SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d)
Of The Securities Exchange Act of 1934
Date of Report (date of earliest event reported): May 13, 1997
WESTWOOD CORPORATION
(Exact name of registrant as specified in its charter)
Nevada 0-19381 87-0430944
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(State or other jurisdiction (Commission (I.R.S. Employer
of incorporation) File Number) Identification No.)
12437 East 60th Street, Tulsa, Oklahoma 74146
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(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code: 918/252-1774
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N/A
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(Former name or former address if changed since last report.)
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WESTWOOD CORPORATION
CURRENT REPORT
FORM 8-K
ITEM 2. Acquisition or Disposition of Assets.
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(a) On May 13, 1997, Westwood/TANO, Inc., a Louisiana
corporation ("Westwood/TANO"), a newly formed wholly owned
subsidiary of Westwood Corporation (the "Company"), acquired the
Marine Automation Control Division of TANO Automation, Inc., a
Louisiana corporation ("TANO"). In consideration for the assets,
Westwood/TANO paid the total purchase price of $2,500,000 as
follows: (a) $1,500,000 to TANO at closing; (b) $500,000 into
escrow at closing; and (c) a $500,000 promissory note.
Additionally, Westwood/TANO assumed certain liabilities and
obligations of TANO, as of the closing date, as more particularly
described in that certain Agreement of Purchase and Sale of
Assets (the "Agreement"). The Purchase Price is subject to
adjustments as a result of reconciliations to a Closing Balance
Sheet to reflect changes in net asset value from December 31,
1996 through the date of Closing, May 13, 1997. Adjustments as a
result of decreases in net asset value during this period will be
taken from the Escrow Funds and will be paid to Westwood/TANO.
Increases in net asset value during the period will be paid by
Westwood/TANO within ninety days after reconciliation of the
Closing Balance Sheet. The Company executed the Agreement as
guarantor, thereby guaranteeing all liabilities, obligations,
covenants, warranties, representations, undertakings and
agreements of Westwood/TANO under the Agreement, or made
thereafter by Westwood/TANO in connection with the transactions
contemplated thereunder.
The Company formed Westwood/TANO as a Louisiana corporation
on May 7, 1997 for the purpose of acquiring and operating the
Marine Automation Control Division assets of TANO. The business
of TANO included activities relating to automation and control
systems for marine applications. There was no material
relationship between TANO and Westwood/TANO and the Company, or
either of them, or any of their affiliates, any director or
officer of Westwood/TANO and the Company, or any associate of any
such director or officer.
Westwood/TANO utilized funds from its existing credit line
for payment of the purchase price, and the Company executed a
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guaranty to TANO of Westwood/TANO's performance under the
Agreement. The Company anticipates that its acquisition of TANO
through its wholly owned subsidiary, Westwood/TANO, will
contribute to the earnings in the current fiscal year. Further,
the transaction will be accounted for as a purchase and,
therefore, will not be dilutive to existing Company shareholders.
(b) The business of TANO included the design, manufacture,
sale and service of electrical automation and control systems for
marine applications, including, without limitation, military and
commercial ships, and machinery plant automation and control
systems.
The Company manufactures and markets a diversified line of
products for the military and commercial marine industries in
addition to its main line of signal switching and power
switchboard equipment, firestop products and marine hardware. The
Company intends to maintain the assets acquired from TANO in
Westwood/TANO as a subsidiary within the Company consolidated
group, its business operations in New Orleans, Louisiana, and
will employ approximately thirty-five persons.
ITEM 7. Financial Statements and Exhibits.
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(c) Exhibits: Attached as Exhibit A is a copy of the
Agreement, dated May 13, 1997.
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act
of 1934, the Registrant has caused this report to be signed on
its behalf by the undersigned, hereunto duly authorized.
DATED: May 28, 1997. WESTWOOD CORPORATION
By: /s/ Paul R. Carolus
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Paul R. Carolus,
Chief Financial Officer
and Treasurer
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EXHIBIT "A"
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EXECUTION COPY
AGREEMENT OF PURCHASE AND
SALE OF ASSETS
This Agreement of Purchase and Sale of Assets ("Agreement"),
dated as of the 13th day of May, 1997, by and among
Westwood/TANO, Inc. ("Buyer"), as purchaser, Westwood Corporation
("Westwood"), as guarantor, and TANO Automation, Inc. ("TANO"),
as seller.
W I T N E S S E T H :
WHEREAS, TANO designs, manufactures, sells and services
automation and control systems for marine applications,
including, without limitation, military and commercial ships, and
machinery plant automation and control systems (the "Business");
WHEREAS, it is intention of the parties that Buyer purchase,
except for excluded assets, all of the assets and contracts
comprising the Business, pursuant to that certain Letter of
Intent dated April 3, 1997 ("Letter of Intent"), but as modified
in the negotiations leading up to the execution of this
Agreement; and
WHEREAS, the purchase price is to be paid in cash, by
promissory note and by the assumption of certain obligations
associated with the Business;
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NOW, THEREFORE, the parties do hereby represent, warrant,
covenant and agree as follows:
ARTICLE I
SALE AND PURCHASE OF ASSETS
1.1 SALE AND PURCHASE OF ASSETS. Subject to, and upon the
terms and conditions hereof, and on the basis of the agreements,
representations and covenants contained in this Agreement, TANO
shall sell, transfer, assign, convey, set over and deliver to
Buyer, and Buyer shall purchase and acquire from TANO, at the
Closing (as hereinafter defined) all of the assets used in the
Business, including, without limitation, the rights, properties,
and other assets listed and described below (hereinafter
collectively referred to as the "Assets"), except those assets
described in Section 1.2 hereof (the "Excluded Assets"):
1.1.1 TANGIBLE PERSONAL PROPERTY. All tangible
personal property used in connection with the Business,
including, without limitation, all leasehold improvements,
equipment, inventory and spare parts, described on
Schedule 1.1.1.
1.1.2 GENERAL CONTRACTUAL RIGHTS. All right and
interest of TANO in and to the contracts, agreements, leases,
commitments, licenses, sales and purchase orders, product
warranty and service agreements relating exclusively or primarily
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to, or necessary to, the Business and in effect on the Closing
Date, including, without limitation, such of the foregoing as are
listed or described on Schedule 1.1.2 hereto (the "Agreements");
1.1.3 INTANGIBLE PROPERTY AND LICENSED TECHNOLOGY.
All trademarks, trade names, including "TANO Automation, Inc.,"
and related goodwill therefor, whether domestic or foreign, owned
or used by or licensed to TANO for use in the Business, as
conducted preceding the Closing Date, and all renewals,
modifications and extensions thereof ("Intangible Property"),
including, without limitation, those listed or described on
Schedule 1.1.3.
