EXHIBIT 2.1
ASSET PURCHASE AGREEMENT
BETWEEN
ARIZONA INSTRUMENT CORPORATION,
AS SELLER
AND
NATIONAL ENVIRONMENTAL SERVICE CO.,
AS BUYER
ASSET PURCHASE AGREEMENT
This Asset Purchase Agreement is entered into as of April 30,
1999 (this "Agreement"), by and between National Environmental Service Co., an
Oklahoma corporation ("Buyer"), and Arizona Instrument Corporation, a Delaware
corporation ("Seller").
WHEREAS, on the terms, in the manner and subject to the
conditions reflected below, Seller desires to sell, assign, convey and transfer
to Buyer, and Buyer desires to purchase and acquire from Seller, all of the
Purchased Assets defined below.
NOW, THEREFORE, in consideration of the premises and the
mutual representations, warranties, covenants and agreements herein set forth,
the parties to this Agreement have agreed, and hereby agree subject to the terms
and conditions hereinafter set forth, as follows:
ARTICLE IDEFINITIONS
Capitalized terms used herein shall have the meanings ascribed
to them in this Article I, unless such terms are defined elsewhere in this
Agreement.
Affiliates: of any person means persons who control, are controlled by
or in common control with such person.
Allocation: as defined in Section 2.06.
Assumed Employees: as defined in Section 7.01.
Assumed Liabilities: as defined in Section 2.04.
Assumed Warranty Obligations: as defined in SCHEDULE 2.04.
BP Litigation: as defined in Section 2.04.
Business: as defined in Section 2.02.
Closing: as defined in Section 2.01(b).
Closing Date: as defined in Section 2.01(b).
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Closing Payment: as defined in Section 2.03(a).
Delaware Law: the Delaware General Corporation Law, as amended
Encompass System Revenues: as defined in Section 2.03(b).
Excluded Assets: any of the assets of Seller other than those assets
included in Section 2.02, including, without limitation, (i) cash, cash
equivalents and receivables, (ii) real estate or any rights under leases to real
estate, (iii) Seller's business records, corporate minute book and charter
documents, and (iv) all assets of Seller not solely and exclusively necessary to
own and operate the Business in the manner heretofore owned and operated by
Seller.
Excluded Liabilities: as defined in Section 2.04(b).
GAAP: United States generally accepted accounting principles.
Governmental Entity: any court, government, governmental agency,
commission or instrumentality, domestic or foreign.
Legal Requirements: any law, statute, ordinance, decree, requirement,
order, judgment, rule or regulation of, including the terms of any license,
certificate, franchise or permit issued by, the United States, any state,
commonwealth, territory or possession thereof and any political or judicial
subdivision or instrumentality of the foregoing, including, without limitation,
courts, departments, commissions, boards, bureaus or agencies.
Oklahoma Law: the Oklahoma General Corporation Act, as amended.
Purchased Assets: those assets defined in Section 2.02.
Purchase Price: the consideration to be paid by Buyer to Seller for the
Purchased Assets as provided in Article II.
Taxes: all net income, gross income, gross receipts, sales and use, ad
valorem, franchise, profits, licenses, withholding, payroll, excise, severance,
stamp, occupation, property, customs duties or other taxes, fees or charges of
any kind whatsoever imposed by a foreign, federal, state, county or local taxing
authority together with any interest or penalty thereon.
Transaction: the sale and purchase of the Purchased Assets pursuant to,
and the related transactions contemplated by, this Agreement.
Transaction Documents: the documents, instruments, agreements, etc.
referred to in Section 2.01(b).
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Year 2000 Compliant: software that is designed to do the following, as
may be applicable to each software, subject to potential deviation that will not
materially and adversely affect the use of such software: (i) handle date
information before, during, and after January 1, 2000, and will correctly
recognize, calculate, process, sequence, store and transmit date data without
error or interruption, including leap years; (ii) function accurately and
without interruption before, during and after January 1, 2000, without any
change in operations associated with the advent of the new century; (iii)
respond to year-date input in a way that resolves any ambiguity as to century in
a defined and predetermined manner; and (iv) store and provide output of date
information in a way that is unambiguous as to century.
ARTICLE II
ASSET PURCHASE AND SALE
2.01 The Transaction. (a) At the Closing, in accordance with
the provisions the terms of this Agreement, Seller shall (or cause its
subsidiaries to) sell assign, convey, transfer and deliver to Buyer the
Purchased Assets, and Buyer shall pay to Seller the Purchase Price for the
Purchased Assets as contemplated by Section 2.03 below.
(b) The consummation of the transaction contemplated by
Section 2.01(a) together with the delivery of the various deeds, bills of sale,
assignments, conveyances, certificates, agreements, assumptions, opinions and
other documents required or contemplated by this Agreement (the "Transaction
Documents") is herein called the "Closing." It is anticipated by the parties
that the Closing shall take place at the offices of Xxxxxxx & Xxxxx, Xxx Xxxx
Xxxxxxxxx, Xxxxx 000, Xxxxxxx, Arizona, at 10:00 a.m., local time on April 30,
1999 (the "Closing Date").
2.02 Assets to be Acquired . The assets to be acquired by
Buyer shall include all of the right, title and interest of Seller or any of its
subsidiaries in and to all of the assets used by Seller solely and exclusively
in the business of owning, marketing, licensing, distributing, developing,
manufacturing, servicing and operating the Encompass Systems and Soil Sentry
Systems and conducting the monitoring services on behalf of the users of such
products (the "Business") which assets include the following (the "Purchased
Assets"):
(a) Patents and Know-How. All right, title and interest in and
to (i) all patents, patent applications and docketed inventions, domestic and
foreign relating solely and exclusively to the Encompass Systems and Soil Sentry
Systems (the "Patents"), including without limitation those that are listed on
SCHEDULE 2.02(A) hereto, and (ii) all research and development results,
processes, trade secrets, methods, operating techniques, know-how, algorithms,
formulae, specifications, drawings, designs, chip designs, inventions,
engineering information, and quality control, testing, operational, logistical,
maintenance and other technical data and information and technology relating
solely and exclusively to the Encompass Systems and Soil Sentry Systems (the
"Know-How").
