
Stock, the Designs, the Software or the Business,
including without limitation:
(i) records of all customers to whom sales have
been made;
(ii) contact names and addresses of the Vendor's
agents and distributors in the United
States, Canada, Central America and South
America and the rest of the world; and
(iii) full details of all suppliers of any and all
components of any equipment to which any of
the Designs relate;
"THE SALE AND means the agreement dated [ ] between the
PURCHASE Vendor and the Purchaser for the sale and purchase of
AGREEMENT" the Intellectual Property Rights and other assets;
"THE SOFTWARE" means the source code and the object code of the
Mu-Meter software and all versions and releases
thereof (including without limitation the MK4 and MK5
versions) and all specifications and documentation
relating to that software;
Page 59 of 86
"THE STOCK" means the stock of the Business including all the
test equipment as determined in the Sale and Purchase
Agreement;
"THE TRADE XXXX" means the trade xxxx registered in the United States
details of which are set out in the Appendix hereto
and all goodwill attaching to that xxxx.
2. ASSIGNMENT
In consideration of the sum of (pound)1, exclusive of VAT, the receipt
of which is hereby acknowledged the Vendor hereby assigns with full
title guarantee the Intellectual Property Rights to the Purchaser
absolutely.
3. GOVERNING LAW
This Assignment is subject to and shall be construed in accordance with
English law and the parties hereby irrevocably submit to the exclusive
jurisdiction of the English Courts in relation thereto.
Executed as a Deed by the above parties and is intended to be and is hereby
delivered the day and year appearing above.
EXECUTED as a Deed by )
BISON INSTRUMENTS Inc ) .........................................
Director
.........................................
Director/Secretary
Page 60 of 86
EXECUTED as a Deed )
by XXXXXXX EQUIPMENT )
LIMITED ) .........................................
Director
.........................................
Director/Secretary
Page 61 of 86
APPENDIX
DETAILS OF TRADE XXXX
------------------------------------------------------------
Trade Xxxx Date of Registration
Registration Number
------------------------------------------------------------
MU-METER 3 June 1997 1,066,264
------------------------------------------------------------
Page 62 of 86
SIGNED by )
for and on behalf of ) Xxxxx Xxxxxx
XXXXXXX EQUIPMENT )
LIMITED )
SIGNED by )
for and on behalf of ) Xxxxxx X. Xxxxxxx
BISON INSTRUMENTS INC )
Page 63 of 86
DATED ____________ 1998
XXXXXXX EQUIPMENT LIMITED (1)
- and -
BISON INSTRUMENTS INC (2)
---------------------------------------------------
AGREEMENT FOR THE SALE AND PURCHASE OF
ASSETS AND INTELLECTUAL PROPERTY RIGHTS
---------------------------------------------------
Manches & Co
0 Xxxxxxxxx Xxxxxx
XXXXXX
XX0 0XX
Tel: 00000 000000
Fax: 00000 000000
Page 64 of 86
