Exhibit 10(a)
DATED March 28, 2003
_______________________________
ASSET PURCHASE AGREEMENT
_______________________________
regarding the
acquisition of certain assets of
Trans-Lux West Corporation
By
Barco, Inc
Table of Contents
[Will Prepare For Executable Copy]
Asset Purchase Agreement
This Agreement was made and entered into this 28th day of March 2003,
by and between
Trans-Lux West Corporation
1651 North 1000 West, Logan, UT-
herein referred to as "Seller" -
with a corporate guarantee of specified obligations under Sections 2.1.4 and
10.5 only
by Trans-Lux Corporation
-herein referred to as Guarantor-,
Barco NV referred to as Barco, corporate parent of Purchaser and guarantor of
Purchaser's obligations under this Agreement,
and
BARCO, Inc.
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- herein referred to as "Purchaser " -
Preamble
WHEREAS Seller is engaged in the business (the " Business") as hereafter defined
in Exhibit A Definitions.
WHEREAS Purchaser intends to acquire from Seller certain assets of the Business
by (i) purchasing and receiving by assignment certain of Seller's assets and
(ii) assuming certain of Seller's contractual relationships and obligations
pursuant to the terms of this Agreement and Seller intends to accept such sale
and transfer and such assumption of contractual relationships and obligations by
Purchaser.
NOW THEREFORE, the Parties hereto agree as follows:
1. Current Status
Seller engages in the Business and uses tangible and intangible assets
and contractual relationships relating thereto. It is understood that
certain assets of the Business not being sold as part of the transaction
contemplated herein, have been, are and will be used in the manufacture
of products of other businesses of Seller.
2. Sale and Transfer of Assets
2.1 Seller herewith sells and assigns to Purchaser, subject to Section 2.4,
and hereby licenses certain patents ("Intellectual Property") pursuant
to the Technology and Patent License Agreement executed simultaneously
with this Agreement, all with effect from the Closing Date (as defined
in Section 8) all of its right, title and interest to the following
assets which relate to the Business as of the Closing Date( collectively
the "Acquired Assets"), and Purchaser herewith accepts such sale and
such assignment and purchases such assets.
2.1.1 real property located at ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇, ▇▇▇▇ (the
"Logan Utah Facility") including all fixtures and furnishings as
listed in Exhibit 2.1.1;
2.1.2 tangible movable assets, including equipment, machinery, vehicles,
and all other manufacturing equipment (collectively "Equipment")
and assets relating to the Business, all as listed in Exhibit
2.1.2;
2.1.3 inventories, including raw materials and supplies, work in
progress and finished goods relating exclusively to the Business
as listed in Exhibit 2.1.3;
2.1.4 trade receivables as listed in Exhibit 2.1.4 (hereinafter "Trade
Receivables") with those Trade Receivables not exceeding 90 days
past due at the Closing. In the event, however, that any Trade
Receivable becomes 90 days past due after Closing and such
non-collection is not due to actions of Purchaser and Purchaser
used reasonable efforts to collect such Trade Receivables and
allowed Seller to assist in such collection, such Trade Receivable
shall be re-assigned back to Seller with Seller providing payment
to Purchaser in the amount of the Trade Receivable. After such
re-assignment, at Seller's request Purchaser shall assist Seller
in the collection of the Trade Receivable including any required
technical assistance at a cost to Seller of the full cost of
Purchaser's assistance plus fifteen percent (15%). In no event
shall Seller's obligation to (i) accept the re-assignment of a
Trade Receivable, (ii) pay Purchaser the amount of the re-assigned
Trade Receivable or (iii) reimburse Purchaser's full cost plus
fifteen percent (15%) of Purchaser's assistance be limited in any
way by any other Section of this Agreement, including but not
limited to the provisions of Section 10. The re-assignment
payment by Seller is guaranteed by Guarantor.
2.2 Subject to Section 2.4 on the Closing Date, Seller and its affiliate
Trans-Lux Midwest Corporation shall (i) license to Purchaser certain
intellectual property pursuant to the terms and conditions of the
Technology and Patent License Agreement as Exhibit 2.2(i); and (ii)
license to Purchaser the use of certain molds at vendors pursuant to the
License Agreement-Molds as Exhibit 2.2(ii).
2.3 The following assets and other items are not included in the Acquired
Assets sold and assigned pursuant to this Agreement (hereinafter the
"Excluded Assets"):
(a) cash and cash equivalents of Seller on hand and in bank accounts
and other investment accounts, together with such accounts;
(b) molds (but these shall be licensed);
(c) all installed and/or shipped jobs as well as ongoing or future
warranty obligations, service-maintenance contracts and income therefrom
and animation and animation income from jobs shipped and/or installed
prior to Closing.
(d) all rights throughout the world in and to the name Trans-Lux or
TLX or any variations thereof, and all trademarks and similar
registrations (and applications therefor) relating to the name of
Trans-Lux Corporation or Trans-Lux West Corporation or TLX;
(e) the Assets listed on Exhibit 2.3(e)
(f) Administrative Assets;
(g) all (i) service marks, trademarks, tradenames and registrations
for the foregoing marks and names, (ii) product names and assumed or
fictitious names and the logos associated therewith, (iii) applications
for trademark registrations, and (iv) such other property and intangible
rights, in each case containing, relating to, derived from or
incorporating the name or letters "Trans-Lux" or "TLX", together with
the goodwill of the businesses in connection with which such service
marks, trademarks, tradenames and product names are used;
(h) all designs, technical information, drawings, formulae and
processes, procedures, proprietary information, trade secrets and
related assets owned, used or held for use by Seller or its Affiliates
including any such used in connection with Seller's other businesses,
including but not limited to the Seller's Commercial, Catalog and other
businesses, it being understood that certain of the foregoing are used
in the Business and specifically licensed in connection with this
Agreement;
(i) litigation and other claims of the Seller arising prior to the
Closing and receivables therefrom, including those set forth on Exhibit
2.3(i);
(j) prepaid Taxes and rights to refunds of Taxes paid by Seller or
its Affiliates;
(k) all Assets not otherwise listed as an Acquired Asset in this
Agreement which are related to the Seller's Commercial, Catalog and
other businesses.
2.4 The assignment of the Acquired Assets pursuant to Section 2.1 is subject
to the condition precedent of the occurrence of the Closing Date (as
defined in Section 8 below).
