ASSET PURCHASE AGREEMENT BETWEEN EVANS & SUTHERLAND COMPUTER CORP. AND VIDEO DISPLAY CORPORATIONAsset Purchase Agreement |
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Exhibit 10.28
ASSET PURCHASE
AGREEMENT
October 12, 2004
TABLE OF CONTENTS
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ASSET PURCHASE AGREEMENT
THIS ASSET PURCHASE AGREEMENT (the “Agreement”) is made and entered into as of October 11, 2004 by and between VIDEO DISPLAY CORPORATION , a Georgia corporation (the “Buyer”), and EVANS & SUTHERLAND COMPUTER CORP. , a Utah corporation (the “Seller”). The Buyer and the Seller are referred to collectively herein as the “Parties.”
This Agreement contemplates a transaction in which the Buyer will purchase Seller’s cathode ray tube (“CRT”) based projector business and certain of the assets (and assume none of the liabilities) of the Seller used in that business in return for cash and a Supply Agreement as per attached Exhibit A.
Now, therefore, in consideration of the premises and the mutual promises herein made, and in consideration of the representations, warranties, and covenants herein contained, the Parties agree as follows.
1. Definitions .
“ Acquired Assets ” means all right, title, and interest in and to the following assets of the Seller: (a) all the tangible personal property such as all CRT projector machinery, equipment, inventories of raw materials and supplies, manufactured and purchased parts, goods in process and finished goods, furniture, tools, jigs, and dies used exclusively or primarily by the Seller in its CRT- based projector business including, but not limited to such personal property which is specifically enumerated on Schedule 1 attached hereto (b) Intellectual Property, (c) files, documents, correspondence, lists, plats, drawings, and specifications, creative materials, advertising and promotional materials, studies, reports, and other printed or written materials used exclusively in the Seller’s CRT- based projector business, and (d) parts and service customer lists, history and contact information used exclusively in the Seller’s CRT- based projector business; provided, however, anything to the contrary in the foregoing notwithstanding, that the Acquired Assets shall not include (i) the corporate charter, qualifications to conduct business as a foreign corporation, arrangements with registered agents relating to foreign qualifications, taxpayer and other identification numbers, seals, minute books, stock transfer books, blank stock certificates, and other documents relating to the organization, maintenance, and existence of the Seller as a corporation, (ii) any of the rights of the Seller under this Agreement or (iii) any asset of the Seller primarily used in its other businesses, including any asset not specifically set forth above or that is specifically set forth on Schedule 2 attached hereto.
“ Affiliate ” has the meaning set forth in Rule 12b-2 of the regulations promulgated under the Securities Exchange Act.
“ Adverse Consequences ” means all actions, suits, proceedings, hearings, investigations, charges, complaints, claims, demands, injunctions, judgments, orders, decrees, rulings, damages, dues, penalties, fines, costs, amounts paid in settlement, Liabilities, obligations, Taxes, liens, losses, expenses, and fees, including court costs and all reasonable fees and expenses of attorneys and experts.
“ Buyer ” has the meaning set forth in the preface above.
“ Closing ” has the meaning set forth in Section 2(d) below.
“ Closing Date ” has the meaning set forth in Section 2(d) below.
“ COBRA ” means the requirements of Part 6 of Subtitle B of Title I of ERISA and Code Section 4980B and of any similar state law.
“ Code ” means the Internal Revenue Code of 1986, as amended.
“ Disclosure Schedule ” means a schedule or listing of exceptions to the representations made by Seller in Section 3 below or by the Buyer in Section 4 below, and in each case reasonably satisfactory to the party to which such representations and warranties are made.
“ Employee Benefit Plan ” means any “employee benefit plan” (as such term is defined in ERISA Section 3(3)) and any other material employee benefit plan, program or arrangement of any kind.
“ Employee Pension Benefit Plan ” has the meaning set forth in ERISA Section 3(2).
“ Employee Welfare Benefit Plan ” has the meaning set forth in ERISA Section 3(1).
“ Environmental, Health, and Safety Requirements ” shall mean all federal, state, local and foreign statutes, regulations, ordinances and other provisions having the force or effect of law, all judicial and administrative orders and determinations, all contractual obligations and all common law concerning public health and safety, worker health and safety, and pollution or protection of the environment, including without limitation all those relating to the presence, use, production, generation, handling, transportation, treatment, storage, disposal, distribution, labeling, testing, processing, discharge, release, threatened release, control, or cleanup of any hazardous materials, substances or wastes, chemical substances or mixtures, pesticides, pollutants, contaminants, toxic chemicals, petroleum products or byproducts, asbestos, polychlorinated biphenyls, noise or radiation, each as amended and as now or hereafter in effect.