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(b) Trademarks and Copyrights. All right, title, interest and
goodwill in and to all trademarks, trade names and service marks, and
registrations and applications for such trademarks, trade names and service
marks domestic and foreign, to the extent used solely and exclusively in the
Business (the "Trademarks"), including without limitation those that are listed
on SCHEDULE 2.02(B), and all right, title, and interest in and to all
copyrights, and registrations and applications for such copyrights, domestic and
foreign, to the extent used solely and exclusively in the Business (the
"Copyrights"), including without limitation those that are listed on SCHEDULE
2.02(B).
(c) Equipment. All of the test equipment, computers,
machinery, tools, demonstration units, and other tangible assets listed on
SCHEDULE 2.02(C) (collectively, the "Equipment").
(d) Computer Software. All right, title and interest
(including copyright interests) in and to all computer programs (including
computer modeling programs, design and operational and applications software and
computer source and object codes), firmware, computer data bases, and related
documentation, solely and exclusively developed or used for the use or operation
of (i) the Encompass Systems or Soil Sentry Systems, (ii) the Equipment, (iii)
the Site Trac program or (iv) for design, development, engineering, or
manufacturing purposes, related thereto, (the "Software"), including without
limitation the computer programs identified on SCHEDULE 2.02(D).
(e) Warranties and Other Rights. All rights under or pursuant
to all warranties, representations, guarantees and service contacts made by
suppliers, manufacturers and contractors in connection with products or services
purchased by Seller or any of its subsidiaries affecting the Equipment or the
Software.
(f) Contracts. All contracts, subcontracts, licenses and
sublicenses, distribution, franchise, representative and marketing rights and
agreements and agreements and other arrangements, proposals, bids, quotations,
purchase orders and commitments, sales orders and commitments, and
manufacturing, servicing and monitoring agreements of any kind, whether written
or oral, including joint venture, teaming and partnership agreements solely and
exclusively relating to the Business (the "Contracts"), including without
limitation those Contracts identified on SCHEDULE 2.02(F).
(g) Causes of Action. All causes of action, claims or rights
of action against third parties arising from or based on the infringement,
misappropriation, misuse or unauthorized use of the Patents, the Know-How, the
Software, the Trademarks or the Copyrights.
(h) Other. All right, title and interest of Seller in and to
all licenses and permits solely and exclusively related to the Business and the
Purchased Assets and all customer and supplier lists and sales literature
related solely and exclusively to the Business.
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(i) Inventory. All raw material, work in process, components,
completed Encompass Systems and Soil Sentry Systems products and all other
merchantable inventory as of the date hereof, to the extent solely and
exclusively manufactured and/or held for sale in the Business, as set forth on
SCHEDULE 2.02(I), and updated as of the Closing Date.
2.03 Purchase Price . (a) The purchase price for the Purchased
Assets (the "Purchase Price") shall be $1,000,000, subject to adjustment as
provided in (c) below, payable in cash at the Closing by wire transfer of
immediately available funds (the "Closing Payment") plus the royalty payments
described in Section 2.03(b) below.
(b) As part of the Purchase Price, Buyer shall pay Seller a
royalty payment equal to the percentage indicated below of the revenues realized
by Buyer from its sales and leasing of, and monitoring, enhancement, licensing
and other services and rights relating solely and exclusively to the Encompass
Systems and the patent and other intellectual property rights relating thereto
("Encompass System Revenues"). For the period from the Closing Date until the
second anniversary of the Closing Date, the royalty payment shall equal 5% of
the Encompass System Revenues and, for the period following the second
anniversary of the Closing Date to the fifth anniversary of the Closing Date,
the royalty payment shall be equal to 3% of the Encompass System Revenues.
Encompass System Revenues shall not include any revenues realized by Buyer in
connection with the installation or repair of Encompass Systems but shall
include revenues attributable to monitoring services, software and patent
licensing and enhancements and technical support and other sources generally
attributable to the intellectual property rights in and relating to the
Encompass Systems and which are included in the Purchased Assets.
Notwithstanding anything in the foregoing to the contrary, Encompass System
Revenues realized by Buyer shall not include or shall be reduced by, as the case
may be:
(i) the amount of any sales taxes, use taxes, ad
valorem or other personal property taxes, and any other taxes,
fees or assessments payable to any governmental or
quasi-governmental authority or agency in connection with
Encompass Systems or any services, rights or interests related
thereto other than federal, state or local income taxes
payable by Buyer in respect of the revenues it receives which
are attributable to the Encompass Systems;
(ii) any commissions, fees, remuneration and expense
reimbursements paid to any independent sales representatives
by Buyer in connection with any sales, services or rights
giving rise to Encompass System Revenues; and
(iii) any rebates, returns, allowances, discounts,
set-offs, refunds or recoveries paid or granted by Buyer in
connection with any sales, services or rights giving rise to
Encompass System Revenues.
The royalty payments due Seller on Encompass System Revenues pursuant to this
Section 2.02(b) shall be paid by Buyer on or before the last business day of the
month following the calendar quarters ending each March 31, June 30, September
30 and December 31 for each such calendar quarter and on or before the 30th day
following the fifth anniversary of the Closing Date for the period covered
thereby. Buyer shall provide a report containing an itemization of its Encompass
System Revenues applicable to each period with its payment.
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Seller or its designated agent shall be provided access to
such books and records of Buyer as may be necessary to determine or audit, with
respect to any period covering no more than four calendar quarters prior to the
date of such request, the correctness of payments made or due under this
Agreement, or to obtain information about payments under this Agreement. Such
examination shall be during reasonable business hours. If Seller or its
designated agent, through an audit or otherwise, shall have any objections to
any amount of royalties paid Seller hereunder, it will deliver a written report
to Buyer within forty-five days after the date of Seller's written notice above
describing in detail Seller's objections. Each of Buyer and Seller will use its
commercially reasonable efforts to resolve any such objections. If Buyer does
not dispute Seller's report, it shall pay any additional royalties due Seller
within five days of its receipt of Seller's report. In the event Seller and
Buyer are unable to resolve any disputed amount owed hereunder within fourteen
(14) days after Buyer has received the report of Seller's objections, Buyer and
Seller shall select a mutually acceptable independent accounting firm (the
"Auditor") will resolve any unresolved objections. The Auditor shall have access
to such books and records of Buyer, including all purchase orders and agreements
with respect to the Encompass Systems, as it deems necessary to determine the
amount of royalties due hereunder. The Auditor shall determine the amount of
royalties due with respect to the period(s) under review and communicate the
determination to Buyer and Seller in writing, not later than thirty (30) days
following the date of its receipt of such dispute, such determination to
constitute the final amount due with respect to such period. Any additional
royalties due Seller pursuant to the Auditor's report shall be paid by Buyer
within five days of its receipt of the Auditor's report. If any determination by
the Auditor shows that royalties were underpaid by Buyer by an amount of five
percent (5%) or more, the Buyer shall promptly pay all fees and expenses of the
Auditor. In the event the Auditor's determination shows that royalties to Seller
were underpaid by Buyer by an amount of less than five percent (5%), Seller
shall promptly pay all fees and expenses of the Auditor and bear all of Seller's
expenses in connection with its examination pursuant hereto.
