BIOSPHERICS INCORPORATED
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EXHIBIT 10.7
ASSET PURCHASE AGREEMENT
This Asset Purchase Agreement is dated February 27, 1996 (hereinafter
referred to as the "Agreement") by and between ManTech Environmental
Corporation, a Virginia corporation ("Buyer") and Biospherics Incorporated, a
Delaware corporation ("Seller"). Buyer and Seller are sometimes referred to
individually as a "Party" and collectively as the "Parties."
1. DEFINITIONS. For all purposes of this Agreement, capitalized terms
shall have the meanings set forth in this SECTION 1 unless otherwise expressly
provided.
"ASSETS" shall have the meaning attributed thereto in SECTION 2.1 hereof.
"BELTSVILLE MASTER LEASE" shall have the meaning attributed thereto in
SECTION 6.1(c) hereof.
"BELTSVILLE SUBLEASE" shall have the meaning attributed thereto in SECTION
6.1(c) hereof.
"BELTSVILLE OFFICE SPACE" shall have the meaning attributed thereto in
SECTION 6.1(c) hereof.
"BUSINESS" means Seller's Environmental & Laboratory Services Division.
"BUYER INDEMNIFIED PERSONS" means Buyer and its affiliates, employees,
representatives, agents, officers and directors.
"CMHA CONTRACT" means the Cuyahoga Metropolitan Housing Authority contract
for which Seller has made a bid.
"CLAIMS" means all demands, claims, actions or causes of action,
assessments, losses, damages (including, without limitation, diminution in
value), Liabilities, costs and expenses, including, without limitation,
interest, penalties and attorneys' fees and disbursements, other than
Environmental Claims.
"CLEVELAND OFFICE LEASE" shall have the meaning attributed thereto in
SECTION 2.2 hereof.
"CLOSING" shall have the meaning attributed thereto in SECTION 15.1 hereof.
"CLOSING DATE" shall have the meaning attributed thereto in SECTION 15.1
hereof.
"CLOSING DATE FINANCIAL SCHEDULE" shall have the meaning attributed thereto
in SECTION 2.3(b)(ii) hereof.
"CODE" means the Internal Revenue Code of 1986, as amended, and all Laws
promulgated pursuant thereto or in connection therewith.
"CONFIDENTIALITY AGREEMENT" shall have the meaning attributed thereto in
SECTION 7 hereof.
"DEFERRED OPERATIONAL RECEIVABLES" means those Operational Receivables
relating to Xxxxxxx Xxxxxxx Xxxxx (in the amount of $68,740), CMHA (in the
amount of $211,641) in the event the CMHA Contract is awarded to Seller and the
assets relating to the Business' operations in Cleveland, Ohio are purchased by
Buyer pursuant to the provisions of this Agreement, and all unpaid invoices for
under $1,000.
"ENCUMBRANCE" means any mortgage, lien, pledge, encumbrance, security
interest, deed of trust, option, encroachment, reservation, order, decree,
judgment, condition, restriction, charge or claim of any kind.
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"ENVIRONMENTAL CLAIM" means any claim, action, cause of action, study,
investigation, notice, demand, suit, proceeding, hearing, losses, damages
(including without limitation, diminution in value), Liabilities, costs and
expenses, including, without limitation, interest, penalties and attorneys' fees
and disbursements (written or oral) made by any person or entity alleging or
related to potential or actual liability (including, without limitation,
potential liability for investigatory costs, cleanup costs, governmental
response costs, natural resources damages, property damages, personal injuries,
or penalties) arising out of, based on or related to the manufacture,
processing, analysis, distribution, use, treatment, storage, disposal,
transport, or handling, or the emission, discharge, presence, release, or
threatened release into the environment, of any Hazardous Material at any
location, whether or not owned or operated by Seller and any other circumstances
forming the basis of any violation, or alleged violation, of any Environmental
Law.
"ENVIRONMENTAL LAWS" shall mean any applicable federal, state or local
statute, regulation or ordinance, whether currently existing or hereinafter
promulgated, relating to Hazardous Materials, drinking water, ground water,
landfills, open dumps, storage tanks, underground storage tanks, solid waste,
waste water, storm water run-off, waste emissions, or xxxxx. Without limiting
the generality of the foregoing, the term shall encompass each of the following
statutes, as amended as of the date hereof, and all regulations promulgated
thereunder as of the date hereof: the Comprehensive Environmental Response,
Compensation and Liability Act of 1980 (Superfund or CERCLA) (codified in
scattered sections of 26 U.S.C.; 33 U.S.C.; 42 U.S.C. and 42 U.S.C. Section 9601
et seq.), the Clean Water Act of 1977 (33 U.S.C. Section 1251 et seq.), the
Clean Air Act (42 U.S.C. Section 7401 et seq.), the Resource Conservation and
Recovery Act of 1975 (the Solid Waste Disposal Act or RCRA) (42 U.S.C. Section
6901 et seq.), the Safe Drinking Water Act (21 U.S.C. Section 349; 42 U.S.C.
Sections 201 and 300f through 300j-9), and the Toxic Substances Control Act (15
U.S.C. Section 2601 et seq.); and the Hazardous Materials Transportation Act, as
amended (49 U.S.C. Sections 1801-1812).
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended, and all Laws promulgated pursuant thereto or in connection therewith.
"HAZARDOUS MATERIALS" shall mean all pesticides, pollutants, contaminants,
chemicals, gasoline, petroleum products, asbestos, radioactive materials
(including by-product, source, and/or special nuclear materials),
unreaformaldehyde, flammable explosives, or other hazardous wastes or toxic
materials, that are now or hereafter subject to regulation under [the]
Environmental Laws.
"LAWS" means all applicable foreign, federal, state and local statutes,
laws, ordinances, regulations, rules, resolutions, orders, determinations,
writs, injunctions, awards (including, without limitation, Laws relating to
securities registration and regulation; the sale, leasing, ownership or
management of real property; employment practices, terms and conditions, and
wages and hours; building standards, land use and zoning; safety, health and
fire prevention; and environmental protection, including Environmental Laws).
"LIABILITIES" means liabilities, debts or other obligations, whether
accrued, absolute, contingent or otherwise, known or unknown.
"NON-COMPETITION AGREEMENT" shall have the meaning attributed thereto in
SECTION 4 hereof.
"OPERATIONAL RECEIVABLES" means current billed accounts receivable of the
Business and the unbilled work in process of the Business that relate to active
clients; PROVIDED, HOWEVER, that, in the event the CMHA Contract is not awarded
to Seller prior to Closing, "Operational Receivables" shall not include any
amounts related to the CMHA Contract or any other receivables related to the
Business' operations in Cleveland, Ohio. For purposes of the preceding
sentence, "active clients" shall mean the Business' clients that are not listed
as an inactive client on SCHEDULE I.
"ORIGINAL FINANCIAL SCHEDULE" means the financial assets and accrued
vacation schedule of Seller as of December 31, 1995, which Seller has previously
provided to Buyer, as reflected in SECTION 2.3(a) HEREOF.
"ORDINARY COURSE OF BUSINESS" means ordinary course of business consistent
with past practices and prudent business operations.
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"OTHER ARRANGEMENT" means a benefit program or practice providing for
bonuses, incentive compensation, vacation pay, severance pay, insurance,
restricted stock, stock options, employee discounts, company cars, tuition
reimbursement or any other perquisite or benefit (including, without limitation,
any fringe benefit under Section 132 of the Code) to employees, officers or
independent contractors that is not a Plan.
"PLAN" means any plan, program or arrangement, whether or not written, that
is or was an "employee benefit plan" as such term is defined in Section 3(3) of
ERISA and (a) which was or is established or maintained by Seller or any
subsidiary of Seller; (b) to which Seller or any subsidiary of Seller
contributed or was obligated to contribute or to fund or provide benefits; or
(c) which provides or promises benefits to any person who performs or who has
performed services for Seller or any subsidiary of Seller and because of those
services is or has been (i) a participant therein or (ii) entitled to benefits
thereunder.
"PURCHASE PRICE" shall have the meaning attributed thereto in SECTION
2.3(a) hereof.
"SELLER INDEMNIFIED PERSONS" means Seller and its affiliates, employees,
representatives, agents, officers and directors.
"SELLER'S SECURED LENDER" means NationsBank, N.A., which has a secured
interest in and lien on all of the Assets contemplated to be transferred to
Buyer pursuant to this Agreement.