“ ERISA ” means the Employee Retirement Income Security Act of 1974, as amended.
“ ERISA Affiliate ” means each entity that is treated as a single employer with the Seller for purposes of Code Section 414.
“ Estoppel Certificates ” has the meaning set forth in Section 6(a) below.
“ Export Control ” means the U. S. Government Export Control Laws, including the Office of Defense Trade Controls (ODTC) and the International Traffic in Arms Regulations (ITAR)
“ Financial Statement ” has the meaning set forth in Section 3(g) below.
“ GAAP ” means United States Generally Accepted Accounting Principles as in effect from time to time.
“Independent Requests For Spares And/Or Repairs” means any customer request received by Seller for ESCP or TargetView spare parts, and/or related repairs, independent of and not involving a Seller’s System or Warranty Obligations thereunder, or a Seller’s Service Agreement.
“ Intellectual Property ” means the following, (a) the trademarks, service marks, trade dress, logos, trade names, and together with all translations, adaptations, derivations, and combinations thereof used exclusively in the Seller’s CRT- based projector operations and which are specifically set forth on Schedule 3 attached hereto, (b) all copyrightable works, all copyrights, and all applications, registrations, and renewals in connection therewith used exclusively in the Seller’s CRT- based projector operations and which are specifically set forth on Schedule 4 attached hereto, (c) all mask works and all applications, registrations, and renewals in connection therewith used exclusively in the Seller’s CRT- based projector operations, (d) all trade secrets and confidential business information (including ideas, research and development, know-how, formulas, compositions, manufacturing and production processes and techniques, technical data, designs, drawings, specifications, customer and supplier lists, pricing and cost information, and business and marketing plans and proposals) used exclusively in the Seller’s CRT- based projector operations, (e) all computer software (including data and related documentation) used exclusively in the Seller’s CRT- based projector operations and which are specifically set forth on Schedule 5 attached hereto, (f) all other proprietary rights of the Seller used exclusively in the Seller’s CRT- based projector operations, except as specifically set forth on Schedule 6 attached hereto, and (g) all copies and tangible embodiments thereof (in whatever form or medium).
“ Knowledge ” means actual knowledge after reasonable investigation.
“ Liability ” means any liability (whether known or unknown, whether asserted or unasserted, whether absolute or contingent, whether accrued or unaccrued, whether liquidated or unliquidated, and whether due or to become due), including any liability for Taxes.
“ Ordinary Course of Business ” means the ordinary course of business consistent with past custom and practice (including with respect to quantity and frequency).
“ Party ” has the meaning set forth in the preface above.
“ Person ” means an individual, a partnership, a corporation, an association, a joint stock company, a trust, a joint venture, an unincorporated organization, or a governmental entity (or any department, agency, or political subdivision thereof).
“ Purchase Price ” has the meaning set forth in Section 2(c) below.
“ Securities Act ” means the Securities Act of 1933, as amended.
“ Securities Exchange Act ” means the Securities Exchange Act of 1934, as amended.
“ Security Interest ” means any mortgage, pledge, lien, encumbrance, charge, or other security interest, other than (a) mechanic’s, materialmen’s, and similar liens, (b) liens for Taxes not yet due and payable, (c) purchase money liens and liens securing rental payments under capital lease arrangements, and (d) other liens arising in the Ordinary Course of Business and not incurred in connection with the borrowing of money.
“ Service Agreement ” means a contractual agreement between Seller and a customer of Seller for the installation or maintenance of Seller’s systems, software or equipment over a specified period of time. A Service Agreement may require Seller to provide installation, training, examination, parts, repairs, alignment, calibration, testing, updates, software, or any
other goods or services associated with ensuring the operational capability of a supplied product.
“ Subsidiary ” means any corporation with respect to which a specified Person (or a Subsidiary thereof) owns a majority of the common stock or has the power to vote or direct the voting of sufficient securities to elect a majority of the directors.
“ Seller ” has the meaning set forth in the preface above.
“ System” means an image generator and other components designed to create images and/or simulations desired by the end user.