2.5 Except as set forth in Exhibit 2.5, and subject to the deed of trust and
other security interests securing the IRBs referred to in Section 7.1.1,
the Acquired Assets have been examined by Purchaser and are being sold
"as-is" and "where at" and without representation or warranty free and
clear of UCC Financing Statements. The benefits and burdens of all of
the Acquired Assets shall accrue to Purchaser effective from the Closing
Date.
2.6 The Acquired Assets to be sold and licensed pursuant to this Agreement
include all books, records and other documentation, including but not
limited to those provided during the due diligence conducted by
Purchaser (hereafter "Documentation") relating exclusively to the
Business. If Purchaser requests original Documentation in connection
with audit or other proceedings, then Purchaser shall notify Seller and
Seller shall provide such originals to Purchaser. The Parties agree
that any books, records and other documentation relating exclusively to
Excluded Assets, or which don't relate exclusively to the Business, are
neither sold and transferred nor delivered to Purchaser and shall be
retained by Seller. To the extent original records are delivered to
Purchaser, Seller will be entitled from time to time to make copies at
its own expense of all books, records and other documents pertaining to
the Business and included in the Acquired Assets which Seller desires
for Tax, accounting, legal or other purposes. Purchaser agrees to
preserve and keep all such books, records and other documents for a
period of at least six (6) years from the Closing Date. Purchaser shall
give Seller 45 days written notice of its intention to dispose of such
books, records and other documents and provide Seller a reasonable
opportunity to obtain possession or make copies thereof at Seller's
expense. With respect to manuals relating to the Business, Seller shall
give copies thereof to Purchaser at the Closing, to the extent they are
available.
3. Assumption of Contractual Relationships
3.1 All contracts and/or purchase orders for Work in Process, contractual
offers or projects in progress for customers relating exclusively to the
Business as of the Closing Date, except for the Excluded Contracts set
forth in Section 3.3, are assigned to and assumed by Purchaser (herein
"Assumed Contracts"). For the purpose of this Agreement, Work in
Process shall be defined as all Custom Sports Market jobs not shipped
(herein "Work in Process"). Purchaser assumes from Seller all rights
and obligations resulting from these Assumed Contracts and contractual
offers by way of the assumption of contract subject to any required
third party consent pursuant to Section 5. A list of the Assumed
Contracts is attached as Exhibit 3.1. Notwithstanding anything to the
contrary in this Section, Seller shall retain all service and support
obligations for Seller's existing customer base as fixed at the time of
Closing (hereinafter "Seller's Existing Customer Base"). During the
term of any warranty obligations Seller has towards Seller's existing
Customer Base, Seller agrees to provide the same level of support to
warranty obligations to Seller's Existing Customer Base as it presently
provided before Closing.
3.2 Purchaser assumes all vendor and supplier agreements and purchase
orders including agreements for warranties (either oral or written) on
inventory and or products included in the Acquired Assets to the extent
assignable for the period after Closing (hereinafter "Assumed Vendor and
Supply Contracts"). A list of the Assumed Vendor and Supply Contracts
is attached as Exhibit 3.2.
3.3 The following contracts are not included in the Assumed Contracts
assumed by Purchaser pursuant to Section 3.1 or Section 3.2:
3.3.1 all contracts for works- in -progress and contractual offers or projects
in progress relating to the Excluded Assets;
3.3.2 all contracts entered into and all contractual offers made or received
not in the ordinary course of business set forth in Exhibit 3.3.2 to this
Agreement (hereinafter "Excluded Contracts").
3.4 To the extent that the Assumed Contracts constitute pending
transactions or Work in Process, it is expressly agreed that the amounts
which Seller has in- voiced and received as pre-payments on Exhibit 3.4
on account of supplies, la- bor and other costs prior to Closing shall
be offset against Seller's costs to date including Prepaid Expenses as
set forth in Exhibit 3.4, and the Purchase Price will be increased or
reduced accordingly by such net amount, and Purchaser shall be entitled
to the payments and benefits under the Assumed Contracts made or due
after Closing.
3.5 If, after the Closing Date, either Purchaser or Seller, as the case may
be, receives any amounts in part or in full to be paid under the Assumed
Contracts or the Excluded Contracts, as the case may be, which should,
in accordance with the terms of this Agreement and, in particular with
this Section 3, have been paid to the other Party, then the Party having
received such amount shall forward any such amount, which it has
incorrectly received, to the other Party within thirty (30) days.
3.6 Seller agrees to transfer and assign as of the Closing Date all
warranty claims against third parties under the Assumed Contracts.
Purchaser herewith accepts the assignments of such warranty claims.
3.7 Assumed Liabilities. Purchaser will assume at the Closing and will
perform and discharge when due (i) liabilities and obligations of Seller
under Assumed Contracts and Assumed Vendor and Supply Contracts accruing
after the Closing, and (ii) liabilities and obligations relating to the
Logan Utah Facility with respect to periods after Closing including
liabilities and obligations relating to Seller's deed of trust on the
Logan Utah Facility and the IRB Bonds as defined. Liabilities and
obligations to be assumed by Purchaser pursuant to this Section 3.7 are
referred to herein as "Assumed Liabilities."
3.8 Retained Liabilities. Except as provided in Section 3.7 or pursuant to
Section 10.1(b), the parties agree that Purchaser is not assuming any
liabilities or obligations of Seller or the Business (as operated by
Seller prior to the Closing). Liabilities and obligations of Seller
with respect to periods prior to the Closing (other than Assumed
Liabilities) are referred to herein as "Retained Liabilities".
3.9 To the extent that any Assumed Contract or other Acquired Asset to be
transferred to Purchaser is not capable of being validly and fully
assigned, transferred, conveyed or reissued to Purchaser without a
consent or approval, and such consents and approvals have not been
obtained prior to the Closing or do not remain in full force and effect
at or immediately after the Closing, no such assignment, transfer,
conveyance or reissuance shall be deemed to have occurred until such
consent or approval has been obtained, and Seller shall, after the
Closing, use its reasonable commercial efforts to: (i) obtain such
consents or approvals, (ii) cooperate in any lawful arrangement designed
to provide to Purchaser the benefits of any Assumed Contract or other
Acquired Asset as to which such a consent or approval has not been so
obtained or does not remain in full force and effect, and (iii) enforce,
at the request of Purchaser and at Purchaser's expense, for the benefit
of Purchaser, any rights of Seller under or with respect to any such
Assumed Contract or other Acquired Asset against all other persons
(including termination of the foregoing in accordance with the terms
thereof upon the election of Purchaser), provided that Seller shall not
be required to take any action pursuant to this sentence that could
reasonably be expected to result in Seller incurring liability to a
third party. To the extent that Purchaser is provided the benefits
pursuant to this Section 3.9 of any such Assumed Contract or other
Acquired Asset, Purchaser shall perform the liabilities and obligations
of Seller thereunder or in connection therewith with respect to periods
following the Closing as if they were Assumed Liabilities.