(c) The Purchase Price is subject to adjustment, upwards or
downwards, based on a physical inventory of the Purchased Assets to be taken
immediately prior to Closing. Immediately before the Closing, representatives of
Seller and Buyer shall conduct a complete physical inventory of the Purchased
Assets. Before the final Purchase Price is determined, a report of this physical
inventory shall be prepared and signed by the authorized representatives of both
Seller and Buyer, which report shall be final and binding on other parties for
all purposes. The report shall be as specific as possible in identifying each
asset by serial number, stock number or other identifying xxxx. The adjustment
in the Purchase Price shall equal the amount by which the value of the Purchased
Assets is greater or lesser than $1,000,000, and such adjustment will be
reflected in the Closing Payment. The inventory and intangible assets included
in the Purchased Assets shall be valued at the Seller's depreciated book value
maintained in accordance with GAAP. All other assets included in the Purchased
Assets shall be valued at an amount agreed upon by Buyer and Seller prior to
Closing.
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2.04 Assumption of Assumed Liabilities . (a) As additional
consideration to Seller included in the Purchase Price and in exchange for the
performance by Seller of its obligations hereunder, effective as of the Closing
Date, Buyer hereby assumes and agrees to pay, discharge and perform as and when
due, (i) all liabilities and obligations (including all obligations with respect
to performance) arising under each of the Contracts after the Closing Date,
except for such post-Closing liabilities that are expressly set forth as
Excluded Liabilities in Section 2.04(b) below, and (ii) those additional
liabilities and obligations expressly set forth on SCHEDULE 2.04. The
liabilities and obligations described in the preceding sentence are referred to
herein as the "Assumed Liabilities."
(b) Subject to the other provisions of this Agreement, it is
understood and agreed that Seller shall retain all liability for, and Buyer
shall not assume or have any obligation with respect to, the following
obligations or liabilities of Seller (all such obligations and liabilities being
herein referred to as the "Excluded Liabilities"):
(i) any and all obligations of Seller arising under
law or contract with respect to any individual in connection
with his or her employment by Seller before or after the
Closing including obligations arising in connection with
Seller's termination of his or her employment with Seller at
any time, regardless of whether such obligations would have
arisen had Buyer chosen to employ any such employee following
Closing, including, without limitation, obligations under any
and all of Seller's severance benefits, medical or other
insurance coverages, retirement benefits or any other benefit
or obligation of Seller of whatsoever nature, arising out of
the employment relationship between Seller and such employee;
(ii) the occupancy, ownership, use or operation of the
Purchased Assets or the operation of the Business on or prior
to the Closing Date including, without limitation, taxes
attributable to the period on and before Closing but not due
and payable as of the Closing;
(iii) any liability, obligation or expense heretofore
or which may hereafter be incurred with respect to the
Encompass Systems and Soil Sentry Systems placed in service by
Seller prior to Closing based on such systems not being Year
2000 Compliant or incurred with respect to such systems to
render them Year 2000 Complaint; and
(iv) any liability, obligation or expense heretofore
or which may hereafter be incurred by Seller in connection
with lawsuit filed against Seller by BP Oil Company in the
United States District Court in the Northeast District of Ohio
(the "BP Litigation").
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(c) Buyer hereby agrees to indemnify, defend and hold harmless
Seller with respect to any claims, damages or liability arising with respect to
the Assumed Liabilities and, after Closing, with respect to the Purchased Assets
and the Business. Seller hereby agrees to indemnify, defend and hold harmless
Buyer with respect to any claims, damages or liability arising with respect to
the Excluded Liabilities.
2.05 Excluded Assets. Seller shall not sell, and
Buyer is under no obligation to buy, the Excluded Assets.
2.06 Allocation of Purchase Price. Buyer and Seller
agree that the Purchase Price shall be allocated to the
Purchased Assets in accordance with SCHEDULE 2.06 hereto (the
"Allocation"). Buyer and Seller shall report the sale and
purchase of the Purchased Assets for all income tax purposes
in a manner consistent with the Allocation and hereby
acknowledge that the Allocation was determined pursuant to
arm's length bargaining between them regarding the fair market
value for the Purchased Assets.
2.07 Treatment of Accounts Receivable . All accounts
receivable of Seller arising prior to the Closing shall remain
the property of Seller, and Seller shall have the right to
pursue collection of such receivables through reasonable
methods after the Closing Date. Seller shall be entitled to
retain (and if received by Buyer, Buyer shall remit to Seller
within five (5) business days after receipt) all payments made
on receivables after Closing until such time as the
pre-Closing receivables have been paid in full. Buyer shall be
entitled to retain (and if received by Seller, Seller shall
remit to Buyer within five (5) business days after receipt)
all payments made on receivables of Buyer. At or immediately
after Closing, Seller shall provide Buyer a true and accurate
schedule of accounts receivable related to the Business as of
the Closing Date.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF SELLER
Seller hereby represents and warrants to Buyer as follows:
3.01 Organization, Good Standing and Corporate Power . Seller
is a corporation duly organized, validly existing and in good standing under the
laws of the State of Delaware and has the requisite corporate power and
authority to carry on its business as it is now being conducted. Seller is duly
qualified as a foreign corporation to do business, and is in good standing, in
each jurisdiction where the character of the properties owned or leased by it,
or the nature of its activities, is such that qualification as a foreign
corporation in that jurisdiction is required by law, except those jurisdictions,
if any, in which the failure to so qualify would not have a material adverse
effect on the Purchased Assets or the Business or in Seller's ability to perform
its covenants and commitments hereunder and to otherwise consummate the
Transaction in the manner and to the extent contemplated hereby.
