ASSET SALE AGREEMENT
BY AND BETWEEN
THE X.X. XXXXX COMPANY, INC.,
dba THE XXXXX GROUP,
AS ASSIGNEE FOR THE BENEFIT OF CREDITORS OF
DCH SENSORS, INC.
AND
H2SCAN LLC
September 18, 2002
ASSET SALE AGREEMENT
THIS ASSET SALE AGREEMENT (this "Agreement") is entered into as of
this 18th day of September, 2002, by and between THE X.X. XXXXX COMPANY, INC.,
dba THE XXXXX GROUP ("Assignee"), AS ASSIGNEE FOR THE BENEFIT OF CREDITORS OF
DCH SENSORS, INC., a California corporation ("Sensors"), and H2SCAN LLC, a
Washington limited liability company ("Buyer").
RECITALS
A. Sensors has made a valid and binding assignment for benefit of
creditors to Assignee in accordance with applicable law and that certain General
Assignment of even date herewith, a true and correct copy or which has been
provided by Assignee to Buyer (the "ABC"). Assignee wishes to sell the Acquired
Assets and distribute the proceeds thereof to the creditors of Sensors, pursuant
the terms and conditions of the ABC.
B. Assignee is aware of the efforts of Assignor and its parent
corporation DCH Technologies, Inc. ("Parent") to market the Acquired Assets (as
defined below in Section 2.1), and is satisfied that such marketing efforts were
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commercially reasonable.
C. Assignee proposes to sell, assign, convey or otherwise transfer
to Buyer all of its right, title and interest in, to and under the Acquired
Assets, for an aggregate purchase price as set forth in Section 2.2 of this
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Agreement.
D. The parties hereto desire Buyer to purchase the Acquired Assets
on the terms and conditions as set forth in this Agreement.
NOW, THEREFORE, in reliance on the representations and warranties of
each party to the other, in consideration of the covenants and agreements of the
parties set forth herein and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
hereby agree as follows:
ARTICLE I
RULES OF CONSTRUCTION; DEFINITIONS
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Section 1.1 Rules of Construction. Unless the context otherwise requires:
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(i) A capitalized term has the meaning assigned to it in this
Agreement;
(ii) An accounting term not otherwise defined herein has the meaning
assigned to it in accordance with generally accepted accounting principles ;
(iii) Words in the singular include the plural, and words in the plural
include the singular;
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(iv) Words in the masculine gender include the neuter and feminine
genders, words in the feminine gender include the neuter and masculine genders
and words in the neuter gender include the feminine and masculine genders; and
(viii) The Article and Section headings used or contained in this
Agreement are for convenience of reference only and shall not affect the
construction of this Agreement. References herein to Articles, Sections,
Schedules or Exhibits mean and refer to Articles and Sections of, and Schedules
and Exhibits to, this Agreement, unless otherwise specified.
Section 1.2 Definitions. For purposes of this Agreement, and in
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addition to the definitions set forth throughout this Agreement, the following
terms shall have the meanings ascribed to them in this Section 1.2:
"Intellectual Property Rights" means all worldwide industrial and
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intellectual property rights to the extent owned or licensed by Sensors prior to
the ABC and transfered to Assignee pursuant to the ABC, including, without
limitation, patent rights (including without limitation patents, patent
applications, continuations, continuations-in-part, reissues, renewals,
reexaminations, additions and extensions of any such patents and patent
applications, as well as any related patents that may in the future issue
therefrom), trademarks, trademark applications, trade names, service marks,
service xxxx applications (whether registered or not), copyright copyright
applications, franchises, licenses, inventories, know-how, trade secrets,
customer lists, proprietary processes and formulae, all source and object code,
algorithm, architecture, structure, display screens, layouts, inventions,
development tools and all documentation and media constituting, describing or
relating to the above, including, without limitation, manuals, memoranda and
records.
"Known" means, to the actual or constructive knowledge of the Assignee, or
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a matter of public record, but excepting possessory liens, if any.
"Person" means any individual, firm, corporation, partnership, trust,
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incorporated or unincorporated association, joint venture, joint stock company,
governmental entity, governmental authority or other entity of any kind, and
shall include any successor (by merger or otherwise) of such entity.