"SELLER TAX RETURNS" means all federal, state, local, foreign and other
applicable tax returns, declarations of estimated taxes, and other tax-related
reports required to be filed by Seller (without regard to extensions of time
permitted by law or otherwise).
"TAXES" means all federal, state, local and foreign taxes (including,
without limitation, income, profit, franchise, sales, use, real property,
personal property, ad valorem, excise, employment, social security and wage
withholding taxes) and installments of estimated taxes, assessments,
deficiencies, levies, imports, duties, license fees, registration fees,
withholdings, or other similar charges of every kind, character or description
imposed by any governmental or quasi-governmental authorities, and any interest,
penalties or additions to tax imposed thereon or in connection therewith.
2. SALE AND TRANSFER OF ASSETS
2.1 IN GENERAL. Seller hereby agrees to sell, transfer, convey,
assign and deliver to Buyer at the Closing, and Buyer hereby agrees to purchase
at the Closing, all right, title and interest in certain of the assets of the
Business in existence on the Closing Date, including, but not limited to,
Operational Receivables, prepaid expenses, property and equipment, laboratory
and Business supplies, customer lists, goodwill and, subject to assignment,
novation or subcontract as provided in SECTION 3 hereof, current contract
backlog, rights, options and proposals, and any documents, materials or
property, tangible or intangible relating to the foregoing and such other assets
as are shown on the Original Financial Schedule, all as more particularly
described on SCHEDULE 2.1 hereto, but excluding (a) all assets relating to the
Business' operations in Cleveland, Ohio, if the CMHA Contract is not awarded to
Seller, (b) all cash, (c) the right to utilize the "Biospherics" name or xxxx
(or any similar name or xxxx) except as specifically permitted by SECTION 6.1(d)
hereof, (d) any assets (including, without limitation, receivables) relating to
Job #1005 for Xxxxxxxxxx County, Maryland and (e) Scitec XRF analyzer including
radioactive source. All of the assets referred to in the preceding sentence
exclusive of the assets referred to in Section 2.1(a)-(e) shall hereafter be
referred to as the "Assets."
2.2 ASSUMPTION OF CERTAIN LIABILITIES. Buyer shall not assume any
Liabilities of Seller, except as specifically provided in this SECTION 2.2. The
only Liabilities which Buyer agrees to assume are (a) Seller's accrued vacation
Liability as of the Closing Date with respect to those employees hired by Buyer
pursuant to the provisions of SECTION 5 hereof, and (b) the assumption of
Seller's obligations under that certain lease for office space located at 0000
Xxxx 0xx Xxxxxx, Xxxxx 000, Xxxxxxxxx, Xxxx (the "Cleveland Office Lease"), but
only if Seller is awarded the CMHA Contract, and only to the extent such
obligations arise with respect to occupation of such premises on or after the
Closing Date. The amount of the assumed vacation Liability shall be deemed a
partial payment of the Purchase Price
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and the cash portion of the Purchase Price shall be reduced by an amount equal
to the amount of the assumed vacation Liability, as further provided in SECTION
2.3(b)(i) hereof.
2.3 PURCHASE PRICE.
(a) PURCHASE PRICE. Subject to adjustment as provided in
SECTIONS 2.3(b) AND 2.3(c) hereof, Buyer agrees to pay to Seller a purchase
price (the "Purchase Price"), which the Parties agree has been calculated as
follows:
With Cleveland Without Cleveland
Operations Operations
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Operational Receivable 638,335 $411,080
Lab & Business Supplies 24,460 24,460
Prepaid Expense 3,372 2,372
Property & Equipment (Net) 71,483 71,483
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Subtotal $737,650 $509,395
Goodwill (Proposals,
Backlog, etc.) 150,000 115,000
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TOTAL ASSET VALUE 887,650 624,395
Less: Assumed Vacation
Liability -30,386 -27,959
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TOTAL VALUE $857,264 $596,436
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(b) PAYMENT OF PURCHASE PRICE. Buyer shall pay the Purchase
Price as follows:
(i) At the Closing, an amount equal to (A) the value
attributed to Lab & Business supplies, prepaid
expense, property and equipment and goodwill, as
calculated in SECTION 2.3(a) hereof, less (B) the
amount of accrued vacation Liability assumed by
Buyer pursuant to SECTION 2.2 hereof, shall be
paid by certified check, bank check or wire
transfer to an account designated by Seller; and
(ii) On the date which is two weeks from the Closing Date,
an amount equal to (A) 100% of the Operational
Receivables, (B) minus the Deferred Operational
Receivables, (C) plus 70% of the Deferred
Operational Receivables, (D) less the amount of
Operational Receivables relating to any contract
which is not either assigned, novated or
subcontracted to Buyer as of the date of such
payment, the value of which shall be as set forth
in a financial assets and accrued vacation
schedule which Seller shall provide to Buyer not
less than three days prior to the date on which
payment is due pursuant to this SECTION
2.3(b)(ii), and shall be as of the Closing Date or
as close to the Closing Date as is practically
possible (the "Closing Date Financial
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Schedule"). Such amount shall be paid by
certified check, bank check or wire transfer to an
account designated by Seller.
(iii) An amount equal to 30% of the Deferred
OperationalReceivables shall be paid as follows:
no amount shall be paid until Buyer collects 70%
of the Deferred Operational Receivables from the
applicable account debtors. Once Buyer has
collected such amount, any further amounts
collected from such account debtors shall be paid
to Seller within two weeks of such collection
until the remaining 30% of the Deferred
Operational Receivables have been paid to Seller;
PROVIDED, HOWEVER, that Buyer shall not be
required to make payments of such amounts more
often than once every two weeks.
(iv) In the event that the CMHA Contract has not been
awarded by the Closing Date, the parties agree
that the Purchase Price will be calculated using
the Without Cleveland Operations assumptions. In
the event the CMHA Contract is awarded to Seller
on or prior to 60 days after the Closing Date, the
Purchase Price will be adjusted using the With
Cleveland Operations assumptions, and the
additional amounts due shall be paid within two
weeks after award of the CMHA Contract.
Regardless of whether the CMHA Contract is
awarded prior to or after Closing, the Purchase
Price shall be adjusted if the gross amount of the
CMHA Contract is less than $900,000. The
adjustment shall be calculated based on the
following formula: (a) a fraction, the numerator
of which is $900,000 minus the gross amount of
the CMHA Contract, and the denominator of which
is $900,000, (b) multiplied by $35,000. The
Purchase Price shall also be adjusted in
accordance with SECTION 2.3(C). In the event that
the CMHA Contract is awarded to the Seller after
60 days after the Closing Date but before
September 1, 1996, Buyer shall pay, in addition
to the Purchase Price (using the Without Cleveland
assumptions), $15,000 to Seller within two weeks
of the award of the CMHA Contract. In the event
the CMHA Contract is awarded to Seller on terms
other than the terms on which Seller bid such
contract, Buyer shall have the right to approve
the terms and conditions of the CMHA Contract.
If Buyer does not approve such terms and
conditions, Buyer shall not be obligated to
purchase the CMHA Contract or any assets related
to the Cleveland operations, and Buyer shall not
be obligated to assume the Cleveland Office Lease.
In addition, the aforementioned $15,000 payment
shall be adjusted dollar-for-dollar to the extent
that the CMHA Contract is not projected to produce
a net profit of at least $15,000.
(c) ADJUSTMENTS TO PURCHASE PRICE. In the event the Closing
Date Financial Schedule reflects different values for any item(s) from those
values reflected in the Original Financial Schedule, the Purchase Price shall be
increased in an amount equal to any increase in such value(s), and shall be
decreased in an amount equal to any decrease in such value(s). Furthermore, in
the event any contracts cannot be either assigned, novated or subcontracted to
Buyer, the goodwill portion of the Purchase Price shall be decreased in an
amount equal to (i) the ratio that the dollar value of such contract(s) bears to
the dollar value of all contracts to be assigned, novated or subcontracted
pursuant to this Agreement, (ii) multiplied by the total goodwill reflected in
SECTION 2.3(A) hereof. Any such adjustment to the Purchase Price shall increase
or decrease, as the case may be, the payment due to Seller pursuant to SECTION
2.3(B)(II) hereof.
