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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
----------------------
AMENDMENT NO. 2 TO
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the Securities Exchange Act
of 1934
Date of Report: December 1, 1999
ISONICS CORPORATION
(Name of small business issuer as specified in its charter)
CALIFORNIA 001-12531 77-0338561
---------- --------- ----------
State of Commission File IRS Employer
Incorporation Number Identification No.
5906 MCINTYRE STREET, GOLDEN, COLORADO 80403
Address of principal executive offices
303-279-7900
------------
Telephone number, including
Area code
NOT APPLICABLE
Former name or former address if changed since last report
<PAGE>
ITEM 2 - ACQUISITION OR DISPOSITION OF ASSETS
GENERAL. On December 1, 1999, Isonics Corporation ("Isonics" or the
"Company") completed a sale of its depleted zinc ("DZ") business to Eagle-Picher
Technologies, LLC for $8.2 million dollars, including $1.5 million to be paid
over a period of three years, which amount is subject to certain contingencies.
Isonics received $6,730,303 from Eagle-Picher at the closing, of which
approximately $1,150,570 was used to pay certain accrued liabilities. DZ is used
to prevent corrosion in nuclear power plants. Corrosion is a cause of high
radiation fields in nuclear power plants and can result in radiation exposure to
workers. DZ also reduces environmental cracking in certain kinds of nuclear
reactors which, if not controlled, can require extremely costly repairs or
possibly result in premature shutdown and de-commissioning of the facility.
The Agreement executed between Isonics and Eagle-Picher provides for:
(1) Isonics' sale of the DZ Business to Eagle-Picher for a purchase price
including approximately $6,700,000 in cash plus three additional payments of
$500,000 over a three year period, (2) Eagle-Picher's sale to Isonics of 200
kilograms of silicon-28 in consideration for a 42 month warrant grant to
Eagle-Picher for the purchase of 4,000,000 shares of Isonics common stock at a
purchase price of $3.75 per share. The Warrant is subject to a registration
rights agreement.
Related to, but separate from, the sale of the depleted zinc business,
Isonics contemporaneously signed a ten year supply agreement by which Isonics
will have the exclusive right to purchase quantities of isotopically pure
silicon-28, silicon-29 and silicon-30 and a non-exclusive right to purchase
quantities of carbon-12 and carbon-13 produced by Eagle-Picher from its pilot
plant under construction in Oklahoma for a ten-year period. The Supply Agreement
locks in what Isonics believes is a favorable purchase price for the isotopes.
As partial consideration for the exclusivity provisions, Isonics agreed to pay
Eagle-Picher a fee equal to 3% of the net revenues from all sales made by
Isonics of products incorporating silicon-28, silicon-29 or silicon-30 supplied
by Eagle-Picher. The ability of Eagle-Picher to produce isotopes meeting the
specifications of the supply agreement is contingent upon Eagle-Picher
successfully bringing its Oklahom-based facilities online as scheduled in March
of 2000.
In addition, Isonics purchased 200 kilograms of silicon-28 from
Eagle-Picher in consideration of a warrant to purchase 4,000,000 shares of
Isonics common stock exercisable by Eagle-Picher for $3.75 per share through May
30, 2003. Isonics granted Eagle-Picher certain registration rights related to
the shares of its common stock issuable upon exercise of the warrant.
Eagle-Picher has an obligation to deliver the silicon-28 during calendar year
2000 or, if it fails to do so, it will reduce the warrant proportionately. One
of the properties of isotopically pure silicon-28 is its high thermal
conductivity, which Isonics is currently developing for semiconductor
applications.
Isonics is an advanced materials and technology company which develops
and commercializes products based on enriched stable isotopes. Stable isotopes
can be thought of as ultra-ultra pure materials. This high degree of
purification provides enhanced performance properties compared to normal
materials. Stable isotopes have commercial uses in several areas,
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including energy; research, medical diagnostics, and drug development; product
tagging and stewardship; semiconductors; lasers; and optical materials.
Except for historical information contained herein, this document
contains forward-looking statements within the meaning of the Private Securities
Litigation Reform Act of 1995. These statements involve known and unknown risks
and uncertainties that may cause the Company's actual results or outcomes to be
materially different from those anticipated and discussed herein. Further, the
Company operates in industries where securities values may be volatile and may
be influenced by regulatory and other factors beyond the Company's control.