ARTICLE II
PURCHASE AND SALE OF ASSETS
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Section 2.1 Purchase and Sale of the Assets. Buyer agrees to buy, and
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Assignee agrees to sell, assign, transfer, convey and deliver, upon the terms
herein and subject and pursuant to the covenants, conditions, representations
and warranties contained in this Agreement, all of Assignee's right, title and
interest in, to and under the business, properties and assets of Sensors,
whether real, personal, tangible, intangible or mixed, including customer lists,
customer contracts included in Schedule E attached hereto (the "Assigned
Contracts"), customer contact files, accounts receivable, new and used
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inventory, property, plant and equipment, Intellectual Property Rights, files,
books, records and all other properties and assets used in the operation of
Sensors' business (the "Business"), including but not limited to those assets
listed in Schedules A through E hereto (the "Acquired Assets"). Upon completion
--------------------- ---------------
of the transactions contemplated by this Agreement, the Acquired Assets shall be
sold, assigned, transferred, conveyed and delivered to Buyer free and clear of
all Known liens, charges and encumbrances. Assignee does not sell hereunder,
and Buyer does not purchase from Assignee or Sensors, any of Sensor's cash or
cash equivalents such as bank accounts or deposits used in the operation of the
Business (except as listed in the above-referenced Schedules A through E), and
any tax or insurance refunds.
Section 2.2 Purchase Price. The purchase price (the "Purchase Price")
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for the Acquired Assets shall be the sum of (x) FIFTY THOUSAND DOLLARS ($50,000)
in consideration of the Fixed Assets, (y) ONE HUNDRED SIXTY SEVEN THOUSAND SEVEN
HUNDRED SEVENTY FOUR DOLLARS AND SIXTY TWO CENTS ($167,774.62) in consideration
of Inventory, and (z) the aggregate value of accounts receivable, less any
amounts overdue by ninety (90) days, as set forth on Schedule B attached hereto.
Section 2.3 Payment of Purchase Price. At the closing of the sale and
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purchase of the Acquired Assets contemplated by this Agreement (the "Closing"),
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Buyer shall pay, by wire transfer to a bank account designated by Assignee on
the date of Closing (the "Closing Date"), an amount equal to the Purchase Price.
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Section 2.4 Assumption of Liabilities. At the Closing, Buyer shall
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assume the liabilities of and perform the obligations of Sensors under the
Assigned Contracts to the extent that such liabilities relate to performance on
or after the Closing Date (the "Assumed Liabilities"). Except for the Assumed
Liabilities, and Sensors' specific obligations under the Assumed Liabilities,
Buyer does not assume and shall under no circumstances be responsible for any
liabilities or obligations of Assignee or Sensors of any kind or nature
whatsoever.
Section 2.5 Sales Taxes. Buyer shall bear all sales, transfer and
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similar taxes incurred under the laws of the United States of America or any
foreign, State or local taxing authority thereof or therein in connection with
the sale of the Acquired Assets.
Section 2.6 Non-Transferable Assets of Sensors. If any of the Acquired
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Assets, or any claim, right or benefit arising under or resulting from the
Acquired Assets (collectively, the "Rights") is not capable of being transferred
from Sensors to Assignee, on the Closing Date without the approval, consent or
waiver of any third Person, or if the transfer of a Right would constitute a
breach of any obligation under, or a violation of, any applicable law unless the
approval, consent or waiver of such third Person is obtained, then, this
Agreement shall not constitute an agreement to transfer such Rights, and such
Rights shall remain in the possession of Sensors in trust for Buyer (as set
forth in that certain letter from Sensors to Buyer of even date herewith ("Side
Letter") unless and until such approval, consent or waiver has been obtained, at
which time such Rights shall immediately transfer to Buyer.
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ARTICLE III
REPRESENTATIONS AND WARRANTIES OF ASSIGNEE
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Assignee represents and warrants to Buyer as follows:
Section 3.1 Authority.
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(a) Appointment. Assignee has been duly appointed assignee for
the benefit of creditors of Sensors. Sensors has made a valid and binding
assignment for the benefit of creditors pursuant to the ABC. Assignee has the
capacity and all requisite corporate power and authority to enter into this
Agreement and other documents contemplated hereby (collectively with this
Agreement, the "Transaction Documents"), to convey, sell and assign the Acquired
---------------------
Assets and Assumed Liabilities, and to perform its other obligations hereunder
and thereunder.
