EXHIBIT 10(r)
ASSET PURCHASE AGREEMENT
ASSET PURCHASE AGREEMENT (the "Agreement") made as of August 31, 2007
between ER Acquisition Corporation, a Kansas corporation ("Buyer"), and Radix
International Corporation ("RIC"), a Delaware corporation and Radix Corporation
("RC"), a Delaware corporation (collectively "Seller").
Preliminary Statement
WHEREAS, Seller desires to sell, assign, transfer, convey and deliver to
Buyer and Buyer desires to purchase from Seller the Assets (as defined below),
subject to the terms and conditions of this Agreement; and
WHEREAS, Seller desires to assign, transfer, convey and deliver to Buyer
and Buyer desires to assume all of Seller's rights and obligations related to
(i) the Seller's Assets (as defined below) and (ii) the Assumed Liabilities (as
defined below), subject to the terms and conditions of this Agreement.
NOW THEREFORE, the parties, intending to be legally bound, and in reliance
upon the representations, warranties and other terms set forth herein, hereby
agree as follows:
1. Assets Purchased and Sold. Subject to the terms and conditions contained
in this Agreement, on the Closing Date Seller shall sell, assign, transfer,
convey and deliver to Buyer all of Seller's right, title and interest in and to
the following assets (collectively, the "Assets"):
(a) All inventories of raw material, work-in-progress and finished
goods of the Seller existing on the Closing Date (as defined below);
(b) All fixed assets that are either: (i) listed on Seller's financial
statements as "Property and Equipment", or (ii) any tools and fixtures
necessary to the operation of Seller's business and, that are in either
case, listed on "Schedule 1(b)" hereto;
(c) All intellectual property of Seller, including, but not limited
to, all patents, patent applications, trade names, trademarks, service
names, service marks, software, business processes, engineering drawings,
art work, customer lists, vendor lists, the Radix Internet URL, names, and
phone number, all marketing and collateral material, and any other
intellectual property of the Seller;
(d) All purchase orders from or contracts with existing customers as
listed on "Schedule 1(d)";
(e) All deposits paid by the Seller and listed on "Schedule 1(e)"
hereto;
(f) All accounts receivable of the Seller, including those listed on
"Schedule 1(f)" hereto; and
(g) All records and files necessary or appropriate to own or operate
the Assets
or perform the obligations explicitly assumed by Buyer.
Any of the assets of Seller not listed above shall be retained by Seller and are
referred to herein as the excluded assets (the "Excluded Assets").
2. Assignment and Assumption of the Liabilities. Subject to the terms and
conditions contained in this Agreement, on the Closing Date, Seller shall
assign, transfer, convey and deliver to Buyer, and Buyer shall assume and pay,
all of Seller's right, title and interest in and to (i) all of Seller's accounts
payable and certain of Seller's accrued liabilities, each as existing on the
Closing Date, provided that such payables and liabilities are also listed on
(and only to the extent of the amount reflected on) "Schedule 2.1" hereto, (ii)
all of Seller's purchase orders (except those that are not related to the
Operating Business and are cancelable) and contracts with vendors, customers and
distributors existing on the Closing Date, provided that such purchase orders
and contracts are also listed on "Schedule 2.2" hereto, and (iii) the
compensation and severance benefits owed to Seller's employees, based on the
data listed on "Schedule 2.3" and the severance benefits generally provided to
employees of Seller. The items referred to in clauses (i), (ii), and (iii) above
are collectively referred to as the "Assumed Liabilities". On the Closing Date
Buyer shall assume sole responsibility to perform, satisfy and discharge all
duties, obligations, terms, conditions and covenants arising after the Closing
Date that the Seller is otherwise bound to perform, discharge or otherwise
satisfy, to the extent and only to the extent such responsibilities, duties,
obligations, terms, conditions and covenants are explicitly included in the
Assumed Liabilities. Except as set forth above, Buyer shall not assume, or in
any way be liable or responsible for, any of the liabilities, accounts payable,
orders, contracts, agreements, leases, or other obligations of any nature
whatsoever of Seller. As to the severance benefits owed to Seller's employees,
Buyer agrees that as to any employee of Seller to whom it either does not offer
employment initially following the Closing or that it terminates within six
months following the Closing for any reason other than non-performance by such
employee or for cause, Buyer shall pay severance benefits based on Schedule 2.3
for such employee.