4. Hiring of Key Employees
4.1 (a) Except for the Excluded Employees listed on Exhibit 4.1(a),
Purchaser may offer employment effective as of the Closing to each
employee of the Business including the employees designated by Purchaser
in Exhibit 4.1(a). Any such employee who accepts Purchaser's offer of
employment shall be referred to herein as a "Purchaser Employee" and
shall resign from or deem to have resigned from Seller's employment.
(b) Nothing in this Agreement shall limit Purchaser's right to
terminate the employment of any Purchaser Employee.
4.2 After the Closing, Seller, Guarantor or any of their respective
subsidiaries or affiliates, shall in no way solicit or assist in the
solicitation of the employment of, or employ Purchaser Employees, in any
way directly or indirectly, for a period of three (3) years after the
Closing as long as the Purchaser Employees are employed by Purchaser or
any subsidiary or affiliate of Purchaser, provided however that Seller,
Guarantor and their respective subsidiaries or affiliates shall not
employ any Purchaser Employee who voluntarily resigns the employ of
Purchaser less than 6 months prior to such employment.
4.3 Warn Act Liabilities. If Seller incurs WARN Act liabilities
because 50 or more of the Business' Employees are not Purchaser Employees, then
Purchaser shall be liable for all payments during the 60 days following Closing
for such Employees under the WARN Act.
5. Third Party Consents
5.1 The Parties will jointly endeavour to obtain all necessary third party
consents in respect of the transfer of the Acquired Assets and the
Assumed Contracts and shall implement Section 3.9.
6. Purchase Price
6.1 The purchase price for the Acquired Assets (herein the "Purchase Price")
shall amount to $3,756,827.84 as set forth in Exhibit 6.1 plus the
assumption of the Assumed Liabilities. The $3,756,827.84 shall be
payable in cash after all of the required events to consummate the
Closing are complete, and receipt of such payment is likewise a
condition of Seller to consummate the Closing. The allo- cation amongst
the Seller shall be the sole responsibility of the Seller.
6.2 Payments to Seller under this Agreement shall be made to the following
bank account, unless Seller has notified Purchaser of a different bank
account in writing; payments to such bank account shall be made by wire
transfer in im- mediately available funds free of bank and/or any other
charges and shall be deemed effective when unconditionally and
irrevocably credited to such bank account:
People's Bank
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ABA No. : ▇▇▇-▇▇▇-▇▇▇
Account No.: 033-▇▇▇▇▇▇▇
Account Name: Trans-Lux West Corporation
7. Pre-Closing Conditions
7.1 The sale and purchase of the Assets shall be consummated pursuant to
Section 8 below (herein "Closing") only if the following conditions
precedent (herein "Pre-Closing Conditions") are fulfilled, unless waived
in writing by the appli- cable Party:
7.1.1 Execution and delivery of all documents and agreements necessary for the
assumption by Purchaser from Seller of the IRB Bonds secured by the
Seller's Logan Utah Facility.
7.1.2 Execution and delivery of deed of title to the Logan facility to
Purchaser, subject to matters shown on Purchaser's title insurance
policy Old Republic National Title Insurance Company Owners Policy No.
SV2643102 dated March __, 2003.
7.1.3 Seller has provided evidence reasonably satisfactory to Purchaser that
the Assumed Contracts are in effect.
7.1.4 Each Party has provided the other evidence sufficient to demonstrate
that such Party has obtained appropriate approvals (other than to
Assumed Contracts) to conclude the transactions contemplated in this
Agreement.
7.2 Seller and Purchaser shall mutually inform each other without undue delay as
soon as either Party has become aware that the Pre-Closing Conditions
have been fulfilled.
8. Closing
At the Closing the following events (herein "Closing Events") shall occur:
8.1 At the Closing each Party shall deliver originals of the Ancillary
Documents proving that the Pre-Closing Conditions have been fulfilled.
8.2 At the Closing Purchaser shall pay the Purchase Price.
8.3 At Closing Purchaser shall execute and deliver to Seller, an assumption of
$4,155,000 in IRB Bonds in the form attached hereto as Exhibit 8.3.8.4
At Closing, Guarantor shall execute a corporate guaranty securing
Guarantor's obligations under this Agreement (herein "Guaranty"). A
copy of the Guaranty is attached hereto as Exhibit 8.4.
8.5 At Closing, Barco shall execute a corporate guaranty guaranteeing all of
Purchaser's obligations under this Agreement. A copy of the Guaranty is
attached hereto as Exhibit 8.5
8.6 The Closing shall take place at the office of Guarantor or at such other
place mutually agreed upon by the Parties.
8.7 Purchaser and Seller shall have the right to waive one or more of the
Closing Events by a mutual written consent.
8.8 "Closing Date" shall be the date on which the Closing Events have
occurred, to the extent that such Closing Events have not been duly
waived by the Parties. Payment of the Purchase Price shall constitute
confirmance of the occurrence of the Closing Date.
9. Representations
The Parties hereby respectively represent and warrant as follows:
9.1 Material Agreements
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Except for the Assumed Contracts, Excluded Contracts and Excluded
Assets, to Seller's knowledge, Seller has no other agreements or
obligations of the same nature relating to the Business.
9.2 Performance of Assumed Contracts
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The Assumed Contracts are in full force and effect and, to the best
knowledge of Seller are enforceable against the parties thereto in
accordance with their terms. Except for Assumed Contracts allowing the
customer to terminate for breach, convenience or failure to get State or
similar funding, to the knowledge of Seller no circumstance exists that
will reasonably be expected to give any party to the Assumed Contracts
the right to terminate or modify such agreements. Except as set forth
in Exhibit 9.2, Seller has performed and complied with all obligations
under the Assumed Contracts in all material respects. Seller has not
received any notice of termination of any Assumed Contracts.
9.3 Intellectual Property
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(a) The Intellectual Property includes such Intellectual Property as are
in all material respects sufficient to conduct the Business immediately
following the Closing as it is currently conducted.
(b) Seller is not now the subject of any pending infringement,
interference, opposition or similar action, suit or proceeding challenging the
use by the Business of any Intellectual Property.
(c) To the knowledge of Seller, except as set forth in Exhibit 9.3, the
Seller has not received notice of claims or demands against the Seller in
writing that the conduct of the Business by Seller infringes in any material
respect on any valid intellectual property rights of any other Person.