(b) Consents. No consent, approval, order or authorization of, or
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registration, declaration or filing with, any person or entity is required to be
obtained by Assignee in connection with the execution and delivery of this
Agreement, or the consummation of the transactions contemplated hereby, except
for where the failure to obtain such consents, approvals and the like, would not
prevent or delay Assignee from performing its obligations under this Agreement.
Section 3.3 Title to Assets. Assignee has, or shall acquire prior to
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the Closing, and Assignee shall assign, convey and transfer to Buyer hereunder,
good and marketable title to all Acquired Assets, free and clear of any and all
Known liens, charges and encumbrances. Other than the Transaction Documents,
there is no agreement, option or other right or privilege outstanding in favor
of any Person for the purchase from Assignee of any of the Acquired Assets.
Section 3.4 No Contravention of Laws. The execution, delivery and
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performance by Assignee of this Agreement and the consummation of the
transactions contemplated hereby, including the sale and delivery of the
Acquired Assets, will not constitute a violation or contravention of (a) any
provision of law, (b) any rule or regulation of any agency or government, or (c)
any order, writ, judgment, injunction, decree, determination or award to which
the Acquired Assets are subject.
Section 3.5 Process. Assignee has taken all steps and done all things
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necessary to effect the ABC under applicable laws, and to sell, convey, transfer
and assign all of the Acquired Assets to Buyer. Upon Closing, all of Sensors
stated liabilities and obligations to creditors as provided to Assignee pursuant
to California Code of Civil Procedure section 1802(c) (other than the Assumed
Liabilities) will be paid in full promptly following the Closing.
Section 3.6 Fees and Expenses. Neither Assignee nor any of its
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stockholders, directors, officers or employees has caused Buyer to become
obligated to pay any fee or commission to any broker, finder or intermediary in
connection with the transactions contemplated by this Agreement.
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ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF BUYER
---------------------------------------
Buyer hereby represents and warrants to Assignee that:
Section 4.1 Organization; Good Standing; Qualification and Power. Buyer
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is a limited liability company duly incorporated, validly existing and in good
standing under the laws of the state of its formation, has all requisite
organizational power and authority to own, lease and operate its properties and
to carry on its business as it is presently being conducted.
Section 4.2 Authority.
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(a) Corporate Action. Buyer has all requisite organizational power
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and authority to enter into this Agreement and to perform its obligations under
each Transaction Document to which it is a party and to consummate the
transactions contemplated thereby.
(b) Consents. No consent, approval, order or authorization of, or
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registration, declaration or filing with, any person or entity is required to be
obtained by Buyer in connection with the execution and delivery of this
Agreement, or the consummation of the transactions contemplated hereby, except
for where the failure to obtain such consents, approvals and the like, would not
prevent or delay Buyer from performing its obligations under this Agreement.
Section 4.3 Fees and Expenses. Neither Buyer nor any of its
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stockholders, directors, officers or employees has caused Assignee or Sensors to
become obligated to pay any fee or commission to any broker, finder or
intermediary in connection with the transactions contemplated by this Agreement.
Section 4.4 Assets Being Acquired and Liabilities Being Assumed "As
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Is". Buyer agrees with and represents to Assignee that the Acquired Assets and
the Assumed Contracts have been, to the extent desired by Buyer, inspected by
Buyer and that the foregoing are being acquired or assumed, as the case may be,
"As Is" as a result of that inspection and not as a result of any
representations or warranties made by Assignee, Sensors or any of their
respective agents (other than the representations and warranties contained
herein). Buyer acknowledges that neither Assignee nor Sensors has made any
warranties or representations regarding the past or projected revenues from the
Acquired Assets. Buyer hereby expressly waives any and all claims (i) for
damages or (ii) for rescission or cancellation of this Agreement or the purchase
of the Acquired Assets and assumption of the Assumed Liabilities, because of any
actual or alleged statements made by Sensors or any agent of Sensors, other than
the representations expressly contained in this Agreement.