3. Premises Lease. Buyer shall not assume any obligations pursuant to the
lease for the premises currently occupied by Seller (the "Premises") but shall
be granted the right by Seller on the Closing Date to occupy such Premises on
the temporary basis described below. At Closing, Buyer will pay Seller a fee of
$32,670 for the right to access and use the Premises for thirty days following
the Closing Date. Following that thirty day period, Buyer will pay Seller in
advance a fee of $8,167.50 for the right to access and use the Premises for
successive seven day periods. Buyer may vacate the Premises at any time and
cease payments upon 30 days' notice to Seller. Buyer shall have no other
obligation related to the Premises, and Seller agrees to indemnify and hold
Buyer harmless against any and all claims by any third party related to the
Premises; provided, however, Buyer shall not be held harmless from any claims
caused by the acts or negligence of Buyer or its employees or agents.
4. Purchase Price. In consideration of Seller's sale of the Assets to
Buyer, Buyer unconditionally agrees, in addition to assumption of the Assumed
Liabilities, to pay to Seller at Closing a total of $1,000 (hereinafter called
the "Purchase Price").
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5. Contingent Payments.
(a) In addition to the Purchase Price to be paid at Closing, upon
satisfaction of the conditions set forth in this Section 5, Buyer will make
payments ("Contingent Payments") to Seller based upon 10% of the gross
receipts as accrued by Buyer that exceed $7,500,000 during an Earnout
Period (the "Annual Threshold") as a result of the sale of products and
services that use or are based, in whole or in part, on the intellectual
property transferred by Seller to Buyer (the "Ongoing Business"). An
"Earnout Period" is a 12-month period. The first Earnout Period will
commence on the first day of the calendar month following the Closing Date.
The Contingent Payment may be payable for up to five Earnout Periods. The
maximum amount of Contingent Payment payable by Buyer to Seller, during all
Earnout Periods together, is $2,200,000.
(b) Subject to the credit described in the last sentence of this
Section 5(b) and the aggregate maximum amount described in Section 5(a),
the Contingent Payments following the Closing Date, will be made in cash on
a quarterly basis during the first three quarters of each Earnout Period
using $1,875,000 as the quarterly threshold gross revenue target. The
amount of the final quarterly payment will be determined using the Annual
Threshold and the actual annual gross revenues during such Earnout Period
and will subtract any quarterly payments previously made for such year. If
at the end of each Earnout Period (other than the first Earnout Period) it
is determined that the sum of the quarterly payments for such Earnout
Period exceeds the actual payment due as determined on an annual basis
("Excess Payments"), such Excess Payments may be retained by the Seller,
but will be credited against amounts due in future Earnout Periods.
(c) The Contingent Payment, if any, due to Seller for the first
quarterly period of the first Earnout Period shall be paid to Seller. The
first $200,000 of Contingent Payments due to Seller for the second and
subsequent quarterly periods (the "Holdback Amount") will be held by Buyer
in a segregated interest bearing account and may be unconditionally
released, upon five (5) days advanced written notice to Seller describing
such liabilities, to compensate Buyer for any liabilities of Seller to
Buyer under this Agreement and to compensate Buyer for any Excess Payments
made during the first Earnout Period. The amount, if any, of the Holdback
Amount remaining at the end of the ninth earnout quarter will be paid to
Seller on such date.