3. NOVATION OR ASSIGNMENT OF SPECIFIC CONTRACTS. The Parties acknowledge
that the transfer of current contract(s), contract option(s), or contract
right(s) is subject to and conditioned upon any required novation or assignment
of such contract(s), contract right(s) or contract option(s) by the relevant
customers, which have not been specified by Seller to Customer as of the date
hereof. It is the intent of the Parties to use their best efforts to obtain
such
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assignments or novations. Seller agrees to cooperate fully with Buyer to secure
any required novation or assignment. If or to the extent novation or assignment
is not obtained as to any contract(s), contract right(s) or contract option(s)
as of the Closing Date or such later date as Buyer may agree, the Parties shall
use their best efforts to have Buyer perform such contract(s), contract
right(s), or contract option(s) as subcontractor, subject to the approval of the
customers. To the extent the customers agree to have Buyer perform such
contract(s), contract right(s), or contract option(s) as subcontractor, there
shall be no adjustment to the Purchase Price. To the extent the customers do
not agree to have Buyer perform such contract(s), contract right(s) or contract
option(s), the Purchase Price shall be decreased as provided in SECTION 2.3
hereof.
4. NON-COMPETE. Seller agrees to enter into a Non-Competition Agreement
substantially in the form of EXHIBIT A (the "Non-Competition Agreement") at the
Closing, pursuant to which Seller shall agree not to compete with Buyer in the
Business for a period of five years following the Closing, all as more
particularly described in the Non-Competition Agreement.
5. EMPLOYEES. As a condition to Buyer's obligation to consummate the
Closing, Buyer shall have received prior to Closing the firm acceptance of
offers of employment from the employees whom Buyer deems in its sole discretion
to be key employees of the Business and to whom Buyer wishes to offer
employment, as set forth in SCHEDULE 5 hereto. Buyer intends, but shall not be
obligated, to hire employees of the Business, by separate agreement or
arrangement and on such terms as Buyer may deem advisable. Seller agrees to use
its best efforts to persuade employees of the Business to accept offers of
employment by Buyer if and as tendered. With respect to any employees of Seller
hired by Buyer, the period of employment with Seller shall be considered as
employment with Buyer for purposes of benefits determinations.
6. COOPERATION; TRANSITION.
6.1 BY SELLER.
(a) Seller shall cooperate fully with Buyer and give Buyer all
assistance reasonably requested by Buyer to effect an orderly transition of the
operation of the Business, including, but not limited to, the actions described
in this Section 6.1.
(b) In the event the CMHA Contract is awarded to Seller, Seller
shall take all actions necessary or reasonably requested by Buyer to effectuate
an assignment of the Cleveland Office Lease to Buyer. The Parties acknowledge
and agree that the Cleveland Office Lease will not be assigned to Buyer if the
CMHA Contract is not awarded to Seller.
(c) Buyer desires to sublet office space from Seller for a
period of up to six months after the Closing Date at the current Business
location, being 00000 Xxxxxx Xxxxx Xxxxx, Xxxxxxxxxx, Xxxxxxxx (the "Beltsville
Office Space"). Seller agrees to enter into a sublease substantially in the
form of EXHIBIT B relating to the Beltsville Office Space (the "Beltsville
Sublease"). Seller also agrees that at least ten business days prior to
Closing, Seller will provide Buyer with a copy of Seller's lease with the
landlord of the Beltsville Office Space (the "Beltsville Master Lease"). If,
after the Beltsville Sublease terminates, Seller receives any calls for the
Business, Seller shall inform such callers of the new telephone number and
address for the Business, as directed by Buyer. Seller shall take all actions
necessary or reasonably requested by Buyer to effectuate a sublease of the
Beltsville Office Space to Buyer.
(d) Seller shall permit Buyer to refer to the Business as
"formerly known as the Biospherics ELSD Division" or some permutation thereof
for a period of one year from the Closing Date.
(e) Seller shall transfer to Buyer personnel, contracts and
other records relevant to the Business.
(f) Seller shall take all actions necessary or reasonably
requested by Buyer to effectuate the assignments, novations, and/or subcontracts
of contracts contemplated in this Agreement.
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6.2 BY BUYER. After the Closing, Buyer agrees to provide the
necessary administrative resources to assist Seller in the collection of all
receivables other than Operational Receivables, and allow the former employees
of Seller who become employees of Buyer to assist Seller in preparing the
Closing Date Financial Schedule.
7. PURCHASER'S RIGHT TO CONDUCT DUE DILIGENCE. Subject to the terms and
conditions of the Confidentiality Agreement dated September 5, 1995, by and
between the Parties (the "Confidentiality Agreement"), and any limitations
imposed by applicable Laws or the provisions of any contracts or other
agreements binding on Seller or the Business, including, but not limited to any
Laws governing the treatment of classified information, Buyer and its legal
counsel, accountants and other representatives during normal business hours may,
prior to the Closing, inspect and review, to its reasonable satisfaction,
relevant financial books and records, contracts and other information of or
about the Business. Also, prior to Closing, Buyer may, after receiving
permission therefor from the Chief Executive Officer of Seller, or Seller's
designated representative, talk with or interview employees of the Business and
selected customers. Seller shall cooperate with Buyer's reasonable requests to
inspect such books, records, contracts and other information of or about the
Business and to talk with or interview employees and selected customers of
Seller relating to the Business. In the course of conducting its due diligence
review, Buyer shall cooperate with Seller and use its best efforts not to cause
any undue disruption to the ongoing business and prospects of the Business.
Furthermore, while conducting its due diligence review, Buyer shall fully comply
with and abide by the terms of the Confidentiality Agreement, which shall
survive the execution of this Agreement.
8. CONFIDENTIALITY; NO PUBLICITY.
8.1 CONFIDENTIALITY. All financial, technical, commercial or other
information relating to and provided by either Party (the "Source") to the other
Party (the "Recipient"), other than information that (i) was already known to
the Recipient prior to the disclosure by the Source, (ii) is or becomes publicly
available through no fault of the Recipient, (iii) is rightfully received by the
Recipient from third parties, without restriction, (iv) is independently
developed by the Recipient, (v) is identified in writing by the Source as no
longer being subject to this SECTION 8.1, or (vi) is purchased by Buyer pursuant
to this Agreement (collectively, "Confidential Information of the Source"),
shall constitute confidential and proprietary information of the Source.
Without the express written consent of the Source, the Recipient shall not,
directly or indirectly, disclose, divulge or communicate any Confidential
Information of the Source to anyone, except to the Recipient's own directors,
officers, shareholders, employees or representatives (each, an "Authorized
Representative") and then only on a need-to-know basis. Prior to disclosing,
divulging or communicating any Confidential Information of the Source to any
Authorized Representative after the date hereof, the Recipient shall cause such
Authorized Representative to agree in writing to be bound by the terms of this
SECTION 8.1. In addition, the Recipient shall cause any Authorized
Representative who has received Confidential Information of the Source prior to
the date hereof to likewise agree in writing to be bound by the terms hereof.
8.2 NO PUBLICITY. Except as specifically provided herein, neither of
the Parties will make any disclosures regarding the existence or contents of
this Agreement or the transactions contemplated hereby without the prior consent
of the other Party hereto, which consent shall not be unreasonably withheld,
conditioned or delayed.
8.3 REMEDIES. In the event that either Party is requested or
required (by oral question or request for information or documents in any legal
proceeding, interrogatory, subpoena, civil investigative demand, or similar
process) to disclose any Confidential Information or any information regarding
the existence or content of this Agreement or the transactions contemplated
hereby and the other Party does not wish to have such information disclosed, the
Party who is so requested or required will notify the other Party promptly of
the request or requirement so that the other Party may seek an appropriate
protective order or waive compliance with the provisions of this SECTION 8. If,
in the absence of a protective order or the receipt of a waiver hereunder,
either Party is, on the advice of counsel, compelled by law to disclose any
Confidential Information or any information regarding the contents of this
Agreement or the transactions contemplated hereby or else stand liable for
contempt, that Party may disclose such information as required by law; provided,
however, that the disclosing Party shall use his or its best efforts to obtain,
at the request of the other Party, an order or other assurance that confidential
treatment will be accorded to such portion of the information required to be
disclosed as such other Party shall designate. The foregoing provisions shall
not apply to any information which is generally available to the public
immediately prior to the time of disclosure. Notwithstanding
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the foregoing, Buyer may, if required by applicable law, and with prior or
concurrent written notice to Seller, make such disclosures as are so required.