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ARTICLE V
CLOSING
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Section 5.1 The Closing. Subject to each party's delivery of the items
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specified in Section 5.2 and 5.3, the consummation of the transactions
contemplated by this Agreement will take place at the offices of Assignee no
later than September 17, 2002 ("Closing Date"), at a time to be mutually agreed
upon by the parties.
Section 5.2 Items to be Delivered by Buyer. On the Closing Date, Buyer
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shall deliver to Assignee the Purchase Price as specified in Sections 2.2 and
2.3 hereof, or proof satisfactory to Assignee that such Purchase Price has been
paid.
Section 5.3 Items to be Delivered by Assignee, Parent and/or Sensors.
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(a) On the Closing Date, Assignee shall deliver to Buyer an
executed xxxx of sale in the form of Exhibit 1 hereto (the "Xxxx of Sale").
(b) On the Closing Date, the Assignee shall deliver to Buyer
the executed assignments of the Assigned Contracts, Intellectual Property Rights
and all other Acquired Assets (other than tangible personal property) in the
form of Exhibit 2 hereto, including the consent of any third Person as
necessary.
(c) Following the Closing Date, any accounts receivable
transferred to Buyer but paid to Sensors or Assignee shall be forwarded to Buyer
as immediately available funds.
(d) On the Closing Date and simultaneously with the foregoing
deliveries, Parent and Sandia Corporation ("Sandia") shall enter into an
amendment of that certain License Agreement between Sandia Corporation
("Sandia") and Parent (License No. 96-C00333) ("Sandia License") substantially
in the form approved by Buyer.
(e) On the Closing Date and immediately following the
amendment of the Sandia License, Parent and Buyer shall enter into the
Technology Transfer Agreement and shall consummate the transactions contemplated
thereby, including without limitation, assignment of the Sandia License to
Buyer, and Sandia's consent thereto.
(f) On the Closing Date, Sensors and Parent shall have
delivered the Side Letter, in form and substance satisfactory to Buyer.
(g) On the Closing Date, Parent shall have delivered to
Sensors a release from any and all intercompany debt from Sensors to Parent.
Section 5.4 Items to be Removed by Buyer. Buyer shall remove all
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Acquired Assets from Sensors (at Buyer's sole expense) by October 31, 2002.
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ARTICLE VI
CONDITIONS PRECEDENT TO OBLIGATIONS OF ASSIGNEE
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The obligations of Assignee hereunder are subject to the fulfillment or
satisfaction on or before the Closing Date of each of the following conditions
(any one or more of which may be waived by Assignee, but only in a writing
signed by Assignee):
Section 6.1 Covenants. Buyer shall have performed and complied with
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all of its covenants and obligations required to be performed by it under this
Agreement on or before the Closing Date.
Section 6.2 Accuracy of Representations and Warranties. The
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representations and warranties of Buyer set forth in this Agreement shall be
true and accurate on and as of the Closing Date with the same force and effect
as if they had been made at the Closing.
Section 6.3 Payment of Purchase Price. At the Closing, Buyer shall
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have remitted to Assignee the full amount of the Purchase Price.
ARTICLE VII
CONDITIONS PRECEDENT TO OBLIGATIONS OF BUYER
--------------------------------------------
The obligations of Buyer hereunder are subject to the fulfillment or
satisfaction on or before the Closing Date of each of the following conditions
(any one or more of which may be waived by Buyer, but only in a writing signed
by Buyer):
Section 7.1 Covenants. The Assignee shall have performed and complied
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with all of its covenants and obligations contained in this Agreement which are
intended to be performed or complied with on or before the Closing Date.
Section 7.2 Accuracy of Representations and Warranties. The
------------------------------------------
representations and warranties of Assignee in this Agreement shall be true and
accurate on and as of the Closing Date with the same force and effect as if they
had been made at the Closing.
Section 7.3 Financing. Buyer shall have obtained financing sufficient
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to fund the payment of the Purchase Price, together with reasonable working
capital, all on terms reasonably satisfactory to Buyer.
ARTICLE VIII
MISCELLANEOUS
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Section 8.1 Governing Law. The laws of the State of California
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(irrespective of its choice of law principles) will govern the validity of this
Agreement, the construction of its terms and the interpretation and enforcement
of the rights and duties of the parties hereto. All actions and proceedings
relating directly or indirectly to this Agreement shall be litigated in any
state court or federal court located in Los Angeles County, California. The
parties hereto expressly consent to the jurisdiction of any such court and to
venue therein.
