PURCHASE AGREEMENT
BETWEEN
BRITISH AEROSPACE HOLDINGS, INC.
AND
REFLECTONE, INC.
PURCHASE AGREEMENT
THIS PURCHASE AGREEMENT ("Agreement"), made and executed as of this
21st day of December, 1995, is by and between BRITISH AEROSPACE
HOLDINGS, INC., a Virginia corporation ("Buyer"), and REFLECTONE,
INC., a Florida corporation ("Seller").
RECITALS
A. Seller is the owner of that certain Reflectone, Inc. -
manufactured Jetstream 41 Full Flight Simulator featuring an IVEX
Visual System as more particularly described in Exhibit A attached
hereto (the "J-41 Simulator"), and related spare parts as more
particularly described in Exhibit B attached hereto (the "Spare
Parts"). (The J-41 Simulator and the Spare Parts are hereinafter
collectively referred to as the ("Equipment").
B. Seller is the owner of certain computer software programs
and source code information prepared by Seller and used in the
operation of the J-41 Simulator, including but not limited to the
software and source code information described on Exhibit C
attached hereto (the "Software").
C. Seller, through its subsidiary Reflectone Training
Systems, Inc. ("RTS"), is the developer and owner of certain
training courseware related to the J-41 Simulator, as more
particularly described on Exhibit D attached hereto (the
"Courseware").
D. Seller desires to sell the Equipment to Buyer and Buyer
is willing to purchase the Equipment pursuant to the terms and
conditions of this Agreement.
E. Seller desires to grant to the Buyer and the Buyer
desires to receive from the Seller a perpetual, royalty-free
license to use the Software, pursuant to the terms of the Software
License Agreement attached hereto as Exhibit E.
F. Seller desires to sell the Courseware to Buyer and Buyer
is willing to purchase the Courseware pursuant to the terms and
conditions of this Agreement.
G. All Exhibits hereto are incorporated into and form a part
of this Agreement.
1. SUBJECT MATTER OF SALE
(a) Pursuant to the terms and conditions of this
Agreement, Seller does hereby sell the Equipment and the Courseware
to Buyer and Buyer hereby purchases the Equipment and the
Courseware from Seller. Notwithstanding the foregoing, Buyer
acknowledges and agrees that the sale of the Courseware by Seller
to Buyer pursuant to this Agreement shall not preclude Seller from
developing and selling other simulator or training courseware
(including courseware that contains proprietary information,
techniques, or methods similar to or derived from those contained
in the Courseware).
(b) In addition, Seller shall assign to Buyer certain of
Seller's right, title and interest under the purchase agreement for
the visual system for the J-41 Simulator between Seller and IVEX
Corporation ("IVEX").
2. PURCHASE PRICE
The purchase price for the Equipment and the Courseware
(the "Purchase Price") shall be Eight Million Six Hundred Twenty
Thousand Two Hundred Forty-One Dollars (U.S. $8,620,241.00).
3. PAYMENT
(a) The Purchase Price shall be paid to Seller by Buyer
on the date hereof (the "Closing Date").
(b) The Purchase Price shall be paid in United States
currency, in immediately available funds, by Buyer remitting the
entirety of the Purchase Price to Seller by wire transfer to a
depository in the United States to be designated in writing by
Seller.
4. DELIVERY
Delivery of the Equipment and the Courseware shall be made on the
Closing Date at the current location of the Equipment at the
Reflectone Training Center - Dulles at 00000 Xxxxxxxxx Xxxxx,
Xxxxxxxx, Xxxxxxxx. Title to the Equipment and the Courseware shall
pass from Seller to Buyer by Seller delivering to Buyer on the
Closing Date a duly executed Xxxx of Sale in substantially the form
attached hereto as Exhibit F (the "Xxxx of Sale").
5. LICENSES
(a) On the Closing Date and as a condition to the
obligations of the Buyer under this Agreement, Seller and Buyer
shall execute and deliver a Software License Agreement in
substantially the form attached hereto as Exhibit E (the "Software
License Agreement"), pursuant to which Seller will grant to Buyer
a perpetual nonexclusive license to use the Software solely in
connection with the operation, calibration, maintenance, overhaul,
upgrade and repair of the J-41 Simulator, subject to the terms and
conditions set forth therein.
