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EXHIBIT 10.31
ASSET PURCHASE AND SECURITY AGREEMENT
THIS ASSET PURCHASE AGREEMENT (this "Agreement") is entered into as of
this 21st day of November, 1997 by and among CHICAGO MINIATURE LAMP, INC., a
corporation ("Purchaser"), and SOLIUM, INC., a Massachusetts corporation
("Solium") and PACIFIC SCIENTIFIC COMPANY, a California corporation ("Pacific
Scientific") (Solium and Pacific Scientific are sometimes collectively referred
to herein as "Seller").
RECITALS
Seller is engaged in the business of designing, manufacturing and
distributing the electronic ballasts described more fully on Exhibit A (such
business now being conducted by Solium is known as the "Solium Product Line"
and is referred to herein in its entirety as the "Business"). In accordance
with this Agreement, Purchaser desires to purchase, and Seller desires to sell,
the "Assets" described herein.
NOW, THEREFORE, in consideration of the foregoing and the provisions
set forth in this Agreement, the parties hereby agree as follows:
ARTICLE 1: SALE OF ASSETS
1.1 Purchase and Sale of Assets. Subject to the terms and
conditions set forth in this Agreement, at the Closing (as defined in Section
3.1) Seller shall sell to Purchaser, and Purchaser shall purchase and acquire
from Seller, all of Seller's right, title and interest in and to the following
assets (collectively, the "Assets"):
(a) The machinery, fixtures, tools, equipment and other
tangible personal property used in the Business listed on Schedule 1.1(a) (the
"Equipment"); and
(b) Copies of the technical data, specifications, test
procedures, drawings, models, prototypes, manuals, documentation, and other
information relating to the manufacturing and production of the Solium Product
Line listed on Schedule 1.1(b) (the "Materials").
1.2 Excluded Assets: Taxes. All books, records, office furniture,
rights, assets or properties of Seller not specifically listed in Section 1.1
above shall be excluded from the definition of Assets and shall not be acquired
by Purchaser pursuant to this Agreement. Purchaser agrees to pay all sales
taxes, transfer taxes, and similar taxes or charges relating to the sale of the
Assets, but will not be responsible for taxes or other governmental charges
based on the Seller's income or gain from the sale of the Assets.
1.3 No Assumed Liabilities. Purchaser is not assuming any
obligations or liabilities of Seller in connection with the transactions
contemplated hereby, except as expressly set forth in this Agreement. Purchaser
shall assume and perform all obligations arising out of or in connection with
the Assets and any products sold by Purchaser after the Closing.
1.4 Archival and Use of the Materials. Prior to the Closing,
Seller has the right to copy and retain copies of the Materials in any form it
deems necessary (the "Archived Materials"). After the Closing, Seller may copy,
use, distribute, sell, revise, or otherwise utilize the Archived Materials: (a)
in accordance with the terms of the License Agreement; (b) upon the occurrence
of an Event of
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Default (as defined in Section 10.3); and (c) in the manner Seller deems
necessary if it or any of its representatives or affiliates become legally
compelled (by oral questions, interrogatories, requests for information or
documents, document production, subpoena, civil or criminal investigative
demand, or similar process) or required by any authority or regulatory body to
make any disclosure concerning the information contained in the Archived
Materials.
1.5 Purchase Price. The purchase price to be paid by Purchaser
for the Assets shall be Two Million Five Hundred Thousand ($2,500,000) (the
"Assets Purchase Price").
ARTICLE 2: CLOSING
2.1 Closing. Subject to fulfillment of all conditions precedent,
the consummation of the transactions contemplated by this Agreement (the
"Closing") shall take place at the offices of Solium located at 00 Xxxxxxx
Xxxx, Xxxxxxxx, Xxxxxxxxxxxxx on November 24, 1997 at 10:00 A.M., local time,
or at such other time, date or place as Purchaser and Seller mutually may agree
upon (the "Closing Date"). All transactions at the Closing shall be deemed to
take place simultaneously and no transaction at the Closing shall be deemed to
have been completed until all documents set forth in this Article 3 have been
delivered by the parties hereto.
2.2 Obligations of Seller. At the Closing, Seller shall deliver
to Purchaser:
(a) The License Agreement substantially in the form
attached hereto as Exhibit B (the "License
Agreement"), executed by Seller;
(b) The Inventory schedule required by Section 3.1
below; and
(c) Such other documents as may be reasonably requested
by Purchaser to convey the Assets to Purchaser in
accordance with the provisions of this Agreement.
2.3 Obligations of Purchaser. At the Closing, Purchaser shall
deliver to Seller:
(a) The Assets Purchase Price, payable by wire transfer
or bank or certified check;
(b) The License Agreement, executed by Purchaser;
(c) The Inventory Purchase Order required by Section 3.1
below, executed by Purchaser;
(d) The financing statements and other filings required
by Section 10.5 below, executed by Purchaser; and
(e) Such other instruments and documents as may be
reasonably requested by Seller to fully and
effectively evidence the obligations of Purchaser
pursuant hereto.
ARTICLE 3: INVENTORIES AND WARRANTY REPAIRS
3.1 Purchase of Inventory. Approximately twenty-four hours prior
to the Closing, Seller shall prepare a schedule listing all inventory in stock
on such date used in connection with the production and repair of the current
models of the Solium Product Line (the "Inventory"). At the Closing, Purchaser
shall issue to Seller a purchase order (the "Inventory Purchase Order")
purchasing all the Inventory listed on the schedule prepared by Purchaser in
the previous sentence. The purchase price for the Inventory shall be equal to
fifty percent of Seller's cost of the Inventory as set forth on the schedule
and shall be payable in four equal quarterly installments on February 28, 1998,
May 31, 1998, August 31, 1998, and November 30, 1998. Purchaser shall be
responsible for all costs of shipment of the Inventory.
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3.2 Warranty Repair. For a period of sixty (60) months after the Closing,
Purchaser shall agree to perform on behalf of Seller all warranty work relating
to any products sold in connection with the Business by Seller prior to the
Closing Date. Notwithstanding the foregoing, Purchaser is not assuming any
warranty obligation relating to any products sold in connection with the
Business by Seller prior to the Closing Date. All such warranty work and
repairs shall be conducted in a professional, prompt and workmanlike manner,
and in accordance with the terms of the original warranties for such products
provided by Seller. Purchaser shall charge Seller for such warranty work and
repairs in accordance with Schedule 3.2 attached hereto.