Other important factors that the Company believes might cause such differences
are discussed in the risk factors detailed in the Company's 10-KSB for the year
ended April 30, 1999 filed with the Securities and Exchange Commission, which
include the Company's cash flow difficulties, dependence on significant
customers, and rapid development of technology, among other risks. In assessing
forward-looking statements contained herein, readers are urged to carefully read
all cautionary statements contained in the Company's filings with the Securities
and Exchange Commission.
INFORMATION REQUIRED BY ITEM 701 OF REGULATION S-B.
SECURITIES SOLD. The sale described in the preceding paragraphs
occurred on December 1, 1999. The securities sold consists of one restricted
warrant ("Warrant") to purchase 4,000,000 shares of restricted common stock
issued at an exercise price of $3.75 per share.
UNDERWRITERS AND OTHER PURCHASERS.
No underwriters, agents, or placement agents participated in the
private placement.
The warrant was issued to a single accredited investor as consideration
for the purchase of assets.
The Warrant was issued in consideration for the purchase of 200
kilograms of silicon-28 pursuant to an Asset Purchase Agreement executed between
Isonics and Eagle-Picher.
The transactions were exempt from registration under the Securities Act
of 1933, as amended by reason of Sections 4(2) and 4(6) of the Securities
Act of 1933.
Terms of conversion or exercise are as follows:
The Warrant granted to Eagle-Picher may be exercised to purchase
4,000,000 shares of restricted common stock issued on a
warrant-for-share basis with the Company's common stock (subject to
dilution adjustment) for a purchase price of $3.75 per share through
the expiration date, May 30, 2003
The Company also entered into a registration rights agreement relating
to the shares of common stock underlying the Warrant.
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The Company intends to use the 200 kilograms of silicon-28 from the
issuance of the Warrant for the continued development and commercialization of
silicon-28 wafers for the semiconductor industry.
ITEM 7. FINANCIAL STATEMENTS AND EXHIBITS
Financial statements of businesses acquired. NOT APPLICABLE.
Pro forma financial statements. (incorporated from amendment no. 1)
Exhibits (incorporated from the initial filing):
Asset Purchase Agreement
Form of Warrant
Form of Registration Rights Agreement
(filed herewith)
Isotope Supply Agreement by and between Isonics Corporation
and Eagle-Picher Technologies, LLC
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934,
the registrant caused this report to be signed on its behalf by the undersigned,
thereunto duly authorized, on the 18th day of April 2000.
ISONICS CORPORATION
By: /s/ James E. Alexander
----------------------
James E. Alexander
President and Chief
Executive Officer
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**NOTE: CONFIDENTIAL INFORMATION HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE COMMISSION.
ISOTOPE SUPPLY AGREEMENT
Dated as of November 30, 1999
By and Between
ISONICS CORPORATION
a California corporation,
and
EAGLE-PICHER TECHNOLOGIES, LLC
a limited liability company formed under Delaware law
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ISOTOPE SUPPLY AGREEMENT
This ISOTOPE SUPPLY AGREEMENT (this "Agreement") is made as of this
30th day of November 1999 by and among EAGLE-PICHER TECHNOLOGIES, LLC, a limited
liability company formed under Delaware law ("E-P"), and ISONICS CORPORATION, a
California corporation ("ISONICS").
R E C I T A L S
Contemporaneously with the execution of this Agreement, ISONICS has
sold its DZ Business and the Zinc Assets (as those terms are more specifically
described in the agreement which relates to that transaction, the "Zinc
Agreement") to E-P;
NOW, THEREFORE, in consideration of the completion of the transactions
contemplated in the Zinc Agreement, the mutual covenants and agreements of the
parties contained herein, and for other good and valuable consideration, the
receipt and adequacy whereof E-P hereby acknowledges, E-P hereby agrees to sell
to ISONICS, and ISONICS desires to purchase from E-P certain quantities of
Silicon-28, Silicon-29 and Silicon-30 and Carbon-12 and Carbon-13 (which
isotopes will meet standards set forth on Schedule B hereto) (the "E-P Supply
Agreements), all on the terms and conditions set forth herein.