9.4 Acquired Assets
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Except for liens being released at Closing and liens and encumbrances securing
or relating to the IRB Bonds assumed by Purchaser, there are no encumbrances on
the Acquired Assets;
9.5 Litigation
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Except as disclosed in Exhibit 9.5, there are no court litigations,
arbitrations, governmental investigations or inquiries, or
administrative proceedings pending or to the knowledge of Seller and
Guarantor, threatened against Seller or Guarantor with respect to the
Business, and the Acquired Assets.
9.6 Purchaser Employees and Employee Benefits
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(i) All obligations, whether arising by operation of law, by
agreement or past custom, for payments and contributions with
respect to direct or indirect pension and retirement benefits or
other compensation benefits, such as bonus payments, if any, to
the Purchaser Employees, for periods prior to the Closing Date
have been paid or accrued by Seller;
(ii) except for resignations in the ordinary course of business,
none of the Purchaser Employees has terminated his/her current
employment or to Seller's knowledge has threatened to terminate
such employment except in connection with this transaction.
9.7 Labor Matters
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With respect to the Purchaser Employees Seller is in compliance with all
laws and regulations dealing with wages, hours, vacations and working
conditions for its employees; all compensation and withholding
obligations of Seller to or in respect of the Purchaser Employees for
periods prior to the Closing Date have been paid or accrued by Seller.
9.8 Warranties; Product Liability
There are no product liability, warranty or other similar claims pending
against Seller or Guarantor with respect to the Business, and Seller
and/or Guarantor have no knowledge of any product liability defects
which would give rise to any such liabilities or claims unless listed in
Exhibit 9.8;
9.9 To Seller's knowledge, no representation by Seller in this Agreement
contains any untrue statement of a material fact. If and to the extent
any of the representations of Seller in this Section are made to
Sellers` best knowledge, such knowledge means actual knowledge by
Seller's officers or directors.
9.10 (a) Each of the Parties is a corporation validly existing and in good
standing under the laws of its jurisdiction of incorporation.
(b) Each of the Parties has the corporate power and corporate authority
to enter into this Agreement and the Ancillary Documents to which it is
contemplated to be a party and to perform its obligations hereunder and
thereunder. The execution, delivery and performance of this Agreement
and the Ancillary Documents by each Party and the consummation of the
transactions contemplated hereby and thereby have been duly authorized
and approved by the Board of Directors of such Party and no other
corporate proceedings on the part of such Party or the shareholders of
such Party are necessary to authorize and approve this Agreement or such
Party's Ancillary Documents and the transactions contemplated hereby and
thereby. This Agreement and each Ancillary Document contemplated to be
delivered by the Parties has been duly executed and delivered by a
Party. This Agreement and each Ancillary Document contemplated to be
executed and delivered by a Party constitutes a valid and binding
obligation of such Party, enforceable against such Party in accordance
with its terms, except as enforceability may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer
or similar laws affecting creditors' rights generally or by the
principles governing the availability of equitable remedies.
(c) None of the Parties, nor any director, officer or employee thereof,
has employed or dealt with any broker or finder or has incurred or will
incur any broker's, finder's or similar fee, commission or expense, in
each case in connection with the transactions contemplated by this
Agreement or the Ancillary Documents.
9.11 The Parties hereto agree as follows:
NO OTHER REPRESENTATIONS OR WARRANTIES. EXCEPT FOR THE REPRESENTATIONS
AND WARRANTIES CONTAINED IN THIS AGREEMENT, SELLER MAKES NO
REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, WRITTEN OR ORAL, AND
SELLER HEREBY DISCLAIMS ANY SUCH REPRESENTATIONS OR WARRANTIES
(INCLUDING WITHOUT LIMITATION ANY WARRANTY OF MERCHANTABILITY OR OF
FITNESS FOR A PARTICULAR PURPOSE), WHETHER BY SELLER, OR ANY OF ITS
OFFICERS, DIRECTORS, EMPLOYEES, AGENTS OR REPRESENTATIVES OR ANY OTHER
PERSON, WITH RESPECT TO THE BUSINESS OR THE ACQUIRED ASSETS OR THE
EXECUTION AND DELIVERY OF THIS AGREEMENT OR THE TRANSACTIONS
CONTEMPLATED HEREBY, NOT-WITHSTANDING THE DELIVERY OR DISCLOSURE TO
PURCHASER, ANY AFFILIATE OF PURCHASER OR ANY OF THEIR OFFICERS,
DIRECTORS, EMPLOYEES, AGENTS OR REPRESENTATIVES OR ANY OTHER PERSON OF
ANY DOCUMENTATION OR OTHER INFORMATION BY SELLER OR ANY OF ITS
AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS OR REPRESENTATIVES OR
ANY OTHER PERSON, WITH RESPECT TO ANY ONE OR MORE OF THE FOREGOING.
PURCHASER ACKNOWLEDGES THAT IN ENTERING INTO THIS AGREEMENT AND THE
TRANSACTIONS CONTEMPLATED HEREBY IT IS NOT RELYING ON ANY INFORMATION
OTHER THAN THE REPRESENTATIONS AND WARRANTIES EXPRESSLY SET FORTH IN
THIS AGREEMENT AND THE EXHIBITS THERETO.
10. Indemnification
10.1 (a) Seller shall indemnify and hold harmless Purchaser and its
Affiliates ("Purchaser Indemnified Parties") from and against any and
all Losses which are incurred by one or more Purchaser Indemnified
Parties:
(i) resulting from the breach of any representation or warranty
made by Seller in Section 9 of this Agreement or any Seller Ancillary
Document;
(ii) resulting from the breach of any covenant or agreement of
Seller contained herein or any Seller Ancillary Document; or
(iii) constituting Retained Liabilities.
(b) Purchaser shall indemnify and hold harmless Seller and its
Affiliates ("Seller Indemnified Parties") from and against any and all
Losses which are incurred by one or more Seller Indemnified Parties:
(i) resulting from the breach of any representation or warranty
made by Purchaser in Section 9 of this Agreement or any Purchaser
Ancillary Document;
(ii) resulting from the breach of any covenant or agreement of
Purchaser contained herein or any Purchaser Ancillary Document; or
(iii) constituting Assumed Liabilities.
10.2 The right of the Purchaser to rescind the Agreement shall be excluded.
Purchaser and Seller each recognize that any breach of the terms of this
Agreement may give rise to irreparable harm for which money damages
would not be an adequate remedy, and accordingly agree that, in addition
to other remedies, any non-breaching Party will be entitled to enforce
the terms of this Agreement by a decree of specific performance without
the necessity of proving the inadequacy as a remedy of money damages.