ARTICLE 4: REPRESENTATIONS AND WARRANTIES
4.1 Mutual Representations. Each of the parties hereto represents and
warrants as follows:
(a) It has the requisite power and full legal rights to execute and
deliver this Agreement, consummate the transactions contemplated hereby, and
perform its obligations hereunder in accordance with the terms hereof:
(b) This Agreement and the transactions contemplated hereby have
been duly approved and authorized by all requisite corporate action on its part
and this Agreement has been duly executed and delivered by it and constitutes
its legal, valid and binding obligation, enforceable against it in accordance
with its terms; and
(c) Its execution, delivery and performance of this Agreement and its
consummation of the transactions contemplated hereby will not result in (with or
without the giving of notice or lapse of time or both) any conflict, violation,
breach or default or the creation of any lien, or the termination, acceleration,
vesting or modification of any right or obligation, under or in respect of its
charter documents or bylaws, that any judgement, order, decree, statute, rule or
regulation binding on it or applicable to it, or any agreement or instrument to
which it is a party or which it or any of its assets are bound.
4.2 By Seller. Seller represents and warrants to Purchaser that Seller
has good and marketable title to the Assets owned by it and the Assets are
owned free and clear of all liens, claims, and encumbrances, except for liens
of current taxes not yet due or payable. Seller is selling the Assets and the
Inventory strictly on an "AS-IS" basis.
4.3 By Purchaser. Purchaser represents and warrants to Seller that it is
familiar with the condition of the Assets and the Inventory, the business and
the Solium Product Line and acknowledges that neither Seller nor any agent,
representative or employee of Seller has made any representations or warranties
regarding the condition of the Assets, except as set forth expressly in the
previous paragraphs.
4.4 Disclaimer of Other Warranties. EXCEPT AS EXPRESSLY SET FORTH ABOVE
IN THIS ARTICLE 4, NONE OF THE PARTIES HERETO MAKES ANY OTHER REPRESENTATIONS
OR WARRANTIES, EXPRESSED OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY
WARRANTIES AS TO MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE.
ARTICLE 5: ADDITIONAL COVENANTS AND AGREEMENTS
5.1 Training. For a period of 90 days following the Closing Date, Seller
shall provide, at mutually convenient times, up to 500 man-hours of training
and assistance to Purchaser in the use and
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maintenance of the Equipment. Seller and Purchaser shall mutually cooperate in
connection with the scheduling of such training and assistance. Purchaser shall
reimburse Seller for all out-of-pocket costs incurred in connection with the
training and assistance. Neither Seller nor any of its employees or
representatives shall be liable for any actions or omissions with respect to the
training.
5.2 Seller's Name. As promptly as practicable after the Closing Date,
Purchaser shall remove the "Pacific Scientific" name and trademark from all
Assets and Inventory transferred under this Agreement. Within a reasonable
time after the Closing, Solium shall change its name to a name not utilizing
"Solium."
5.3 Payments Received. Purchaser agrees that after the Closing, Purchaser
will hold and promptly transfer and deliver to Seller, from time to time as and
when received by Purchaser, any cash, checks with appropriate endorsements
(using their best efforts not to convert such checks into cash), or other
property that Purchaser may receive on or after the Closing which properly
belongs to Seller and will account to Seller for all such receipts. Purchaser
agrees to cooperate with Seller in a reasonable manner in order to assist Seller
to collect any accounts receivable outstanding as of the Closing.
5.4 No Public Announcement. Neither of the parties hereto shall, without
the approval of the other party (which may not unreasonably withheld), make any
press release or other public announcement concerning the transactions
contemplated by this Agreement, except as and to the extent that such party
shall determine is required by law or the rules and regulations of any exchange
upon which a party's securities are traded (which determination shall be made
by such party based upon the advice of its counsel), in which case the other
party shall be advised in advance and the parties shall use their best efforts
to cause a mutually agreeable release or public announcement regarding the
consummation of the transactions contemplated hereby.
5.5 Custody and Removal of Assets. All title and risk of loss to the
Assets and the Inventory will vest in Buyer effective as of the Closing.
Notwithstanding the foregoing, the parties agree that one full and complete
production line currently at Solium's premises which constitutes part of the
Equipment and which is currently used by Seller shall remain intact at its
current location and may be used exclusively by Seller without cost until
December 31, 1997. After December 31, 1997 and before February 28, 1998,
Purchaser shall remove such production line from Solium's premises. During
Seller's use of this production line, Seller shall be responsible for all
routine maintenance and repairs relating to such equipment. The second full
production line which constitutes part of the Equipment shall be removed by
Purchaser at any time after the Closing Date and prior to February 28, 1998. All
costs and expenses associated with removal of the Assets shall be borne by
Purchaser.
ARTICLE 6: CONDITIONS PRECEDENT TO PURCHASER'S OBLIGATIONS
The obligation of Purchaser to purchase the Assets and to carry out its
other obligations under this Agreement shall be subject to the fulfillment of
the following express conditions precedent on or before the Closing, unless
waived in writing by Purchaser or as a otherwise provided herein:
6.1 Absence of Litigation. No action or proceeding shall have been
instituted and remain pending before a court or other governmental body by any
applicable government agency thereof of any person to restrain or prohibit the
consummation of the transactions contemplated by this Agreement.
6.2 Deliveries. Seller shall have executed and delivered to Purchaser the
documents and agreements required to be delivered by Seller to Purchaser at the
Closing in accordance with Section 2.2 above.
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ARTICLE 7: CONDITIONS PRECEDENT TO SELLER'S OBLIGATIONS
The obligations of Seller to transfer and deliver to Purchaser all of
Seller's rights, title, and interest in and to the Assets and to carry out its
other obligations under this Agreement shall be subject to the fulfillment of
the following express conditions precedent on or before the Closing, unless
waived in writing by Seller:
7.1 ABSENCE OF LITIGATION. No action or proceeding shall have been
instituted and remain pending before a court or other applicable governmental
body or agency thereof or any person to restrain or prohibit the consummation
of the transactions contemplated by this Agreement.
7.2 DELIVERIES. Seller shall have received payment of the Assets
Purchase Price and Purchaser shall have executed and delivered to Seller the
documents and agreements required to be delivered by Purchaser to Seller at the
Closing in accordance with Section 2.3 above.
ARTICLE 8: SURVIVAL OF REPRESENTATIONS AND WARRANTIES;
INDEMNIFICATIONS
8.1 SURVIVAL OF REPRESENTATIONS AND WARRANTIES. The representations,
warranties and covenants made in this Agreement or in any certificate or other
document delivered pursuant hereto or in connection herewith shall survive the
Closing Date.