(d) In the event the net working capital as of the Closing Date of the
Ongoing Business is less than $(658,000) (the "Target Number"), then Buyer
shall be entitled to offset the amount of the difference against any
Contingent Payments payable in accordance with this Section 5, thereby
reducing the Contingent Payments payable and the maximum amount of
Contingent Payments payable by the difference. In the event the net working
capital as of the Closing Date is more than the Target Number, then Seller
shall be entitled to an increase in the amount of the Contingent Payments
payable at the end of the first Earnout Period in accordance with this
Section 5 equal to the amount in excess of the Target Number, thereby
increasing the maximum amount of Contingent Payments payable by the
difference. Net working capital shall be the sum of
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accounts receivable and inventory minus accounts payable, accrued
liabilities, and unearned revenue.
(e) Any amounts paid by Buyer to Seller hereunder shall be used first
to satisfy any claims for payment made by any third party against Seller.
6. Closing. The closing ("Closing") shall take place at the offices of
Xxxxxxxxx Xxxxxxx LLP in Kansas City, Missouri on September 14, 2007 (the
"Closing Date"). The Closing shall be effective as of 12:01 a.m. local time on
the Closing Date.
7. Representations and Warranties of Seller and Buyer.
(A) In addition to any other representations and warranties contained
in this Agreement, Seller represents and warrants to Buyer that:
(1) There are no provisions of any existing agreements binding
on Seller or affecting the Assets that conflict with or in
any way prevent the execution, delivery or carrying out of
the terms of this Agreement.
(2) Except as set forth in Seller's Schedule of Exceptions Part
7(A)(2), Seller is the sole owner of all Assets and all
Assets will be assigned, transferred, conveyed and delivered
to Buyer free and clear of any and all liens, pledges,
claims or other encumbrances of any kind (each, an
"Encumbrance").
(3) Radix International Corporation and Radix Corporation are
each corporations duly organized, validly existing and in
good standing under the laws of the state of Delaware.
Seller has the full power and authority to execute and
deliver this Agreement, to perform hereunder, and to
consummate the transactions contemplated hereby, without the
necessity of any act, approval, or consent of any other
person, entity, or governmental authority. This Agreement,
when executed, will constitute the valid and binding
obligation of the Seller, enforceable against Seller
according to its terms.
(4) Except as set forth in Seller's Schedule of Exceptions Part
7(A)(4), Seller is not, and performance of its obligations
hereunder will not cause it to be, in violation of any law,
rule, regulation or court order, local state or federal,
pertaining to the operation or conduct of its business.
There are no judgments, suits, actions, investigations or
proceedings pending or threatened in any court or by any
governmental authority or private arbitration tribunal
against Seller or the completion of the transaction
contemplated herein, nor is there any basis for any of the
foregoing.
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(5) Except as set forth in Seller's Schedule of Exceptions Part
7(A)(5), Seller has filed in true and correct form all
federal, state and local tax returns and other reports
required to be filed, and has paid all taxes and assessments
which have become due and payable, whether or not so shown
on any such return or report. Seller has received no notice
of, nor does Seller have any knowledge of, any notice of
deficiency or assessment or proposed deficiency or
assessment from any taxing governmental authority. There are
no audits pending with respect to Seller and there are no
outstanding agreements or waivers by or with respect to
Seller that extend the statutory period of limitations
applicable to any federal, state, local or foreign tax
returns or taxes for any period. There are no determined tax
deficiencies or proposed tax assessments against Seller.
(6) Except with respect to the accounts payable and accrued
liabilities listed on "Schedule 2.1", Seller has paid all
bills, invoices and other obligations due to all creditors
of Seller as of the Closing Date, and will promptly pay all
bills, invoices and other obligations to all creditors of
Seller that may arise after the Closing Date.
(7) "Schedule 2.1" sets forth a true, correct and complete list
of all accounts payable and accrued liabilities to be
assumed by Buyer as of the date of this Agreement.
(8) Schedule "1(f)" sets forth a true, correct and complete list
of all accounts receivable as of the date of this Agreement.