1.1.4 GOVERNMENTAL LICENSES, PERMITS AND APPROVALS.
All transferable governmental licenses, permits and approvals
which are issued or have been transferred or assigned to TANO and
are used in the Business, including, without limitation, such of
the foregoing as are listed or described on Schedule 1.1.4
hereto, which lists and so designates all transferable and
nontransferable governmental licenses, permits and approvals used
in or by the Business;
1.1.5 DOCUMENTS. Originals or copies of all books, records
and operating data of TANO used in or associated with the
Business, and other documents and records which are owned by, or
are in the possession of, TANO and relate to the Business,
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including, books, records, credit information, customer lists,
employee records (for employees hired by Buyer), correspondence,
computer programs and software, sales, marketing and service
records and literature, drawings and financial and tax
information employed by TANO in the Business (the "Documents");
1.1.6 OTHER ASSETS. Such other assets listed on
Schedule 1.1.6, which may be supplemented prior to Closing to
include assets that Buyer may identify as necessary or reasonably
appropriate for the conduct of the Business by Buyer that are not
Excluded Assets, as hereinafter defined.
1.2 EXCLUDED ASSETS. The assets listed or described on
Schedule 1.2 shall not be included in the definition of Assets
(the "Excluded Assets").
1.3 NONASSIGNABLE CONTRACTS. Set forth on Schedule 1.3 is
a list of all leases, contracts, licenses, permits, sales orders,
approvals and other agreements or commitments described in
Section 1.1 above which are by their terms nonassignable or are
nonassignable without the consent of a party other than TANO, or,
in the case of leases, cannot be assigned or sublet by their
terms or cannot be assigned or sublet without the consent of a
party other than TANO (collectively, the "Nonassignable
Contracts") for which consents have not been obtained. TANO
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agrees to use reasonable efforts to obtain all the necessary
consents to assignment or sublease.
ARTICLE II
CLOSING AND PURCHASE PRICE
2.1 THE CLOSING. The closing (the "Closing") of the
transactions contemplated hereby shall take place at the offices
of Milling, Benson, Woodward, Hillyer, Pierson & Miller, L.L.P.,
909 Poydras Street, Suite 2300, New Orleans, Louisiana 70112, at
10:00 a.m. local time on May 13, 1997, or at such other time,
date or place as the parties may mutually agree (the "Closing
Date"). If this Agreement is terminated pursuant to the
provisions of Section 7.3 hereof or because of the failure to
consummate the transactions contemplated hereby on or before
May 30, 1997, or such date of extension, neither party shall have
any further rights nor obligations to one another hereunder or
otherwise. The effective time of the transfers shall be as of
6 o'clock p.m., New Orleans time, on April 30, 1997 (the
"Effective Date").
2.2 CONSIDERATION. In consideration of the transfer of the
Assets and the other undertakings of TANO hereunder, Buyer shall:
(a) pay the Purchase Price (as hereinafter defined) to TANO as
hereinafter provided, and (b) assume the Assumed Liabilities (as
hereinafter defined) as of the Closing. Except as otherwise
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provided herein, the cash portion of Purchase Price hereunder
shall be made by delivery to TANO of (i) one or more certified or
official bank checks (in New Orleans Clearing House funds)
payable to the order of TANO, or (ii) by depositing, by bank wire
transfer, the required amounts (in immediately available funds)
in an account of TANO designated by it for such purpose.
2.3 PURCHASE PRICE. The Purchase Price shall be Two
Million Five Hundred Thousand Dollars ($2,500,000.00), allocable
as set forth on Schedule 2.3 and payable as follows:
(a) $1,500,000 to TANO at the Closing;
(b) $500,000 into an escrow at the Closing,
on the terms and conditions set forth in
the escrow agreement attached hereto as
Exhibit 1 ("Escrow"); and
(c) $500,000 promissory note in the form of
Exhibit 2 (the "Note")
2.4 PURCHASE PRICE ADJUSTMENT. The Purchase Price shall be
subject to adjustment after the Closing Date, as follows:
(a) As promptly as possible following the
Closing Date, Buyer shall cause Ernst &
Young, CPA's to conduct an audit or
reconciliation of the books and records
related to the Assets and Assumed
Liabilities as of the Effective Date.
TANO's independent accountants (TANO's
auditors) shall have the right to
observe the manner in which Ernst &
Young conducts such audit or
reconciliation. Not later than 60 days
after the Closing Date, Buyer shall
cause Ernst & Young, CPA's to deliver an
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audited or reconciled balance sheet as
of the Effective Date to each of the
parties and TANO's Auditors (the
"Closing Balance Sheet"). The Closing
Balance Sheet shall be prepared in the
same manner as TANO's December 31, 1996
balance sheet as it relates to the
Business.
(b) Within 15 days of the delivery of the
Closing Balance Sheet, TANO shall accept
or dispute it. If TANO disputes the
Closing Balance Sheet, it shall specify
in writing the accounts that it is
disputing and state the reasons
supporting its disputation ("Dispute
Notice").
(c) If a Dispute Notice is given, the parties
will attempt to resolve their
differences for no more than two weeks.
If the parties are unable to resolve
their differences within two weeks, the
matter will be submitted to arbitration
as provided in Section 8.4.
(d) Immediately upon the expiration of the
15 day period for giving the Dispute
Notice, if no Dispute Notice is given
(or sooner if the right to give the
Dispute Notice is waived by TANO), or
immediately upon resolution of any
disputes, if any (the "Escrow
Resolution Date"), the Purchase Price
shall be adjusted, as follows:
(i) If the Net Asset Value of the
Business (as such term is
defined below) on the
Effective Date, as reflected
on the Closing Balance Sheet
(as modified by resolutions of
disputes, if any) is less than
$971,000, the deficiency shall
be paid first by offset to the
Note, then out of the Escrow
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to Buyer, and then, if the
deficiency is in excess of the
Note and the Escrow, by wire
transfer within ten (10) days
from TANO to Buyer, and the
remaining funds in the Escrow,
if any, shall be distributed
to TANO. If the Net Asset
Value is in excess of $971,000,
Buyer shall, within nine days
after the Escrow Resolution
Date, pay such amount into the
Escrow by wire transfer of
immediately available funds,
and all funds then held in
Escrow shall immediately
thereafter be paid out to
TANO.
(ii) The term "Net Asset Value of
the Business" is defined as
the excess of the Assets over
the Assumed Liabilities, as
shown in the Closing Balance
Sheet (as modified by
resolution of disputes, if
any).
(e) In addition to the audit or
reconciliation, Ernst & Young shall
prepare an accounting between the
Effective Date and the Closing Date
which will determine (i) the Assets
converted to Cash during that period,
which TANO will owe Buyer, and (ii) the
cash converted to Assets or used to pay
Assumed Liabilities, which Buyer will
owe TANO.
(f) The fees and disbursements of Ernst &
Young incurred in the preparation of the
Closing Balance Sheet shall be paid by
Buyer.
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ARTICLE III
ASSUMPTION OF LIABILITIES
3.1 ASSUMPTION OF LIABILITIES. On the terms and subject to
the conditions hereof, Buyer will assume on the Closing Date the
liabilities and obligations of TANO that existed or accrued on
and after the Closing Date relating to the Business listed on
Schedule 3.1.1 (hereinafter collectively, the "Assumed
Liabilities"), but Buyer does not assume any liability or
obligation for those liabilities or obligations listed on
Schedule 3.1.2 (the "Excluded Liabilities").