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3.02 Authorization . Seller has all requisite corporate power
and authority to enter into and perform all of its obligations under this
Agreement and to consummate the transactions contemplated hereby. The execution
and delivery of this Agreement by Seller and the consummation and performance by
Seller of the transactions contemplated hereby have been duly authorized by all
necessary corporate action on the part of Seller. This Agreement has been duly
executed and delivered by Seller and constitutes the legal, valid and binding
obligation of Seller and is enforceable in accordance with its terms except as
enforceability may be subject to (i) any applicable bankruptcy, insolvency,
reorganization or other law relating to or affecting creditors' rights generally
and (ii) general principles of equity (regardless of whether such enforceability
is considered in a proceeding in equity or at law).
3.03 No Breach or Violation . (a) Neither the execution and
delivery of this Agreement by Seller nor the consummation of the transactions
contemplated hereby to be performed by Seller will (i) violate or conflict with
any provision of the Certificate of Incorporation or Bylaws of Seller, as
currently in effect, or (ii) violate or conflict with any provision of any law,
rule, regulation, order, permit, certificate, writ, judgment, injunction,
decree, determination, award or other decision of any Governmental Entity, other
regulatory or self-regulatory body or association or arbitrator binding upon
Seller or any of its properties, except where such violations or conflicts would
not in the aggregate have a material adverse effect on the Business, or the
Purchased Assets or on the ability of Seller to consummate the transactions
contemplated hereby.
(b) Neither the execution and delivery of this Agreement nor
the consummation of the transactions contemplated hereby to be performed by
Seller will result in a breach of or constitute a default (or with notice or
lapse of time or both result in a breach of or constitute a default) under, or
give rise to a right of termination, cancellation, acceleration or repurchase of
any obligation or a right of first refusal with respect to any material property
or asset or a loss of a material benefit or the imposition of a material penalty
under, any of the terms, conditions or provisions of
(i) any mortgage, indenture, loan or credit agreement
or any other agreement or instrument evidencing indebtedness
for money borrowed to which Seller is a party or by which it
or any of its properties is bound or affected, or pursuant to
which Seller has guaranteed the indebtedness or preferred
stock of any person or entity, or
(ii) any lease, license, tariff, contract or other
agreement or instrument to which Seller is a party or by which
it or any of its properties is bound or affected, except in
the case of each of clauses (i) and (ii) above,
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(x) for any such breaches, defaults,
rights, losses or penalties that do not have a
material adverse effect on the Purchased Assets or the
business, financial condition or results of operations
of Seller or on the ability of Seller to consummate
the transactions contemplated hereby, and
(y) for such third party consents as will
be obtained prior to the Closing.
(c) Neither the execution and delivery by Seller of this
Agreement nor the consummation of the transactions contemplated hereby to be
performed by Seller will result in, or require, the creation or imposition of
any mortgage, deed of trust, pledge, lien, security interest or other charge or
encumbrance of any nature upon or with respect to any of the Purchased Assets.
3.04 Consents. No consent, approval, order, certificate or
authorization of, or registration, declaration or filing with, any Governmental
Entity is required by or with respect to Seller in connection with the execution
and delivery of this Agreement by Seller or the consummation by Seller of the
transactions contemplated hereby.
3.05 Contracts and Agreements. (a) Before the Closing, Seller
will provide Buyer access to and the right to copy all the Contracts during
normal business hours.
(b) Seller has complied in all material respects with the
provisions of all the Contracts. Seller is not in material breach or default
under any Contract. The Contracts are in full force and effect and constitute
legal, valid and binding obligations of the respective parties thereto in
accordance with their terms. There has been no amendment or modification of any
of the Contracts, except such amendments that have been delivered to Buyer.
3.06 Trademarks and Copyrights . SCHEDULE 2.02(B) sets forth a
complete and accurate list of each trademark, trade name, and each trademark and
trade name registration or application, and copyright registration and
application for copyright registration, and each license or licensing agreement
for each trademark and copyright license, held or employed by Seller or any of
its subsidiaries relating solely and exclusively to the Purchased Assets or the
Business (each such trademark, trade name, copyright, application and license or
licensing agreement hereafter referred to as the "Trademarks and Licenses"). To
Seller's knowledge, the use of the Trademarks and Licenses does not conflict
with, infringe upon or violate any proprietary right of any other person,
corporation or other entity. There are no outstanding or, to Seller's knowledge,
threatened proceedings or disagreements which challenge the rights of Seller
with respect to the Trademarks and Licenses.
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3.07 Patents and Know-How. SCHEDULE 2.02(A) sets forth a
complete and accurate list of each patent, patent application and docketed
invention, by date and germane case or docket number and country of origin, and
each license or licensing agreement, by date, term and the parties thereto, for
each patent, patent application, invention, trade-secret, rights to know-how,
processes, computer programs or use of technology, held or employed by Seller
and any of its subsidiaries relating solely and exclusively to the Purchased
Assets or the Business (each such patent, patent application, license or
licensing agreement listed thereon hereinafter termed the "Patents and
Licenses"). Except as set forth on SCHEDULE 2.02(A), with respect to the Patents
and Licenses and with respect to all other technology, processes, trade secrets,
methods, operating techniques, know-how, specifications, drawings, designs, chip
designs, mask works, inventions, discoveries and engineering information, and
other technical data and information and technology of Seller relating solely
and exclusively to the Business ("Seller's Technology"), to Seller's knowledge,
the use of the Patents and Licenses and the Seller's Technology does not
conflict with, infringe upon or violate any patent, patent license, patent
application, or any pending application relating thereto, or any trade secret,
know-how, programs or processes of any third person, entity or corporation.
3.08 Title. Seller has good and marketable title to all of the
Purchased Assets to be assigned by it to the Buyer, tangible and intangible,
free and clear of all mortgages, liens, pledges, charges and encumbrances of any
nature whatsoever except for those liabilities which are being specifically
assumed by Buyer.