Section 8.2 Assignment; Binding Upon Successors and Assigns. None of
-----------------------------------------------
the parties hereto may assign any of its rights or obligations hereunder without
the prior written consent of the other party hereto; provided, however, that
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Buyer may assign, without the prior written consent of Assignee, its right to
purchase the Acquired Assets to any Person wherein Buyer owns, directly or
indirectly, fifty percent (50%) or more of the issued and outstanding stock,
interests or voting securities therein, provided that no such assignment shall
relieve Buyer of its obligations hereunder unless Assignee consents to such
novation, which consent shall not be unreasonably withheld. This Agreement will
be binding upon and inure to the benefit of the parties hereto and their
respective successors and permitted assigns.
Section 8.3 Severability. If any provision of this Agreement, or the
------------
application thereof, will for any reason and to any extent be invalid or
unenforceable, the remainder of this Agreement and application of such provision
to other persons or circumstances will be interpreted so as reasonably to effect
the intent of the parties hereto. The parties further agree to replace such
void or unenforceable provision of this Agreement with a valid and enforceable
provision that will achieve, to the greatest extent possible, the economic,
business and other purposes of the void or unenforceable provision.
Section 8.4 Counterparts. This Agreement may be executed in any number
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of counterparts, each of which will be an original as regards any party whose
signature appears thereon and all of which together will constitute one and the
same instrument. This Agreement will become binding when one or more
counterparts hereof, individually or taken together, will bear the signatures of
all the parties reflected hereon as signatories.
Section 8.5 Other Remedies. Except as otherwise provided herein, any
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and all remedies herein expressly conferred upon a party will be deemed
cumulative with and not exclusive of any other remedy conferred hereby or by law
on such party, and the exercise of any one remedy will not preclude the exercise
of any other.
Section 8.6 Amendment and Waivers. Any term or provision of this
---------------------
Agreement may be amended, and the observance of any term of this Agreement may
be waived (either generally or in a particular instance and either retroactively
or prospectively) only by a writing signed by the party to be bound thereby.
The waiver by a party of any breach hereof or default in the performance hereof
will not be deemed to constitute a waiver of any other default or any succeeding
breach or default.
Section 8.7 Notices. All notices and other communications pursuant to
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this Agreement shall be in writing and deemed to be sufficient if contained in a
written instrument and shall be deemed given if delivered personally,
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telecopied, sent by nationally-recognized overnight courier or mailed by
registered or certified mail (return receipt requested), postage prepaid, to the
parties at the following address (or at such other address for a party as shall
be specified by like notice):
If to Assignee, to:
The X.X. Xxxxx Company, Inc.
dba The Xxxxx Group
00000 Xxxxxxx Xxxxxxxxx
Xxxxx 0000
Xxxxxxx Xxxx, XX 00000
Attention: Xxxxx Xxxxx
Telecopier: (000) 000-0000
With a copy to:
Xxxxx & Xxxxxxxxxx
000 Xxxxxxxx Xxxxxxxxx, 00xx Xxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attn: Xxxx Xxxxxxxx, Esq.
Telecopier: (000) 000-0000
And if to Buyer, to:
H2scan LLC
c/o Xxxxxx X. Xxxxxxxxxx, President
00000 Xxxxxxx Xxxxxx Xxxx
Xxxxxx Xxxxxxx, XX 00000
Telecopier: (000) 000-0000
And:
H2scan LLC
c/o Xxxxxx Xxxx, Chairman of the Board
00000 X.X. 000xx Xxxxxx
Xxxxx Xxxxxxx, XX 00000
Telecopier: (000) 000-0000
With a copy to:
Xxxxx & Xxxxx, Attorneys At Law, A.P.C.
Xxxx Xxxxxx Xxx 0000
Xx Xxxxx, Xxxxxxxxxx 00000
Attention: Xxxx X. Xxxxx, Esq.
Telecopier: (000) 000-0000
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All such notices and other communications shall be deemed to have been
received (a) in the case of personal delivery, on the date of such delivery, (b)
in the case of a telecopy, when the party receiving such copy during normal
business hours shall have confirmed receipt of the communication (and if
received at other times, then at the start of next business day), (c) in the
case of delivery by nationally-recognized overnight courier, next day delivery
requested, on the business day following dispatch, and (d) in the case of
mailing, on the third business day following such mailing.