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
4.1 REPRESENTATIONS AND WARRANTIES OF TANO. In order to
induce Buyer and Westwood to enter into this Agreement, TANO
hereby makes the following representations and warranties to
Buyer and Westwood:
4.1.1 ORGANIZATION OF TANO. TANO is a corporation
duly organized, validly existing and in good standing under the
laws of Louisiana, all of the outstanding shares of TANO are
owned by James J. Reiss, Jr., and TANO has no subsidiaries;
4.1.2 AUTHORITY TO OWN, LEASE AND SELL PROPERTY. TANO
has all necessary corporate power and authority to own or to
lease the properties it purports to own or lease and which are
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used in the Business, and to carry on the Business as it is now
being conducted, and has the right, corporate power and authority
to assign, license and transfer the Assets, except to the extent
the same are Nonassignable Contracts, in accordance with the
terms and conditions hereof and has no information which would
indicate that Buyer is not a qualified transferee of the Assets;
4.1.3 QUALIFICATION. TANO is duly qualified to do
business and is in good standing in all jurisdictions in the
United States which the failure to qualify could have a material
adverse effect upon the Business, which jurisdictions include
those listed on Schedule 4.1.3;
4.1.4 NO GOVERNMENTAL CONSENTS. No governmental
consents, approvals, orders or authorizations are required for
the execution and delivery of this Agreement by TANO, but no
representation is made concerning the authority of Buyer or
Westwood to conduct the Business;
4.1.5 AUTHORITY TO EXECUTE, DELIVER AND PERFORM THIS
AGREEMENT. TANO has all necessary corporate power and authority
to execute, deliver and perform this Agreement. All corporate
and other proceedings of TANO, including, without limitation, all
requisite actions by its Board of Directors and shareholder
required to authorize the legal and valid execution, delivery and
performance of this Agreement and the consummation of all of the
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transactions contemplated by this Agreement, have been, or will
be on or before the Closing Date, duly and validly completed.
This Agreement has been duly and validly authorized, executed and
delivered by, and is the valid and binding obligation of TANO;
4.1.6 NO VIOLATION OF LAWS, AGREEMENTS; NO LIENS. The
execution and delivery of this Agreement by TANO and the
consummation of the transactions contemplated hereby (i) are not
prohibited by, and do not violate any provision and will not
result in the breach of, or accelerate or permit the acceleration
of the performance required by the terms of (A) any applicable
law, rule, regulation, judgment, decree, order or other
requirement of (x) the United States or of (y) any State of the
United States or of (z) any court, authority, department,
commission, board, bureau, agency or instrumentality of either
(x) or (y), (B) its Articles of Incorporation and By-Laws and any
amendments to either of them, or (C) any material contract,
indenture, agreement or commitment (other than Nonassignable
Contracts) relating directly to the Business and to which TANO,
or any affiliate thereof, is a party or is bound, the breach of
which would reasonably be anticipated to be adverse and material
to the operations of TANO, with respect to the Business, and
(ii) have not resulted and will not result in the creation or
imposition of any lien, encroachment, easement, encumbrance,
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mortgage, hypothecation, equity, charge, restriction, possibility
of reversion or other similar conflicting ownership or security
interest against the Assets or the Business in favor of any third
person or entity;
4.1.7 EXHIBITS AND SCHEDULES. The exhibits and
schedules to this Agreement are true, correct and complete in all
material respects;
4.1.8 INSURANCE. TANO has received no notice of
cancellation or nonrenewal with respect to any insurance policies
or binders of insurance or programs of self-insurance which
relate to the Business and which are maintained by TANO with
respect to the Assets;
4.1.9 OPERATIONS IN THE ORDINARY COURSE OF BUSINESS.
Since the 1st day of January, 1997, TANO has conducted the
Business only in the ordinary course, and since that date, TANO
has not:
(a) disposed of any Assets having a value of
greater than Twenty-five Thousand
($25,000) Dollars for any single asset,
or greater than One Hundred Thousand
($100,000) Dollars in the aggregate;
(b) materially increased the rate of
compensation or benefits of any of the
employees or agent of TANO; or
(c) suffered any material and adverse damage
relating to the Assets as the result of
fire, explosion, earthquakes, flood,
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drought, accident, act of God, riot or
activity of armed forces or of the
public enemy, requisition or taking of
property by any governmental authority
or any other casualty or event (whether
or not covered by insurance).
4.1.10 TAX MATTERS. All tax returns required to be
filed by TANO on or before the Closing Date in respect of the
Business and the Assets have been, or will be, timely filed, and
all taxes indicated as due and payable on such returns have been
or will be paid by TANO when required by law. All assessments,
fees and other charges due prior to the Closing Date have been or
will be paid by TANO when due;
4.1.11 NO LITIGATION. Except as described on
Schedule 4.1.11 and except for claims for money damages the
uninsured portion of which is less than Five Thousand Dollars
($5,000) with respect to any single claim (which claims for money
damages shall not exceed Twenty-Five Thousand Dollars [$25,000]
in the aggregate), as of the date of this Agreement (i) there is
no legal action or other proceeding or any investigation or
inquiry pending or threatened against or affecting TANO (before
any court, agency, arbitrator or otherwise) with respect to the
Business which may reasonably be expected to have a material and
adverse effect upon the Business or the Assets; (ii) TANO is not
subject to any judgment, decree or order entered in any lawsuit
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or proceeding brought against it that may reasonably be expected
to adversely affect the Business in any material respect, nor has
any such action, proceeding, investigation or inquiry been
pending at any time within two (2) years of the date of this
Agreement; and (iii) TANO is not aware of any facts or
circumstances that could give rise to any of the foregoing;
4.1.12 COMPLIANCE WITH LAW; COURT AND GOVERNMENTAL
ORDERS. Except for such items listed or described on
Schedule 4.1.12:
(a) TANO has complied with each, and is not
in violation of any, law, ordinance, or
governmental rule or regulation to which
the Business is subject, the violation
of or failure to comply with would
reasonably be anticipated to have a
material adverse effect on the Business
or the Assets;
(b) TANO has not failed to obtain any, and
it currently holds and maintains all,
material qualifications, licenses,
permits or other governmental
authorizations necessary to the conduct
of the Business; and
(c) TANO has complied with each and is not
in violation of or in default with
respect to any judgment, order, writ,
injunction or decree of any court or of
any governmental official department,
commission, authority, board, bureau,
agency or other instrumentality to
which TANO, with respect to the
Business, or the Business is subject and
which adversely affects or relates to the
Business.