3.09 Reserved.
3.10 Software. Except as set forth in SCHEDULE 2.02(D), the
Software constitutes all necessary proprietary computer programs, firmware,
computer data bases and related documentation used solely and exclusively with
respect to the use and operation of the Encompass Systems and Soil Sentry
Systems. The Software does not include, and this representation does not apply
to, software used in other aspects of Seller's business that may also be used in
connection with the Business, such as Windows NT software, accounting software
and other software of general applicability. As a courtesy, and without
representation or warranty, Seller shall provide Buyer a list of software Seller
believes is necessary for the operation of the Business but that is not included
in the Software. All Software used in the operation of the Encompass Systems is
Year 2000 Compliant, and the Software used in the Soil Sentry Systems is not
Year 2000 Compliant.
3.11 Customers and Suppliers. A list of all customers and
suppliers of the Business is set forth on SCHEDULE 3.11.
3.12 Taxes. There are no federal, state or local tax liens
upon any of the Purchased Assets.
3.13 Employee Matters. SCHEDULE 3.13 hereto is a complete and
correct list of all personnel employed by Seller in the operation of the
Business including each employee's name, title or position, current
compensation, years of service, and Social Security Number. Except as set forth
in SCHEDULE 3.13, all of the personnel employed by Seller in the Business are
"at will" employees. SCHEDULE 3.13 contains a written description of all
director, officer and employee retirement, welfare or other benefit plans,
agreements, practices, programs or arrangements available to employees of the
Business ("Employee Benefit Plans").
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3.14 Litigation. Except as disclosed in SCHEDULE 3.14 hereto:
(a) There is no claim, action, suit, proceeding, arbitration,
investigation or inquiry now pending or, to the knowledge of Seller, threatened
against, relating to or affecting any of the Purchased Assets or the Business or
that questions the validity of this Agreement or affects the transactions
contemplated herein; nor is there any basis for any such claim, action, suit,
proceeding, arbitration, investigation or inquiry.
(b) Neither Seller nor any of its officers, directors or
employees has been permanently or temporarily enjoined or prohibited by order,
judgment or decree of any Governmental Entity, other regulatory or
self-regulatory body or association, or arbitrator from engaging in or
continuing any conduct or practice in connection with the Business.
(c) There is not in existence any order, judgment or decree of
any Governmental Entity, other regulatory or self-regulatory body or association
or arbitrator enjoining or prohibiting Seller from taking, or requiring Seller
to take, any action of any kind which the Purchased Assets or Business are
subject or bound.
3.15 Brokers and Finders. No broker or finder has acted on
behalf of Seller in connection with this Agreement and the transactions
contemplated hereby. No person has a valid claim for a brokerage commission,
finder's fee or other like payment against Seller in connection with the
transactions contemplated by this Agreement.
3.16 Compliance with Laws. Seller has not received notice of
any noncompliance or alleged noncompliance with any Legal Requirement relating
or applicable to the Purchased Assets or to the operation of the Business, the
existence or enforcement of which would have a material adverse effect on the
Buyer's ability to operate them on the same basis as currently conducted and
operated or which would require the payment of refunds, fines, penalties or
restitution in respect of matters occurring prior to the Closing.
3.17 Permits. SCHEDULE 3.17 sets forth all permits, licenses,
certificates, authorizations, orders and approvals granted by any Governmental
Entity to Seller solely and exclusively in connection with the ownership, use or
operation of the Purchased Assets and the operation of the Business in the
manner heretofore operated by Seller, other than sales tax permits, certificates
of occupancy, and certificates of corporate authority (the "Scheduled Permits").
Except as set forth on SCHEDULE 3.17, the Scheduled Permits are in full force
and effect, all fees and other payments due and owing in connection with the
Scheduled Permits have been paid in full, and there are no unpaid fees or other
payments that could cause the lapse or revocation of any of the Scheduled
Permits.
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3.18 Bills and Invoices. Except for items included in the
Assumed Liabilities, all bills and other payments due and payable by Seller with
respect to the Purchased Assets and the Business have been or will be paid in
full in the ordinary course of business, and no labor, material or services have
been provided or performed with respect to the Purchased Assets that have not
been or will not be paid in full.
3.19 Inventories. Set forth on SCHEDULE 2.02(I) is a complete
list of the inventories of Seller included as a part of the Purchased Assets,
including a description thereof. All inventories are of a nature and quality
equal to the inventory historically held by and sold by Seller in the ordinary
course of the Business.
3.20 Untrue Statements. This Agreement and the exhibits,
schedules and appendices hereto, and the financial statements furnished by
Seller or any of its affiliates or representatives to Buyer or its
representatives pursuant hereto or in connection herewith, do not include and
will not include any untrue statement of a material fact or omit to state any
material fact necessary to make the statements made herein and therein, in light
of the circumstances in which they are made, not misleading.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF BUYER
Buyer hereby represents and warrants to Seller as follows:
4.01 Organization, Good Standing and Corporate Power. Buyer is
a corporation, duly organized, validly existing and in good standing under the
laws of Oklahoma and has all requisite corporate power and authority to carry on
its business as now being conducted.
4.02 Authorization. (a) Buyer has all requisite corporate
power and authority to enter into and perform all of its obligations under this
Agreement and to consummate the transactions contemplated hereby. The execution
and delivery of this Agreement by Buyer and the consummation and performance by
Buyer of the transactions contemplated hereby have been duly authorized by all
necessary corporate action on the part of Buyer. This Agreement has been duly
executed and delivered by Buyer and constitutes the legal, valid and binding
obligation of Buyer, enforceable against Buyer in accordance with its terms
except as enforceability may be subject to (i) any applicable bankruptcy,
insolvency, reorganization or other law relating to or affecting creditors'
rights generally and (ii) general principles of equity (regardless of whether
such enforceability is considered in a proceeding in equity or at law).
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4.03 No Breach or Violation. (a) Neither the execution and
delivery of this Agreement by Buyer nor the consummation of the transactions
contemplated hereby to be performed by Buyer will (i) violate or conflict with
any provision of the Certificate of Incorporation or Bylaws of Buyer, as
currently in effect, or (ii) violate or conflict with any provision of any law,
rule, regulation, order, permit, certificate, writ, judgment, injunction,
decree, determination, award or other decision of any Governmental Entity, other
regulatory or self-regulatory body or association or arbitrator binding upon
Buyer or any of its properties, except where such violations or conflicts would
not in the aggregate have a material adverse effect on the business, financial
condition or properties of Buyer or on the ability of Buyer to consummate the
transactions contemplated hereby and except for violations that will be cured,
waived or terminated prior to the Closing.