Section 8.8 Construction of Agreement. This Agreement has been
-------------------------
negotiated by the respective parties hereto and their attorneys and the language
hereof will not be construed for or against either party. A reference to a
Section or an exhibit will mean a Section in, or exhibit to, this Agreement
unless otherwise explicitly set forth. The titles and headings herein are for
reference purposes only and will not in any manner limit the construction of
this Agreement which will be considered as a whole.
Section 8.9 No Joint Venture. Nothing contained in this Agreement will
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be deemed or construed as creating a joint venture or partnership between any of
the parties hereto. No party is by virtue of this Agreement authorized as an
agent, employee or legal representative of any other party. No party will have
the power to control the activities and operations of any other and their status
is, and at all times, will continue to be, that of independent contractors with
respect to each other. No party will have any power or authority to bind or
commit any other. No party will hold itself out as having any authority or
relationship in contravention of this Section.
Section 8.10 Further Assurances. Each party agrees to cooperate fully
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with the other parties and to execute such further instruments, documents and
agreements and to give such further written assurances as may be reasonably
requested by any other party to evidence and reflect the transactions described
herein and contemplated hereby and to carry into effect the intents and purposes
of this Agreement.
Section 8.11 Absence of Third Party Beneficiary Rights. No provisions
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of this Agreement are intended, nor will be interpreted, to provide or create
any third party beneficiary rights or any other rights of any kind in any
client, customer, affiliate, shareholder, partner or any party hereto or any
other person or entity unless specifically provided otherwise herein, and,
expect as so provided, all provisions hereof will be personal solely between the
parties to this Agreement.
Section 8.12 Public Announcement. The parties shall cooperate with
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respect to any public announcement relating to the transactions contemplated
hereby; and neither party will issue any public statement announcing such
transaction without the prior consent of the others, except as such party in
good faith (based upon advise of counsel) believes is required by law or rules
of a stock exchange and following notice to the other party.
Section 8.13 Entire Agreement. This Agreement, the exhibits hereto and
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the documents referred to herein and therein constitute the entire
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understanding and agreement of the parties hereto with respect to the subject
matter hereof and supersede all prior and contemporaneous agreements or
understandings, inducements or conditions, express or implied, written or oral,
between the parties with respect hereto, other than any confidentiality
agreements entered into among the parties hereto which shall remain in full
force and effect. The express terms hereof control and supersede any course of
performance or usage of the trade inconsistent with any of the terms hereof.
[Remainder of page intentionally left blank.]
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IN WITNESS WHEREOF, the parties hereto have executed this Asset Sale
Agreement as of the date first above written.
ASSIGNEE:
THE X.X. XXXXX COMPANY, INC.,
dba THE XXXXX GROUP, as Assignee
for the Benefit of Creditors of DCH Sensors, Inc.
By: /s/ Xxxxx Xxxxx
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Name: Xxxxx Xxxxx
Title: President
BUYER:
H2SCAN LLC
By: /s/ Xxxxxx X. Xxxxxxxxxx
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Name: Xxxxxx X. Xxxxxxxxxx
Title: President and Chief Executive Officer
By: /s/ Xxxxxx Xxxx
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Name: Xxxxxx Xxxx
Title: Senior Vice President
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SCHEDULE A
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INVENTORY
See attached listing.
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SCHEDULE B
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ACCOUNTS RECEIVABLE
See attached listing.
Note: Any accounts receivable overdue by more than ninety (90) days shall be
deemed uncollectable and shall be deducted from the purchase price at Closing.
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SCHEDULE C
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FIXED ASSETS
See attached listing.
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SCHEDULE D
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INTANGIBLE ASSETS
All items pertaining to the design, fabrication, processing, testing of DCH
Sensor products, including without limitation all source and object code,
algorithm, architecture, structure, display screens, layouts, inventions,
development tools and all documentation and media constituting, describing or
relating to the above, including, without limitation, manuals, memoranda,
records, sketches, drawings, designs, forms, and computer files, and all
Intellectual Property Rights pertaining thereto.