10.3 Any claim for indemnification under Section 10.1 will be made
in accordance with this Section 10.3. In the case of any claim for
indemnification arising from a claim or demand of a third Person, an
Indemnified Party will give prompt written notice, in no event more than
ten (10) days following such Indemnified Party's receipt of such claim
or demand, to the Indemnifying Party describing in reasonable detail the
basis of such claim or demand as to which it may request indemnification
hereunder. Any other claim for indemnification will be made as promptly
as practicable after the time the Indemnified Party becomes aware of the
facts forming the basis of such claim. The Indemnifying Party will have
the right to defend and to direct the defense against any such claim or
demand, in its name or in the name of the Indemnified Party, as the case
may be, at the expense of the Indemnifying Party and with counsel
selected by the Indemnifying Party, provided that the Indemnifying Party
may not settle or compromise any such claim or demand without the
written consent of the Indemnified Party (which consent may not be
unreasonably withheld or delayed) if injunctive or other equitable
relief would be imposed against the Indemnified Party as a result
thereof. The Indemnified Party will cooperate with the Indemnifying
Party and keep the Indemnifying Party fully informed in the defense of
any such claim or demand. The Indemnified Party will have the right to
participate in (but not control) the defense of any claim or demand with
counsel employed by it at the expense of the Indemnified Party. The
Indemnifying Party will have no indemnification obligations with respect
to any such claim or demand which is settled by the Indemnified Party
without the prior written consent of the Indemnifying Party.
10.4 (a) The rights of the Parties under Sections 10.1 and 10.2 (and
under Section 4 and Section 13.1) will be the exclusive remedy of the
Parties with respect to breaches of representations, warranties,
covenants or agreements contained in or made pursuant to this Agreement
or any Ancillary Document. Purchaser, on behalf of itself and its
Affiliates (and their shareholders, managers, officers, directors,
employees and agents), hereby (i) waives and releases Seller and its
Affiliates (and their shareholders, managers, officers, directors,
employees and agents) from any statutory or other rights of contribution
or indemnity (except as set forth in Section 10.1 (a)) with respect to
Seller's and its Affiliates' ownership of the Acquired Assets or
operation of, or otherwise relating to, the Business, and (ii) waives
and releases all rights of subrogation with respect to claims relating
thereto.
(b) Each of Purchaser, on the one hand, and Seller, on the
other hand, agrees that, unless the other Party shall otherwise direct
in writing, it will use commercially reasonable efforts to recover
amounts under insurance policies to the extent such recoveries would
reduce amounts required to be paid by the other pursuant to this Section
10.
(c) In the event that an Indemnifying Party is obligated to
indemnify an Indemnified Party pursuant to this Section 10, the
Indemnifying Party will, upon payment of such indemnity, be subrogated
to all rights of the Indemnified Party with respect to claims to which
such indemnification relates.
(d) In the event and for so long as Seller or any of its
Affiliates is contesting or defending against any third party action,
suit, proceeding, hearing, investigation, charge, complaint, claim, or
demand in connection with any fact, status, condition, activity,
occurrence, event, failure to act or transaction with respect to the
Business on or prior to the Closing Date, Purchaser agrees to (i)
cooperate on a reasonable basis with the contesting or defending party
and its counsel and make available information in its possession
relevant thereto and (ii) make available its employees on a reasonable
basis, as necessary, to provide testimony, to be deposed, to act as
witnesses and to assist counsel, all during normal business hours
without undue interference with Purchaser's business and with the
responsibilities of such employees, in each case of clauses (i) and (ii)
as shall be necessary in connection with the defense or contest thereof,
all at the sole cost and expense of the contesting or defending party
(unless and to the extent the contesting or defending party is entitled
to indemnification therefor under Section 10).
(e) No claim for indemnification may be made by an Indemnified
Party pursuant to this Section for breach of a representation or
warranty unless notice of such claim (describing the basic facts or
events, the existence or occurrence of which constitute or have resulted
in the alleged breach of a representation or warranty made in this
Agreement or any Ancillary Document) has been given to the Indemnifying
Party during the applicable survival period set forth in Section 10.6.
10.5 Except as provided in Section 2.1.4,Seller shall have no liability
under Section 10.1(a) unless and until the aggregate amount of all
Losses which are otherwise recoverable under this Section or any Seller
Ancillary Document (but for this Section 10.5) exceeds $50,000 Fifty
Thousand US Dollars after which Seller shall be responsible for amounts
in excess of such threshold up to the maximum hereinafter set forth. If
such threshold is exceeded, Purchaser shall be entitled to the
indemnification pursuant to Section 10.1(a) to the extent Seller's
liability exceeds $50,000 up to a maximum aggregate amount of $400,000
Four Hundred Thousand US Dollars. This payment is guaranteed by
Guarantor. The limit set forth in this Section 10.5 shall not apply to
the Seller's non-compete obligation in Section 11.
10.6 The representations and warranties contained in or made pursuant to
this Agreement or any Ancillary Agreement will survive the Closing, but
will terminate and be of no further force or effect on and after
December 30, 2003. All other provisions will survive the Closing
without limitation except as provided therein (e.g. five (5) years for
Section 11).
10.7 Notwithstanding anything contained in this Section to the contrary,
Seller shall indemnify and hold Purchaser harmless, with no limit or
condition, against any claim, liability or obligation of an Acquired
Asset occurring prior to Closing and Purchaser shall indemnify and hold
Seller harmless against any claim, liability or obligation with respect
to an Acquired Asset occurring on or after the Closing.