(b) No consent, approval, order or authorization of, or
registration, declaration or filing with, any Governmental Entity is required by
or with respect to Buyer in connection with the execution and delivery of this
Agreement by Buyer or the consummation by Buyer of the transactions contemplated
hereby other than such filings or registrations which, if not made, and such
authorizations, consents or approvals which, if not received, would not have any
material adverse effect on the business, financial condition, or properties of
Buyer or on the ability of Buyer to consummate the transactions contemplated
hereby.
4.04 Brokers and Finders. No broker or finder has acted on
behalf of Buyer in connection with this Agreement and the transactions
contemplated hereby. No person has a valid claim for a brokerage commission,
finder's fee or other like payment against Buyer in connection with the
transactions contemplated by this Agreement.
ARTICLE V
COVENANTS OF SELLER
5.01 Confidentiality. Seller acknowledges that Buyer would be
irreparably damaged if confidential information concerning the Purchased Assets
or Buyer were disclosed to or utilized by any person to the detriment of Buyer.
Consequently, during the five-year period immediately following the Closing,
Seller shall not, at any time directly or indirectly, without the prior written
consent of Buyer, make use of or divulge, or permit any of its affiliates,
employees or agents to make use of or divulge, any information concerning the
Purchased Assets, the Business, or the financial condition or other affairs of
Buyer that could be used to the detriment of Buyer, including without
limitation, customer information, Patents and Licenses and Seller=s Technology,
except to the extent Seller reasonably deems disclosure of any such items to be
necessary or prudent under applicable securities laws, or if required by law or
in order to preserve or enforce its rights under this Agreement. Seller's
obligations hereunder shall not apply with respect to any confidential
information which (i) is disclosed in a printed publication which is generally
available to the public or becomes publicly known through no wrongful act on the
part of Seller, (ii) becomes known to Seller through disclosure from a
third-party source which, after reasonable inquiry, Seller believes that such
source has a right to disclose without a breach of any contractual or fiduciary
obligation by such source to Buyer, or (iii) is disclosed with the written
approval of Buyer.
5.02 Covenant Not to Compete. (a) Except as set forth in
Section 5.02(d) below, Seller agrees that it will not, and will cause Seller=s
subsidiaries not to, engage or participate, directly or indirectly, as
principal, agent, employee, employer, consultant or in any other individual or
representative capacity whatever, in the conduct or management of, or own
(legally or beneficially), or have the right or option to acquire, any direct or
indirect interest in any business which engages, directly or indirectly, in any
business competitive with the Business, in the United States and Europe, for a
period of five (5) years following the Closing Date.
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(b) Seller agrees that the covenants set forth herein are
appropriate and reasonable when considered in light of the nature and extent of
the Business and Purchased Assets acquired by Buyer hereunder, which includes
the goodwill of the Business. Seller acknowledges that (i) Buyer has a
legitimate interest in protecting the Business and Purchased Assets acquired
from Seller, (ii) the covenants set forth herein are not oppressive to the
Seller and contain reasonable limitations as to time, scope, geographical area
and activity, (iii) the covenants do not harm in any manner whatsoever the
public interest, (iv) the Seller has received and will receive substantial
consideration for agreeing to such covenants, (v) the Seller is agreeing to such
covenants in order, among other things, to induce Buyer to enter into this
Agreement and (vi) Seller will derive substantial benefits from the consummation
of the transactions contemplated by this Agreement, including, but not limited
to, the payment of the consideration for the Purchased Assets and of future
royalties in accordance with this Agreement.
(c) In the event Seller violates the foregoing covenant not to
compete or any other covenants set forth in this Agreement (collectively, the
"Covenants"), then, in addition to any other rights and remedies available,
Buyer shall have the right and remedy to have the applicable Covenant provisions
specifically enforced by any court of competent jurisdiction by way of an
injunction or other legal equitable relief, it being agreed that any breach of
the applicable Covenant would cause irreparable injury to Buyer and damages
would be an inadequate remedy.
(d) Notwithstanding anything in this Section 5.02 or in any
other provision of this Agreement to the contrary, Seller shall have the right
to use the "Soil Sentry Twelve - X" technology (the "Technology") at any future
time, as long as Seller does so in strict accordance with this Section 5.02(d).
Seller can use the Technology in conjunction with any business conducted by
Seller as long as that business does not involve in the monitoring of
aboveground or underground storage tanks of alcohol or petroleum based fuels or
oils. Further, Seller's right to use the Technology shall not entitle Seller to
use the name "Soil Sentry Twelve - X."
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ARTICLE VI
RESERVED
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ARTICLE VII
COVENANTS OF BUYER AND SELLER
7.01 Employees of Seller. Buyer agrees to offer employment
only to those employees of the Business specified by Buyer on or before the
Closing on SCHEDULE 7.01 (the "Assumed Employees"). Seller agrees to terminate
the employment of all Assumed Employees effective upon Closing and agrees not to
rehire any Assumed Employees unless they are either terminated by Buyer or have
been out of Buyer's employment for a period of at least six (6) months. Seller
shall retain and perform any and all obligations to (i) the Assumed Employees
incurred prior to the Closing or by reason of such termination of employment and
(ii) all other employees employed by Seller in connection with the Business
incurred prior to or after the Closing, including without limitation in the case
of both (i) and (ii) obligations pursuant to any employment agreement, any
severance, bonus, vacation, deferred compensation, stock purchase, stock option,
profit sharing, pension, retirement or other employee benefit plan, policy or
agreement, or any laws or regulations governing wages, employee benefit plans,
withholding, plant closings and employee notification.
7.02 Further Assurances. Seller and Buyer shall each use their
commercially reasonable efforts to take all actions necessary, proper, or deemed
by them advisable, to fulfill promptly their obligations hereunder and to
consummate the transactions contemplated by this Agreement. Seller and Buyer
will coordinate and cooperate with each other in exchanging such information and
supplying such reasonable assistance as may be requested by the other in
connection with the foregoing. From time to time after the Closing, Seller will
at its own expense, execute and deliver, or cause to be executed and delivered,
such documents to Buyer as Buyer may reasonably request, and from time to time
after the Closing, Buyer will, at its own expense, execute and deliver such
documents to Seller as Seller may reasonably request, in order to more
effectively consummate the transactions contemplated by this Agreement.