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SCHEDULE E
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ASSUMED LIABILITIES
1. Contract to Purchase 24 Sensor Wafers from IC Sensors (see attached).
2. Backlog of Purchase Orders and Commitments (copy attached)
3. Product Warranties on Sold Units (description of warranty attached) except
not including any warranty for any products sold to Westinghouse.
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EXHIBIT 1
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FORM OF XXXX OF SALE
See attached.
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EXHIBIT 2
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FORM OF ASSIGNMENT OF CONTRACTS, INTELLECTUAL PROPERTY RIGHTS AND INTANGIBLE
ASSETS
See attached.
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ASSIGNMENT AND ASSUMPTION OF CONTRACTS,
---------------------------------------
INTELLECTUAL PROPERTY RIGHTS AND INTANGIBLE ASSETS
--------------------------------------------------
THIS ASSIGNMENT AND ASSUMPTION AGREEMENT OF CONTRACTS, INTELLECTUAL
PROPERTY RIGHTS AND INTANGIBLE ASSETS (this "Assignment") is made as of
September 18th, 2002, by and between THE X.X. XXXXX COMPANY, INC., dba THE XXXXX
GROUP ("Transferor"), AS ASSIGNEE FOR THE BENEFIT OF CREDITORS OF DCH SENSORS,
INC., a California corporation ("Sensors"), and H2SCAN LLC, a Washington limited
liability company ("Transferee").
RECITALS
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A. Transferor has acquired certain intangible rights of Sensors in
connection with the assignment for the benefit of creditors ("ABC") of
substantially all of the assets of Sensors (the "Acquired Assets," as more
specifically defined in that certain Asset Sale Agreement of even date herewith
between Transferor and Transferee (the "ASA")), including without limitation the
Intellectual Property Rights (as defined in the ASA), Assigned Contracts (as
defined in the ASA) and any other intangible rights or property formerly owned
by Sensors and transferred to Transferor pursuant to the ABC (collectively, the
"Intangible Assets").
B. Pursuant to the ASA, Transferor now desires to assign and transfer
to Transferee all of its right, title and interest in and to the Intangible
Assets, to the extent such right, title and interest may exist and is assignable
by Transferor, and subject to the payments, terms, covenants, obligations,
agreements and restrictions set forth therein, and Transferee desires to accept
such Intangible Assets and be bound by the terms thereof.
NOW THEREFOR, in consideration of the mutual covenants and conditions
hereinbelow set forth, it is agreed:
1. Effective as of the Closing (as defined in the ASA), Transferor
assigns and transfers to Transferee and its successors and assigns, all of
Transferor's right, title and interest in and to the Intangible Assets, subject
to the payments, terms, covenants, obligations, agreements and restrictions set
forth therein, to the extent assignable by Transferor.
2. Effective as of the Closing, Transferee accepts the assignment of
the Intangible Assets, shall be entitled to all rights and benefits otherwise
accruing to the Transferor thereunder and hereby assumes and agrees to be bound
by the terms thereof from and after the Closing.
3. This Assignment may be executed in counterparts, which taken
together shall constitute one and the same instrument. Facsimile signatures
shall be binding.
4. The provisions of this instrument shall be binding upon and inure to
the benefit of Transferor and Transferee and their respective successors and
assigns.
5. This Assignment shall be governed by the laws of the State of
California.
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6. Transferee and Transferor each hereby covenants that it will, at any
time and from time to time, execute any documents and take such additional
actions as Transferor or Transferee, as applicable, or their respective
successors or assigns, shall reasonably require in order to more completely or
perfectly carry out the transfers intended to be accomplished by this
Assignment.
IN WITNESS WHEREOF, Transferor and Transferee have executed this Assignment
and Assumption of Assigned Contracts, Intellectual Property Rights and
Intangible Assets as of the date set forth above.
TRANSFEROR:
The X.X. Xxxxx Company, dba The Xxxxx Group
/s/ Xxxxx Xxxxx
---------------------------------------
By: Xxxxx Xxxxx, President
TRANSFEREE:
H2scan LLC
/s/ Xxxxxx X. Xxxxxxxxxx
---------------------------------------
Xxxxxx X. Xxxxxxxxxx, President and CEO
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