9. COVENANTS OF SELLER.
9.1 AFFIRMATIVE COVENANTS. From the date of this Agreement until the
Closing Date, Seller shall have complete control and supervision of and sole
responsibility for the Business and its operation, and during such period,
Seller shall:
(a) Operate the Business in good faith and in a manner
consistent with the normal and prudent operation of businesses of its type.
(b) Keep and preserve the records of the Business in accordance
with good business practice.
(c) Duly perform all of Seller's obligations under all
contracts, leases, Benefit Plans, and other agreements to which Seller or the
Assets are bound.
(d) Maintain all of the tangible Assets so that when the same
are delivered to Buyer they shall satisfy all the warranties in all material
respects on the part of Seller set forth herein, subject to reasonable wear and
tear.
(e) Pay all premiums for and maintain in full force and effect
all of the insurance policies necessary or customary for businesses of similar
type.
(f) Give prompt notice to Buyer of any occurrence that comes to
Seller's attention that may constitute a misrepresentation, breach of warranty,
or nonfulfillment of any covenant or condition on the part of the Seller or
Buyer contained in this Agreement, as well as any changes in the conduct of the
Business that could reasonably be expected to have a material adverse effect on
the financial condition of the Business taken as a whole.
(g) Make all reasonable efforts to obtain the consents and
approvals required hereunder to proceed to Closing, including, but not limited
to, the consent of Seller's Secured Lender to the transactions contemplated
hereby and the release by Seller's Secured Lender of its security interest in
and lien on the Assets, so that Buyer may acquire title to the Assets free and
clear of all Encumbrances at the Closing.
9.2 NEGATIVE COVENANTS. Between the date hereof and the Closing
Date, Seller shall not, with respect to the Assets, the Business, or the
operation thereof, without the consent of Buyer, which consent shall not be
unreasonably withheld:
(a) AGREEMENTS AND CONTRACTS. Cancel, modify, alter, amend,
encumber, or in any way discharge, terminate, or impair any agreements,
contracts or leases pertaining to the Business in any manner that could
materially adversely affect the value of the Assets or the Business.
(b) NO DISPOSITION OF ASSETS. Other than in the Ordinary Course
of Business, sell or dispose of any of the Assets; Seller shall replace all
Assets disposed of in the Ordinary Course of Business with assets having an
aggregate value at least equal to the aggregate value of the Assets sold or
otherwise disposed of.
(c) NO LIENS OR OTHER ENCUMBRANCES. Create or suffer or permit
the creation of any mortgage, conditional sales agreement, security interest,
lien, hypothecation, pledge, encumbrance, restriction, liability, charge, claim
or imperfection of title on any of the Assets or with respect thereto, other
than Seller's Secured Lender's security interest in and lien on the Assets.
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(d) REPAIRS AND MAINTENANCE. Fail to repair or maintain any of
its technical equipment or any other equipment, supplies, and other tangible
Assets used or usable in the operations of the Business in accordance with the
normal standards of maintenance applicable to businesses of the same type as the
Business (and in no event at a standard below that standard at the date hereof).
(e) ADVERSE TRANSACTIONS. Take any action that would prevent
Seller from consummating the transactions contemplated in this Agreement.
10. BUYER'S COVENANTS. From the date of this Agreement until the Closing
Date, Buyer covenants that it will (a) give prompt notice to Seller of any
occurrence that comes to Buyer's attention that may constitute a
misrepresentation, breach of warranty or nonfulfillment of any covenant or
condition on the part of Buyer or Seller contained in this Agreement, and (b)
make all reasonable efforts to obtain the consents and approvals required
hereunder to proceed to Closing.
11. REPRESENTATIONS AND WARRANTIES BY SELLER
11.1 ORGANIZATION AND STANDING. Seller is a corporation duly
organized, validly existing and in good standing under the Laws of the State of
Delaware, and has the full corporate power and authority to own, operate and
lease its assets, including but not limited to the Assets, to carry on its
business as currently conducted, to execute and deliver this Agreement and to
carry out the transactions contemplated hereby.
11.2 ORIGINAL FINANCIAL SCHEDULE. The Original Financial Schedule
sets forth a complete and correct description of all of the Assets owned by
Seller and used or useful in the Business.
11.3 UNBOOKED LOSSES. To the best of Seller's knowledge, as of the
date hereof, there are no material Liabilities of the Business that are not
fully reflected on the financial statements heretofore prepared and furnished to
Buyer by Seller.
11.4 TAXES. Seller has (or, in the case of returns becoming due after
the date hereof and on or before the Closing, will have prior to the Closing)
duly filed all Seller Tax Returns required to be filed by Seller on or before
the Closing Date with respect to all applicable Taxes, and paid all Taxes due to
be paid by Seller on or before the Closing.
11.5 ASSETS. Seller has at the date hereof, and shall have at the
Closing, good, valid and marketable title to all Assets, and all Assets will be
transferred to Buyer free and clear of all Encumbrances at the Closing. Except
as disclosed in writing to Buyer, all the Assets are in good operating condition
and repair and are suitable and adequate for the uses for which they are
intended or are being used. The Assets and the excluded assets referred to in
SECTION 2.1(A)-(E) hereof are all the assets which are used or useful in the
operation of the Business.
11.6 OPERATIONAL RECEIVABLES. With respect to all Operational
Receivables, (a) they are genuine, and in all respects what they purport to be,
and are not evidenced by a judgment, an instrument, or chattel paper; (b) they
represent bona fide transactions completed in accordance with the terms and
provisions contained in the invoices, purchase orders and other contracts
relating thereto, and the underlying transaction therefor is in accordance with
all applicable Laws, (c) the amounts shown on Seller's books and records, with
respect thereto are actually and absolutely owing to Seller and are not
contingent or subject to reduction for any reason other than regular discounts,
credits or adjustments allowed by Seller in the ordinary course of its business,
(d) all account debtors thereon have the capacity to contract, and (e) the goods
sold, leased or transferred or the services furnished giving rise thereto are
not subject to any liens except (such liens as are to be released at Closing).
11.7 LEASES. Seller has heretofore provided Buyer with a list and
brief description of all leases and other agreements under which Seller is
lessee or lessor of any Asset, or holds, manages or operates any Asset owned by
any third Party, or under which any Asset owned by Seller is held, operated or
managed by a third Party. Seller is the owner and holder of all the leasehold
estate for the Beltsville Office Space and the premises subject to the Cleveland
Office Space, and is the owner of all equipment, machinery and other Assets
thereon or in buildings and structures thereon, in each case free and clear of
all Encumbrances, subject only to Encumbrances of Seller's Secured Lender,
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which will be released at the Closing. Each such lease and other agreement is
in full force and effect and constitutes a legal, valid and binding obligation
of, and is legally enforceable against, the respective parties thereto and
grants the leasehold estate it purports to grant free and clear of all
Encumbrances. All necessary governmental approvals with respect to such leases
have been obtained, all necessary filings or registrations therefor have been
made, and there have been no threatened cancellations thereof and are no
outstanding disputes thereunder. Seller has in all respects performed all
obligations under the leases required to be performed by Seller to date. Seller
is not in default, and to Seller's best knowledge, no other party is in default,
in any respect under any lease, and there has not occurred any event which
(whether with or without notice, lapse of time or the happening or occurrence of
any other event) would constitute such a default. All of the Assets subject to
the leases are in good operating condition and repair.
11.8 LITIGATION DISPUTES. Except as set forth in SCHEDULE 11.9(A),
there are no actions, suits, claims (other than in the Ordinary Course of
Business), litigation, arbitrations, proceedings or investigations pending or,
to the best of Seller's knowledge, threatened or reasonably anticipated against,
affecting or involving Seller or its business or assets, including, but not
limited to, the Business and the Assets, or the transactions contemplated by
this Agreement, at law or in equity, or before or by any court, arbitrator or
governmental authority, domestic or foreign. Seller is not operating under,
subject to or in default with respect to any order, award, writ, injunction,
decree or judgment of any court arbitrator or governmental authority.