ARTICLE VIII
RESERVED
ARTICLE IX
RESERVED
ARTICLE X
RESERVED
ARTICLE XI
AMENDMENTS AND WAIVER
11.01 Amendment. This Agreement may not be amended except by
an instrument in writing signed on behalf of each of the parties hereto.
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11.02 Waiver. Any term or provision of this Agreement may be
waived in writing at any time by Buyer, if it is entitled to the benefits
thereof, or by Seller, if it is entitled to the benefits thereof.
ARTICLE XII
OTHER AGREEMENTS; SURVIVAL
OF REPRESENTATIONS AND WARRANTIES
12.01 Confidentiality. Except as may be required to comply
with applicable law and regulations or to obtain required regulatory approvals
to consummate this transaction, whether state, federal or foreign, each of the
parties hereto will use its best efforts to keep confidential any and all
information relating to this transaction and to one another and will instruct
its officers, employees and other representatives having access to such
information of such obligation of confidentiality. In the event the transactions
contemplated herein are not consummated, each of the parties hereto shall return
all documents, including any copies thereof, to the party which provided the
same.
12.02 Public Announcements. None of the parties hereto will
make any public announcement without prior approval of the other, except as may
otherwise be required by law.
12.03 Additional Agreements. Subject to this Agreement, each
of the parties agrees to use its best efforts 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. If at any time after the Closing
any further action is necessary or desirable to carry out the purposes of this
Agreement, the proper officers and directors of each corporation that is a party
to this Agreement will take all such necessary action.
12.04 Available Remedies. Each party expressly agrees that,
consistent with its intention and agreement to be bound by the terms of this
Agreement and to consummate the transactions contemplated hereby, subject only
to the performance or satisfaction of conditions precedent, the remedy of
specific performance shall be available to a non-breaching and non-defaulting
party to enforce performance of this Agreement by a breaching or defaulting
party, including, without limitation, to require the consummation of the Closing
pursuant to Section 2.01.
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12.05 Survival of Representations and Warranties;
Indemnification. All representations, warranties, covenants and obligations in
this Agreement, and in the schedules hereto, will survive the Closing and the
consummation of the transactions contemplated hereby; provided, however, that
the representations and warranties of Seller contained in Section 3.12 shall
survive until 90 days after the date on which the applicable period on
limitation of assessment of tax has expired, and the representations and
warranties of Seller contained elsewhere in Article III and the representations
of Buyer contained in Article IV shall survive for a period of six months
following Closing. No claim for the recovery of indemnifiable damages based upon
the inaccuracy of the Article III or Article IV representations and warranties
may be asserted by a party after such representations and warranties shall be
thus extinguished; provided, however, that claims first asserted in writing
within the applicable period shall not be barred. The right to payment of
damages or other remedy based on such representations, warranties, covenants,
and obligations will not be affected by any investigation conducted with respect
to, or any knowledge acquired (or capable of being acquired) at any time,
whether before or after the execution and delivery of this Agreement or the
Closing, with respect to the accuracy or inaccuracy of or compliance with, any
such representation, warranty, covenant, or obligation. The waiver of any
condition based on the accuracy of any representation or warranty, or on the
performance of or compliance with any covenant or obligation, will not affect
the right to indemnification, payment of damages, or other remedy based on such
representations, warranties, covenants, and obligations.
12.06 Actions of the Parties after the Closing. The parties
hereto agree that after the Closing, they will take the actions described in
this Section 12.06.
(a) Seller acknowledge and agree that from and after the
Closing, Buyer will be entitled to originals of all title documents and copies
of all other documents, books, records (including tax records), agreements, and
financial data of any sort relating to the Business and Purchased Assets.
(b) In the event and for so long as (i) Seller is a party to
the BP Litigation or (ii) either party actively is contesting or defending
against any action, suit, proceeding, hearing, investigation, charge, complaint,
claim, or demand in connection with (A) any transaction contemplated under this
Agreement or (B) any fact, situation, circumstance, status, condition, activity,
practice, plan, occurrence, event, incident, action, failure to act, or
transaction on or prior to the Closing Date involving the Business or the
Purchased Assets, the other party will to the extent reasonably practicable
cooperate with the contesting or defending party and its counsel in the contest
or defense, make available its personnel, and provide such testimony and access
to its books and records as shall be necessary in connection with the contest or
defense, all at the sole cost and expense of the contesting or defending party.
In particular, and without limiting the preceding sentence, Buyer shall make
available any of the Assumed Employees, as reasonably requested by Seller, in
order to assist Seller in the BP Litigation. However, with respect to any such
information as to which the contesting or defending party may reasonably assert
that the disclosure pursuant hereto would waive a privilege, the parties will
use their reasonable efforts to develop procedures to maintain such privilege.
(c) Seller will not take any action that is designed or
intended to have the effect of discouraging any lessor, licensor, customer,
supplier, or other business associate of the Business from maintaining the same
business relationships with Buyer after the Closing as it maintained with the
Seller prior to the Closing. The Seller will refer all customer inquiries
relating to the Business to Buyer from and after the Closing.
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(d) Promptly after Closing, Seller shall use its commercially
reasonable efforts to obtain the consents necessary, if any, to convey, transfer
and assign to Buyer the Contracts. Without limiting the obligation set forth in
the immediately preceding sentence, if any consent necessary to convey, transfer
and assign the Contracts has not been obtained prior to the Closing Date, Seller
shall use its commercially reasonable efforts to afford Buyer the benefits under
each such Contract and Seller's protection from the obligations under each such
Contract, to the extent Seller may do so without breaching or violating the
terms of any such Contract.
(e) It is the parties' intent that all of the Purchased Assets
be conveyed to Buyer at the Closing. Accordingly, if either party determines
that less than all of the Purchased Assets have been conveyed (whether due to
the failure to identify all of the Purchased Assets at Closing, the failure to
include all Purchased Assets in any applicable assignment or xxxx of sale, the
failure to obtain all required consents to assignment or otherwise), such party
shall promptly notify the other of such fact and the parties will take all
appropriate action and execute any additional documents, instruments or
conveyances of any kind which may be reasonably necessary to carry out the
foregoing intent.