Article 1
PURCHASE AND SALE OF ASSETS
Section 1.1 SILICON
(a) E-P will sell all the Silicon-29 and Silicon-30 actually produced
from the pilot plant as by-products of the production of Silicon-28 and
meeting the specifications set forth on Schedule 1.1 to ISONICS for a
purchase price of [**SEE COVER PAGE NOTE]. Subject to the foregoing,
(i) the Silicon-29 and Silicon-30 will be delivered to ISONICS in
accordance with purchase orders submitted by ISONICS from time-to-time,
and will be subject to E-P's standard freight terms. (ii) In return for
the right to buy these isotopes as defined further in paragraph (c),
below, Isonics agrees that as an addition to the purchase price for
Silicon-29 and Silicon-30, ISONICS will pay E-P a fee equal to 3% of
the net revenues from all sales made by ISONICS of products
incorporating Silicon-29 or Silicon-30 supplied by E-P. The term "net
revenues from all sales made by ISONICS of products incorporating
Silicon-29 or Silicon-30" includes the gross revenues as received
during any calendar quarter by ISONICS from sales of products by
ISONICS which include any amount of Silicon-29 or Silicon-30 or
products derived from Silicon-29 or Silicon-30 supplied by E-P, less
returns and allowances. (iii) The purchase price for Silicon-29 and
Silicon-30 may be equitably adjusted to reflect E-P's increased costs
if the total purchases by weight of Silicon-29 and Silicon-30 pursuant
to this paragraph
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exceed the purchases of Silicon-28 under the following paragraph during
any calendar year.
(b) Commencing upon E-P's completion of the delivery
requirements for the Silicon Transaction as described in the Zinc
Agreement, E-P will devote the capacity of its pilot plant to the
production of Silicon-28 (except as E-P and ISONICS may otherwise
reasonably agree) and will sell all the Silicon-28 produced in the
pilot plant and meeting the specifications set forth on Schedule 1.1 to
ISONICS for a purchase price of not more than [**SEE COVER PAGE NOTE],
subject to quarterly adjustment beginning in July 2000 for changes in
the PPI (producer's price index) for SIC 28 Chemicals and Allied
Products using June 2000 as the base. (i) The Silicon-28 will be
delivered to ISONICS in accordance with purchase orders submitted by
ISONICS from time-to-time, and will be subject to E-P's standard
freight terms. (ii) In return for the right to buy Silicon-28 as
defined further in paragraph (c), below, Isonics agrees that as an
addition to the purchase price for Silicon-28, ISONICS will pay E-P a
fee equal to [**SEE COVER PAGE NOTE] of the net revenues from all sales
made by ISONICS of products incorporating Silicon-28 supplied by E-P.
The term "net revenues from all sales made by ISONICS of products
incorporating Silicon-28" includes the gross revenues as received
during any calendar quarter by ISONICS from sales of products by
ISONICS which include any amount of Silicon-28 or products derived from
Silicon-28 supplied by E-P, less returns and allowances. Isonics will
make payment to E-P of the fees required by Clause 1.1(a)(ii) and
Clause 1.1(b)(ii) within 45 days following the end of any calendar
quarter.
(c) E-P agrees that for a period ending ten years after the Closing
Date, unless otherwise agreed to by the parties (and subject to the
provisions of Section 1.3, below):
(i) E-P will exclusively sell Silicon-28, Silicon-29 and
Silicon-30 produced from the pilot plant to ISONICS, and E-P
will sell Silicon-28, Silicon-29 or Silicon-30 produced from
the pilot plant to no other party without ISONICS' prior
written consent, provided that E-P may terminate such
exclusivity provisions of this Paragraph 1.1(c)(i) and the
provisions of Paragraph 1.1(c)(ii), below, unless ISONICS
purchases at least 100 kilograms of Silicon-28, Silicon-29,
and Silicon-30 (including not less than 50 kilograms of
Silicon-28) pursuant to this Agreement during each calendar
year commencing 2002. If E-P terminates the provisions of this
Paragraph 1.1(c)(i) because ISONICS has not met the minimum
purchase requirements of the preceding sentence or for any
other reason, the [**SEE COVER PAGE NOTE] fee described in
paragraphs (a) and (b) of this Section 1.1 will also be
terminated.