All accounts receivable arose out of the sales of inventory
or the provision of services in the ordinary course of the
Seller's business and to Seller's knowledge are collectable.
(9) Seller shall prepay its legal counsel fees for services
rendered in connection with this transaction and related
matters.
(10) The execution and performance of this Agreement and the
agreements and instruments contemplated by this Agreement do
not and will not violate the provisions of the Articles of
Incorporation or Bylaws of Seller or any note, indenture,
mortgage, lease or other agreement or instrument to which
Seller is a party or by which Seller is bound or result in
the creation of any lien, charge, or encumbrance upon the
Assets.
(11) Except as set forth in Seller's Schedule of Exceptions Part
7(A)(11), Seller has obtained in writing all consents of
third persons and governmental agencies necessary to permit
the valid and effective sale, assignment, transfer and
conveyance of the Assets to the Buyer.
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(12) Except as set forth in Seller's Schedule of Exceptions Part
7(A)(12), there is no litigation, action, claim, proceeding
or governmental investigation pending or threatened against
Seller which may have an adverse effect upon the Assets, the
business conducted by Seller, the transactions contemplated
by this Agreement or the ability of the parties hereto to
perform their respective obligations hereunder or under the
agreements or instruments contemplated by this Agreement,
nor is there any basis known for any such litigation,
action, claim proceeding or governmental investigation, nor
has Seller been a party to any litigation, action, claim,
proceeding or governmental investigation during the two (2)
years prior to the Closing Date which involved a judgment
against Seller of $5,000 or more or a payment in the
settlement or otherwise by Seller of $5,000 or more.
(13) All of the tangible Assets are in good order, repair and
operating condition subject, however, to the effect of
ordinary wear and tear and depreciation arising from lapse
of time or use with appropriate maintenance except as noted
on the applicable schedule hereto describing such Assets.
(B) Buyer represents and warrants to Seller that:
(1) Buyer is a corporation duly organized, validly existing and
in good standing under the laws of the state of Kansas.
(2) There are no provisions of any existing agreements binding
on Buyer that conflict with or in any way prevent the
execution, delivery or carrying out of the terms of this
Agreement.
(3) Buyer has the full power and authority to execute and
deliver this Agreement, to perform hereunder, and to
consummate the transactions contemplated hereby, without the
necessity of any act, approval, or consent of any other
person, entity, or governmental authority. This Agreement,
when executed, will constitute the valid and binding
obligation of the Buyer, enforceable against Buyer according
to its terms.
8. Conditions to Obligation to Close. Each and every obligation of Buyer
and Seller to be performed in connection with the Closing on the Closing Date
shall be subject to the satisfaction of the following conditions:
(a) A Xxxx of Sale executed by Seller in the form attached hereto as
"Exhibit 8(a)" selling, assigning and transferring to Buyer all right,
title and interest in and to any and all personal property comprising
Assets;
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(b) Seller shall provide releases of all financing statements or other
evidences of security interests or liens filed or otherwise perfected with
respect to any of the Assets and not theretofore released, terminated or
satisfied of record;
(c) Seller shall provide written consents of any third parties
necessary to permit the valid and effective sale, assignment, transfer and
conveyance of the Assets to Buyer;
(d) The opinion of counsel for Seller, dated as of the Closing Date,
substantially in the form of "Exhibit 8(d)" hereto, with only such changes
as shall be in form and substance satisfactory to Buyer;
(e) The appropriate assignments necessary to transfer record ownership
of all of the intellectual property of Seller, in a form acceptable to
Buyer;
(f) Seller shall have delivered to Buyer an executed Consent to Use of
Names in the form attached hereto as Exhibit "8(f)"; and
(g) Seller and Buyer shall have delivered to each other a certificate,
signed by an authorized representative and providing that the
representations and warranties contained in Sections 7(A) and 7(B), hereof,
as applicable, remain true; and
(h) Buyer shall have entered into, and be prepared to close on, an
agreement acceptable to it, pursuant to which it will repurchase
receivables held by Xxxxxxx Bank and Xxxxxxx Bank shall release its lien on
any, and all, of Seller's assets. Seller shall provide any consent or
authorization necessary or reasonable for the completion of such an
agreement.