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4.1.13 TITLE TO THE ASSETS. TANO has good title, not
suggestive of litigation, to all Assets transferred hereunder,
free and clear of all liens other than the encumbrances to secure
the debt to the Whitney National Bank and other than liens for
taxes, assessments and other governmental charges and other
inchoate liens which are not due and payable, or which may
thereafter be paid without penalty, or the validity of which
shall concurrently be contested in good faith, and which do not
exceed Five Thousand Dollars ($5,000) as to any single lien or
Twenty Thousand Dollars ($20,000) in the aggregate;
4.1.14 CONDITION OF FIXED AND TANGIBLE ASSETS. No
representation or warranty is made as to the fixed and tangible
assets being transferred hereunder;
4.1.15 BROKERS AND FINDERS. TANO has not taken any
action that, directly or indirectly, would obligate Buyer or
Westwood to anyone acting as broker, finder, financial advisor or
in any similar capacity in connection with this Agreement or any
of the transactions contemplated hereby;
4.1.16 THIRD-PARTY OPTIONS. There are no existing
agreements, options, commitments or rights with, to or in any
third party to acquire any of the properties, assets or rights
included in the Business or any interest therein, except for
those entered into in the ordinary course of business;
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4.1.17 UNION PETITIONS FOR RECOGNITION. There are no
pending petitions for recognition of a labor union or association
as the exclusive bargaining agent for any of TANO's employees.
No such petitions have been pending at any time within two (2)
years prior to the date of this Agreement, and there has not been
any organizing effort by any union or other group seeking to
represent any of TANO's employees as their exclusive bargaining
agent at any time within two (2) years of the date of this
Agreement. There are no strikes, work stoppages or other
material labor troubles now pending or threatened against TANO
with respect to the Business, nor have there been any such
strikes, work stoppages or other material labor troubles at any
time within two (2) years preceding the date of this Agreement;
4.1.18 LIST OF EMPLOYEE PLANS AND POLICIES. Set forth
on Schedule 4.1.18 hereto is a list of all employee plans and
policies maintained for the benefit of any employee of TANO.
TANO has delivered to Buyer and Westwood true, correct and
complete copies of all employee plans and policies, or in the
case of any unwritten employee plans and policies, true, correct
and complete descriptions thereof, and all trust agreements or
funding agreements, including insurance contracts, all amendments
thereto and, with respect to any plans or plan amendments, all
determination letters issued by the Internal Revenue Service
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after September 1, 1974, all notices of intent to terminate and
the most recent of each of the following where applicable:
employee census data, annual reports, summary plan descriptions,
summaries of material modifications and summary annual reports
(collectively, the "Plans"). As of the date hereof, other than
claims for benefits submitted by participants or beneficiaries in
the normal course, there is no request for documents, litigation,
legal action, suit, investigation, claim, counterclaim or
proceeding pending or threatened against or affecting the Plans;
4.1.19 ABSENCE OF UNDISCLOSED LIABILITY. Except as
set forth on Schedule 4.1.19 hereto or as shall be reflected on
the Closing Balance Sheet, TANO has no obligations or liabilities
(whether accrued, absolute, contingent, unliquidated or
otherwise, whether or not known to TANO, whether due or to become
due and regardless of when asserted) which could be asserted
against the assets to be acquired by Buyer or which could, with
the passage of time or otherwise, become a lien against the
assets to be acquired by Buyer herein.
4.1.20 INTELLECTUAL PROPERTY RIGHTS.
(a) The intellectual property rights
comprise all of the intellectual
property rights necessary for the
operation of business of TANO as
currently conducted or as currently
proposed to be conducted.
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Schedule 4.1.20 sets forth a complete
list of all:
(i) patent or registered
intellectual property rights
and pending patent applications
or other applications for
registrations of intellectual
property rights owned or filed
by or on behalf of TANO;
(ii) all trade names and material,
unregistered trademarks and
service marks owned or used by
TANO; and
(iii) all licenses or similar
agreements or arrangements for
the intellectual property
rights to which TANO is a
party, either as licensee or
licensor.
(b) Except as set forth on Schedule 4.1.20
hereto:
(i) TANO owns and possesses all
right, title and interest in
and to, or has a valid and
enforceable license to use,
the intellectual property
rights necessary for the
operation of business as
currently conducted or as
currently proposed to be
conducted;
(ii) no claim by any third party
contesting the validity,
enforceability, use or
ownership of any of the
intellectual property rights
has been made, is currently
outstanding or, to the
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knowledge of TANO, is
threatened;
(iii) to the knowledge of TANO, no
loss or expiration of any
intellectual property right
which loss or expiration might
have a material adverse effect
on TANO is threatened, pending
or anticipated by TANO;
(iv) TANO has not received any
notices of and has no
knowledge of any infringement
or misappropriation by any
third party with respect to
the intellectual property
rights; and
(v) to TANO's knowledge, TANO has
not infringed or
misappropriated any
intellectual property rights
of any third parties.
(c) To TANO's knowledge, the transactions
contemplated by this Agreement will have
no material adverse effect on TANO's
right, title and interest in and to the
intellectual property rights.
4.1.21 BULK SALES LAW INAPPLICABLE. The sale of the
Assets as proposed in this Agreement, upon closing, will not be
in conflict with or be affected by bulk sales or any similar laws
of the State of Louisiana. Based on all circumstances known to
TANO, the assets herein are being sold for a fair and reasonable
equivalent value under present market conditions. No notices or
other filing are required to be made pursuant to bulk sales or
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any similar laws of Louisiana to transfer good and marketable
title to Buyer, free and clear from any claims of any creditor or
third person, other than set forth in Section 4.1.13.
4.2 REPRESENTATIONS AND WARRANTIES OF BUYER AND WESTWOOD.
In order to induce TANO to enter into this Agreement, Buyer and
Westwood hereby make the following representations and warranties
to TANO:
4.2.1 ORGANIZATION OF BUYER. Buyer is a corporation
duly organized, validly existing and in good standing under the
laws of Louisiana, with all requisite power and authority to own,
hold or lease the rights, properties and assets it will acquire,
hold or lease pursuant to the transactions contemplated by this
Agreement, and to execute, deliver and perform this Agreement and
other documents to be executed by Buyer in connection with this
transaction;
4.2.2 ORGANIZATION OF WESTWOOD. Westwood is a
corporation duly organized, validly existing and in good standing
under the laws of Nevada, with its principal place of business in
Tulsa, Oklahoma, with all requisite power and authority to own,
hold or lease the rights, properties and assets it will acquire,
hold or lease pursuant to the transactions contemplated by this
Agreement, and to execute, deliver and perform this Agreement and
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other documents to be executed by Westwood in connection with
this transaction;
4.2.3 AUTHORITY TO EXECUTE, DELIVER AND PERFORM THIS
AGREEMENT. All proceedings and action by Buyer and Westwood
required to authorize the legal and valid execution, delivery and
performance of this Agreement and other documents related to this
transaction and its consummation of all of the transactions
contemplated by this Agreement have been duly taken by Buyer and
Westwood. This Agreement has been duly authorized, executed and
delivered by, and is the valid and binding obligation of Buyer
and Westwood;
4.2.4 NO VIOLATION OF LAWS, AGREEMENTS. The execution
and delivery of this Agreement by Buyer and Westwood and the
consummation by Buyer and Westwood of the transactions
contemplated hereby are not prohibited by, and do not violate any
provision and will not result in the breach of, or accelerate or
permit the acceleration of the performance required by the terms
of, (A) any applicable law, rule, regulation, judgment, decree,
order or other requirement of (x) the United States or of (y) any
State of the United States, or of (z) any court, authority,
department, commission, board, bureau, agency or instrumentality
of (x) or (y), (B) the articles or certificate of incorporation
and bylaws of Buyer or of Westwood, or (C) any material contract,
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indenture, agreement or commitment to which Buyer or Westwood is
a party or bound or to which any of Buyer's or Westwood's
properties are subject;
4.2.5 NO GOVERNMENTAL CONSENTS. No governmental
consents, approvals, orders or authorizations are required for
the execution, delivery or performance by Buyer or Westwood of
this Agreement, and other documents related to this transaction
and the consummation of the transactions contemplated hereby;
4.2.6 BROKERS AND FINDERS. Neither Buyer nor Westwood
has taken any action that, directly or indirectly, would obligate
TANO to anyone acting as a broker, finder, financial advisor or
in any similar capacity in connection with this Agreement or any
of the transactions contemplated hereby.