“ Tax ” means any federal, state, local, or foreign income, gross receipts, license, payroll, employment, excise, severance, stamp, occupation, premium, windfall profits, environmental (including taxes under Code Section 59A), customs duties, capital stock, franchise, profits, withholding, social security (or similar), unemployment, disability, real property, personal property, sales, use, transfer, registration, value added, alternative or add-on minimum, estimated, or other tax of any kind whatsoever, including any interest, penalty, or addition thereto, whether disputed or not.
“ Tax Return ” means any return, declaration, report, claim for refund, or information return or statement relating to Taxes, including any schedule or attachment thereto, and including any amendment thereof.
“ Warranty Obligations ” means a contractual agreement or obligation whereby Seller undertakes to repair or replace defective parts or workmanship in any Seller-supplied System.
2. Basic Transaction .
(a) Purchase and Sale of Assets . On and subject to the terms and conditions of this Agreement, the Buyer agrees to purchase and to accept from the Seller, and the Seller agrees to sell, transfer, convey, and deliver to the Buyer, the Acquired Assets at the Closing for the consideration specified below in this Section 2.
(b) No Assumption of Liabilities. On and subject to the terms and conditions of this Agreement, the Buyer neither agrees to assume nor become responsible for any of the Seller’s Liabilities at the Closing.
(c) Purchase Price . The Buyer agrees to pay to the Seller, at the Closing, the Purchase Price by delivering payment by bank wire transfer to an account designated by the Seller in immediately available funds in the amount of Five Million Two Hundred Fifty Thousand Dollars ($5,250,000) and delivery of an executed Supply Agreement in the form as attached as Exhibit A .
(d) The Closing . The closing of the transactions contemplated by this Agreement (the “Closing”) shall take place on or before October 11, 2004 at the offices of Gambrell & Stolz, L.L.P., 3414 Peachtree Road, Suite 1600, Atlanta, Georgia, 30326, commencing at 9:00 a.m. local time or at such other place and at such other date and time as the Parties may mutually agree upon (the “Closing Date”);
(e) Deliveries at the Closing . At the Closing, (i) the Seller will deliver to the Buyer the various certificates, instruments, agreements and documents referred to in Section 6(a) below; (ii) the Buyer will deliver to the Seller the various certificates, instruments, agreements and documents referred to in Section 6(b) below; (iii) the Seller will execute, acknowledge (if appropriate), and deliver to the Buyer (A) assignments (including Intellectual Property transfer and license documents) in the forms attached hereto as Exhibit B (B) such other instruments of sale, transfer, conveyance, and assignment as the Buyer and its counsel reasonably may request; (iv) the Buyer will execute, acknowledge (if appropriate), and deliver to the Seller (A) an assumption in the form attached hereto as Exhibit C ; (B) such other instruments of assumption as the Seller and its counsel reasonably may request; and (v) the Buyer will deliver to the Seller the consideration specified in Section 2(c) above.
(f) Allocation . The Parties agree to allocate the Purchase Price (and all other capitalizable costs) among the Acquired Assets for all purposes (including financial accounting and tax purposes) in accordance with the allocation schedule attached hereto as Exhibit D . Buyer and Seller acknowledge that such allocation shall be binding upon the parties for all applicable federal, state, local and foreign tax purposes. Purchaser and Seller covenant to report gain or loss or cost basis, as the case may be, in a manner consistent with such allocation in all tax returns filed by either of them subsequent to the Closing Date and not to take voluntarily any inconsistent position therewith in any administrative or judicial proceeding relating to such returns. Purchaser and Seller shall exchange mutually acceptable and completed IRS Forms 8594, which they shall use to report the transaction contemplated hereunder to the Internal Revenue Service in accordance with such allocation.
3. Representations and Warranties of the Seller . The Seller represents and warrants to the Buyer that to Seller’s Knowledge, and, except as set forth in the Disclosure Schedule, the statements contained in this Section 3 are correct and complete as of the date of this Agreement and will be correct and complete to the best of Seller’s knowledge, as of the Closing Date. The Seller’s Disclosure Schedule will be arranged in paragraphs corresponding to the lettered and numbered paragraphs contained in this Section 3.
(a) Organization of the Seller The Seller is a corporation duly organized, validly existing, and in good standing under the laws of the State of Utah.
(b) Authorization of Transaction . The Seller has full power and authority (including full corporate power and authority) to execute and deliver this Agreement and to perform its obligations hereunder. Without limiting the generality of the foregoing, the board of directors of the Seller has duly authorized the execution, delivery, and performance of this Agreement by the Seller. This Agreement constitutes the valid and legally binding obligation of the Seller, enforceable in accordance with its terms and conditions.