8.2 INDEMNIFICATION BY SELLER. Seller hereby agrees to indemnify, defend
and hold harmless Purchaser and its agents, directors, officers, employees,
consultants and shareholders from and against any and all claims, liabilities,
losses, fines, penalties, costs and expenses including, without limitation,
reasonable attorneys' fees (singularly, a "Liability," and collectively,
"Liabilities"), that arise out of or relate to (a) any breach of, or failure by
Seller to perform any of its representations, warranties or covenants contained
in the Transaction Documents (as defined in Section 10.2 below) or in any other
instrument or document furnished by Seller pursuant to the Transaction
Documents or (b) the operation of the Business or the Assets prior to the
Closing.
8.3 INDEMNIFICATION BY PURCHASER. Purchaser hereby agrees to indemnify,
defend and hold harmless Seller and its agents, directors, officers, employees,
consultants and shareholders from and against any and all Liabilities that
arise out of or relate to (a) any breach of, or failure by Purchaser to perform
any of its representations, warranties or covenants contained in the
Transaction Documents or in any other instrument or document furnished or to be
furnished by Purchaser pursuant to the Transaction Documents or (b) the
operation of the Business or the Assets on or after the Closing.
8.4 LIMITATION ON INDEMNIFICATION. Notwithstanding anything contained
this Article 8 to the contrary, neither Seller nor Purchaser shall be obligated
to indemnify the other unless the amount of any Liability incurred or suffered
by Purchaser or Seller, as the case may be, exceeds $25,000 on per item basis
and then only to the extent that the amount of such Liability exceeds $25,000
(any per item amount which equals or is under $25,000 is hereinafter referred
to as a "Non-Indemnified Loss"). At such time as the aggregate amount of all
Non-Indemnified Losses incurred by any one party exceeds $100,000, then the
party incurring such Non-Indemnifiable Losses shall be entitled to
indemnification by the other party for the full amount of all Liabilities first
incurred or suffered by such party. The maximum amount of liability which
either Seller or Purchaser may be subject to under the indemnification provided
for in this Section 8 shall not exceed $2,500,000.
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ARTICLE 9: TERMINATION
9.1 TERMINATION. This Agreement may be terminated prior to Closing:
(a) By mutual consent of Purchaser and Seller; or
(b) By written notice from Seller, if the conditions in Article 7 of
this Agreement have not been satisfied by the Closing Date; or
(c) By written notice from the Purchaser, if the conditions in
Article 6 of this Agreement have not been satisfied by the Closing Date; or
(d) By either Purchaser or Seller in accordance with Section 9.2
below; or
(e) By written notice from either Purchaser or Seller if the Closing
does not occur on or prior to November 24, 1997.
The earlier of the events listed in subclauses (a) through (e) above to
occur is referred to herein as the "Termination Date." In the event that this
Agreement is terminated pursuant to the provisions of this Section 9.1, this
Agreement shall become null and void and shall have no further effect, and no
party shall have any liability with respect thereto except to the extent that
such termination results from the willful breach by a party hereto of any of
its representations, warranties, covenants or agreements set forth in this
Agreement.
ARTICLE 10: GRANT OF SECURITY INTEREST
10.1 GRANT OF SECURITY INTEREST. Purchaser hereby grants to Seller a
continuing security interest in all of the Assets sold to Purchaser pursuant to
this Agreement, together with all present and future accessories, additions,
attachments, proceeds, products, improvements, replacements and substitutions
of or to any of the foregoing (collectively the "Collateral").
10.2 OBLIGATIONS SECURED. The security interest created by this
Agreement is given for the purpose of securing (a) all obligations under this
Agreement and the License Agreement (collectively the "Transaction Documents"),
and (b) any and all amendments, modifications, renewals and/or extensions to
any of the Transaction Documents (collectively the "Obligations").
10.3 EVENTS OF DEFAULT. Each of the following shall constitute an event
of default ("Event of Default") under this Agreement:
(a) Purchaser shall fail to pay when due the payment obligations due
under the Transaction Documents or Purchaser breaches or fails to perform any
other covenant set forth in the Transaction Documents; or
(b) Any representation or warranty made by Purchaser in the
Transaction Documents is false, misleading or incomplete in any material
respect; or
(c) Purchaser commences a voluntary case or proceeding seeking
liquidation, relief or reorganization under any bankruptcy, insolvency or
similar law or seeks the appointment of a trustee, receiver, liquidator or
other similar official or any involuntary case or other proceeding shall be
commenced against Purchaser seeking liquidation, reorganization or other relief
with respect to its debts.
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If an Event of Default shall occur, the unpaid portion of any payment due under
any Transaction Documents shall be immediately due and payable without
presentment, demand, protest or further notice of any kind. If any payment is
not made when due, the unpaid portion thereof, to the extent permitted by law,
shall bear interest at the rate of ten percent (10%) per annum, payable upon
demand of Seller until such unpaid amount is paid in full.
10.4 REMEDIES. Upon the occurrence and during the continuance of an Event
of Default, Seller shall have the following rights:
(a) All the rights and remedies of a secured party under the
Massachusetts Uniform Commercial Code or other similar law;
(b) The right to enter the premises of Purchaser where the
Collateral is located and kept, and remove the Collateral therefrom to the
premises of Seller or any agent of Seller and to require Purchaser to assemble
the Collateral and make it available to Seller at a place designated by Seller;
(c) To do all acts and things, in Seller's sold discretion, to
fulfill Purchaser's obligations under this Agreement, including endorsing the
name of the Purchaser on any documents, instruments, bills of lading or other
documents relating to the Collateral and using the information recorded on or
contained in any data processing equipment and computer hardware and software
relating to the Collateral; and
(d) Sell or otherwise dispose of all or any of the Collateral at a
private or public sale, in lots or in bulk, all as Seller may in its sole
discretion deem advisable.
The proceeds realized from any sale of Collateral shall be applied first to the
costs, expenses and attorneys' fees incurred by Seller for collection and for
acquisition, protection, storage and sale and delivery of the Collateral;
second to interest due on any of the Obligations, and third to the principal of
the Obligations. If any deficiency shall arise, Purchaser shall remain liable
to Seller therefor.
10.5 INITIAL COVENANTS. Purchaser agrees to execute such documents
(including UCC financing statements) and take such other actions as Seller
deems necessary or desirable to create and perfect a security interest in the
Collateral and not to move the Collateral without twenty (20) days prior notice
to Seller. Seller shall maintain in good condition and repair the Collateral
and discharge all taxes and liens on the Collateral prior to delinquency.
Seller shall insure the Collateral against loss or damage, theft and other
insurable risks in a commercially reasonable manner.
ARTICLE 11: MISCELLANEOUS
11.1 EXPENSES. Each party to this Agreement shall bear and pay its own
costs and expenses incurred in connection with the preparation, execution, and
delivery of this Agreement and the transactions contemplated by this Agreement.