(b) On or prior to the Closing Date and as a condition
to the obligations of the Buyer under this Agreement, IVEX and
Buyer shall execute and deliver a Software License Agreement in
substantially the form attached hereto as Exhibit G (the "IVEX
License Agreement"), pursuant to which IVEX will grant to Buyer a
perpetual nonexclusive license to use certain software related to
the visual system of the J-41 Simulator solely in connection with
the operation, calibration, maintenance, overhaul, upgrade and
repair of the J-41 Simulator, subject to the terms and conditions
set forth therein.
6. TAXES
The Buyer agrees to pay all taxes, duties and similar obligations
that result from the sale of the Equipment and the Courseware
hereunder including, but not limited to, sales, use, value added,
gross receipt and excise taxes imposed upon Buyer or Seller or
asserted as a lien or encumbrance against the Equipment or the
Courseware as a result of the sale of the Equipment and the
Courseware, and Buyer agrees to indemnify, defend and hold Seller
harmless from and against any such taxes, duties or similar
obligations.
7. WARRANTIES.
Upon delivery of the Equipment, Seller shall provide and shall
cause IVEX and other J41 Simulator vendors and suppliers to provide
to Buyer, limited warranties for the Equipment as set forth on
Exhibit H hereof.
8. REPRESENTATIONS AND WARRANTIES
Seller represents and warrants to Buyer that, at the time of
delivery of the Equipment and the Courseware under this Agreement:
(a) Seller shall have the lawful right to sell the
Equipment and the Courseware in accordance with the terms hereof
(b) Seller shall have good and marketable legal title to
the Equipment and the Courseware free and clear of any and all
liens, claims, charges or encumbrances.
(c) As of the date of the Closing, the J-41 Simulator
has been maintained in accordance with the manufacturer's
recommended maintenance procedures and has been certified to Level
C by the United States Federal Aviation Administration.
(d) Seller is a duly organized and validly existing
corporation in good standing under the laws of its state of
incorporation.
(e) Seller has the power and authority to enter into,
execute, deliver and perform under this Agreement, the Xxxx of
Sale, and the Software License Agreement (collectively the "Sale
Documents"), and the Sale Documents will constitute, when executed
and delivered by Seller, the valid and binding obligations of
Seller, enforceable in accordance with their respective terms,
except as enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or similar laws affecting
creditors' rights generally or by general principles of equity.
(f) The execution and delivery by Seller of the Sale
Documents and the performance by Seller of its obligations
thereunder have been duly authorized by all necessary action on the
part of Seller and do not violate, conflict with, constitute a
breach of or result in any default under or require any consent or
approval by any third party under (i) any provision of Seller's
Articles of Incorporation or By-Laws, or (ii) any law or any order,
writ, injunction, restriction, decree, rule or regulation of any
court, administrative agency or any other governmental authority
applicable to Seller or (iii) any material agreement to which
Seller is a party or by which Seller is bound.
(g) No consent, approval, authorization, order,
registration or qualification of or with any court or regulatory
authority or other governmental body having jurisdiction over
Seller or any other person or entity, the absence of which would
adversely affect the legal and valid execution, delivery and
performance by Seller of this Agreement, is required.
(h) There is no litigation, investigation or proceeding
of or before any arbitrator or governmental authority pending or
threatened by or against Seller or against any of its properties or
revenues which, if adversely determined, would have a material
adverse effect on the ability of Seller to perform its obligations
hereunder.
(i) EXCEPT AS OTHERWISE SPECIFICALLY SET FORTH HEREIN,
SELLER MAKES NO WARRANTIES, EXPRESS OR IMPLIED, INCLUDING
WARRANTIES AS TO MERCHANTABILITY OR AS TO THE FITNESS OF THE
EQUIPMENT OR THE COURSEWARE FOR ANY PARTICULAR USE OR PURPOSE, AND
SHALL NOT BE LIABLE FOR ANY LOSS OR DAMAGE, DIRECTLY OR INDIRECTLY,
ARISING FROM THE USE OF SUCH EQUIPMENT OR COURSEWARE OR FOR
CONSEQUENTIAL DAMAGES.
9. INDEMNIFICATION
(a) Seller shall indemnify, protect, defend and hold
Buyer and its directors, officers, agents and employees harmless
from and against any and all loss, liability, damage, claim, suit,
cost or expense (including, without limitation, court costs and
reasonable attorney's fees) which may arise out of, or result from
any breach by Seller of any of its representations and warranties
set forth in Section 8(a) above.