11. Non-Compete
Seller, Guarantor, Purchaser and Barco are prohibited for a period of
five (5) years after the Closing Date as follows:
In the case of Seller and/or Guarantor, Seller and/or Guarantor and its
communication subsidiaries agree to not compete against Purchaser in the
Business in the Custom Sports Market either directly or indirectly. The Custom
Sports Market is defined as the design, development, manufacture, sale, lease
and service in the US and Canada of LED and incandescent displays and
scoreboards (excluding gaming (which includes racing) and excluding practice and
intramural sports, auxiliary practice fields, student activity centres, and
recreation and physical education facilities and other areas and facilities
defined in items 1, 2 and 3 below of the Catalog Sports Market) and consists of:
(i) Major sports programs (football, basketball, or baseball) in Division I,
and in the case of football, Division I-AA, of Universities of the NCAA;
(ii) (I) Facilities which are members of International Association of
Assembly Managers (IAAM) as listed in the Active Membership Geographical
listing in the IAAM Member index most current at the time of Closing and
are designed and used in part for team sports events (including tennis),
and (II) the type of facilities as defined by the IAAM as eligible for
membership which are designed and used in part for team sports events
(including tennis) except for in the case of (II): (a) those facilities
which meet the definition from Catalog Sports Market in item 1 below of
the definition of Catalog Sports Market in which the primary sporting
events are for teams of those schools defined in such item 1 below of
the Catalog Sports Market; (b) facilities defined in item 2 below of the
Catalog Sports Market; and, (c) facilities defined in item 3 below of
the Catalog Sports Market;
(iii) Professional Sports Teams and Professional Sports Facilities;
This definition applies to the sports facilities included in this definition
only and surrounding property which is an integral part of those sport
facilities. Notwithstanding the foregoing, Seller, Guarantor and their
Affiliates can service non-Barco displays in the Custom Sports Market including
all existing installations at the time of Closing, for both service and/or sale
of parts.
In the case of Purchaser and Barco, Purchaser, Barco and their
subsidiaries and Affiliates agree not to compete against Seller and its
Affiliates in the sale or lease of any product in the Catalog Sports Market,
either directly or indirectly. The Catalog Sports Market is defined as the
business of design, development, manufacture, sale, lease and service of LED and
incandescent displays (excluding gaming (which includes racing) used to display
scoring or sports information in the US and Canada in those sports markets not
defined as the Custom Sports Market. Such Catalog Sports Market includes but is
not limited to:
1. Facilities for all schools, public and private, excluding NCAA
Division I Major Sports (football, basketball and baseball) programs and
NCAA Division I-AA football programs. Included in the Catalog Sports
Market are all non-major sports at the NCAA Division I level and, in the
case of the NCAA Division I-AA level, all sports are included in the
Catalog Sports Market other than football. The Catalog Sports Market
also includes facilities for intramural sports, auxiliary practice
fields, student activity centers, recreation and physical education
facilities at both the NCAA Division 1 and 1-AA levels.
2. City park and recreational facilities, amateur baseball, softball
league facilities, soccer fields and facilities which in all of the
cases above in this 2 are used in part for non-professional sports.
3. Churches, prisons, military bases, private baseball and other
sports facilities where non-professional sports are played except as
provided in the Custom Sports Market as defined above.
Barco would retain the right to sell and lease direct full color LED display
products in the Catalog Sports Market, at a price not lower than the most
favored price Barco would offer to TLX for the same product under similar
circumstances, when the primary intended purpose of such displays would not be
to display non-full motion video sports related information (including scoring)
related to the on-going event in the facility or the participants in such event.
(i) The Parties agree that the provisions of this Section 11 shall
survive the Closing of this Agreement.
12. Additional Obligations
12.1 If the Closing takes place, Seller agrees to hold in strict confidence
and not to disclose to any third party any confidential business
information on the Business transferred to Purchaser, in particular any
customer data regarding the Acquired Assets. Likewise, Purchaser, Barco
and their affiliates shall not disclose or use any confidential
information of Seller received during due diligence which is not
transferred and shall return such information to Seller immediately
after the Closing The obligations contained in this Section shall be in
addition to those contained in the Non Disclosure Agreements executed by
the parties on September 10, 2002 as modified by Letter of Intent on
January 10, 2003. If the closing does not occur Barco, Purchaser and
their affiliates will continue to abide by such Non Disclosure Agreement
and Non Solicitation Clause as amended. Information shall not be deemed
confidential for the purposes of this Agreement if the Seller can prove
that such information:
(i) is already in the public domain or generally available to the
public;
(ii) has become available to the public without any breach by Seller;
(iii) is no longer confidential as otherwise provided in Section 5E of
the Non Disclosure Agreement.
12.2 After the Closing, Purchaser agrees that if any of the Acquired Assets
of Seller sold hereunder bears the Trans-Lux or TLX name or letters,
Purchaser shall, prior to the use of such assets, delete or cover the
Trans-Lux or TLX name or letters that are visible in the completed form
of the product and clearly indicate that the Business is no longer
affiliated with TLX or any Affiliate thereof provided however that after
six (6)months after the Closing Purchaser shall no longer use any of
such Acquired Assets which bear the Trans- Lux or TLX name. Any use of
either Party's name or trade name shall require the prior written
approval of the granting Party. Notwithstanding the foregoing,
Purchaser may refer to prior jobs installed by the Business as reference
sites in any bids or solicitations to customers so long as Purchaser
clearly designates it is not affiliated with Seller or Seller's
Affiliates.
12.3 Seller and Purchaser agree that after Closing, each Party shall
negotiate with the other in good faith, an agreement to purchase the
other Party's products and services at pricing and terms at least as
favourable as the selling Party offers to its customers under similar
quantities and commercial conditions.
12.4 At Seller's option, and pursuant to purchase orders submitted by Seller,
Purchaser shall manufacture and ship committed orders of Seller's non
Custom Sports Business scheduled to be shipped within 90 days after
Closing at Purchaser's full cost plus fifteen percent (15%). Seller
shall assign a project manager to manage and oversee these orders with
reasonable cooperation by Purchaser. Payment for the purchase under
such purchase orders shall be paid 30% down at the acceptance of the
purchase order by Purchaser, 50% on shipment to Seller or Seller's end
user, whichever comes first, 15% on substantial completion of
installation, and 5% on end user final acceptance.
12.5 Cooperation. Subject to the terms and conditions hereof, Seller and
Purchaser will each use their respective reasonable efforts:
(a) to defend, consistent with applicable principles and
requirements of law, any third party lawsuit or other legal proceeding,
whether judicial or administrative, challenging this Agreement or the
Ancillary Documents or the transactions contemplated hereby or thereby;
(b) to furnish to each other such information and assistance as
may reasonably be requested in connection with the foregoing; and
(c) to take, or cause to be taken, all action and to do, or
cause to be done, all things necessary, proper or advisable under
applicable laws and regulations to consummate and make effective the
transactions contemplated by this Agreement and the Ancillary Documents.
12.6 Further Assurances Any time after the Closing, Seller and Purchaser
will promptly execute, acknowledge and deliver any other assurances or
documents reasonably requested by Purchaser or Seller, to satisfy, or in
connection with, their obligations hereunder. The parties covenant and
agree that except as expressly warranted herein, the Acquired Assets are
being sold or licensed "as is" and "where at".