11.2 NOTICES. All notices, claims, certificates, requests, demands and
other communications under this Agreement shall be made in writing and shall be
delivered by hand or sent by prepaid telecopy, or sent, postage prepaid, by
registered, certified or express mail, or reputable overnight courier service,
and shall be deemed given when so delivered by hand, or telecopied, or if
mailed, three (3) days after mailing (one (1) business day in the case of
express mail or overnight courier service) to the parties at the addresses
specified on the Signature Page of this Agreement, or at such other address for
a party as shall be specified by like notice.
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11.3 NO FINDER OR BROKER. Each of Purchaser and Seller represent and
warrant to the other that neither has paid or has become obligated to pay any
fee or commission to any broker or finder in connection with the transactions
contemplated by the Transaction Documents.
11.4 NO ASSIGNMENT. The rights and obligations of each party under this
Agreement shall not be assignable prior to, on or after the Closing without the
written consent of the other party hereto, which consent shall not be
unreasonable withheld. The obligations of Seller and Purchaser hereunder shall
be binding upon their respective successors and permitted assigns. Any
assignment in contravention of the foregoing shall be void and of no further
force or effect.
11.5 BENEFITS. Nothing expressed or referred to in this Agreement is
intended or shall be construed to give any person or entity, other than the
parties to this Agreement, or their respective successors and assigns, any
legal or equitable right, remedy or claim under or in respect thereof or any
provision contained herein, it being the intention of the parties that this
Agreement is for the sole and exclusive benefit of such parties, and such
successors and assign of this Agreement and for the benefit of no other person
or entity.
11.6 AMENDMENTS; HEADINGS. This Agreement may be amended or modified
only by a written instrument executed by the parties to this Agreement. The
paragraph and other headings contained in this Agreement are for reference
purposes only and shall not in any way affect the meaning or interpretation of
this Agreement.
11.7 ENTIRE AGREEMENT; COUNTERPARTS. This Agreement and the exhibits
hereto, and the other letters, schedules and documents referred to herein or
exchanged contemporaneously between the parties hereto constitutes the entire
agreement of the parties with respect to the subject matter of this Agreement
and supersedes all prior agreements, understandings, or representations
relating to the subject matter of this Agreement. This Agreement may be
executed in counterparts, each of which shall be deemed an original, but all of
which taken together shall constitute one and the same agreement.
11.8 SEVERABILITY. If any provision of this Agreement, or any covenant,
obligation or agreement contained herein is determined by a court to be invalid
or unenforceable, such determination shall not affect any other provision,
covenant, obligation or agreement, each of which shall be construed and enforced
as, if such invalid or unenforceable provision were not contained herein. Such
invalidity or unenforceability shall not affect any valid and enforceable
application thereof and each such provision, covenant, obligation or agreement
shall be deemed to be effective, operative, made, entered into or taken in the
matter and to the full extent permitted by law.
11.9 GOVERNING LAWS; ARBITRATION. This Agreement shall be construed in
accordance with, and governed by, the internal laws of the State of California
(and not the laws of conflict of law). All controversies, disputes or claims
arising out of or in connection with this Agreement shall be resolved by
submission to binding arbitration in the offices in Orange County, California,
of J.A.M.S./ENDISPUTE("J.A.M.S.") or its successor. Either party may commence
the arbitration by filing a written demand for arbitration with J.A.M.S., with
a copy to the other party. The notice sent by the aggrieved party initiating
the arbitration shall describe the dispute amount involved and the remedy
sought. The parties may agree on a single arbitrator form a panel of potential
arbitrators provided by J.A.M.S. If the parties are unable to agree, J.A.M.S.
will provide a list of three arbitrators, Seller and Purchaser may each strike
one name from the list and the remaining arbitrator shall serve as the
arbitrator. The parties agree to participate in the arbitration in good faith
and shall share equally it costs. Nothing in this paragraph shall obligate the
parties to arbitrate any of the provisions of the License Agreement.
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IN WITNESS WHEREOF, Seller and Purchaser have caused their respective duly
authorized officers to execute this Asset Purchase Agreement as of the day and
year first above written.
PURCHASER: SELLER:
CHICAGO MINIATURE LAMP, INC. PACIFIC SCIENTIFIC COMPANY, a
California corporation
By: /s/X.X. Xxxx By: /s/
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Title: Chairman, CEO Title: President - Solium Inc.
By: SOLIUM, INC., a Massachusetts corporation
-------------------------------
Title:
----------------------------
By: /s/
----------------------------------
Title: Chairman
-------------------------------
ADDRESS FOR NOTICES: ADDRESS FOR NOTICES:
Pacific Scientist Company
000 Xxxxxxx Xxxxxx 000 Xxxxxxx Xxxxxx Xxxxx, Xxxxx 000
Xxxxxx, Xxxxxxxxxxxxx 00000 Xxxxxxx Xxxxx, XX 00000
Attention: Xxxxx Xxxx Attention: Chief Executive Officer
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LICENSE AGREEMENT
THIS LICENSE AGREEMENT (this "Agreement") is made and entered into as of
November 21, 1997, by and among PACIFIC SCIENTIFIC COMPANY, a California
corporation ("PSC"), SOLIUM, INC., a Massachusetts corporation and wholly-owned
subsidiary of PSC ("Solium") (PSC and Solium are sometimes collectively
referred to herein as "Licensor"), and CHICAGO MINIATURE LAMP, INC., an
Oklahoma corporation ("Licensee").
A. Solium is the owner of (1) certain technology, known-how and trade
secrets (the "Technology") relating to electronic ballasts and lighting controls
for fluorescent lamps, as more particularly described on Exhibit A attached
hereto, (2) the United States Patents and patent applications, and their
counterpart patents and patent applications in other countries, all as set forth
on Exhibit B attached hereto (collectively, the "Patents"), and all rights
thereunder, all rights under any extensions, reissues, renewals, continuations,
continuations in part, or divisions thereof, all rights to make, have made, use,
develop and commercialize the inventions or processes described therein, all
rights to xxx and recover damages for any past, present or future infringement
thereof, and any and all proprietary or other rights secured thereby or
comprised therein (collectively, the "Patent Rights"), and (3) the entire right,
title and interest in and to the "SOLIUM" and "SENSE-A-VOLT" trademarks,
together with the goodwill associated therewith (collectively, the
"Trademarks"), the uniqueness of which is hereby acknowledged by Licensee.
B. Pursuant to the terms of the Asset Purchase Agreement between Licensor
and Licensee dated as of the date hereof (the "Asset Agreement"), Licensor has
transferred and assigned to Licensee certain assets relating to electronic
ballasts and lighting controls for fluorescent lamps.