11.9 ENVIRONMENTAL.
(a) Except as set forth in SCHEDULE 11.9(A), Seller is in full
compliance with all applicable Environmental Laws, which compliance includes,
but is not limited to, the possession by Seller of all permits, licenses and
other governmental authorizations required under applicable Environmental Laws,
and compliance with the terms and conditions thereof. Except as set forth in
SCHEDULE 11.9(A), Seller has not received any communication (written or oral),
whether from a governmental authority, citizens group, employee or otherwise,
that alleges that Seller is not in such full compliance, and, to Seller's best
knowledge after due inquiry, there are no circumstances that may prevent or
interfere with such full compliance in the future. All permits and other
governmental authorizations currently held by the Seller pursuant to the
Environmental Laws are identified in SCHEDULE 11.9(A).
(b) Except as set forth in SCHEDULE 11.9(A), there is no
Environmental Claim pending or threatened against Seller or, to Seller's best
knowledge after due inquiry, against any person or entity whose liability for
any Environmental Claim Seller has or may have retained or assumed either
contractually or by operation of law.
(c) There are no past or present actions, activities,
circumstances, conditions, events or incidents, including, without limitation,
the release, emission, discharge, presence or disposal of any Hazardous
Material, that could form the basis of any Environmental Claim against Seller
or, to Seller's best knowledge after due inquiry, against any person or entity
whose liability for any Environmental Claim Seller has or may have retained or
assumed either contractually or by operation by law.
(d) Without in any way limiting the generality of the foregoing,
(i) all on-site and off-site locations where Seller has stored, disposed of or
arranged for the disposal of Hazardous Materials, including, but not limited to
the environmental lab previously operated by Seller and known as the "Main Lab,"
are identified in SCHEDULE 11.9 (D), (ii) all underground storage tanks, and the
capacity and contents of such tanks, located on property owned or leased by
Seller are identified in SCHEDULE 11.9(D), (iii) except as set forth in SCHEDULE
11.9(D), there is no asbestos contained in or forming part of any building,
building component, structure or office space owned or leased by Seller, and
(iv) except as set forth in SCHEDULE 11.9(D), no polychlorinated biphenyls
(PCB's) are used or stored at any property owned or leased by Seller.
(e) Seller has maintained continuous insurance coverage for
pollution Liabilities, as well as errors and omissions insurance coverage at all
times during which it has operated the Business, as set forth in SCHEDULE
11.9(E).
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(f) Except as set forth in SCHEDULE 11.9(F), Seller's methods of
inspection, testing, and assessment are in full compliance with all applicable
Laws, statutes and regulations. To the extent applicable, Seller has employed
methods that are approved or accepted by the United States Environmental
Protection Agency, the American Public Health Association, the American
Industrial Hygiene Association, the Occupational Health and Safety Act and all
state and local regulations of same.
(g) Seller's training and certification methods are in full
compliance with all applicable Laws, statutes and regulations.
11.10 INTELLECTUAL PROPERTY. Except for the "Biospherics" name or
xxxx (or any similar name or xxxx), Seller holds no patents, trademarks, trade
names, copyrights or other intellectual property, or applications therefor,
which are used or useful in the operation of the Business.
11.11 EMPLOYMENT PRACTICES/HEALTH CLAIMS. Seller is in compliance
with all applicable Laws respecting employment and employment practices, terms
and conditions of employment, occupational safety and health, and wages and
hours. All information provided by Seller to Buyer prior to the date hereof
regarding health insurance maintained by Seller for the benefit of its employees
is true and correct in all material respects, and does not omit any material
fact necessary to make the information contained therein not misleading.
11.12 PENSION AND BENEFIT PLANS. Seller maintains a 401(k) plan
covering substantially all of Seller's employees who have completed one year of
service and are at least 21 years of age. Seller is in full compliance with
ERISA and all applicable Laws, which compliance includes, but is not limited to,
the possession by Seller of all governmental authorizations or approvals
required under ERISA or other applicable Laws, and compliance with the terms and
conditions thereof. Seller has not received any communication (oral or
written), whether from a governmental authority, an employee or otherwise, that
alleges that Seller in not in such full compliance, and, to Seller's best
knowledge after due inquiry, there are no circumstances that may prevent or
interfere with such full compliance in the future.
11.13 RESTRICTIONS AND CONSENTS. Except for the contracts which
require assignment, novation or Seller's Secured Lender's consent, as otherwise
specifically described or referred to herein, there are no agreements, Laws or
other restrictions of any kind to which Seller (or any asset of Seller) is party
or subject that would prevent or restrict the execution, delivery or performance
of this Agreement or result in any penalty, forfeiture, Agreement termination,
or restriction on business operations of Buyer or Seller as a result of the
execution, delivery or performance of this Agreement.
11.14 AUTHORIZATION. The execution, delivery and performance by
Seller of this Agreement and all other documents contemplated hereby, the
fulfillment of and compliance with the respective terms and provisions hereof
and thereof, and the consummation by Seller of the transactions contemplated
hereby and thereby have been authorized by all necessary corporate action of
Seller, including, but not limited to, approval by the directors of Seller in
accordance with Seller's governing documents, and do not and will not: (a)
require any consent or approval of stockholders which has not already been
obtained; (b) conflict with, or violate any provision of, any Law having
applicability to Seller or any of its assets, including, but not limited to, the
Assets, or any provision of the certificate or articles of incorporation or
bylaws of Seller; (c) except as otherwise set forth herein, conflict with, or
result in any breach of, or constitute a default under any agreement to which
Seller is a Party or by which it or any of its Assets may be bound; or
(d) result in or require the creation or imposition of or result in the
acceleration of any indebtedness, or of any Encumbrance of any nature upon, or
with respect to, Seller or any of the assets now owned or hereafter acquired by
Seller, including, but not limited to, the Assets.
11.15 ABSENCE OF VIOLATION. Seller is not in violation of or
default under, nor has it breached, any term or provision of its certificate or
articles of incorporation or bylaws or any agreement or restriction to which
Seller is a Party or by which Seller or any asset of Seller, including, but not
limited to, the Assets, is bound or affected. To the best of Seller's
knowledge, Seller has complied and is in full compliance with all Laws.
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11.16 BULK TRANSFER LAWS. The transactions contemplated by this
Agreement are not subject to the bulk transfer Laws of any jurisdictions.
11.17 BINDING OBLIGATION. This Agreement constitutes a valid and
binding obligation of Seller, enforceable in accordance with its terms; and each
document to be executed by Seller pursuant hereto, when executed and delivered
in accordance with the provisions hereof, shall be a valid and binding
obligation of Seller, enforceable in accordance with its terms, except to the
extent that such enforcement may be limited by applicable bankruptcy,
reorganization, insolvency, moratorium or other Laws of general application
relating to or affecting the enforcement of creditors' rights as from time to
time in effect.
11.18 COMPLETE DISCLOSURE. No representation or warranty by
Seller in this Agreement, and no written statement contained in any document,
certificate, or other writing, delivered by Seller to Buyer in connection with
the transactions contemplated by this Agreement, contains any untrue statement
of material fact or omits to state any material fact necessary to make the
statements herein or therein, in light of the circumstances under which they
were made, not misleading.
12. REPRESENTATIONS AND WARRANTIES OF BUYER. Buyer hereby represents and
warrants to Seller as follows:
12.1 ORGANIZATION AND STANDING. Buyer is a corporation organized and
in good standing under the Laws of the Commonwealth of Virginia and has the
authority to enter into this Agreement and to carry out the transactions
contemplated hereby.
12.2 AUTHORIZATION. The execution, delivery and performance by Buyer
of this Agreement and all other documents contemplated hereby, the fulfillment
of and the compliance with the respective terms and provisions hereof and
thereof, and the consummation by Buyer of the transactions contemplated hereby
and thereby have been duly authorized, and will not: (a) conflict with, or
violate any provision of, any term or provision of the certificate of
incorporation or bylaws of Buyer or (b) conflict with, or result in any breach
of, or constitute a default under, any agreement to which Buyer is a party or by
which Buyer is bound.
12.3 BINDING OBLIGATION. This Agreement constitutes a valid and
binding obligation of Buyer, enforceable in accordance with its terms. Each
document to be executed by Buyer pursuant hereto, when executed and delivered in
accordance with the provisions hereof, shall be a valid and binding obligation
of Buyer, enforceable in accordance with its terms.