(b) In the event any claim for indemnification hereunder
arises on account of a claim or action made or instituted by a
third person against an indemnified party, the indemnified party
shall notify the indemnifying party promptly after receipt of
notice that such a claim or action is being made or was instituted.
The indemnifying party shall be entitled to control the defense of
any such claim or action by counsel of its own choosing. If the
indemnifying party shall control the defense of such claim or
action, the same shall not be settled without prior written consent
of the indemnified party.
10. APPLICABLE LAW
This Agreement shall in all respect be governed by and
construed in accordance with the laws of the Commonwealth of
Virginia without regard to its conflicts laws.
11. NOTICES
All notices and requests required or authorized shall be
given in writing and submitted by personal delivery or by
registered or certified mail, return receipt requested, or by
overnight delivery service (i.e., Federal Express) or telecopier.
The date upon which any such notice or request is received by the
addressee shall be deemed to be the effective date of such notice
or request. Notices and requests addressed by Buyer shall be as
follows:
British Aerospace Holdings, Inc.
00000 Xxxxxxxxx Xxxxx
Xxxxxxxx, Xxxxxxxx 00000
Attention: General Counsel
Telecopier: (000) 000-0000
Notices and requests addressed by Seller shall be as follows:
Reflectone, Inc.
0000 Xxxxx Xxxx Xxxx.
Xxxxx, Xxxxxxx 00000
Attention: Chief Financial Officer
Telecopier: (000) 000-0000
12. FEES AND EXPENSES
With respect to the transaction contemplated by this
Agreement, each party shall be responsible for its own fees and
costs, including but not limited to, the fees and costs of its own
respective legal counsel. In any action or proceeding between the
parties, or any of them, to enforce any of the provisions of this
Agreement, to prevent the breach hereof, to seek damages on account
of a breach, to seek a declaration of the rights and obligations of
the parties hereunder or in which the provisions of this Agreement
are asserted as a defense, regardless of whether the action or
proceeding is prosecuted to judgment and in addition to any other
remedy, the unsuccessful party shall pay the successful party all
costs and expenses, including reasonable attorneys' fees, incurred
therein by the successful party.
13. MISCELLANEOUS
(a) Severability of Provisions. Any provision of this
Agreement which is prohibited or unenforceable in any jurisdiction
shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without invalidating the
remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
(b) CounterParts. This Agreement may be executed by the
parties hereto in separate counterparts, each of which when so
executed and delivered shall be an original, but all such
counterparts shall together constitute but one and the same
instrument.
(c) Assignment: Successors and Assigns. Neither this
Agreement nor any of the rights and obligations hereunder may be
assigned by either party without the prior written consent of the
other. Subject to the foregoing, this Agreement shall be binding
upon and inure to the benefit of the parties hereto and their
respective successors and assigns, and no other person shall have
any right, benefit or obligations hereunder.
(d) Waiver: Amendment. No term or provision of this
Agreement may be changed, waived, discharged or terminated orally,
but only by an instrument in writing signed by the party or other
person against whom enforcement of the change, waiver, discharge or
termination is sought; and any waiver of the terms thereof shall be
effective only in the specific instance and for the specific
purpose given. This Agreement may be amended only by written
agreement executed by the parties hereto.
(e) Headings. The headings of the various Sections
herein are for convenience of reference only and shall not define
or limit any of the terms or provisions hereof
(f) Entire Agreement. This Agreement embodies the
entire agreement and understanding of the parties with respect to
the subject matter hereof and, as of its effective date, terminates
and supersedes all prior and independent agreement or
understandings between the parties covering the same subject
matter.
(g) Survival. The representations, warranties,
indemnities, covenants and disclaimers made herein and the rights
and obligations of the parties set forth herein, shall survive the
execution and delivery of this Agreement and the consummation of
the transactions contemplated hereby.
(h) Further Assurances. Each party hereto shall execute
and deliver all such further instruments and documents as may
reasonably be requested by the other party in order to fully carry
out the intent and accomplish the purposes of the Sale Documents
and the transactions contemplated thereby, including without
limitation, any reasonable instruments or documents required by the
Buyer.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed as of the date first above written by
their officers or agents thereunto duly authorized.
BRITISH AEROSPACE HOLDINGS, INC.
By: Xxxx X. Xxxxxx
____________________________
Its: Senior Vice President and
General Manager
REFLECTONE, INC.
By: Xxxxxxx X. Xxxxxxxxx
____________________________
Its: Vice President & Chief
Financial Officer