C. Licensee desires to secure from Licensor, and Licensor desires to
grant to Licensee, a license to use the Technology, Patents, Patent Rights and
Trademarks (the "Rights") subject to the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the premises, the mutual covenants
contained herein, and other good and valuable consideration, the parties agree
as follows:
1. DEFINITIONS. Unless otherwise defined herein, the capitalized terms used
in this Agreement shall have the meanings assigned to them in this Section 1.
"AFFILIATE" shall mean, with respect to any party, any officer, director,
shareholder, employee, representative, or agent of such party, or any entity
directly or indirectly controlling, controlled by or under common control with
such party.
"CONFIDENTIAL INFORMATION" shall mean all secret, confidential and
proprietary information, including without limitation all trade secrets,
relating to the Rights. Confidential Information shall include, by way of
example and not of limitation, all things, ideas, models, devices, plans,
specifications, drawings, documents, notes, sales and marketing information,
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manufacturing procedures, testing procedures, products, materials, processes,
computer source code, computer object code, computer programs, business and
marketing plans, tooling and equipment which are trade secrets or which include
proprietary know-how or information.
"Copyrights" include any copyrightable subject matter included in the
Technology.
"Products" shall mean (i) a product that is covered in whole or in
part by, or is manufactured using a process that is covered in whole or in part
by, a Patent or Patent Right or (ii) a product that unless made, used or sold
pursuant to this Agreement, would infringe a Patent or Patent Right.
2. License. Subject to the remaining provisions of this Agreement,
Licensor hereby grants to Licensee an exclusive and non-transferable license
(the "License") to use and practice the Rights in connection with the design,
manufacture, production, advertisement, promotion, sale and distribution of the
Products throughout the world. Nothing in this Section 2 or otherwise in this
Agreement shall be construed as conferring any right to use in any manner any
name, trademark, service xxxx, logo or trade name of Licensor other than the
Trademarks. Licensee shall have no right to sublicense any of its rights or
obligations under the License to any third party without the prior written
consent of Licensor.
3. Obligations of Licensee.
3.1 Compliance With Laws. During the term of this Agreement,
Licensee shall use the Rights, shall manufacture, advertise, sell and
distribute the Products, and shall otherwise conduct its business in compliance
with all applicable laws, statutes, rules and regulations.
3.2 Intellectual Property.
3.2.1 Execution of Documents. Licensee shall make all
necessary disclosures, execute, acknowledge and deliver all instruments and
perform all acts requested by Licensor to secure and maintain in the name of
Licensor, or its designee, patent and other intellectual property protection
for the Rights. In the event Licensor is unable, for any reason whatsoever, to
obtain the signature of Licensee to any document or instrument necessary or
desirable to obtain ownership of, apply for protection of, or enforce any
action with respect to, any patent, copyright, trade secret or other
intellectual property right, Licensee hereby irrevocably designates and
appoints Licensor, and its duly authorized officers and agents, as Licensee's
agent and attorney-in-fact, whose power is expressly coupled with an interest,
to act for and on behalf of Licensee, to execute such documents and to take all
of the lawfully permitted actions to protect Licensor's interest in any patent,
copyright, trade secret or other intellectual property right with the same
legal force and effect as if executed by Licensee.
3.2.2 Marking of Products. Licensee shall xxxx all
Products with such patent and/or trademark legends as Licensor may from time
to time prescribe in writing in such manner and form as Licensor may require
from time to time.
-2-
12
3.2.3 Use of the Trademarks. Licensee acknowledges that
the maintenance of the high quality of the Products is a material condition of
this Agreement. Accordingly, Licensor shall have the right to receive, at no
cost to Licensor, and test for approval purposes samples of all Products
incorporating the Trademarks, prior the sale, use or distribution of any such
Products. In addition, all advertising, promotional materials, packaging and
other materials containing or displaying any of the Trademarks shall be
forwarded to Licensor for its written approval prior to any use thereof by
Licensee. Licensee shall not sell, use or distribute any Product or material
disapproved by Licensor. Licensor acknowledges and agrees that Licensor is the
sole and exclusive owner of the Trademarks, and Licensee shall obtain no right
or interest in the Trademarks by virtue of its use thereof (all use of the
Trademarks by Licensee inuring to benefit of Licensor). Licensor shall not take
any action which is inconsistent with Licensor's exclusive ownership of and use
of the Trademarks, except as expressly provided herein.
3.3 Confidentiality. During the term of this Agreement and
thereafter, Licensee (a) shall not directly or indirectly use, communicate or
divulge or enable another to use, communicate or divulge any Confidential
Information, and (b) shall not divulge to Licensor confidential information of
any other party the use, communication or disclosure of which is protected by
comparable confidentiality commitments, except as expressly permitted by this
Agreement.
3.4 Best Efforts. Licensee shall at all times at its own cost and
expense use its best efforts and all due diligence energetically and
aggressively to develop the market for the Products throughout the world, to
promote the sale, distribution and use of the Products therein, and to enhance
the reputation and goodwill associated with the Products and the Trademarks.
See Rider 3.4 which is incorporated herein.
3.5 Reasonable Restrictions. Licensee acknowledges and agrees
that (a) the provisions of Sections 3.2 and 3.3 hereof are reasonable and
necessary to protect the legitimate interests of Licensor, (b) the restrictions
contained in Sections 3.2 and 3.3 will not prevent Licensee from earning or
seeking a livelihood, (c) the restrictions contained in Sections 3.2 and 3.3
shall apply in all areas where such application is permitted by law, and (d)
any violation of this Agreement by Licensee would result in irreparable harm to
Licensor. Accordingly, Licensee consents and agrees that, if it violates any of
the provisions of this Agreement, Licensor shall be entitled to, in addition to
other remedies available to it, an injunction to be issued by any court of
competent jurisdiction restraining Licensee from committing or continuing any
violation of this Agreement, without being required to post a bond or other
security, or any other undertaking. In the event that the whole or any part of
any provision of Sections 3.2 or 3.3 hereof shall be determined to be invalid
by reason of the extent, duration, scope or other provision set forth therein,
the extent, duration, scope or other provision of that section shall be reduced
so as to cure such invalidity and in its reduced from the provisions of
Sections 3.2 and 3.3 shall be enforceable in the manner contemplated hereby.
3.6 Inspection. Upon reasonable advance notice to Licensee, Licensee
shall permit Licensor and Licensor's employees or representatives to enter and
examine Licensee's facility and places of business and to inspect the Products,
its inventories of the Products, service records and other relevant documents
related to the Products and any components thereof.