13. Tax Indemnification
13.1 Seller shall indemnify and hold harmless Purchaser from any Taxes,
duties or employee related contributions i.e. payroll or benefit taxes
, which relate to the Business, Acquired Assets or Assumed Contracts for
the time period prior to the Closing Date and Purchaser shall indemnify
and hold harmless Seller from any Taxes which relate to Purchaser's
Custom Sports Market Business, the Acquired Assets and Assumed Contracts
after the Closing Date.
14. Notices
All notices and other communications hereunder shall be in writing and
shall be deemed received by the other Party upon (i) transmittor's
confirmation of a receipt of a facsimile transmission or (ii) confirmed
delivery by standard overnight carrier or when delivered by hand
addressed at the following addresses (or at such other address for a
Party specified by the other Party by written notice):
(a) In the case of Seller:
Mr. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Trans-Lux West Corporation
c/o Trans-Lux Corporation
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
▇▇▇▇▇▇▇ Celler Spett & ▇▇▇▇▇▇, P.C.
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇.▇. ▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
(b) In the case of Purchaser:
▇▇. ▇▇▇▇▇ ▇.▇. ▇▇▇▇▇▇▇▇▇
Barco NV
▇▇▇▇▇▇▇▇▇ ▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
3-8520 Kuurne Belgium
Telecopy: 011-32-56-368-408
with a copy to:
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, Esq.
General Counsel
Barco Inc.
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telecopy: ▇▇▇-▇▇▇-▇▇▇▇
15. Costs and Expenses
All costs and expenses of either Party in connection with this Agreement
and the transactions contemplated herein, in particular legal fees,
brokers' fees, real estate and title fees or other advisor fees shall be
borne by the Party which retained such advisor.
16. Miscellaneous
16.1 The Parties agree that prior to the Closing Date any public announcement
of and information about this Agreement and the transactions
contemplated hereunder (other than information and data that is or
becomes generally available to the public other than through disclosure
by one of the Parties hereto, or one of the Parties' officers,
directors, partners, employees, managing directors, representatives or
agents) shall be made only after prior consultation and consent of the
other Party, provided that the foregoing shall not restrict (i) the
issuance deemed necessary by Purchaser and Guarantor of a press release
in conformity with the disclosure requirements of or disclosures made on
any applicable stock exchange, (ii) continuing communication with
employees, customers, suppliers as may be legally required and which is
not inconsistent with the best interest of the other Party for the
proper consummation of this Agreement and (iii) necessary disclosures in
compliance with requirements of any law, governmental order or
regulation.
16.2 If for any reason any provision of this Agreement shall be declared void
or unenforceable, the remaining provisions shall remain valid. The
Parties shall use reasonable efforts to replace the invalid or
unenforceable provision by a valid and enforceable one, which as far as
legally possible implements their purpose and intent. To the extent
permitted by applicable law, each Party waives the provision of any law
which renders any provision of this Agreement invalid, illegal or
unenforceable in any respect.
16.3 In this Agreement the headings are inserted for convenience only and
shall not effect the interpretation of this Agreement.
16.4 This Agreement including its exhibits contains the entire agreement of
the Parties with regard to the subject matter of this Agreement.
Changes to and amendments of this Agreement shall be in writing and
agreed upon by both Purchaser and Seller.
16.5 The Parties shall cooperate reasonably in order to implement this
Agreement and the transactions contemplated herein in a manner most
beneficial from a tax perspective for both Parties.
16.6 Obligations under this Agreement, as well as this Agreement itself, may
not be assigned by a Party without the prior written consent of the
other Party. Notwithstanding the foregoing, Purchaser may without the
consent of Seller, assign and delegate its rights hereunder or any part
thereof or the Agreement in total to any wholly owned subsidiary of
Purchaser, provided Barco and Purchaser each remain fully liable under
this Agreement.
16.7 With regard to their respective obligations and liabilities under this
Agreement and any Ancillary Document Seller and Guarantor on the one
hand and Purchaser and Barco on the other hand are jointly and
individually responsible.
16.8 This Agreement and any disputes arising out of or in connection with
this Agreement shall be governed by and construed in accordance with the
substantive laws of Delaware without giving effect to the choice of law
principles thereof which would result in the application of the laws of
another jurisdiction. The Federal Courts in Wilmington, Delaware shall
have exclusive jurisdiction for any disputes arising out of or in
connection with this Agreement and each of the Parties hereby submits to
the jurisdiction of such Court.
16.9 This Agreement is not intended to confer upon any other person any
rights or remedies hereunder.
16.10 Purchaser will be responsible for payment of, and will indemnify and
hold Seller, and its Affiliates harmless from and against, all
documentary, stamp, transfer, sales, use, excise and similar Taxes
(other than Income Taxes) imposed upon Seller or Purchaser as a result
of the transactions contemplated by this Agreement. Purchaser will be
responsible for preparing and timely filing (and Seller will cooperate
with Purchaser at Purchaser's expense in preparing and filing) any forms
required with respect to any such Taxes. Purchaser will provide to
Seller a true copy of each such Tax return as filed as evidence of the
timely filing thereof. 16.11 The Parties agree that the Seller shall
not be required to comply with the requirements of any applicable bulk
sales laws.
16.12 Representations and Warranties; Exhibits. Neither the specification of
any dollar amount in the representations and warranties set forth in
Section 9 nor the indemnification provisions of Section 10 nor the
inclusion of any items in any Exhibit or Exhibit to this Agreement will
be deemed to constitute an admission by Seller, or Purchaser, or
otherwise imply, that any such amounts or the items so included are
material for the purposes of this Agreement. All documents or
information disclosed in any Exhibit to this Agreement are intended to
be disclosed for all purposes under this Agreement, and will also be
deemed to be incorporated by reference in each of the other Exhibits to
this Agreement to which they may be relevant.
16.13 Permits. Notwithstanding any other provision hereof, it will be the
responsibility of Purchaser to obtain any consent, make any filing or
take any action required to transfer permits to Purchaser and to obtain
all other approvals required for the use of the Acquired Assets by
Purchaser.
Signed this 28th day of March 2003
Trans-Lux West Corporation
By: ____/s/ ▇▇▇▇▇▇▇ ▇. Mulcahy____ Witness:_/s/▇▇ ▇. ▇▇▇▇▇▇
Title:_President & Co-CEO____
Trans-Lux Corporation
By: ___/s/ ▇▇▇▇▇▇▇ ▇. Mulcahy___ Witness:_/s/ ▇▇ ▇. ▇▇▇▇▇▇
Title:_President & Co-CEO___
Barco Inc.