13. CONDITIONS PRECEDENT TO THE OBLIGATIONS OF SELLER. The obligations of
Seller under this Agreement are subject to the fulfillment at or prior to the
Closing, of each of the following conditions, and failure to satisfy any such
condition shall excuse and discharge all obligations of Seller to carry out the
provisions of this Agreement, unless such failure is agreed to in writing by
Seller:
13.1 REPRESENTATIONS AND WARRANTIES. The representations and
warranties made by Buyer in this Agreement or in any document furnished by Buyer
pursuant to this Agreement shall be true and complete when made and on and as of
the Closing as though such representations and warranties were made on and as of
such date, except for any changes expressly permitted by this Agreement.
13.2 PERFORMANCE. Buyer shall have performed and complied with all
agreements and conditions required by this Agreement to be performed or complied
with by Buyer prior to or at the Closing.
13.3 LEGAL PROCEEDINGS. No action or proceeding by or before any
governmental authority shall have been instituted or, to the best of Seller's
knowledge, threatened (and not subsequently dismissed, settled or otherwise
terminated) which is reasonably expected to restrain, prohibit or invalidate the
transactions contemplated by this Agreement, other than an action or proceeding
instituted or threatened by Seller.
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13.4 DOCUMENTS AT CLOSING. All documents required to be furnished by
Buyer to Seller prior to or at the Closing, as provided in SECTION 15.2(B)
hereof, shall have been so furnished.
13.5 CONSENTS AND APPROVALS. All consents and approvals required
hereunder shall have been duly obtained and evidence thereof provided to Buyer,
including, but not limited to, the consent of Seller's Secured Lender to the
transactions consummated hereby and the release of its entire security interest
in and lien on the Assets of Seller, so that Buyer shall obtain title thereto
free and clear of all Encumbrances as of the Closing.
14. CONDITIONS PRECEDENT TO OBLIGATIONS OF BUYER. The obligations of
Buyer under this Agreement are subject to the fulfillment, at or prior to the
Closing, of each of the following conditions, and failure to satisfy any such
condition shall excuse and discharge all obligations of Buyer to carry out the
provisions of this Agreement, unless such failure is agreed to in writing by
Buyer:
14.1 REPRESENTATIONS AND WARRANTIES. The representations and
warranties made by Seller in this Agreement and the statements contained in any
documents heretofore delivered to Buyer or furnished by Seller pursuant to this
Agreement shall be true and complete when made, and on and as of the Closing as
though such representations and warranties were made on and as of such date,
except for any changes expressly permitted by this Agreement.
14.2 PERFORMANCE. Seller shall have performed and complied with all
agreements and conditions required by this Agreement to be performed or complied
with prior to or at the Closing Date.
14.3 COMPLETION OF DUE DILIGENCE. Seller shall have made available to
Buyer all materials regarding the following matters, and Seller shall have given
Buyer the opportunity to discuss such matters with Seller's officers and, after
receiving permission therefor from the Chief Executive Officer of Seller,
employees and selected customers of the Business, all so that Buyer shall have
been able to complete its due diligence with respect to such matters in its
reasonable judgment: (a) all insurance matters relating to Seller, (b) the
portion of the Business operated out of Cleveland, Ohio, (c) Buyer's review of
contracts it would be performing as a result of the consummation of the
transactions contemplated by this Agreement, and (d) contract backlog reports,
and (e) satisfactory UCC, judgment and lien searches; and the results of such
due diligence review shall have been satisfactory to Buyer in its reasonable
discretion.
14.4 ABSENCE OF ADVERSE CHANGES. There shall have been no changes
since December 31, 1995, in the business, operations, prospects, conditions
(financial or otherwise), assets, including, but not limited to, the Assets, or
Liabilities of Seller (regardless of whether or not such events or changes are
inconsistent with the representations and warranties given herein by Seller
which will have a material adverse effect on Buyer's use of the Assets), except
changes contemplated by this Agreement.
14.5 EMPLOYEES. Buyer shall have received the firm acceptance of
offers of employment from employees of Seller, as more particularly described in
SECTION 5 hereof.
14.6 LEGAL PROCEEDINGS. No action or proceeding by or before any
governmental authority shall have been instituted or threatened (and not
subsequently settled, dismissed or otherwise terminated) which is reasonably
expected to restrain, prohibit or invalidate the transactions contemplated by
this Agreement other than an action or proceeding instituted or threatened by
Buyer.
14.7 DOCUMENTS AT CLOSING. All documents required to be furnished by
Seller to Buyer prior to or at the Closing, as provided in SECTION 15.2(A)
hereof, shall have been so furnished.
14.8 CONSENTS. Seller shall have received all consents,
authorizations and approvals of governmental, quasi-governmental and private
parties which are required to be obtained in order to consummate the
transactions contemplated hereby, including but not limited to, (a) the consent
of the landlords of the Beltsville Office Space and the Cleveland Office Space
to the Beltsville Sublease and the assignment of the lease for the Cleveland
Office Space to Buyer, respectively, (b) the consent of such landlords to a
collateral assignment of the Beltsville Sublease and the assignment of the lease
for the Cleveland Office Space, respectively, as security to a commercial
banking institution on
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behalf of Buyer, and (c) the consent of Seller's Secured Lender to consummation
of the transactions contemplated hereby, and the release by Seller's Secured
Lender of its entire security interest in and lien on the Assets.
14.9 ASSETS. All tangible Assets shall be in good working condition
and all Assets shall be free and clear of all Claims and Encumbrances.
15. THE CLOSING; CLOSING DATE.
15.1 IN GENERAL. The closing of the transactions (the "Closing")
contemplated hereby shall take place on February 29, 1996, or such other date as
Buyer and Seller shall agree (the "Closing Date") at such time and at such place
as Buyer and Seller shall agree. Notwithstanding the foregoing, if the Closing
has not occurred by March 15, 1996, unless such date is extended by the mutual
consent of the Parties, either Party may terminate this Agreement by providing
written notice thereof to the other Party. Any such termination shall be
without liability to Seller or Buyer except to the extent that there shall have
occurred a willful or intentional breach of this Agreement or any intentional
misrepresentation or breach of warranty, as to each of which all legal remedies
of the Party adversely affected shall survive and be enforceable.
15.2 DELIVERIES AT CLOSING.
(a) At the Closing, Seller shall deliver to Buyer, in
consideration of the Purchase Price, the following:
(i) a Xxxx of Sale substantially in the form of EXHIBIT C
duly executed on behalf of Seller and dated as of
the Closing Date;
(ii) the Non-Competition Agreement duly executed on behalf
of Seller;
(iii) assignments of contracts relating to and leases of
personal property included in the Assets, except
with respect to assignments requiring the consent
of third parties, which have not been obtained as
of the Closing;
(iv) evidence of all assignments, novations and/or
subcontracts of contracts as contemplated by this
Agreement, which are available as of the Closing;
(v) the Beltsville Sublease duly executed on behalf of
Seller;
(vi) the consent of the landlord of the Beltsville Office
Space to the Beltsville Sublease;
(vii) the consent of the landlord of the Beltsville
Office Space to a collateral assignment of the
Beltsville Sublease in favor of Buyer's lender;
(viii) a certificate, dated as of the Closing and executed
by Seller's President, in his capacity as such,
certifying to the fulfillment of the conditions
specified in SECTIONS 14.1 THROUGH 14.6 hereof;
(ix) an opinion of Xxxxx, Somerville & Case, L.L.C.,
counsel to Seller, dated as of the Closing,
addressing such matters and in form reasonably
satisfactory to Buyer;
(x) a certified copy of the resolutions adopted by the
Board of Directors of Seller authorizing the
transactions contemplated by this Agreement;
(xi) a certificate of incumbency and specimen signatures
of the signatory officers of Seller;
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(xii) good standing certificates as of a date not more
than 25 days prior to the Closing issued by the
Secretary of State of the state of incorporation
of Seller and any state in which the Business is
conducted;
(xiii) certificates executed by Xxxxx Xxxxxxxx and Xxxxx
Xxxxx substantially in the form of EXHIBIT D-I,
and a certificate executed by Xxxxxx X. Xxxxx, III
substantially in the form of EXHIBIT D-II hereto;
and
(xiv) all other documents of title, deeds, endorsements,
assignments and other instruments as, in the
reasonable judgment of Buyer, are necessary to
vest in Buyer good and marketable title to the
Assets.
In addition, simultaneously with the Closing, Seller shall take all steps
requisite to put Buyer in actual possession (to the extent applicable) and
operating control of the Assets.