(ii) Before selling Silicon-28, Silicon-29, or Silicon-30 produced
from any plant other than the pilot plant to any party other
than ISONICS, E-P will first provide ISONICS with not less
than five business days' notification of its intention to sell
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Silicon-28, Silicon-29, or Silicon-30 to any other party,
which notification will include: the name of and contact
information for the prospective purchaser; the price to be
paid by the prospective purchase; the quantities to be sold to
the prospective purchaser; the specifications of the
Silicon-28, Silicon-29, or Silicon-30 to be sold to the
prospective purchaser; and the proposed delivery schedule to
the prospective purchaser. ISONICS may, upon written notice to
E-P during that five business day notification period,
purchase the Silicon-28, Silicon-29, or Silicon-30 at the
price to be paid by the third party purchaser, provided
ISONICS purchases the same quantities and specifications, and
pursuant to the same delivery terms as described in the
notification from E-P. For the purposes of this paragraph, the
term "business day" refers to days on which Colorado state
governmental offices are open in Denver, Colorado, and does
not include any Saturday or Sunday or other holiday state
governmental offices are closed.
(d) ISONICS will maintain full, true and accurate books of account and
other records containing all particulars which may be required to
ascertain and verify the fees payable by it pursuant to Paragraphs
1.1(a) and (b) of this Agreement. Said books, records and all
supporting data shall be available at all reasonable times and for a
period of two years following the period of reporting to the inspection
of any independent certified accountant retained by E-P at its expense
for the purpose and to whom ISONICS has no reasonable objection;
provided, however, that such accountant shall report to E-P only as to
the accuracy of the statements and payments, and in no event shall
reveal ISONICS proprietary information (including, without limitation,
costs, quantities, or prices to individual customers, or like
information). In the event of disagreement between the accountant and
ISONICS as to the accuracy of the royalty statements and/or payments,
additional information shall be provided by E-P to ISONICS; however,
such information shall be of such a nature and in an amount sufficient
only to effect resolution of the disagreement. If an audit reflects an
overpayment, E-P will promptly remit the amount of the overpayment to
ISONICS; if an audit reflects an underpayment, ISONICS will promptly
remit the amount of the underpayment to E-P. If the underpayment is
greater than 10% of total payments, ISONICS will also reimburse E-P for
the costs of the independent certified accountant's work in performing
the audit.
Section 1.2 CARBON-12 AND CARBON-13. If E-P offers Carbon-12 and
Carbon-13 for sale to third parties in commercially meaningful quantities, E-P
will sell Carbon-12 and Carbon-13 in accordance with purchase orders submitted
from time-to-time by ISONICS (subject to E-P's ability to manufacture sufficient
quantities to meet ISONICS' orders) and will be subject to E-P's standard
freight terms. The price for such products will be negotiated between the
parties when Carbon-12 or Carbon-13 isotopes become available for sale for
prices and terms not greater than prices and terms E-P offers to its most
favored customers.
Section 1.3 ANNUAL REVIEW. The Parties agree that not more frequently
than annually (commencing after the first anniversary of the date of this
Agreement), they will meet to discuss
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the terms and conditions of Sections 1.1 and 1.2, and determine whether
modifications or amendments are appropriate. Any such modifications or
amendments will be set forth in a writing signed by both parties, which writing
will then become an amendment to this Agreement.
Section 1.4 BILL OF SALE AND ASSIGNMENT. In each case, the delivery of
the Silicon-28, Silicon-29 or Silicon-30, or Carbon-12 or Carbon-13 will be
accompanied by a bill of sale and assignment by which E-P will transfer title to
the product to Isonics free and clear of all liens, encumbrances, and claims of
others free on board E-P's production facility.
Article 2
COVENANTS AND AGREEMENTS, REPRESENTATIONS AND WARRANTIES
Section 2.1 CORPORATE AND OTHER ACTION. E-P shall take no action,
corporate or otherwise, which may prevent it from fulfilling the purchase
commitments to Isonics set forth in Article 1, above.