-3-
13
4. License Consideration.
4.1 License Royalty Fee. Licensee shall pay to Licensor a royalty
fee equal to two percent (2%) of all gross sales of the Products (other than
Products sold more than 3 years after the date hereof which are covered solely
by a patent application; provided that such royalty fee shall not be less than
the guaranteed minimum royalty fee for each calendar quarter, as set forth
below; provided further that if the cumulative amount of royalty fees paid by
Licensee exceeds the guaranteed minimum cumulative royalty fee for such
calendar quarter, as set forth below, Licensee shall not be required to pay the
guaranteed minimum royalty fee for such calendar quarter. In no event shall the
foregoing proviso be deemed to release Licensee from its obligations to pay
Licensor the royalty fees as described above. If Licensee fails to pay the
guaranteed minimum royalty fee for any calendar quarter for a period of more
than 10 days following receipt of notice by Licensee of such failure, then in
addition to the right to demand and collect the guaranteed minimum royalty,
Licensor may declare the License to be non-exclusive. Upon such declaration,
Licensor shall be entitled, without liability or charge, to use, copy, promote,
distribute, sell, encumber, create derivative works of, revise and modify,
license, develop, manufacture, advertise, sale, distribute, or exploit, in any
manner, any or all of the Rights.
Guaranteed Guaranteed Minimum
Minimum Cumulative
Date Quarterly Royalty Payments Royalty Payments
---- -------------------------- ------------------
June 30, 1998 $ 10,000 $ 10,000
September 30, 1998 $ 30,000 $ 40,000
December 31, 1998 $ 60,000 $ 100,000
March 31, 1998 $100,000 $ 200,000
June 30, 1998 $200,000 $ 400,000
September 30, 1998 $300,000 $ 700,000
December 31, 1998 $300,000 $1,000,000
4.2 Payment of Royalty Fees. The royalty fees due hereunder shall
be paid by Licensee to Licensor within twenty (20) days after the close of each
calendar quarter. Time is of the essence with respect to all provisions of this
Agreement relating to the payment of money. A failure by Licensee to make any
payment required hereunder in a timely fashion shall constitute a material
breach of this Agreement. All payments to Licensor hereunder shall be in U.S.
dollars by bank transfer to such bank account as Licensor may from time to time
designate in writing and shall be accompanied by a remittance advice
identifying the specific payments made. In the event of any underpayment or
late payment of any royalty fee payable hereunder, Licensee shall immediately
remit to Licensor the full amount owed, together with a late payment charge
calculated at a rate of one and one-half percent (1 1/2%) per month, compounded
on a monthly basis, or maximum rate permitted by law, whichever is less. In
addition, if the amount of such underpayment is in excess of two percent (2%)
of the amount properly payable by Licensee, Licensee shall promptly reimburse
Licensor for the cost of any examination or audit.
4.3 Accounting and Reporting.
-4-
14
4.3.1 Records and Inspection. Licensee shall keep accurate
books of account, records and invoices concerning its business consistent with
generally accepted accounting principles. Said books, records and invoices
shall be maintained for a period of at least three (3) years after termination
or expiration of this Agreement and shall be available for inspection and
copying by Licensor or its duly appointed representative during regular
business hours and upon reasonable notice. Licensee shall cooperate fully with
Licensor in conducting such inspection.
4.3.2 Reporting. On or before the date specified in
Section 4.2 above for each quarterly payment of the royalty, Licensee shall
submit to Licensor a statement setting forth all sales of the Products (by
product category, style, units, dollars, and customer names and telephone
numbers), Licensee's aggregate gross revenues during such calendar quarter, the
total amount of the royalty fee payable to Licensor and the difference between
the quarterly royalty and the monthly royalty fee payable to Licensor pursuant
to Section 4.1, or a statement that no sales of the Products were made during
such month. Each quarterly statement shall be accompanied by a written
certification from the chief financial officer of Licensee that the statement
is correct and complete and prepared in compliance with this Agreement. Within
ninety (90) days after the end of each calendar year of this Agreement,
Licensee shall submit to Licensor, at Licensee's sole expense, an audited
financial statement for the preceding calendar year (by independent public
accountants acceptable to Licensor), and setting forth the aggregate royalty
fee for the preceding calendar year and the basis of calculation. Licensee
shall submit to Licensor within ninety (90) days after termination or
expiration of this Agreement a written statement certified by Licensee's chief
financial officer identifying all revenues upon which the royalty fee is
payable hereunder but which were not previously reported.
5. Term and Termination.
5.1 Term and Termination. Subject to the remaining provisions of
this Section 5, the term of this Agreement shall commence as of the date hereof
and shall terminate upon the expiration of the last of the Patents to expire
(as the life of such Patent may be extended or prolonged by any extensions,
renewals, continuations, continuations in part, or divisions thereof). This
Agreement may be terminated by Licensor immediately upon notice to Licensee
upon the occurrence of an "Event of Default" as defined in Section 10.1 of the
Asset Agreement or in the event that Licensee does any of the following: (a)
files a petition in bankruptcy or is adjudicated bankrupt or insolvent, or
makes an assignment for the benefit of creditors, or an arrangement pursuant to
any bankruptcy law, or if a receiver is appointed for Licensee or for
Licensee's business and such receiver is not discharged within thirty (30)
days, provided that the bankruptcy laws permit such Action by Licensor, (b)
fails to continue its business in the manner now conducted, (c) is late more
than 10 days in making its royalty payments or providing its royalty statements
more than twice during any one (1) calendar year, (d) attempts to sublicense or
assign any of its rights or obligations under this Agreement without Licensor's
prior written approval, (e) fails to make any guaranteed minimum royalty
payment for a period of 180 or more days, (f) fails to obtain or maintain
insurance in the amount and of the type provided for herein, (g) engages in any
conduct or practice which in Licensor's judgment is detrimental to the good
name, goodwill or reputation of Licensor, any Affiliate of Licensor or the
Trademarks, or (h) directly or indirectly,
-5-
15
contests, opposes, or challenges any of the Rights, attempts to obtain
ownership of the Rights in any country, or assists any third party with
respect to the foregoing.
5.2 Consequences of Termination or Expiration. Upon termination or
expiration of this Agreement for any reason, (a) the License granted hereunder
shall immediately terminate, (b) Licensee shall immediately and forever cease
from using the Rights, (c) Licensee shall immediately pay to Licensor all
amounts due to Licensor pursuant to Section 4 hereof for all Products sold
prior to the date of termination or expiration of this Agreement and any
guaranteed minimum royalty payments then due, (d) Licensor shall be entitled,
without liability or charge, to use, copy, promote, distribute, sell, encumber,
create derivative works of, revise and modify, license, develop, manufacture,
advertise, sale, distribute, or exploit, in any manner, any or all of the
Rights, and (e) Licenesee shall promptly return to Licensor all documents in
its possession or under its control relating to the Rights or to the rights
assigned in Subsection 3.2.2, together with any and all copies thereof. The
provisions of this Section 5.2, as well the provisions of Sections 3.2, 3.3,
3.4, 3.5, 4, 6 and 8, shall survive the expiration or termination of this
Agreement, irrespective of the reason therefor.