9. Post Closing Agreements and Obligations.
(a) At any time and from time to time after the Closing, at the
Buyer's request and without further consideration, the Seller promptly
shall execute and deliver such instruments of sale, transfer, conveyance,
assignment and confirmation, and take such other action, as the Buyer may
reasonably request to more effectively transfer, convey and assign to the
Buyer, and to confirm the Buyer's title to, the Assets, to put the Buyer in
actual possession and operating control of the Assets, to assist the Buyer
in exercising all rights with respect thereto and to carry out the purpose
and intent of this Agreement; and
(b) Any and all public announcements or other public communications
concerning this Agreement and the purchase of the Assets shall only be made
by the Buyer.
10. Covenants. Except as may be otherwise expressly provided herein, from
and after the date of the Agreement and until the Closing Date, with respect to
the Assets, the Premises and the operations of the Premises, without the consent
of Buyer, Seller covenants and agrees that it will not:
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(a) Incur any obligation or liability, absolute or contingent, except
liabilities incurred, and obligations under contracts entered into, in the
ordinary course of business. Seller shall consult with Buyer on all
decisions outside of the ordinary course relating to any aspect of its
business;
(b) Execute, grant or suffer any Encumbrance upon the Assets;
(c) Effect any sale, transfer, Encumbrance or other disposition of the
Assets and properties that would otherwise be included in the Assets,
except for sales of inventories in the ordinary course of business, and
except for machinery, equipment, furniture and fixtures replaced with items
of equivalent or greater value;
(d) Waive, modify or release any rights of material value to the
Assets;
(e) Amend, modify, assign, transfer, grant or terminate any of the
Assumed Contracts; and
(f) Take any action, or fail to take any action, that would prevent
any of the representations and warranties of Seller contained herein from
being true in all material respects at and as of the Closing Date with the
same effect as though such representations and warranties had been made at
and as of the Closing Date.
11. Indemnification and Resolution of Disputes.
(A) Seller's Indemnification. Seller agrees to defend, indemnify and
hold harmless Buyer against and in respect of any and all loss, liability and
expense resulting from:
(1) The inaccuracy of any representation or breach of warranty
or non-fulfillment of any obligation by Seller under this
Agreement;
(2) Any liabilities, accounts payable or other obligations
relating to the Assets or the Ongoing Business other than
the Assumed Liabilities; and
(3) Any and all actions, suits, proceedings, claims, demands,
assessments, tax deficiencies, judgments, costs and expenses
(including attorneys' fees) incident to any of the foregoing
provisions.
(B) Claims Procedure. Promptly after the assertion of any claim
by Buyer with respect to any matter referred to in paragraph (A) above, or the
receipt by Buyer of written notice of the assertion or the commencement of any
litigation with respect to any matter referred to in paragraph (A) above, Buyer
shall give written notice of such claim to Seller and thereafter shall keep
Seller reasonably informed with respect to that claim; provided, however, that
failure of Buyer to give notice as provided in this section shall not relieve
Seller of its obligations hereunder unless such failure prejudices or adversely
effects Seller's obligations hereunder. If any litigation is brought against
Buyer, Seller shall be entitled to participate in such litigation,
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and at the request of Buyer, shall assume the defense thereof with counsel
satisfactory to the Buyer at the Seller's sole expense. If Seller assumes the
defense of any litigation, it shall not settle the litigation unless the
settlement shall include, as an unconditional term thereof, the giving by the
claimant or plaintiff of a release of Buyer, satisfactory to Buyer, from all
liability with respect to such litigation.