ARTICLE XIII
MISCELLANEOUS
13.01 Severability. If any term, provision, condition or
covenant of this Agreement or the application thereof to any party or
circumstances shall be held to be unenforceable to any extent in any
jurisdiction, then the remainder of this Agreement and the application of such
term, provision, condition or covenant in any other jurisdiction or to persons
or circumstances other than those as to whom or which it is held to be invalid
or unenforceable, shall not be affected thereby, and each term, provision,
condition and covenant of this Agreement shall be valid and enforceable to the
fullest extent permitted by law.
13.02 Expenses. Except as otherwise provided herein, each
party hereto will pay its own costs and expenses incurred in connection with
this Agreement and the transactions contemplated hereby. Seller will pay all
state and local real estate transfer, documentary, stamp and other similar Taxes
arising from the transfer of the real property included within the Purchased
Assets. In addition, Seller agree that the purchase price includes all
applicable state and local sales, use, transfer, retailer occupation and other
similar Taxes due with respect to the transfer of the Purchased Assets.
13.03 Notices. All notices and other communications hereunder
shall be in writing and shall be deemed to have been given if delivered
personally or sent by telex, facsimile transmission, a nationally recognized
overnight delivery service or registered or certified mail (return receipt
requested), postage prepaid, to the parties to this Agreement at the following
addresses or at such other address for a party as shall be specified by like
notice:
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If to Buyer: National Environmental Service Co.
00000 Xxxx 00xx Xxxxxx
Xxxxx, Xxxxxxxx 00000-0000
Telefax No.: (000) 000-0000
Attention: Xxxx Xxxxxxxxx
with a copy to: Xxxxxx & Xxxxxxx, A Professional Corporation
00 Xxxx 0xx Xxxxxx, Xxxxx 0000
Xxxxx, Xxxxxxxx 00000
Telefax No.: (000) 000-0000
Attention: Lynnwood X. Xxxxx, Xx.
If to Seller: Arizona Instrument Corporation
0000 Xxxx Xxxx Xxxxxx
Xxxxxxx, Xxxxxxx 00000
Telefax No.:
Attention: Xxxxxx X. Xxxx
with a copy to: Xxxxxxx & Xxxxx
Xxx Xxxx Xxxxxxxxx, Xxxxx 000
Xxxxxxx, XX 00000
Telefax No.: (000) 000-0000
Attention: Xxxxxx X. Xxxxxxxx
All such notices and communications shall be deemed to have been received on the
date of delivery or on the third business day after the mailing thereof.
13.04 Time. Time is of the essence of this Agreement.
13.05 Entire Agreement. This Agreement (including the
schedules, documents and instruments referred to herein) constitutes the entire
agreement between the parties with respect to the subject matter hereof and
supersedes all prior agreements and undertakings, written and oral, including,
but not limited to, the letter of intent between the parties, dated April 8,
1999; provided, however, this Agreement shall not constitute a waiver of
termination of any right a party may have against the other party for any breach
of the binding provisions of such letter of intent prior to the Closing.
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13.06 Binding Effect; Benefits. This Agreement shall be
binding upon and inure to the benefit of the parties to this Agreement and their
respective successors and permitted assigns. Nothing expressed or implied in
this Agreement is intended to or shall be construed to give any person other
than the parties to this Agreement or their respective successors or permitted
assigns any legal or equitable right, remedy or claim under or in respect of
this Agreement, it being the intention of the parties to this Agreement that
this Agreement shall be for the sole and exclusive benefit of such parties or
such successors or assigns and for the benefit of no other person.
13.07 Assignment. Neither this Agreement nor any right,
remedy, obligation or liability arising hereunder or by reason hereof shall be
assignable by any party to this Agreement without the prior written consent of
the other parties.
13.08 Applicable Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of Oklahoma applicable to
contracts made and to be performed within that State, without regard to the
principles of conflicts of laws thereof.
13.09 Article and Section Headings. The article, section and
other headings contained in this Agreement are for reference purposes only and
shall not affect the meaning or interpretation of this Agreement.
13.10 Counterparts. This Agreement may be executed in any
number of counterparts, each of which shall be deemed to be an original and all
of which together shall be deemed to be a single agreement.
13.11 Knowledge. Whenever the phrase Ato Seller's knowledge@
or similar such words are used in this Agreement, the phrase shall mean the
current, actual knowledge of Xxxxxx X. Xxxx, President of Seller, with respect
to the matter as of the Closing Date, without any investigation.
IN WITNESS WHEREOF, the parties to this Agreement have caused
this Agreement to be duly executed as of the date first written above.
NATIONAL ENVIRONMENTAL
SERVICE CO.
By: /s/ Xxxxxx X. XxXxxxxxx
Xxxxxx X. XxXxxxxxx,
Executive Vice President
ARIZONA INSTRUMENT
CORPORATION
By: /s/ Xxxxxx X. Xxxx
Xxxxxx X. Xxxx, President
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Following is a list identifying the exhibits and schedules to this Agreement
which are not being filed with the Securities and Exchange Commission. The
Registrant agrees to furnish supplementally a copy of such exhibits and
schedules to the Securities and Exchange Commission upon request.
Exhibit A - Form of Assignment and Xxxx of Sale
Exhibit B - Legal Opinion of Sellers' Counsel
Exhibit C - Legal Opinion of Buyer=s Counsel
SCHEDULE 2.02(A) -- Patents and Know-How
SCHEDULE 2.02(B) -- Trademarks and Copyrights
SCHEDULE 2.02(C) -- Equipment
SCHEDULE 2.02(D) -- Software
SCHEDULE 2.02(F) -- Contracts
SCHEDULE 2.02(H) -- Accounts Receivable
SCHEDULE 2.02(I) -- Inventory
SCHEDULE 2.04 -- Assumed Liabilities
SCHEDULE 2.06 -- Allocation of Purchase Price
SCHEDULE 3.08 -- Leases and Other Agreements
SCHEDULE 3.13 -- Employees and Employee Benefit Plans
SCHEDULE 3.14 -- Litigation
SCHEDULE 3.17 -- Scheduled Permits
SCHEDULE 7.01 -- Assumed Employees