(c) Noncontravention . Neither the execution and the delivery of this Agreement, nor the consummation of the transactions contemplated hereby (including the assignments and assumptions referred to in Section 2 above), will (i) violate any constitution, statute, regulation, rule, injunction, judgment, order, decree, ruling, charge, or other restriction of any government, governmental agency, or court to which the Seller is subject or any provision of the articles of incorporation or bylaws of the Seller or (ii) conflict with, result in a breach of, constitute a default under, result in the acceleration of, create in any party the right to accelerate, terminate, modify, or cancel, or require any notice under any agreement, contract, lease, license, instrument, or other arrangement to which the Seller is a party or by which it is bound or to which any of its assets is subject (or result in the imposition of any Security Interest upon any of its assets). The
Seller does not need to give any notice to, make any filing with, or obtain any authorization, consent, or approval of any government or governmental agency in order for the Parties to consummate the transactions contemplated by this Agreement (including the assignments and assumptions referred to in Section 2 above).
(d) Brokers’ Fees . The Seller has no Liability or obligation to pay any fees or commissions to any broker, finder, or agent with respect to the transactions contemplated by this Agreement for which the Buyer could become liable or obligated.
(e) Title to Assets . The Seller has good and marketable title to all of the Acquired Assets, free and clear of any Security Interest or restriction on transfer.
(f) Tangible Assets . The Seller owns or leases all machinery, equipment, and other tangible assets, including parts inventory, necessary for the conduct of the Seller’s CRT- based projector businesses as presently conducted and as presently proposed to be conducted. Seller owns some of the raw materials and supplies needed for operation of the CRT-based projector businesses, and contracts for the balance of such materials and supplies. The Seller makes no representation or warranty as to the condition on usability of any tangible asset transferred under this Agreement and each such tangible asset is SOLD AS IS WITHOUT ANY IMPLIED OR EXPRESS WARRANTY FOR A PARTICULAR PURPOSE .
(g) Product Liability . The Seller does not have any Liability to its Knowledge (and to Seller’s Knowledge, there is no reasonable basis for any present or future action, suit, proceeding, hearing, investigation, charge, complaint, claim, or demand against the Seller giving rise to any Liability) arising out of any injury to individuals or property as a result of the ownership, possession, or use of any CRT projector product manufactured, sold, leased, or delivered by the Seller.
(h) Litigation . The Disclosure Schedule sets forth each instance that relates to the Acquired Assets in which the Seller (i) is subject to any outstanding injunction, judgment, order, decree, ruling, or charge or (ii) is a party or is threatened to be made a party to any action, suit, proceeding, hearing, or investigation of, in, or before any court or quasi-judicial or administrative agency of any federal, state, local, or foreign jurisdiction or before any arbitrator.
(i) Product Warranty . To the Seller’s Knowledge, each product manufactured, sold, leased, or delivered by the Seller pursuant to CRT projector business has been in conformity with all applicable contractual commitments and all express and implied warranties, and the Seller has no Knowledge of any existing claim of Liability (and to the Seller’s Knowledge there is no basis for any present or future action, suit, proceeding, hearing, investigation, charge, complaint, claim, or demand against the Seller giving rise to any Liability) for replacement or repair thereof or other damages in connection therewith.
(j) Material Contracts . There exists no term or condition in any material contract that relates to the Acquired Assets that would in any way or matter adversely affect Buyer’s utilization of the Acquired Assets post Closing.
(k) Inventory The inventory portion of the Acquired Assets consists of raw materials and supplies, manufactured and purchased parts, goods in process, and finished goods, all of which is merchantable and fit for the purpose for which it was procured or manufactured, and none of which is, obsolete, damaged, or defective.
(l) Intellectual Property . The Seller owns or has the right to use pursuant to license, sublicense, agreement, or permission all Intellectual Property being sold to Buyer as part of the Acquired Assets. Each item of Intellectual Property owned or used by the Seller immediately prior to the Closing hereunder will be owned or available for use by the Buyer on identical terms and conditions immediately subsequent to the Closing hereunder.