4.3 SURVIVAL OF REPRESENTATIONS AND WARRANTIES. All
representations and warranties shall survive the Closing until
the second anniversary of the Closing Date.
ARTICLE V
CONDUCT PRIOR TO CLOSING
5.1 RIGHTS OF INSPECTION. Prior to the Closing, TANO shall
afford to the officers, attorneys, accountants or other
authorized representatives of Buyer and Westwood full and free
access to all of the Assets and books and records of TANO
relating to the Business on reasonable notice during normal
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business hours, in order to afford Buyer and Westwood full
opportunity to make such review, examination and investigation of
TANO as Buyer and Westwood shall desire to make, and Buyer and
Westwood shall be permitted to take extracts from, or to make
copies of, such books and records as may be reasonably necessary.
TANO shall furnish, or cause to be furnished, to Buyer and
Westwood such financial and operating data and other information
regarding TANO or the Business as Buyer or Westwood may
reasonably request, and all such data and information to be held
subject to the agreements as to confidentiality in the Letter of
Intent and the letter of January 19, 1996 incorporated by
reference therein (incorporated herein by reference).
5.2 COOPERATION.
5.2.1 PRESERVATION OF BUSINESS. From and after the
date hereof until the Closing Date, TANO shall use reasonable
efforts to maintain and preserve its business organization intact
and to maintain its relationship with its clients and customers.
TANO will, with prior agreement as to timing and manner, permit
Buyer and Westwood to contact parties to contracts, clients,
customers and employees in cooperation with TANO's personnel.
TANO will cooperate fully with Buyer in Buyer's efforts to employ
its employees and in otherwise making practicable the start-up of
Buyer's operations as a new operator;
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5.2.2 GENERAL REQUIREMENTS. TANO, Buyer and Westwood
shall not voluntarily undertake any course of action inconsistent
with satisfaction of the requirements applicable to it as set
forth in this Agreement, and each shall promptly do all such acts
and take all such measures as may be appropriate to enable it to
perform as early as practicable the obligations herein provided
to be performed by it.
5.3 CONDUCT OF BUSINESS PENDING CLOSING.
5.3.1 BUSINESS IN THE ORDINARY COURSE. TANO hereby
agrees that, unless it receives the prior written consent of
Westwood, from and after the date hereof until the Closing Date,
TANO shall not (i) operate the Business otherwise than in a
manner consistent with past practices; (ii) grant any
compensation increase to any officer or employee of TANO; or
(iii) authorize, recommend or propose any merger, consolidation,
acquisition or disposition of assets outside the ordinary course
of business, material change in capitalization or any comparable
event relating to TANO or the Business;
5.3.2 ENCUMBRANCE AND MAINTENANCE OF ASSETS; INCURRING
LIABILITIES. TANO will not from and after the date hereof and
until the Closing Date, without the prior written consent of
Westwood:
(a) except in the ordinary course of
business, incur, assume or agree to any
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debt or other obligation to pay money or
guarantee any debt or obligation to pay
money relating to the Business or TANO;
(b) enter into any lease, contract,
agreement, purchase or sale order or
other commitment relating to the Assets,
the Business or TANO other than in the
ordinary course of business;
(c) modify, amend, cancel or terminate any
of its existing leases, contracts,
agreements, purchase or sale orders or
other commitments relating to the
Business or TANO other than in the
ordinary course of business; or
(d) sell, transfer, dispose of or encumber
Assets relating to the Business or TANO
other than inventories in the ordinary
course of business.
5.3.3 RISK OF LOSS. The risk of loss shall be
assigned as follows:
(a) If prior to the Closing Date, any
material tangible property of TANO to be
transferred to Buyer hereunder or to
which TANO is assigning its rights to
Buyer is destroyed or damaged by fire
or other casualty or is condemned or
taken by any governmental authority or
otherwise acquired pursuant to eminent
domain authority, Buyer may cause TANO,
as soon as practical after an
appropriate investigation has been made
to determine the extent of the loss, to
either (a) pay to Buyer a sum equal to
that portion of the Purchase Price
allocable to the affected property
consistent with the allocated purchase
price(s) indicated on the Exhibits
hereto or (b) reduce the Purchase Price
accordingly; provided, however, in the
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event that such destroyed, damaged or
condemned property shall have a value of
more than One Hundred Thousand ($100,000)
Dollars or the loss of such property
shall, in the judgment of either party,
materially and adversely affect the
operations or prospects of the Business,
Buyer or TANO may, at its sole election,
terminate this Agreement, in which case
Buyer, Westwood and TANO shall have no
further obligations to one another
hereunder or otherwise.
(b) TANO shall be entitled to utilize any
insurance or condemnation proceeds in
satisfying its obligations under
Section 5.3.3(a).
5.4 TERMINATION AND HIRING OF EMPLOYEES. Prior to the
Closing, Buyer shall notify TANO in writing of the TANO employees
that Buyer, in its sole and absolute discretion, desires to
employ (the "Transferred Employees"), and Buyer hereby agrees
that (i) it will employ, effective as of the Closing each such
Transferred Employee on an at-will basis and (ii) it will assume
the obligation to pay all accrued compensation and other benefits
for such Transferred Employees and for those TANO employees not
hired by Buyer, to the extent such obligations are reflected on
the Closing Balance Sheet. TANO shall terminate all TANO
employees other than the Transferred Employees and shall pay
severance to such terminated employees in an amount equal to
1-1/2% of their current yearly salary times the number of years
of service, with a maximum severance payment equal to three
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months' salary and a minimum of one month's salary. In addition,
TANO shall also pay the same severance payments to any
Transferred Employees who may be terminated by Buyer within the
first 180 days following the Closing.
