Exhibit 2.2
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ASSIGNMENT AND ASSUMPTION AGREEMENT
This ASSIGNMENT AND ASSUMPTION AGREEMENT (this "Agreement"), dated July
31,2001, is by and between Pegasus Technologies, Inc., a South Dakota
corporation ("Pegasus"), and Pavilion Technologies, Inc., a Texas corporation
("Pavilion").
RECITALS
WHEREAS, Pavilion, Pegasus, and KFx Inc. have entered into that certain
Asset Purchase and License Agreement, dated as of July 31, 2001 (the "Purchase
Agreement"), pursuant to the terms of which Pegasus agrees to buy, and Pavilion
agrees to sell, certain operational assets relating to that segment of
Pavilion's advanced process control business unit concerning process
optimization for the Individual Utility Boilers and Accompanying Steam Turbines,
Individual Utility Gas Turbines and Accompanying Gas Turbine Generators (and the
balance of plant equipment necessary for the operation of such boiler or
turbine) within the electric utility industry (the "Segment"), to include the
Pavilion Contracts and the following Segment-specific assets (collectively
referred to as "Assets"):
(a) Receivables. Accounts, notes and other receivables related to
the Pavilion Contracts.
(b) Records. Customer lists, customer account information related to
the Pavilion Contracts, technical data and analytical reference
materials related to the Pavilion Contracts (subject to customer
approval), sales literature, correspondence, notes, files and all
other accounting and operating records and other graphic or
electronically stored operating and financial information related
to the Pavilion Contracts.
(c) Pavilion Contracts. Rights under agreements, contracts and other
arrangements relating to the Segment as more specifically set
forth in Schedule 1.31 to this Agreement, including rights,
interests and claims, tangible and intangible therein, including
but not limited to work in progress on such contracts.
(d) Other. (i) Causes of actions, judgments, claims, demands and
other rights associated with any Assumed Liability (as defined
herein), (ii) restrictive covenants and other obligations of
present and former Segment employees only insofar as such
restrictive covenants and obligations relate to the Segment, and
(iii) deposits and prepaid expenses related to the Pavilion
Contracts.
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WHEREAS, pursuant to Section 4.1 of the Purchase Agreement, Pegasus has
agreed to assume certain obligations of Pavilion attributable to the Segment, as
more specifically set forth in Schedule 4.1 to the Purchase Agreement
(collectively referred to as "Assumed Liabilities"):
NOW, THEREFORE, for and in consideration of the sale of the Assets and
assumption of the Assumed Liabilities pursuant to the terms and conditions of
the Purchase Agreement, and the grant of the Licenses therein, the parties
hereto agree as follows:
1. Pavilion hereby assigns to Pegasus and Pegasus hereby assumes the
Assets; provided however, that all license fees in connection with that certain
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amendment to the Software Licensing and Implementation Agreement dated June 29,
2001, by and between TXU and Pavilion, as set forth on the attached Schedule
1.31 are specifically excluded from the assignment, transfer and conveyance
hereunder.
2. Pavilion hereby assigns to Pegasus and Pegasus hereby assumes the
Assumed Liabilities, and undertakes to pay, perform and discharge the following
obligations that accrue on and after the Closing Date and which relate solely
and exclusively to the ownership and operation of the Segment, the Assets and
Assumed Liabilities:
(a) All obligations owed to customers of the Segment as of the
Closing Date for deposits paid by such customers and which are
refundable to such customers as identified on Schedule 1 hereto;
(b) All obligations for advance payments by customers of the
Segment as of the Closing Date for services to be rendered as
identified on Schedule 2 hereto;
(c) All obligations for the delivery of services to customers of
the Segment on or after the Closing Date pursuant to the Pavilion
Contracts identified on Schedule 3 hereto; and
(d) All obligations relating to the Segment accruing after and
relating to periods on or after the Closing Date under the Pavilion
Contracts.
This Agreement shall be binding upon, and inure to the benefit of, the
parties hereto and their respective successors in interest and permitted
assigns.
Capitalized terms used and not otherwise defined herein, shall have the
meanings ascribed to them in the Purchase Agreement.
This Agreement shall be construed and interpreted pursuant to the internal
laws all of the state of Delaware, without regard to its conflicts of law
provisions.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as of the date first above written.
PAVILION:
Pavilion Technologies, Inc.
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By: /s/ Xxxxx X. Xxxxxxxx, Xx.
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Name: Xxxxx X. Xxxxxxxx, Xx.
Title: President and CEO
PEGASUS:
Pegasus Technologies, Inc.
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By: /s/ Xxxxxxxx Xxxxxxx
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Name: Xxxxxxxx Xxxxxxx
Title: Chairman
ACKNOWLEDGMENT
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STATE OF TEXAS (S)
COUNTY OF XXXXXX (S)
On this _____________, before a notary public in and for said county and
state, personally appeared Xxxxx X. Xxxxxxxx, Xx., to me known to be the
identical person who executed the within and foregoing instrument for Pavilion
Technologies, Inc., a Texas corporation, as its President and CEO, and
acknowledged to me that he executed the same as his free and voluntary act and
deed and as the free and voluntary act and deed of said corporation for purposes
set forth therein.
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Given under my hand and seal the day and year last written above.
_________________________________
Notary Public In And For
The State of Texas
ACKNOWLEDGMENT
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STATE OF OHIO (S)
COUNTY OF LAKE (S)
On this ________________, before a notary public in and for said county and
state, personally appeared __________________, to me known to be the identical
person who executed the within and foregoing instrument for Pegasus
Technologies, Inc., a South Dakota corporation, as its _________________, and
acknowledged to me that he executed the same as his free and voluntary act and
deed and as the free and voluntary act and deed of said corporation for purposes
set forth therein.
Given under my hand and seal the day and year last written above.
_________________________________
Notary Public In And For
The State of Ohio
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