(m) Legal Compliance . To the Seller’s Knowledge, the Seller has complied with all applicable laws (including rules, regulations, codes, plans, injunctions, judgments, orders, decrees, rulings, and charges thereunder) of federal, state, local, and foreign governments (and all agencies thereof), as they may relate directly to the Acquired Assets, and to Seller’s Knowledge no action, suit, proceeding, hearing, investigation, charge, complaint, claim, demand, or notice has been filed or commenced against the Seller alleging any failure so to comply.
(n) Reformatted Financial Information . To the Seller’s Knowledge, the reformatted financial information concerning the Seller’s CRT- based projector business (as referenced in Section 4(e) hereof) provided to Buyer at Buyer’s request is substantially accurate.
(o) Disclosure . To the Knowledge of Seller, the representations and warranties contained in this Section 3 do not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements and information contained in this Section 3 not misleading.
4. Representations and Warranties of the Buyer . The Buyer represents and warrants to the Seller that the statements contained in this Section 4 are correct and complete as of the date of this Agreement and will be correct and complete as of the Closing Date (as though made then and as though the Closing Date were substituted for the date of this Agreement throughout this Section 4), except as set forth in the Disclosure Schedule. The Buyer’s Disclosure Schedule will be arranged in paragraphs corresponding to the lettered and numbered paragraphs contained in this Section 4.
(a) Organization of the Buyer . The Buyer is a corporation duly organized, validly existing, and in good standing under the laws of the jurisdiction of its incorporation.
(b) Authorization of Transaction . The Buyer has full power and authority (including full corporate power and authority) to execute and deliver this Agreement and to perform its obligations hereunder. Without limiting the generality of the foregoing, the board of directors of the Buyer has duly authorized the execution, delivery, and performance of this Agreement by the Buyer. This Agreement constitutes the valid and legally binding obligation of the Buyer, enforceable in accordance with its terms and conditions.
(c) Noncontravention . Neither the execution and the delivery of this Agreement, nor the consummation of the transactions contemplated hereby (including the assignments and assumptions referred to in Section 2 above), will (i) violate any constitution, statute, regulation, rule, injunction, judgment, order, decree, ruling, charge, or other restriction of any government, governmental agency, or court to which the Buyer is subject or any provision of its charter or bylaws or (ii) conflict with, result in a breach of, constitute a default under, result in the acceleration of, create in any party the right to accelerate, terminate, modify, or cancel, or require any notice under any agreement, contract, lease, license, instrument, or other arrangement to which the Buyer is a party or by which it is bound or to which any of its assets is subject. The Buyer does not need to give any notice to, make any filing with, or obtain any
authorization, consent, or approval of any government or governmental agency in order for the Parties to consummate the transactions contemplated by this Agreement (including the assignments and assumptions referred to in Section 2 above).
(d) Brokers’ Fees. The Buyer has no Liability or obligation to pay any fees or commissions to any broker, finder, or agent with respect to the transactions contemplated by this Agreement for which the Seller could become liable or obligated.
(e) Risk of Business. The Buyer has a conducted what it believes to be an appropriate “due diligence” investigation of the Seller and the Seller’s CRT- based projector business, and has satisfactorily received from Seller all information that Buyer deems material and necessary to an independent and informed valuation by Buyer of the Acquired Assets, and for Buyer otherwise to make a decision to enter into this Agreement. The Buyer has been informed by the Seller that annual total revenues of Seller have been declining and absolutely no representations, assurances and/or guarantees have been provided for the growth or performance of financial or business results from the utilization of the Acquired Assets or otherwise. Buyer and Seller both acknowledge that they have made best efforts to provide, review, and conduct their own analysis of data related to the assets and business being transacted in this contract, and that the valuation of the Acquired Assets is based on these best efforts as of the date of this contract. Buyer acknowledges that much of the aforementioned Seller’s data required reformatting by Seller to meet Buyer’s requests for information, and that Seller undertook substantial efforts to improve the accuracy of the data over the course of the Parties’ negotiations.
(f) Disclosure . To the Knowledge of Buyer, the representations and warranties contained in this Section 4 do not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements and information contained in this Section 4 not misleading.
5. Pre-Closing Covenants . The Parties agree as follows with respect to the period between the execution of this Agreement and the Closing.
(a) General . Each of the Parties will use its reasonable best efforts to take all action and to do all things necessary, proper, or advisable in order to consummate and make effective the transactions contemplated by this Agreement (including satisfaction, but not waiver, of the closing conditions set forth in Section 6 below).