Section 2.2 Representations and Warranties of E-P. E-P represents and
warrants to ISONICS:
(a) It has the requisite power and authority to enter into
this Agreement and perform its obligations hereunder;
(b) The execution and delivery and performance of this
Agreement have been authorized by all necessary action of E-P;
(c) This Agreement has been duly executed and delivered by E-P
and constitutes the legal, valid, and binding obligation of E-P,
enforceable against E-P in accordance with its terms;
(d) E-P will have good and marketable title to the products to
be supplied hereunder, free and clear of all encumbrances and has the
right to sell the products to ISONICS or its sublicensees hereunder;
(e) During the term of this Agreement, E-P will not grant to
any other person or company any rights with respect to such products
that conflict in any way with this Agreement.
Section 2.3 Representations and Warranties of ISONICS. ISONICS
represents and warrants to E-P:
(f) It has the requisite power and authority to enter into
this Agreement and perform its obligations hereunder;
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(g) The execution and delivery and performance of this
Agreement have been authorized by all necessary action of ISONICS;
(h) This Agreement has been duly executed and delivered by
ISONICS and constitutes the legal, valid, and binding obligation of
ISONICS, enforceable against ISONICS in accordance with its terms.
Section 2.4. INDEPENDENT CONTRACTOR STATUS. Each party represents and
warrants to the other party that such party is an independent entity, and
neither party shall be considered to be the partner of or joint venturer with
the other party, or have the authority or the ability to bind the other party to
any matter.
Section 2.5 CONFIDENTIALITY. (a) Each party shall treat and hold as
confidential any confidential information relating to the operations or affairs
of the other party. If either party is requested or required (by oral or written
request for information or documents in any legal proceeding, interrogatory,
subpoena, civil investigative demand, or similar process or by applicable law)
to disclose any such confidential information, then such party shall notify the
other party promptly of the request or requirement so that the other party, at
its expense, may seek an appropriate protective order or waive compliance with
this Section. If, in the absence of a protective order or receipt of a waiver
hereunder, a party is (on the advice of counsel) compelled to disclose such
confidential information, such party may so disclose the confidential
information provided that such party shall use reasonable commercial efforts to
obtain reliable assurance that confidential treatment will be accorded to such
confidential information.
(b) No obligation of confidentiality will apply to any confidential
information of a party that the other party: (i) can reasonably demonstrate in
writing was already known or in the other party's possession; (ii) can
reasonably demonstrate in writing was developed independently by the other
party; or (iii) rightfully receives from a third party without knowledge of a
violation of any obligation of confidentiality; PROVIDED, HOWEVER, that if the
other party later learns that any such information was received in violation of
any obligation of confidentiality, from that point the other party shall treat
such information pursuant to the terms of this Agreement. In addition, no
obligation of confidentiality shall apply to any information that is known to,
or becomes generally available to the public without breach of this Agreement.
(c) The provisions of this Section 2.5 shall be in addition to any
other duties the parties may have at law or otherwise, and shall continue in
effect after the termination or expiration of this Agreement, regardless of the
reason for or circumstances surrounding such termination or expiration.
(d) Each party hereto agrees that in the event of breach of this
Section 2.5, the non-breaching party would sustain irreparable injury, and each
party recognizes that money damages for breach of this Agreement would be
difficult or impossible to ascertain. Each of the parties
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hereto therefore agrees that each party shall be entitled, in addition to any
other remedies and damages available, to an injunction to restrain the violation
of this Section 2.5.
Article 3
TERMINATION
Section 3.1 TERMINATION. This Agreement may be terminated at any time
only as follows:
(a) by mutual written agreement of E-P and ISONICS;
(b) by either E-P or ISONICS if there shall be any law or regulation
that makes completion of the Contemplated Transactions illegal or
otherwise prohibited or if completion of the Contemplated Transactions
would violate any nonappealable final order, decree or judgment of any
court or Governmental Authority having competent jurisdiction;
(c) by either E-P or ISONICS if the other party files a petition for
relief under the federal Bankruptcy Code, Title 11, United States Code.
Any party desiring to terminate this Agreement pursuant to this Section 3.1
shall give written notice of such termination to the other parties to this
Agreement.
Article 4
MISCELLANEOUS PROVISIONS
Section 4.1 EXPENSES. Except as otherwise provided herein, ISONICS on
the one hand, and E-P on the other hand, shall bear and pay for their own legal,
accounting and other costs and fees incurred in connection with the Contemplated
Transactions.