6. Warranties: Disclaimers. Licensee acknowledges and agrees that the Rights
are being licensed to Licensee "AS IS," with absolutely no warranties of any
kind. Licensee further acknowledges that Xxxx Xxxxxxxxxxx ("Xxxxxxxxxxx"), an
officer of Licensee, was formerly president of Solium and, therefore, is
intimately familiar with the Rights. Moreover, with the assistance of
Ossenmacher, Licensee has evaluated for itself the Rights, their actual and
potential applications and their actual and potential commercial value and
viability. Licensor shall have no obligation to obtain or maintain Patent
protection for the Rights in any nation, provided that if LICENSOR elects not
to obtain or maintain any issued patent(s) or patent application(s) Licensee
may authorized and reimburse Licensor for the costs and attorney fees for
maintaining such patent(s) or patent application(s). Licensee is aware that
Licensor intends to abandon a significant number of its pending patent
applications unless Licensee elects to pay for the prosecution of such
applications. Without limiting the generality of the foregoing, LICENSOR (A)
SPECIFICALLY DISCLAIMS ALL WARRANTIES OF ANY KIND REGARDING THE RIGHTS,
INCLUDING ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR
PURPOSE, (B) MAKES NO REPRESENTATIONS OR WARRANTIES REGARDING THE SUITABILITY
OF THE RIGHTS FOR LICENSEE'S OR ANY THIRD PARTY'S ACTUAL OR INTENDED USES, AND
(C) NO REPRESENTATIONS OR WARRANTIES AS TO WHETHER THE RIGHTS INFRINGE ON THE
PATENT, TRADEMARK OR OTHER PROPRIETARY RIGHT OF ANY THIRD PARTY. IN NO EVENT
SHALL THE LICENSOR (OR ANY AFFILIATE OF LICENSOR) BE LIABLE TO LICENSEE OR ANY
THIRD PARTY FOR ANY SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES
RESULTING FROM THE USE, OR INABILITY TO USE, THE RIGHTS, OR OTHERWISE ARISING
OUT OF THIS AGREEMENT.
7. Infringement. In the event that Licensee or Licensor learns of any
infringement by any third party of any of the Rights, it shall promptly notify
the other party in writing. At any time after any such notice, Licensor shall
have the exclusive right but not the obligation, at Licensor's expense, to
commence legal action against such infringer and may settle or compromise any
such
-6-
16
action. Licensor shall be entitled to all payments recovered in connection with
such action, to the exclusion of Licensee. Licensee may not commence any such
action without the prior written consent of Licensor. In the event any third
party commences a legal action, suit or proceeding against Licensee alleging
that its use of the Rights infringe or violate any right of such third party,
Licensee shall promptly notify Licensor in writing. At any time after any such
notice, Licensor shall have the first right but not the obligation, at
Licensor's cost and expense, assume the defense of such action and, in
connection therewith, settle or compromise any such action. If Licensor does
not assume the defense of such action within thirty (30) days of such notice,
Licensee may, at Licensee's sole cost and expense, defend itself in such
action; provided that Licensee shall not settle any action without the prior
written consent of Licensor. Licensee and Licensor shall assist and cooperate
fully with each other in connection with any legal action.
8. Indemnification and Insurance. Licensor shall have no liability to Licensee
or any third party with respect to the use of the Rights or in connection with
the design, manufacture, production, advertisement, promotion, sale and
distribution of the Products throughout the world pursuant to this Agreement.
Licensee shall indemnify, defend, and hold harmless Licensor and Licensor's
Affiliates from and against any and all claims, suits, losses, damages, fees and
expenses, including without limitation attorneys' fees and costs, arising out of
or relating to the design, manufacture, production, advertisement, promotion,
sale and distribution of the Products, all components thereof and Licensee's use
of the Rights, in any country or subdivision thereof, including, without
limitation any claims by third parties that the Rights infringe on the rights of
any third parties. During the term of this Agreement, Licensee shall obtain and
maintain employer's liability, workers' compensation, comprehensive general
liability, and product and completed operations insurance, with limits of
liability and issued by insurers approved in writing by Licensor, and shall
furnish Licensor with a certificate of insurance naming Licensor as an
additional insured, providing for such insurance and requiring sixty (60) days'
prior written notice to Licensor of any cancellation or modification of such
insurance. In no event shall Licensee sell, distribute or advertise the Products
prior to obtaining the insurance provided above.
9. Miscellaneous.
9.1 Assignability. Licensee shall not, without the prior written consent
of Licensor, assign, transfer, sell or encumber, by operation of law or
otherwise, this Agreement or any of its rights or obligations hereunder. Subject
to the foregoing, this Agreement shall be binding upon and inure to the benefit
of the parties hereto and their respective successors and assigns. Nothing
expressed or implied in this Agreement is intended or shall be construed to
confer upon or give to any person, other than the parties to this Agreement, any
right, remedy or claim under or by reason of this Agreement or of any term,
covenant or condition of this Agreement, including, without limitation, any
claims by third parties that the Rights infringe on the rights of any Third
Parties.
9.2 Notices. All notices, requests or consents required or permitted
under this Agreement shall be made in writing and shall be given to the other
party by personal delivery, overnight air courier (with receipt signature) or
facsimile transmission (with "answerback" confirmation of transmission), sent
to such party's address or facsimile number as are set forth
-7-
17
below such party's signature to this Agreement, or such other address or
facsimile number of which such party has given notice pursuant to this
Subsection 9.2. Each such notice, request or consent shall be deemed effective
upon the date of actual receipt, receipt signature or confirmation of
transmission, as applicable, except as may otherwise be expressly provided for
herein.
9.3 Amendments; Waivers; Severability. This Agreement may be amended,
modified, superseded, canceled, renewed or extended and the terms or covenants
of this Agreement may be waived only by a written instrument executed by the
parties to this Agreement or, in the case of a waiver, by the party waiving
compliance. The failure of any party at any time or times to require
performance of any provision of this Agreement shall in no manner affect the
right at a later time to enforce the same. No waiver by any party of the breach
of any term or provision contained in this Agreement, whether by conduct or
otherwise, in any one or more instances, shall be deemed to be, or construed
as, a further or continuing waiver of any such breach, or a waiver of the
breach of any other term or covenant contained in this Agreement. Any
provision of this Agreement that is prohibited or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction.