(C) Buyer's Indemnification. Buyer agrees to defend, indemnify
and hold harmless Seller against and in respect of any and all loss, liability
and expense resulting from (i) the inaccuracy of any representation or breach of
warranty or non-fulfillment of any obligation by Buyer under this Agreement, and
(ii) any act or negligence of Buyer, its officers, employees, and agents
occurring subsequent to the Closing and directly related to its conduct of the
operations of the Ongoing Business.
(D) Claims Procedure. Promptly after assertion of any claim by
Seller with respect to any matter referred to in paragraph (C) above, or the
receipt by Seller of written notice of the assertion or the commencement of any
litigation with respect to any matter referred to in paragraph (C) above, Seller
shall give written notice of such claim to Buyer and thereafter shall keep Buyer
reasonably informed with respect to that claim; provided, however, that failure
of Seller to give notice as provided in this section shall not relieve Buyer of
its obligations hereunder unless such failure prejudices or adversely effects
Buyer's obligations hereunder. If any litigation is brought against Seller,
Buyer shall be entitled to participate in such litigation, and at the request of
Seller, shall assume the defense thereof with counsel satisfactory to the Seller
at the Buyer' sole expense. If Buyer assumes the defense of any litigation, it
shall not settle the litigation unless the settlement shall include, as an
unconditional term thereof, the giving by the claimant or plaintiff of a release
of Seller, satisfactory to Seller, from all liability with respect to such
litigation.
12. Expenses. Each party to this Agreement shall pay its own expenses
incidental to the negotiation, preparation, execution and performance of this
Agreement and the transaction contemplated hereby, including, but not limited
to, the fees and expenses of their respective legal counsel, brokers and
accountants. Seller shall pay any sales, use or transfer taxes or fees in
connection with the transaction contemplated hereby.
13. Covenant Not to Compete. From and after the Closing Date for a period
of five (5) years, Seller shall not, and shall not permit any of its
stockholders, officers, or directors to, compete with Buyer in any business of
the type carried on by Seller prior to the Closing Date in any area in which
Buyer is engaged in business. The term "compete" as used herein, means to engage
in competition, directly or indirectly, (including, without limitation: (i)
soliciting or selling to any customer with which Buyer has or Seller had any
direct or indirect business contacts; (ii) developing, marketing, licensing, or
distributing any product or service related to the Ongoing Business; or (iii)
seek to hire or hire any employee of Buyer or any of its affiliated entities),
either as a proprietor, partner, employee, agent, consultant, stockholder or in
any capacity or manner whatsoever. The parties hereby acknowledge that remedies
at law for violations of this paragraph are inadequate and that only injunctive
relief is an adequate remedy for such violations. The provisions of this
paragraph are severable; if any provision of this paragraph or application
thereof to any circumstance is held invalid, such invalidity shall not
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affect the provisions or applications of this paragraph which can be given
effect without the invalid provision or application.
14. Entire Agreement. This Agreement and the exhibits and schedules hereto
constitutes the entire agreement between the parties pertaining to the subject
matter contained herein, and supersedes all prior agreements, representations
and understandings of the parties. No modification shall be binding unless
executed in writing by the parties. No waiver of any provisions shall be deemed,
or shall constitute, a waiver of any other provision whether or not similar, nor
shall any waiver at one time constitute a continuing waiver. No waiver shall be
binding unless executed in writing by the party making such waiver.
15. Binding Effect. This Agreement shall be binding on and inure to the
benefit of the parties hereto, their shareholders, successors in interest,
heirs, executors and assigns.
16. Execution in Counterparts; Binding Effect. This Agreement may be
executed via facsimile and in one or more counterparts, each of which shall be
deemed an original and all of which together shall be considered one and the
same agreement, and shall become a binding agreement when one or more
counterparts have been signed by each party and delivered to the other party.
17. Governing Law. This Agreement shall be considered in accordance with
and be governed by the laws of the State of Kansas.