(b) Notices and Consents The Seller will give any notices to third parties, and the Seller will use its best efforts to obtain any third party consents, that the Buyer may reasonably request in connection with the matters referred to in Section 3(c) above. Each of the Parties will give any notices to, make any filings with, and use its reasonable best efforts to obtain any authorizations, consents, and approvals of governments and governmental agencies in connection with the matters referred to in Section 3(c) and Section 4(c) above.
(c) Operation of Business . The Seller will not engage in any practice, take any action, or enter into any transaction in the CRT- based projector field or with respect to its CRT- based projector business outside the Ordinary Course of Business, except as envisioned by this Agreement.
(d) Preservation of Business . The Seller will undertake best efforts to keep its business and properties substantially intact, including its present operations, physical facilities, working conditions, and relationships with lessors, licensors, suppliers, customers, and employees.
(e) Full Access . The Seller will permit representatives of the Buyer to have full access at all reasonable times, and in a manner so as not to interfere with the normal business operations of the Seller, to all premises, properties, personnel, books, records, contracts, and documents of or pertaining to the Acquired Assets.
(f) Publicity . Prior to the Closing, any written news releases by the Buyer or the Seller pertaining to this Agreement or the sale contemplated by the Agreement shall be reviewed and approved by the other Party hereto prior to release.
(g) Confidentiality . Buyer shall hold in strict confidence, all documents and information obtained with respect to Seller (“Confidential Information”). Buyer shall not permit any Confidential Information to be utilized or to be disclosed or conveyed to any other person or entity other than its legal and accounting representatives in furtherance of this Agreement. This Section 5(g) shall terminate if and when the Closing occurs in accordance with Section 1 of this Agreement, or within one year of the date of execution of this Agreement, whichever occurs first.
6. Conditions to Obligation to Close .
(a) Conditions to Obligation of the Buyer . The obligation of the Buyer to consummate the transactions to be performed by it in connection with the Closing is subject to satisfaction of the following conditions:
(i) the representations and warranties set forth in Section 3 above shall be true and correct in all material respects at and as of the Closing Date;
(ii) the Seller shall have performed and complied with all of its covenants hereunder in all material respects through the Closing;
(iii) the Seller shall have procured all of the third party consents specified in Section 5(b) above;
(iv) no action, suit, or proceeding shall be pending or threatened before any court or quasi-judicial or administrative agency of any federal, state, local, or foreign jurisdiction or before any arbitrator wherein an unfavorable injunction, judgment, order, decree, ruling, or charge would (A) prevent consummation of any of the transactions contemplated by this Agreement, (B) cause any of the transactions contemplated by this Agreement to be rescinded following consummation, or (C) affect adversely the right of the Buyer to own the Acquired Assets and to operate the former businesses of the Seller (and no such injunction, judgment, order, decree, ruling, or charge shall be in effect);
(v) the Buyer shall have received all other authorizations, consents, and approvals of governments and governmental agencies referred to in Section 5 (b) above;
(vi) the Seller shall have delivered to the Buyer a certificate to the effect that each of the conditions specified above in Section 6(a)(i)-(v) is satisfied in all respects.
(vii) the Seller and Buyer shall have entered into side agreements in form and substance as set forth in Exhibits A through E attached hereto and the same shall be in full force and effect;
(viii) all actions to be taken by the Seller in connection with consummation of the transactions contemplated hereby and all certificates, opinions, instruments, and other documents required to effect the transactions contemplated hereby will be reasonably satisfactory in form and substance to the Buyer and its counsel.
(ix) Seller agrees with Buyer that the inventory to be transferred to the Buyer at the Closing date shall consist of no less than One Million Ninety-One Thousand Dollars ($1,091,000) of ESCP related inventory (of which no more than $0.00 of such inventory shall be considered, obsolete, damaged or defective) and no less than One Million Three Hundred Fifteen Thousand Dollars ($1,315,000) of Targetview related inventory (of which no more than Eight Hundred Forty-Eight Thousand Dollars ($848,000) of such inventory shall be considered, obsolete, damaged or defective).
The Buyer may waive any condition specified in this Section 6(a) if it executes a writing so stating at or prior to the Closing.
(b) Conditions to Obligation of the Seller The obligation of the Seller to consummate the transactions to be performed by it in connection with the Closing is subject to satisfaction of the following conditions:
(i) the representations and warranties set forth in Section 4 above shall be true and correct in all material respects at and as of the Closing Date;
(ii) the Buyer shall have performed and complied with all of its covenants hereunder in all material respects through the Closing;
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