Section 4.2 FURTHER ASSURANCES. Each party shall execute and deliver
such additional documents or take such additional actions as may be requested by
another party to this Agreement if such requested document or action is
reasonably necessary to effect the Contemplated Transactions.
Section 4.3 NOTICES. Any notice, request, instruction or other document
or communication required or permitted to be given under this Agreement shall be
in writing and shall be deemed given upon delivery in person; upon being
deposited in the mail, postage
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prepaid, for mailing by certified or registered mail; or upon being transmitted
by facsimile, as follows:
If to E-P, delivered or mailed to:
Boron Department
Eagle-Picher Technologies, LLC
798 Highway 69A
Quapaw, OK 74363
Attn: Vice President and General Manager
Facsimile 918-673-1052
Telephone 918-673-2201
with copies delivered or sent by facsimile to:
Taft, Stettinus & Hollister LLP
1800 Firstar Tower
425 Walnut Street
Cincinnati, OH 45202-3957
Attn: Gerald S. Greenberg, Esq.
Facsimile 513-381-0205
Telephone 513-381-2838
and
Eagle-Picher Industries, Inc.
250 East Fifth Street, Suite 500
Cincinnati, OH 45202
Attn: Vice President and General Counsel
Facsimile 513-629-2572
Telephone 513-629-2417
If to ISONICS, delivered or mailed to:
Isonics Corporation
5906 McIntyre Street
Golden, CO 80403
Attention: James E. Alexander, President
Facsimile 303-279-7300
Telephone: 303-279-7900
with a copy (which does not constitute notice) delivered or
sent by facsimile to:
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Norton - Lidstone, P.C.
The Quadrant
5445 DTC Parkway
Suite 850
Englewood, Colorado 80111
Attn: Herrick K. Lidstone, Jr., Esq.
Facsimile: 303-221-5553
Telephone: 303-221-5552
or to such other address or addresses as may be specified in writing from time
to time by any party to the other parties.
Section 4.4 REFERENCES AND CONSTRUCTION.
(a) References in this Agreement to Sections or Schedules are to
sections of or schedules to this Agreement unless otherwise indicated
and references to clauses are to clauses of the Section in which the
reference appears unless specifically noted otherwise.
(b) When used in this Agreement, the word "including" shall have its
normal common meaning and any list of items that may follow such word
shall not be deemed to represent a complete list of the content of the
referent of the subject.
(c) Unless the context otherwise requires, the singular shall include
the plural and vice versa, references to any gender shall include all
other genders and references to persons shall include individuals,
bodies corporate, unincorporated associations, partnerships and other
entities in each case whether or not having a separate legal
personality.
(d) The parties have participated jointly in the negotiation and
drafting of this Agreement. If any ambiguity or question of intent
arises, no presumption or burden of proof shall arise favoring or
disfavoring any party by virtue of the authorship of any of the
provisions of this Agreement.
(e) Section headings are for convenience only and shall not limit or
otherwise affect any of the provisions of this Agreement.
(f) Except as set forth in the following sentence, this Agreement is
not intended to and shall not be construed so as to create any rights
in any third party beneficiary. The Affiliates of E-P are intended to
be express third-party beneficiaries of the terms contained in this
Agreement.
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Section 4.5 ENTIRE AGREEMENT. This Agreement, the Schedules and
Exhibits to this Agreement and any other agreements contemplated by this
Agreement (including the Confidentiality Agreement) constitute the entire
agreement and understanding of the parties hereto with respect to the matters
herein set forth, and all prior negotiations, writings and understandings
relating to the subject matter of this Agreement are merged herein and are
superseded and canceled by this Agreement including, without limitation, that
certain memorandum of understanding dated August 19, 1999.
Section 4.6 NO PUBLIC ANNOUNCEMENT. No party shall make any press
release or other public announcement regarding this Agreement or the
Contemplated Transactions, without prior consultation with and consent of the
other party, which consent may not unreasonably be withheld.
Section 4.7 COUNTERPARTS; EFFECTIVENESS. This Agreement may be
executed in one or more counterparts, each of which shall be deemed to be an
original copy of this Agreement and all of which, when taken together, shall be
deemed to constitute one in the same agreement. This Agreement shall become
effective when each party hereto shall have received a counterpart hereof signed
by the other parties hereto.