ARTICLE VI
OTHER AGREEMENTS AND COVENANTS
6.1 COOPERATION ON CLAIMS. Buyer, Westwood and TANO shall
cooperate in good faith with one another in connection with the
defense or presentation by either of them of each liability,
worker's compensation, environmental, occupational safety or
other lawsuit or claim arising out of the Business. Such
cooperation shall include, without limitation, (a) supplying,
without expense to the other, such factual and technical
information as it shall possess and the other may reasonably
require in connection with any such defense, (b) making
available, at such times and for such periods as shall not
unreasonably interfere with their duties, at the expense of the
other, persons employed by it to testify as fact or expert
witnesses at trial and on deposition in connection with such
suits, (c) informing the other, to the extent requested, of
events affecting the other arising in connection with such suits,
and (d) providing, at the expense of the other, such information
as may be required by it to respond to discovery proceedings in
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any such lawsuits. Payment of expenses hereunder shall be
limited to reasonable out-of-pocket expenses and reimbursement of
salaries or wages for employee time.
6.2 COVENANT NOT TO COMPETE.
6.2.1 LOUISIANA COVENANT NOT TO COMPETE.
(a) COVENANT. For two years from the Closing
Date, TANO shall not, either directly or indirectly, (a) carry on
or engage in a business similar to the business, or (b) solicit
customers of the Business to do business competitive with the
Business.
(b) GEOGRAPHICAL SCOPE. The covenants and other
provisions contained herein shall cover the activities of TANO in
the parishes of Orleans, Jefferson, Lafayette, St. Tammany,
Calcasieu, East Baton Rouge, West Baton Rouge, Caddo and Bossier,
and all municipalities located in any of them in the State of
Louisiana, so long as Buyer or Westwood is carrying on the
Business therein or any aspect thereof.
6.2.2 COVENANT NOT TO COMPETE OUTSIDE OF LOUISIANA.
For a period of two years from the Closing Date, TANO shall not,
either directly or indirectly, (a) solicit, service, obtain or
accept orders for products or services competitive with those
provided or supplied in the course of the Business, or
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(b) commence, engage in, or participate in any business
competitive with the Business.
6.2.3 REASONABLENESS; REMEDIES; VENUE; SEVERABILITY.
(a) The parties to this Agreement expressly agree
that it is not their intention to violate any public policy or
statutory or common law. The parties intend that the covenants
contained in this Section 6.2 shall be construed as a series of
separate covenants by TANO, one for each parish or municipality
included in the geographical scope described in
Subsection 6.2.1(b), for each jurisdiction outside of Louisiana
for which Section 6.2.2 may apply and for each year designated in
Subsections 6.2.1(a) and 6.2.2. Except for geographic coverage
and duration, each such covenant of TANO shall contain all of the
terms of the covenant contained in this Section 6.2. If, in any
judicial proceeding, a court shall refuse to enforce any other
separate covenants herein described, then such unenforceable
covenant shall be deemed deleted from this Agreement to the
extent necessary to permit the remaining separate covenants to be
enforceable. TANO has considered the nature and extent of the
restrictions upon competition set forth in this Section 6.2 and
agrees that they are reasonable with respect to duration and
geographical scope and in all other respects.
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(b) REMEDIES; INJUNCTIVE RELIEF. Any party
having any rights under any provision of this Section 6.2 shall
be entitled to recover damages by reason for any breach of any
provision of this Section 6.2 and to exercise all other rights
granted by law, which rights may be exercised cumulatively and
not alternatively. TANO recognizes and agrees that the violation
of the provisions of this Section 6.2 cannot be reasonably or
adequately compensated in damages and that, in addition to any
other relief to which any party may be entitled by reason of such
violation, it shall also be entitled to permanent and temporary
injunctive and equitable relief. Without limiting the generality
of the foregoing, TANO specifically acknowledges that a showing
by Buyer or Westwood of any breach of any provision of this
Section 6.2 shall constitute, for the purposes of all judicial
determinations of the issue of injunctive relief, conclusive
proof of all of the elements necessary to entitle that party to
interim and permanent injunctive relief against TANO.
(d) VENUE: GOVERNING LAW. TANO agrees that the
proper venue for any proceedings seeking to enforce the
provisions of this Section 6.2 may lie in the jurisdiction or
jurisdictions where it is alleged that any party is at the time
being damaged by such alleged breach or violation, and that this
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Section 6.2 shall be construed and interpreted in accordance with
the laws of that jurisdiction or those jurisdictions.
(e) SEVERABILITY. Any provision of this
Section 6.2 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.
6.3 CONFIDENTIAL INFORMATION. Disclosure of confidential
information could cause substantial loss to Buyer and Westwood.
Except as may be required by legal process, TANO agrees that it
will not and will direct and require its employees not to, at any
time after the Closing Date, for any purpose, disclose to any
person or entity any confidential information relating to the
Business. Confidential information is information which is of a
unique nature relating to the Business, including, without
limitation, its financial affairs, programs, software, systems,
procedures, manuals, confidential reports, lists of clients and
prospective clients, and sales and marketing methods.
Confidential information shall not include information otherwise
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available to the public by means other than the breach of this
Section 6.3.
6.4 NON-SOLICITATION OF EMPLOYEES. TANO agrees that it
shall not, for a period of two years from the Closing Date,
solicit, divert, take away, interfere with or attempt to induce
any employee or agent of Buyer or Westwood to leave his or her
employ or other relationship with Buyer or Westwood, as the case
may be.
ARTICLE VII
CONDITIONS TO CLOSING
7.1 BUYER'S CONDITIONS. The obligations of Buyer to
consummate the transactions contemplated hereby at the Closing
are subject to the satisfaction (unless waived) of the following
conditions:
(a) TANO shall deliver to Buyer certified
resolutions of its Board of Directors
and certified resolutions of TANO's
shareholder authorizing TANO to
consummate the transactions contemplated
hereunder.
(b) TANO shall deliver to Buyer, dated the
Closing Date and in proper form for
recording when appropriate, the deeds,
bills of sale, assignments, License and
other good and sufficient instruments of
transfer conveying and transferring to
Buyer the entire right, title and
interest in and to the Assets (the
"Transfer Documents"), in form and
substance reasonably satisfactory to
counsel to Buyer.
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(c) Buyer shall receive the opinion of
Milling, Benson, Woodward, Hillyer,
Pierson & Miller, L.L.P., in form and
substance reasonably satisfactory to
Buyer, dated the Closing Date, to the
effect that:
(i) TANO is a corporation duly
organized or qualified, validly
existing and in good standing
under the laws of Louisiana,
and every other state in which
the failure to qualify would
reasonably be anticipated to
have a material adverse effect
on the Business;
(ii) TANO has taken all necessary
corporate action to authorize
this Agreement and the
transactions contemplated
hereby, this Agreement has been
duly authorized, executed and
delivered by TANO, which has
the corporate authority to
perform its obligations
hereunder and the Agreement
constitutes a valid and binding
obligation of TANO enforceable
in accordance with its terms,
except as the same may be
limited by applicable
bankruptcy, reorganization,
insolvency, moratorium or
other similar laws from time
to time in effect affecting
creditors' rights generally,
and except that such counsel
need express no opinion as to
the availability of the
remedies of specific
performance and other equitable
relief under or by virtue of
this Agreement; and
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(iii) the execution, delivery and
performance of this Agreement,
and all other agreements
described herein by TANO and
the consummation of the
transactions contemplated
hereby and thereby, will not
violate or result in the breach
of any of the terms, conditions
or provisions of the
Certificate of Incorporation
or Bylaws or any amendments
thereto of TANO.