9.4 Relationship of Parties. Licensor and Licensee are and intend to
remain independent parties. Nothing contained in this Agreement shall be deemed
or construed to create the relationship of principal and agent or of
partnership or joint venture, and neither party shall hold itself out as an
agent, legal representative, partner, subsidiary, joint venturer, servant or
employee of the other. Neither party nor any officer or employee thereof shall,
in any event, have any right collectively or individually, to bind the other
party, to make any representations or warranties, to accept service of process,
to receive notice or to perform any act or thing on behalf of the other party,
except as authorized in writing by such other party in its sole discretion.
9.5 Controversies; Venue. This Agreement shall be governed by and
construed and enforced in accordance with the internal substantive laws of the
State of California. Licensor and Licensee hereby consent to the exclusive
jurisdiction of the courts of the State of California and the United States
courts located in the County of Los Angeles, State of California, in
connection with any lawsuit, action or proceeding arising out of or relating to
this Agreement, and such courts shall be the only courts having jurisdiction of
any such controversies. Both parties hereby waive any defense of lack of in
personam jurisdiction, improper venue and forum non conveniens, and agree that
service of process of such court may be made upon each of them by personal
delivery or by mailing certified or registered mail, return receipt requested,
to the other party at the address referenced in Section 9.2 above. If any legal
action or other proceeding is brought by any party for the enforcement of this
Agreement because of any alleged breach, default, or misrepresentation in
connection with any of the provisions of this Agreement, the prevailing party
shall be entitled to recover from the non-prevailing party its attorney's fees
and other costs and expenses incurred in connection therewith, in addition to
any other relief to which it might be entitled. Unless expressly set forth
herein to the contrary, all remedies set forth herein are cumulative and are in
addition to any and all remedies provided either party at law or in equity.
-8-
18
9.6 Entire Agreement. This Agreement constitutes the whole agreement of
the parties hereto in reference to any of the matters of things herein provided
for, all prior agreements, promises, representations and understandings
relative thereto being herein merged.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement
as of the day and year first above written.
SOLIUM, INC.
By: /s/ Xxxxxxx Xxxxx
---------------------------------------------
Name: Xxxxxxx Xxxxx
-------------------------------------------
Title: President - Solium, Inc.
------------------------------------------
Address: c/o Pacific Scientific
000 Xxxxxxx Xxxxxx Xxxxx, Xxxxxxx Xxxxx
Xxxxxxx Xxxxx, Xxxxxxxxxx 00000
Facsimile: (000) 000-0000
PACIFIC SCIENTIFIC COMPANY
By: /s/ Xxxxxx Xxxx
---------------------------------------------
Name: Xxxxxx Xxxx
-------------------------------------------
Title: Chairman
------------------------------------------
Address: 000 Xxxxxxx Xxxxxx Xxxxx, Xxxxxxx Xxxxx
Xxxxxxx Xxxxx, Xxxxxxxxxx 00000
Facsimile: (000) 000-0000
With a copy to: Paul, Hastings, Xxxxxxxx & Xxxxxx LLP
000 Xxxx Xxxxxx Xxxxx, 00xx Xxxxx
Xxxxx Xxxx, Xxxxxxxxxx 00000-0000
Attention: Xxxxxxx X. Xxxxxxx, Esq.
Facsimile: (000) 000-0000
CHICAGO MINIATURE LAMP, INC.
By:
---------------------------------------------
Name:
-------------------------------------------
Title:
------------------------------------------
Address:
----------------------------------------
----------------------------------------
Facsimile:
--------------------------------------
-9-
19
EXHIBIT A
The Technology:
A. Electronic ballasts for the control of fluorescent lighting that operate
fluorescent lamps across a range of input voltages. This technology is
trade marked as Sense-A-Volt.
Major design elements include:
- Variable Voltage Input
- Expanded Power Factor Correction
- Thermal Protection
- Lamp Length Compensation
- Lamp Quantity Compensation
- End of Life Protection
- Low Stress Starting Methodology
- Complex Resonating Circuit
B. Electronic ballasts for the control of fluorescent lighting that dim
fluorescent lamps across a range of light output from 20-100% of lamp
capability.
Major design elements include:
- SCR Dimming
- Boost Circuit
- Deep Dimming Stability Circuit
- Programmed Start
- End of Life Protection
- Complex Resonating Circuit
- Lamp Starting Near End of Life
- Inherent Thermal Protection
- Starting With Dimmer Preset at Low
C. Electronic ballasts for the control of fluorescent lighting that dim
fluorescent lamps using a standard "3-Way" incandescent switched socket.
Major design elements include:
- 3-Way Step Dimming
- Use of Opto Coupler
- Inherent Thermal Compensation
- Rapid Start Operation
- End of Life Protection
- Power Factor Correction
D. Electronic ballasts for the fluorescent lighting that are standard
non-featured "on-off" products incorporating design features listed in A
through C as above.
20
EXHIBIT B
The "Patents"
Patents:
--------
Patent Number Issue Date
------------- ----------
5,596,247 01/21/97
Patent Application:
-------------------
Application Number Filing Date
------------------ -----------
08/316395 09/30/94
08/488387 06/06/95
08/723289 09/30/96
08/786037 01/21/97
08/725914 10/04/96
60/005033 10/06/95
29/045040 10/06/95
29/045246 10/13/95
08/625629 02/29/96
08/300423 09/01/94
08/647030 05/09/96
08/761658 12/06/96
08/749106 11/14/96
08/768508 12/18/96
08/690456 08/08/96
08/872957 06/11/97
08/873274 06/11/97
60/044259 04/24/97
60/044929 04/25/97
Not Available 07/25/97
Not Available 08/01/97
-12-
21
RIDER 3.4
Every 24 months the parties shall confer regarding Licensee's compliance with
the terms of the preceding sentence (the "Requirements"). In the event
Licensor concurs that Licensee has complied with the Requirements, Licensor
shall put such concurrence in writing, which shall be deemed to constitute a
waiver of any claims of Licensor with respect to Licensee's compliance with the
Requirements for the immediately receding 24 months period. Notwithstanding
any terms of the Asset Agreement, a default of Licensee with respect to the
Requirements shall not constitute a default by Licensee under the Asset
Agreement or otherwise adversely affect Licensee's rights under the Asset
Agreement.
APPROVED:
SOLIUM, INC.
By: /s/ Xxxxxxx Xxxxx
----------------------------------
Name: Xxxxxxx Xxxxx
--------------------------------
PACIFIC SCIENTIFIC COMPANY
By: /s/ Xxxxxxx Xxxxx
----------------------------------
Name: Xxxxxxx Xxxxx
--------------------------------
CHICAGO MINIATURE LAMP, INC.
By:
----------------------------------
Name:
--------------------------------