Section 4.8 SEVERABILITY OF PROVISIONS. If a court in any proceeding
holds any provisions of this Agreement or its application to any person or
circumstance invalid, illegal or unenforceable, the remainder of this Agreement,
or the application of such provisions to Persons or circumstances other than
those to which it was held to be invalid, illegal or enforceable, shall be not
affected, and shall be valid, legal and enforceable to the fullest extent
permitted by law, but only if and to the extent such enforcement would not
materially and adversely frustrate the parties' essential objectives as
expressed in this Agreement. Furthermore, in lieu of any such invalid or
unenforceable term or provision, the parties intend that the court add to this
Agreement a provision as similar in terms to such invalid or unenforceable
provision as may be valid and enforceable, so as to effect the original intent
of the parties to the greatest extent possible.
Section 4.9 EXHIBITS AND SCHEDULES. All Exhibits and Schedules to this
Agreement shall constitute part of this Agreement and shall be deemed to be
incorporated in this Agreement by reference and made a part of this Agreement as
if set out in full at the point where first mentioned.
Section 4.10 WAIVERS - AMENDMENTS. Any of the terms or conditions of
this Agreement may be waived but only in writing by the party which is entitled
to the benefit thereof, and this Agreement may be amended or modified in whole
or in part only by an agreement in writing, executed by all the parties to this
Agreement. The waiver by a party of a breach of any provision of this Agreement
shall not operate or be construed as a waiver of a subsequent breach.
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Section 4.11 SUCCESSORS AND ASSIGNS. The provisions of this Agreement
shall be binding upon and inure to the benefit of the parties and their
respective successors and assigns; provided that no party may assign, delegate
or otherwise transfer any of its rights or obligations under this Agreement
without the consent, which consent shall not be unreasonably withheld, of E-P in
the case of ISONICS, and ISONICS in the case of E-P.
Section 4.12 DISPUTE RESOLUTION.
(a). SENIOR OFFICERS TO RESOLVE. All claims, disputes or
other controversies arising out of, or relating to, this Agreement or
the Contemplated Transactions (hereinafter collectively referred to as
a "Dispute") shall initially be submitted to a senior officer from each
party for resolution by mutual agreement between said officers. Any
mutual determination by the senior officers shall be final and binding
upon the parties. However, should such senior officers fail to arrive
at a mutual decision as to the Dispute within 20 days after notice to
both parties of the Dispute, the parties shall then attempt to resolve
such Dispute by mediation in accordance with the terms and provisions
set forth in the following paragraph.
(b). MEDIATION. Notice of the demand for mediation for any
Dispute which has not been resolved in accordance with the previous
paragraph shall be filed with the other party to this Agreement, and
shall be made within a reasonable time after such party is permitted to
mediate the Dispute as provided herein. All mediation proceedings shall
take place in DALLAS, TEXAS and shall be conducted in accordance with
rules mutually determined by the parties. The mediator shall be an
individual mutually determined by the parties. The mediator shall be an
individual mutually selected by ISONICS and E-P, which individual shall
(i) have at least 10 years experience in the discipline which is the
subject of the Dispute, or (ii) be an attorney of at least 10 years of
experience in the realm of business transactions or commercial
litigation. Any mutual determination by the Parties pursuant to any
such mediation shall be final and binding upon the parties. However,
should the parties fail to arrive at a mutual decision as to the
Dispute within 30 days after commencement of the mediation proceedings,
the parties shall then be entitled to refer such Dispute to arbitration
as provided in the following paragraph.