As to any matter contained in such opinion which involves
the laws of a jurisdiction other than the United States or the
State of Louisiana, such counsel may rely upon opinions of local
counsel of established reputation reasonably satisfactory to
Buyer, which opinions shall expressly state that they may be
relied upon by such counsel. Such opinion may also expressly
rely as to matters of fact upon certificates furnished by
appropriate officers of TANO or appropriate governmental
officials.
(e) Each of the representations and
warranties of TANO set forth in this
Agreement shall be true and correct in
all material respects both on the date
of this Agreement and on the Closing
Date as though made on and as of each
such date (except with respect to the
effect of transactions permitted by the
provisions of this Agreement), except as
to any matter waived by Buyer.
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(f) There shall have been no material
adverse change to the financial
condition of the Business.
(g) TANO shall have complied with all of its
covenants and agreements herein
contained to be performed by it at or
prior to the time fixed for the Closing.
(h) TANO shall undertake, as set forth in
Section 1.3, to obtain the consents
necessary to assign the agreements listed
or described on Schedule 1.3 hereto.
(i) TANO shall have executed and delivered
the Escrow Agreement in the form of
Exhibit 1.
(j) James J. Reiss, Jr. shall have entered
into a consulting agreement in a form
mutually acceptable to him and the Buyer.
7.2 TANO'S CONDITIONS. The obligation of TANO to
consummate the transactions contemplated hereby at the Closing
are subject to the satisfaction (unless waived) of the following
conditions:
(a) Buyer shall deliver to TANO appropriate
instruments of assumption with respect
to the Assumed Liabilities in form and
substance reasonably satisfactory to
counsel for TANO.
(b) Buyer and Westwood shall deliver to TANO
a certified copy of their respective
articles or certificate of incorporation
and such other corporate documents as
TANO shall request with respect to the
due authorization of Buyer and Westwood
to consummate the transactions
contemplated hereunder.
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(c) Buyer shall deliver, or cause to be
delivered, to TANO at the Closing the
Purchase Price as provided for in
Section 2.3.
(d) Each of the representations and
warranties of Buyer and Westwood set
forth in Section 4.2 shall be true and
correct in all material respects both on
the date of this Agreement and on the
Closing Date as though made on and as of
each such date (except with respect to
the effect of transactions permitted by
the provisions of this Agreement).
(e) Buyer and Westwood shall have complied
with all of its covenants and agreements
herein contained to be performed by it
at or prior to the time fixed for the
Closing.
(f) Buyer shall have executed and delivered
the Escrow Agreement in the form of
Exhibit 1 hereto.
(h) Buyer shall have executed and delivered
the Note in the form of Exhibit 2 hereto.
7.3 FAILURE OF A CONDITION. If any of the conditions set
forth in Section 7.1 or 7.2 has not been met or waived on the
date fixed for the Closing hereunder, the party whose obligations
are subject to such condition may, at its sole option,
(a) terminate this Agreement, (b) extend the date for the Closing
for up to thirty (30) days (during which period the parties shall
use their best efforts to cause all such conditions to be
satisfied), or (c) proceed to Closing upon waiving any rights
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hereunder with respect to the other party hereunder or as a
matter of law, including, but not limited to, the right of
specific performance as to any such condition, the satisfaction
of which is within the control of the other party. If this
Agreement is terminated pursuant to this Section, neither party
shall have any rights nor obligations to the other hereunder or
otherwise.
ARTICLE VIII
INDEMNIFICATION
8.1 INDEMNIFICATION BY TANO. From and after the Closing
Date, but subject to the conditions and limitations set forth in
this Agreement, TANO shall indemnify and save Buyer and Westwood
harmless from and against any and all loss, cost, damage or
expense (including reasonable attorneys' fees) whatsoever
resulting from or arising out of (i) any breach of any
representation or warranty of TANO, (ii) all federal, state,
municipal or other taxes or other governmental charges, together
with any interest, penalties or additions that relate to such
amounts, levied or imposed with respect to all tax returns or tax
information returns required to be filed by TANO for the period
before the Closing Date, (iii) any breach of any covenant or
obligation of TANO contained herein, (iv) any actual or alleged
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liability or obligation arising directly or indirectly out of the
Excluded Assets or the Excluded Liabilities.
8.2 INDEMNIFICATION BY BUYER. From and after the Closing
Date, but subject to the conditions and limitations set forth in
this Agreement, Buyer shall defend, indemnify and save TANO
harmless from and against any and all loss, cost, damage or
expense (including reasonable attorneys' fees) whatsoever
resulting from or arising out of (i) any breach of any warranty
or representation of Buyer or Westwood; (ii) any breach of any
covenant or obligation of Buyer or Westwood contained herein,
(iii) failure of Buyer or Westwood to pay or perform Assumed
Liabilities, and (iv) the conduct of the Business after the
Closing Date (including obligations to TANO employees whether or
not hired by Buyer).
8.3 CLAIMS. In the event either Buyer or Westwood, on the
one hand, or TANO, on the other hand (the "Claimant"), desires to
make a claim against the other (the "Indemnitor") under
Section 8.1 or 8.2, the Claimant shall give prompt notice to the
Indemnitor of the institution of any actions, suits or
proceedings and demands at any time instituted against or made
upon Claimant or any state of facts known to Claimant in
connection with which the Claimant would claim indemnification
under Section 8.1 or 8.2 and Claimant shall, at the time of
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giving such notice, if the Indemnitor shall agree that it would
have responsibility to indemnify under such Section 8.1 or 8.2,
give the Indemnitor full authority to defend, adjust, compromise
or settle the action, suit, proceeding or demand of which such
notice shall have been given, in the name of the Claimant or
otherwise as the Indemnitor shall elect; provided, however, that
Claimant may, at its own expense, retain such additional
attorneys as it may deem necessary, which attorneys will be
permitted by Indemnitor and its attorneys to observe and/or
participate in all aspects of the defense of such action.
Indemnitor shall have the right, after consultation with
Claimant, to resolve and settle any such claims or actions which
result only in the payment of money damages by Indemnitor, unless
Claimant determines that such settlement would not be in its best
interests, in which event Claimant may at its own expense defend
such claims or disputes and shall promptly release Indemnitor
from any and all liability with respect thereto in excess of the
amount of any payment which Claimant and Indemnitor reasonably
determine would have been required to be made by Indemnitor in
connection with such settlement.
In the event of any claims under Section 8.1 or 8.2 for
indemnification, the Claimant shall advise the Indemnitor in
writing of the amount and circumstances surrounding said claim.
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With respect to liquidated claims, if within thirty (30) days the
Indemnitor has not contested said claim in writing, the
Indemnitor will pay the full amount thereof in cash within ten
(10) days after the expiration of such period.