(b) At the Closing, Buyer shall deliver to Seller, the
following:
(i) the Purchase Price provided for in Section 2.3;
(ii) the Non-Competition Agreement duly executed on behalf
of Buyer; and
(iii) acceptance of assignments of contracts relating to
and leases of personal property included in the
Assets, except with respect to assignments
requiring the consent of third parties which have
not been obtained as of the Closing.
(iv) evidence of all assignments, novations and/or
subcontracts of contracts as contemplated by this
Agreement which are available as of the Closing;
(v) the Beltsville Sublease duly executed on behalf of
Buyer;
(vi) a certified copy of the resolutions adopted by the
Board of Directors of Buyer authorizing the
transactions contemplated by this Agreement;
(vii) a certificate of incumbency and specimen
signatures of the signatory officers of Buyer
which shall have been attached thereto a
[certified] copy of Buyer's Articles of
Incorporation and Bylaws;
(viii) a certificate, dated as of the Closing and
executed by Buyer's President or any Vice
President, in his capacity as such, certifying to
the fulfillment of the conditions specified in
Sections 13.1 through 13.4 hereof; and
(ix) an opinion of Verner, Liipfert, Bernhard, XxXxxxxxx
and Hand, Chartered, counsel to Buyer, dated as
of the Closing, addressing such matters and in
form reasonably satisfactory to Seller.
(x) Resolutions of Guarantor authorizing the Guaranty.
(c) At the Closing, each Party shall deliver to the other all
other previously undelivered documents, instruments, and writings required to be
delivered by it at the Closing pursuant to this Agreement or otherwise required
in connection herewith.
16. SURVIVAL. All representations, warranties, covenants, indemnities and
other agreements made by any Party herein or pursuant hereto shall also be
deemed made on and as of the Closing as though such representations, warranties,
covenants and indemnities and other agreements were made on and of such date,
and such representations,
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warranties, covenants, indemnities and other agreements shall survive the
Closing and any investigation, audit or inspection at any time made by or on
behalf of any Party for a period (the "Survival Period") of two (2) years from
the Closing Date (except that as to environmental matters only, the Survival
Period shall be five (5) years from the Closing Date), at which time they shall
terminate and be of no force and effect. Upon the expiration of the applicable
Survival Period as set forth in the preceding sentence, no proceeding or Claim
shall be made, filed or initiated against any Party to this Agreement by the
other in connection with any matter arising out of, related to, in connection
with or respect of any representations, warranties, covenants, indemnities or
other agreements made by any Party herein that do not survive the applicable
Survival Period. Notwithstanding any of the foregoing provisions of this
Xxxxxxx 00, xxxx of the foregoing provisions of this Section 16 shall apply to
any of the following, each of which shall remain in effect in perpetuity: (i)
Sections 1, 2.2, 2.3, 8, 18.5--18.11 inclusive and 18.13--18.15 inclusive, and
(ii) any other provision of this Agreement not set forth in any of the
provisions of this Agreement referred to in clause (i) of this sentence that
relate to: (a) the obligation of Buyer to pay the Purchase Price or to pay the
$15,000 referred to in Section 2.3(b)(iv), or (b) the obligation of Buyer to
assume any Liability or to assume or perform under any agreement which is being
assigned or novated pursuant to or in connection with this Agreement.
17. INDEMNIFICATIONS.
17.1 AGREEMENT OF SELLER TO INDEMNIFY.
(a) Subject to the conditions and provisions of SECTION 17.3
hereof, Seller hereby agrees to indemnify, defend and hold harmless Buyer
Indemnified Persons from and against and in any respect of all Claims asserted
against, resulting to, imposed upon or incurred by the Buyer Indemnified Persons
(whether such Claims are by, against or relate to Seller or any other party,
including a governmental entity), directly or indirectly, by reason of or
resulting from:
(i) any misrepresentation or breach of any representation
or warranty, or noncompliance with any conditions
or other agreements, given or made by Seller in
this Agreement or in any document furnished by or
on behalf of Seller pursuant to this Agreement;
(ii) any Operational Receivables which are not collected
by Buyer as and when such Operational Receivables
become due and owing; PROVIDED, HOWEVER, that with
respect to such uncollected Operational
Receivables, (A) Buyer shall use such internal
collection procedures as are deemed advisable in
Buyer's reasonable discretion, it being
understood, however, that unless instructed to do
so by and at the expense of Seller, Buyer shall
not be obligated to employ counsel or use any
other outside collection procedures; (B) Buyer
shall keep Seller generally advised from time to
time of the status of collection of any such
accounts and otherwise cooperate with Seller; (C)
Buyer shall not compromise or settle any such
accounts without the prior written consent of
Seller, which consent shall not be unreasonably
withheld, conditioned or delayed; (D) Buyer shall
assign to Seller or its assigns all rights to any
Operational Receivables for which an
indemnification payment has been made by Seller
hereunder; and (E) in the event it is unclear to
Buyer whether a particular payment is to be
applied to an Operational Receivable purchased
pursuant to this Agreement or to an invoice
generated by Buyer after the Closing, Buyer shall
request that the payor clarify to which invoice
such payment should be applied; if the payor
indicates that the payment is to be applied to an
invoice representing an Operational Receivable
purchased pursuant to this Agreement, Buyer shall
so apply it; PROVIDED, FURTHER, that Seller shall
not be obligated to make any indemnification
payments to Buyer for any Operational Receivables
which are actually collected by Buyer, even if
such Operational Receivables are collected after
the due date therefor;
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(iii) any Liabilities of Seller that are not specifically
assumed by Buyer pursuant to this Agreement,
including, but not limited to, Liabilities
arising from the errors or omissions of Seller
and/or in the operation of the Business prior
to the Closing; and
(iv) the application of the bulk transfer Laws of any
jurisdiction to the transactions contemplated
by this Agreement.
(b) Subject to the conditions and provisions of SECTION 17.3
hereof, Seller agrees to indemnify, reimburse, defend, and hold harmless Buyer
for, from, and against all demands, claims, actions or causes of action,
assessments, losses, damages, liabilities, costs and expenses, including,
without limitation, interest, penalties, reasonable attorneys' fees,
disbursements and expenses, and reasonable consultants' fees, disbursements and
expenses, asserted against, resulting to, imposed on, or incurred by Buyer,
directly or indirectly, in connection with any of the following:
(i) the events, circumstances, or conditions described in
SCHEDULE 11.9(A);
(ii) any Environmental Claim or any pollution or threat to
human health or the environment that is related
in any way to Seller's or any previous owner's
or operator's management, use, control, ownership
or operation of the Assets or Business including,
without limitation, all on-site and off-site
activities involving Hazardous Materials, and
that occurred, existed, arises out of conditions
or circumstances that occurred or existed, or was
caused, in whole or in part, on or before the
Closing Date, whether or not the Environmental
Claim, pollution or threat to human health or the
environmental is described in SCHEDULE 11.9(A);
(iii) any Environmental Claim against any person or entity
whose liability for such Environmental Claim
Seller has or may have assumed or retained either
contractually or by operation of law; and
(iv) the breach of any environmental representation or
warranty set forth in SECTION 11.9 hereof.
(c) Buyer hereby agrees that Seller shall have no liability to
Buyer or its successors or permitted assigns, for any liability, damage, loss or
expense, unless the aggregate amount of all Liabilities, damages, losses or
expenses suffered by Buyer and its successor and permitted assigns exceeds
$10,000, and then only to the extent such aggregate amount exceeds $10,000.
17.2 AGREEMENT OF BUYER TO INDEMNIFY. Subject to the conditions and
provisions of SECTION 17.3 hereof, Buyer hereby agrees to indemnify, defend and
hold harmless the Seller Indemnified Persons from and against and in respect of
all Claims asserted against, resulting to, imposed upon or incurred by the
Seller Indemnified Persons (whether such Claims are by, against or relate to
Buyer or any other party, including, without limitation, a governmental entity),
directly or indirectly, by reason of or resulting from any (i) misrepresentation
or breach of any representation or warranty, or noncompliance with any
conditions or other agreements, given or made by Buyer in this Agreement, and
(ii) damage or loss resulting from or arising out of the conduct of the Business
after the Closing. Seller hereby agrees that Buyer shall have no liability to
Seller or its successors or permitted assigns, for any Liability, damage, loss
or expense pursuant to this SECTION 17, unless the aggregate amount of all
Liabilities, damages, losses or expenses suffered by Seller and its successor
and permitted assigns exceeds $10,000, and then only to the extent such
aggregate amount exceeds $10,000.