By: ___/s/ Yannick ▇▇▇▇▇ Post___ Witness: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title:___CFO - EVP___________ General Counsel
Barco NV
By: Witness: /s/ Anton Van Petegern
Title:President & CEO
EXHIBIT A
Certain Definitions
"Acquired Assets" shall have the meaning set forth in Section 2.1.
"Administrative Assets" means Assets of Seller and its Affiliates utilized in
providing employee benefits, payroll, administrative, book and record keeping,
billing, tax, financial, insurance and other like services to the Business.
"Affiliate" shall mean, with respect to a Person, another Person heretofore, now
or hereafter, directly or indirectly, through one or more intermediaries,
controlled by, under common control with, or which controls, the Person
specified (in each case in their capacities as such).
"Agreement" shall mean this Asset Purchase Agreement, including the Exhibits
attached hereto.
"Ancillary Documents" means the Purchaser Ancillary Documents and the Seller
Ancillary Documents, collectively.
"Approval" shall mean any franchise, license, certificate of compliance,
authorization, consent, order, permit, approval or other action of, or any
filing, registration or qualification with, any federal, state, municipal or
other governmental, administrative or judicial body, agency or authority.
"Assets" shall mean all properties, assets, privileges, rights, interests and
claims, personal, tangible and intangible, of every type and description.
"Assumed Contracts" shall have the meaning set forth in Section 3.1.
"Assumed Liabilities" shall have the meaning set forth in Section 3.7.
"Business" shall mean the design, development, manufacture and service of LED
and incandescent displays (including scoreboards) in the US and Canada in the
Custom Sports Market.
"Business Day" means any day other than a Saturday, Sunday or other day on which
banks in New York City, New York are required to or may be closed.
"Catalog Sports Market" shall have the meaning set forth in Section 11.
"Closing" shall have the meaning set forth in Section 7.1.
"Closing Date" shall have the meaning set forth in Section 8.
"Consent" shall mean any consent or approval of, or notice, declaration, report
or statement filed with or submitted to, any Person (other than an approval).
"Custom Sports Market" shall have the meaning set forth in Section 11.
"Equipment" shall have the meaning set forth in Section 2.1.2.
"Excluded Assets" shall have the meaning set forth in Section 2.3.
"Excluded Contracts" shall have the meaning set forth in Section 3.3.2.
"Excluded Employees" shall have the meaning set forth in Exhibit 4.1.
"Full Cost" of employee support for purposes of Section 2.1.4 shall mean the
hourly labor cost of applicable employees plus reasonable out-of-pocket
expenses. For all other Sections, "Full Cost" shall mean actual out-of-pocket
costs (specific purchase price) for all purchased components, plus direct labor
costs (defined as direct labor hours times standard rate of $____per hour),
plus factory overhead calculated as an amount equal to ___times direct labor
cost.
"Governmental Authority" shall mean any foreign, Federal, State, county, city,
town, village, municipal or other governmental department, commission, board,
bureau, agency, authority or instrumentality.
"Income Taxes" shall mean any Taxes in the nature of income or franchise taxes.
"Indemnified Party" shall mean the Purchaser Indemnified Party or Seller
Indemnified Party seeking indemnification pursuant to Section 10
"Indemnifying Party" shall mean the party from which indemnification is sought
pursuant to Section 10.
"Intellectual Property" shall have the meaning set forth in Section 2.1.
"IRB Bonds" mean (i) the Taxable Variable Rate Demand/Fixed Rate Revenue Bonds
(Integrated Systems Engineering, Inc. "ISE", now known as Trans-Lux West
Corporation, Project) Series 1999B, issued by ISE and (ii) the Variable Rate
Demand/Fixed Rate Tax-Exempt Revenue Bonds (ISE Project) Series 1999A, issued by
the City of Logan, Utah.
"Knowledge" with respect to Purchaser or Seller means actual knowledge of any
person who is a director or executive officer of such Party.
"Liens" means any security interest for which a UCC Financing Statement has been
filed.
"Losses" means damages, liabilities and reasonable expenses of defense thereof
(i) reduced to the extent recovered by the Indemnified Party (or Affiliates
thereof) making the relevant claim for indemnification (through insurance or
otherwise), and (ii) further reduced by the present value of any Tax savings
resulting from any Tax benefit to the Indemnified Party (or Affiliates thereof)
making the relevant claim for indemnification as a result of such Losses.
"Material Adverse Effect" means any change in, or effect on, the Business, which
is materially adverse to the assets and financial condition of the Business.
"Person" means and includes an individual, corporation, partnership (limited or
general), joint venture, association, trust, any other unincorporated
organization or entity and a governmental entity or any department or agency
thereto.
"Prepaid Expenses" means all prepaid expenses of Seller in connection with the
Business calculated as of the Closing Date in accordance with U.S. generally
accepted accounting principles consistently applied.
"Purchase Price" shall have the meaning set forth in Section 6.1.
"Purchaser" shall have the meaning set forth in the Recitals.
"Purchaser Ancillary Documents" means all agreements, instruments, documents or
certificates contemplated to be executed and/or delivered by Purchaser at
Closing.
"Purchaser Employee" shall have the meaning set forth in Section 4.1.
"Purchaser Indemnified Parties" shall have the meaning set forth in Section
10.1(a)"Retained Liabilities" shall have the meaning set forth in Section 3.8.
"Seller" shall have the meaning set forth in the Recitals.
"Seller Ancillary Documents" means all agreements, instruments, documents or
certificates contemplated to be executed and/or delivered by Seller at Closing.
"Seller Indemnified Parties" shall have the meaning set forth in Section 10.
"Tax" or "Taxes" means all taxes, charges, fees, levies or other assessments,
and all estimated payments thereof, including but not limited to income, excise,
property, sales, use, value added, environmental, franchise, payroll, transfer,
gross receipts, withholding, social security, and unemployment taxes, imposed by
any governmental authority, including any interest, penalties and additions to
tax relating to such taxes, charges, fees, levies or other assessments.
"Trade Receivables" shall have the meaning set forth in Section 2.1.4.
"WARN Act" shall mean the Worker Adjustment and Retraining Notification Act.
EXHIBIT 6.1
PURCHASE PRICE AND OTHER PAYMENTS AND OBLIGATIONS
1. Cash Portion at Closing
A. Goodwill $1,500,000.00
B. Book Value of other Acquired Assets $2,256,827.84
C. Amount of Logan Utah facility equal to assumption of IRB Bonds
(Section 3.7) plus other Assumed Liabilities. $4,155,000.00
TOTAL $7,911,827.84