8.4 ARBITRATION. Any controversy or claim arising out of
or relating to this Agreement, or any breach hereof, shall be
finally determined by a board of three arbitrators without appeal
under the commercial rules of conciliation and arbitration of the
American Arbitration Association, and the site of the
arbitration, unless the parties agree otherwise, shall be in New
Orleans, Louisiana. The judgment upon the award rendered may be
rendered in any court having jurisdiction thereof, or application
may be made to such court for judicial acceptance of the award
and any order of enforcement, as the case may be.
ARTICLE IX
EXPENSES
9.1 Each party shall bear and pay its own expenses and
taxes incurred in connection with the transactions referred to in
this Agreement.
ARTICLE X
MISCELLANEOUS
10. FURTHER ASSURANCES.
(a) After the Closing Date, TANO shall, from
time to time, at Buyer's request and
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without further cost or expense to
Buyer, prepare, execute and deliver to
Buyer such other instruments of
conveyance and transfer and take such
other action as Buyer may reasonably
request so as more effectively to sell,
transfer, assign and deliver and vest in
Buyer, title to and possession of the
Assets as provided in this Agreement or
otherwise to consummate the transactions
contemplated by this Agreement.
(b) After the Closing, Buyer and Westwood
shall from time to time, at TANO's
request and without further cost or
expense to TANO, prepare, execute and
deliver to TANO, such other instruments
of assumption and security and take such
other action as TANO may reasonably
request so as more effectively to cause
Buyer to assume the Assumed Liabilities
or otherwise to consummate the
transactions contemplated by this
Agreement.
10.3 NOTICES. All notices, requests, consents and other
communications hereunder shall be in writing and shall be deemed
to have been duly given when personally delivered or five (5)
days after being mailed by registered or certified first class
mail, return receipt requested, postage prepaid, and in each case
addressed:
If to TANO, to:
James J. Reiss, Jr.
President
One Shell Square, Suite 3826
New Orleans, LA 70139
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with a copy to:
Charles A. Snyder, Esq.
Milling, Benson, Woodward, Hillyer,
Pierson & Miller, L.L.P.
909 Poydras Street, Suite 2300
New Orleans, LA 70112-1010
If to Buyer or Westwood, to:
Ernest H. McKee, President
Westwood Corporation
Post Office Box 35493
Tulsa, Oklahoma 74153-0493
with a copy to:
C. Raymond Patton, Jr., Esq.
Sneed Lang, P.C.
2300 Williams Center Tower II
Two West Second Street
Tulsa, OK 74103-3136
provided, however, that if any addressee shall have designated a
different address by notice to the other addressees, then to the
last address so designated.
10.4 ASSIGNMENT. This Agreement and the rights and duties
hereunder shall be binding upon and inure to the benefit of the
successors and assigns of each of the parties hereto, but shall
not be assigned or delegated by either party without the prior
written consent of the other.
10.5 WAIVERS. Any waiver by a party hereto of any breach
of or failure to comply with any provision of this Agreement by
another party must be in writing and shall not be construed as,
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or constitute, a continuing waiver of such provision, or a waiver
of any other breach of, or failure to comply with, any other
provision of this Agreement.
10.6 COMPLETE AGREEMENT. Except as set forth in any
contemporaneous written instruments signed by each of the parties
hereto, this Agreement and the Exhibits hereto set forth the
entire understanding of the parties hereto and supersede all
prior agreements, covenants, arrangements, communications,
representations or warranties, whether oral or written, by any
officer, employee or representative of any party.
10.7 GOVERNING LAW. This Agreement shall be construed and
enforced in accordance with, and governed by, the laws of the
State of Louisiana, without giving effect to the principles of
conflicts of laws thereof.
10.8 THIRD PARTIES, AMENDMENT AND TERMINATION. Nothing
herein expressed or implied is intended or shall be construed to
confer upon or give to any person or entity, other than the
parties hereto, any rights or remedies under or by reason of this
Agreement. This Agreement may not be amended or terminated
orally but only by an instrument in writing duly executed by the
parties hereto.
10.9 NO WAIVER. Failure to exercise any power given any
party hereunder or to insist upon strict compliance by any other
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party shall not constitute a waiver of any party's right to
demand exact compliance with the terms hereof.
10.10 SEPARABILITY OF PROVISIONS. Each provision of this
Agreement shall be considered separable and if for any reason any
provision which is not essential to the effectuation of the basic
purpose of this Agreement is determined to be invalid or contrary
to any existing or future law, such invalidity shall not impair
the operation of or affect those provisions of this Agreement
which are valid.
10.11 HEADINGS, PLURALITY AND GENDER. The headings of the
Articles and Sections of this Agreement and of the Exhibits to
this Agreement are inserted for convenience of reference only and
shall not be deemed to constitute a part hereof. Words and
defined terms importing the singular number only, shall include
the plural and vice-versa, and words importing the masculine
gender shall include the feminine gender.
10.12 EXHIBITS AND SCHEDULES. The Exhibits and Schedules
attached hereto and referred to herein are a part of this
Agreement for all purposes. Terms which are defined in this
Agreement shall have the same meanings when used in the Exhibits
and Schedules hereto.
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10.13 COUNTERPARTS. More than one counterpart of this
Agreement may be executed by the parties hereto, and each
executed counterpart shall be deemed an original.
10.14 PUBLICITY. Any public announcements or other
publicity with respect hereto or the transactions contemplated
hereby shall be made only at such time and in such manner as TANO
on the one hand, and Buyer and Westwood on the other hand, shall
mutually agree, except that either party shall be free to make
such public announcements as it shall deem reasonably necessary,
after full consultation with the other, to comply with federal or
state securities or other laws.
ARTICLE XI
GUARANTEE
11.1 GUARANTEE. By executing and delivering this
Agreement, Westwood hereby irrevocably guarantees to TANO and
permitted assignees of TANO hereunder, all liabilities,
obligations, covenants, warranties, representations, undertakings
and agreements of Buyer made hereunder or made hereafter by Buyer
in connection with the transactions contemplated hereby. The
obligations of Westwood, pursuant to this Agreement, are that of
a continuing guarantee and shall be absolute and unconditional
under any and all circumstances. Westwood agrees that the
validity of this guarantee and its obligations hereunder shall in
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no way be terminated, affected or impaired by reason of the
assertion by TANO of any rights or remedies that it may have
under, or with respect to, this Agreement against Buyer, or by
reason of the adjudication in bankruptcy of Buyer or the filing
of a petition for any relief under the Bankruptcy Act by Buyer.
Westwood further covenants that this guarantee shall remain and
continue in full force and effect as to any modification,
extension or renewal of this Agreement. Upon any default of
Buyer under this Agreement, TANO may, at its option, proceed
directly and at once, without notice, against Westwood hereunder
without proceeding against Buyer or any other person.
IN WITNESS WHEREOF, the parties have caused this Agreement
to be executed by their duly authorized officers as of the day
and year first above written.
WESTWOOD/TANO, INC.
By: /s/ Ernest H. McKee
--------------------------------
Its: President
WESTWOOD CORPORATION
By: /s/ Ernest H. McKee
--------------------------------
Its: President
TANO AUTOMATION, INC.
By: /s/ James J. Reiss, Jr.
--------------------------------
Its: President
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