(c). ADDITIONAL PROCEEDINGS. To the extent that any Dispute
continues to exist after the mediation provided for in the preceding
paragraph, the parties agree to resolve the Dispute by binding
arbitration, unless the remedy sought is injunctive relief. Respecting
any Disputes which ultimately become the subject of court proceedings
wherein the remedy sought is injunctive relief, the parties irrevocably
agree that (i) the venue and jurisdiction for such proceedings shall be
in any court of competent jurisdiction, and (ii) trial by jury is
waived by both parties. Arbitration of disputes shall be conducted in
DALLAS, TEXAS and shall apply the substantive law governing this
Agreement. The arbitration proceedings will be conducted by a panel of
three arbitrators in accordance with the Rules of Commercial
Arbitration of the American Arbitration
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<PAGE>
Association ("AAA") and under the professional administration of the
AAA, except that the parties shall have the rights of discovery as to
one another such as are provided by Federal Rules of Civil Procedure 26
through 37 in effect at the time of the arbitration and rights of
discovery as to third parties in effect at the time of the arbitration
as are provided by law. The arbitration award shall be binding upon the
parties.
Section 4.13 GOVERNING LAW . This Agreement shall be construed and
enforced in accordance with and governed by the laws of the State of Delaware
(without regard to the choice of law provisions thereof).
Section 4.14. FORCE MAJEURE AND CONSEQUENTLY DAMAGES. (a)
Notwithstanding any other provision herein to the contrary, E-P will not be
liable to ISONICS if E-P fails to meet its covenants in Sections 1.1(a) and
1.1(b) hereof as a result of FORCE MAJEURE. When used in the previous sentence,
the term "FORCE MAJEURE" means where E-P is prevented from performing its
obligations under Sections 1.1(a) or 1.1(b) of this Agreement by any cause
beyond its reasonable control, including, without limitation, labor disputes
(however arising and whether or not employee demands are reasonable or within
the power of E-P to grant); acts of God; laws, regulations, orders,
proclamations, instructions or requests of any government or governmental
entity; judgments or orders of any court; curtailment or suspension of
activities to remedy or avoid an actual or alleged, present or prospective
violation of federal, state or local environmental standards; acts of war or
conditions arising out of or attributable to war, whether declared or
undeclared; riot, civil strife, insurrection or rebellion; fire, explosion,
earthquake, storm, flood, sink holes, drought or other adverse weather
condition; unforeseeable delay or failure by suppliers or transporters of
materials, parts, supplies, services or equipment or by contractors' or
subcontractors' shortage of, or inability to obtain, labor, transportation,
materials machinery, equipment, supplies, utilities or services; accidents;
breakdown of equipment, machinery or facilities; or any other cause whether
similar or dissimilar to the foregoing. FORCE MAJEURE does not include E-Ps
technical inability to produce Silicon-28 meeting the defined specifications
because its chemical exchange distillation process does not perform as expected.
In the case of any FORCE MAJEURE, E-P shall promptly give notice to ISONICS of
the suspension of performance, stating therein the nature of the suspension, the
reasons therefor, and the expected duration thereof. E-P shall resume
performance as soon as reasonably possible.
(b) No party will be liable to any other party for indirect or
consequential damages that may result from a breach of this Agreement.
IN WITNESS WHEREOF, the parties hereto caused this Agreement to be duly
executed on the day and year first above written.
EAGLE PICHER TECHNOLOGIES, LLC
By:
------------------------------------
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Dallas Mayfield, General Manager - Boron Division
ISONICS CORPORATION
By:
------------------------------------
James E. Alexander, President
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<PAGE>
SCHEDULE 1.1
Silicon Tetraflouride Specifications and Delivery Requirements
SILICON-28 TETRAFLOURIDE (SiF4) to be delivered to Isonics Corporation
under the Isotope Supply Agreement will be weighed on a metal (Si-28) basis and
will meet or exceed the following specifications:
Isotopic Purity - [**SEE COVER PAGE NOTE]% Silicon-28 minimum
Chemical Purity - [**SEE COVER PAGE NOTE]% minimum
IMPURITY MAXIMUM CONCENTRATION
-------- ---------------------
[**SEE COVER PAGE NOTE]
SILICON-29 TETRAFLOURIDE (SiF4) to be delivered to Isonics Corporation
under the Isotope Supply Agreement will be weighed on a metal (Si-29) basis and
will meet or exceed the following specifications:
Isotopic Purity - [**SEE COVER PAGE NOTE]% silicon-29 minimum, higher
enrichments desirable.
Chemical Purity - [**SEE COVER PAGE NOTE]% minimum (excluding Argon
or Helium)
IMPURITY MAXIMUM CONCENTRATION
-------- ---------------------
[**SEE COVER PAGE NOTE]