18. Survival. The provisions of this Agreement shall survive the Closing
Date in accordance with the following provisions:
(A) The warranties and representations made by each party in this
Agreement shall survive for a period of thirty-six (36) months.
(B) All agreements, covenants, and obligations on the part of each
party to be performed or observed hereunder shall survive for a period specified
by the applicable statute or period of limitations.
[Signature Page to Follow]
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the day and year first above written, intending to be legally bound.
Radix International Corporation ER Acquisition Corporation
By: ___________________________ By: _____________________________
Name: _________________________ Name: ___________________________
Title: __________________________ Title: ____________________________
Radix Corporation
By: ___________________________
Name: _________________________
Title: __________________________
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Schedule 1(b)
Schedule 1(d)
Schedule 1(e)
Schedule 1(f)
Schedule 2.1
In addition to the attached listings of Radix International Corporation -
Current Liabilities, prepared 8/28/2007, and the Radix Corporation Accounts
Payable Open Invoice Report, dated 8/28/2007, the following items are included
as accrued liabilities and shall be added to the total balance of assumed
liabilities:
1. Accrued Liabilities at Radix Corporation of approximately $125,330, a
detailed listing will be incorporated prior to Closing; and
2. An obligation to Lombard North Central Plc, an appointed representative
of The Royal Bank of Scotland Plc, required to settle the terms of a lease to
achieve clear title to certain tooling and moulds necessary to the ongoing
operation of Seller's business of approximately $84,420; and
3. An obligation to First Class Service Ltd. (or Xx. Xxxxxx Xxxxxxxxx), for
certain fees related to the repair and storage of an Innovate 9000 In-Circuit
Test system and related fixtures that it is holding at its facility in England.
Payment of approximately $19,000 is required to release the equipment and
achieve possession of those assets.
Schedule 2.2
Schedule 2.3
Schedule 7
Schedule of Exceptions
Part 7(A)(2)
(i) Xxxxxxx Bank holds a perfected security interest in the assets of Radix
Corporation. Radix Corporation has given notice to Xxxxxxx Bank of the
termination of the credit facility provided by Xxxxxxx Bank. The Bank's credit
facility will terminate November 30, 2007. The credit facility requires a
minimum monthly fee of $5,000 until its termination.
(ii) Lombard North Central Plc, an appointed representative of The Royal Bank of
Scotland Plc, has title to certain tooling and moulds necessary to the ongoing
operation of Seller's business. Payment of (pound)41,792 (approximately $84,420)
is required to settle the terms of the lease and achieve clear title to the
assets.
(iii) First Class Service Ltd. Is owed certain fees related to the repair and
storage of an Innovate 9000 In-Circuit Test system and related fixtures that it
is holding at its facility in England. Payment of approximately $19,000 is
required to release the equipment and achieve possession of those assets.
Part 7(A)(4) - A suit is pending in Utah State Court commenced by Xxxxx
Xxxxxxxx, Plaintiff, against Radix Corporation, Defendant, claiming sales
commissions due. This suit is in the early stages of discovery and Seller is
vigorously defending all claims asserted by the Plaintiff.
Part 7(A)(5) - A wholly owned Canadian subsidiary of the Seller has been in
ongoing communications with Canadian tax authorities in connection with alleged
delinquent income taxes.
Part 7(A)(11) - Xxxxxxx, Inc., Landlord of the present premises of Seller
located at 0000 Xxxxx Xxxx Xxx, Xxxx Xxxx Xxxx, Xxxx 00000, has not consented
(as required by the premises lease) to the lease arrangement between RIC and
Buyer. Seller's counsel is negotiating with Landlord's counsel terms of such
consent.
Part 7(A)(12) - The statements made in Part 7(A)(4) of this Schedule of
Exceptions is incorporated by this reference in this Part 7(A)(12).
Exhibit 8(a)
Exhibit 8(d)
Exhibit 8(f)