17.3 CONDITIONS OF INDEMNIFICATION. The obligations and liabilities
of Seller and Buyer hereunder with respect to their respective indemnities
pursuant to this SECTION 17, resulting from any Claim or Environmental Claim
shall be subject to the following terms and conditions:
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(a) In the event an indemnified Party suffers an event giving
rise to liability of the indemnifying Party pursuant to this SECTION 17 which
does not involve a Claim or Environmental Claim made by a third party, the
indemnified Party shall give prompt written notice to the indemnifying Party of
such Claim or Environmental Claim stating (to the extent known or reasonably
anticipated) the nature and basis of such Claim or Environmental Claim, and the
amount thereof. Within three business days of receipt of such notice, the
indemnifying Party shall reimburse the indemnified Party for the amount of such
Claim or Environmental Claim requested in such notice.
(b) In the event an indemnified Party suffers an event which
could give rise to liability of the indemnifying Party pursuant to this SECTION
17 which does involve a Claim or Environmental Claim made by a third party, the
indemnified Party shall give prompt written notice to the indemnifying Party of
any Claim or Environmental Claim which is asserted against, resulting to,
imposed upon or incurred by such indemnified Party and which may give rise to
liability of the indemnifying Party pursuant to this SECTION 17 stating (to the
extent known or reasonably anticipated) the nature and basis of such Claim or
Environmental Claim, and the amount thereof. The indemnifying Party may engage
counsel or representatives of its own choosing with respect to any such Claim,
or Environmental Claim (including the compromise or settlement of any Claim or
Environmental Claim; PROVIDED, HOWEVER, that no such compromise or settlement
shall (i) be effected without the prior written consent of the indemnified Party
if such compromise or settlement does not include an unconditional release by
the third-party claimant of the indemnified Party from any and all liability in
respect of the such Claim or Environmental Claim, as the case may be, or (ii)
result in any obligations or Liabilities to the indemnified Party without the
indemnified Party's prior written consent, which the indemnified Party may
withhold in its absolute discretion). In the event the indemnifying Party
elects not to undertake such defense by its own representatives, the
indemnifying Party shall give prompt written notice of such election to the
indemnified Party and the indemnified Party will undertake the defense thereof
at the indemnifying Party's sole expense, by counsel or other representatives
designated by it whom the indemnifying Party determines in writing to be
satisfactory for such purposes. The consent of the indemnifying Party to the
indemnified Party's choice of counsel or other representative shall not be
unreasonably withheld, conditioned or delayed.
(c) In the event that any Claim or Environmental Claim shall
arise out of a transaction or cover any period or periods wherein Seller, on the
one hand, and Buyer, on the other hand, shall each be liable hereunder for part
of the liability or obligation arising therefrom, then the Parties shall, each
choosing its own counsel and bearing its own expense, defend such Claim or
Environmental Claim, and no settlement or compromise of such Claim or
Environmental Claim may be made without the joint consent or approval of Seller
and Buyer (which consent shall not be unreasonably withheld, conditioned or
delayed), except where the respective Liabilities and obligations of Seller and
Buyer are clearly allocable or attributable on the basis of objective facts.
(d) The Parties agree that any Liability, damage, loss or
expense for which indemnity or damages are sought pursuant to any provision of
this Agreement shall be computed after deduction (or increase) of any net tax
benefit (or disadvantage) which may accrue to the Party seeking indemnity or
damages after giving effect to the incurrence by such Party of the Liability,
damage, loss or expense giving rise to the claim for indemnification or damages,
the payment by such Party of any such Liability, damage, loss or expense and the
receipt by such Party of any indemnity or damage payment pursuant hereto.
18. MISCELLANEOUS
18.1 ADDITIONAL ACTIONS AND DOCUMENTS. Each of the Parties hereto
hereby agrees to take or cause to be taken such further actions, to execute,
deliver and file or cause to be executed, delivered and filed such further
documents, and will obtain such consents, as may be necessary or as may be
reasonably requested in order to fully effectuate the purposes, terms and
conditions of this Agreement.
18.2 BROKERS. Each Party represents and warrants to the other Party
that, except for Seller's broker, Hempstead & Company, whose commissions
relating to the transactions contemplated by this Agreement are solely the
responsibility of Seller, such Party has not engaged any broker, finder or agent
in connection with the transactions contemplated by this Agreement. Each Party
represents and warrants to the other Party that it has not incurred (and will
not incur) any unpaid Liability to any broker, finder or agent for any brokerage
fees, finders' fees or commissions, with respect to the transactions
contemplated by this Agreement. Each Party agrees to indemnify, defend and hold
harmless
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the other Party from and against any and all claims asserted against such Party
for any such fees or commissions by any persons purporting to act or to have
acted for or on behalf of the indemnifying Party.
18.3 EXPENSES. Each Party hereto shall pay its own expenses incident
to this Agreement and the transactions contemplated hereunder including all
legal and accounting fees and disbursements. Buyer shall be responsible for any
and all sales or similar tax due as a result of the transactions described in
this Agreement.
18.4 ASSIGNMENT. Buyer shall have the right to assign its rights and
obligations under this Agreement, in whole or in part, to an affiliate of Buyer
or to designate any of its affiliates (to the extent permitted by Law) to
exercise any of the rights of Buyer, or to perform any of its obligations
hereunder. Notwithstanding any such assignment, Buyer shall remain responsible
and liable to Seller with respect to all of the obligations of Buyer set forth
herein.
18.5 ENTIRE AGREEMENT; AMENDMENT. This Agreement and other documents
referred to herein or furnished pursuant hereto, constitutes the entire
agreement among the Parties hereto with respect to the transactions contemplated
herein, and it supersedes all prior oral or written agreements, commitments or
understandings with respect to the matters provided for herein, including, but
not limited to, the letter of intent dated February 14, 1996 between ManTech
International Corporation (Buyer's parent company) and Seller. No amendment,
modification or discharge of this Agreement shall be valid or binding unless set
forth in writing and duly executed and delivered by the Party against whom
enforcement of the amendment, modification or discharge is sought.
18.6 WAIVER. No delay or failure on the part of any Party hereto in
exercising any right, power or privilege under this Agreement or under any other
documents furnished in connection with or pursuant to this Agreement shall
impair any such right, power or privilege or be construed as a waiver of any
default or any acquiescence therein. No single or partial exercise of any such
right, power or privilege shall preclude the further exercise of such right,
power or privilege, or the exercise of any other right, power or privilege. No
waiver shall be valid against any Party hereto unless made in writing and signed
by the Party against whom enforcement of such waiver is sought and then only to
the extent expressly specified therein.
18.7 SEVERABILITY. Any term or provision of this Agreement that is
invalid or unenforceable in any situation in any jurisdiction shall not affect
the validity or enforceability of the remaining terms and provisions hereof or
the validity or enforceability of the offending term or provision in any other
situation or in any other jurisdiction. If the final judgment of a court of
competent jurisdiction declares that any term or provision hereof is invalid or
unenforceable, the Parties agree that such court shall have the power to reduce
the scope, duration, or area of the term or provision, to delete specific words
or phrases, or to replace any invalid or unenforceable term or provision with a
term or provision that is valid and enforceable and that comes closest to
expressing the intention of the invalid or unenforceable term or provision, and
this Agreement shall be enforceable as so modified after the expiration of any
applicable appeal period.
18.8 GOVERNING LAW. This Agreement, the rights and obligations of the
Parties hereto, and any claims or disputes relating thereto, shall be governed
by and construed in accordance with the Laws of the State of Maryland (excluding
the choice of law rules thereof).
18.9 NOTICES. All notices, demands, requests, or other communications
which may be or are required to be given, served, or sent by any Party to any
other Party pursuant to this Agreement shall be in writing and shall be hand
delivered, sent by overnight courier or mailed by first-class, registered or
certified mail, return receipt requested, postage prepaid, or transmitted by
telegram, telecopy or telex, addressed as follows:
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(i) IF TO BUYER:
ManTech Environmental Corporation
00000 Xxx Xxxxxxx Xxxxxxx
Xxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000-0000
Attention: Xxxxxxx X. Xxxxxxxx, III, Executive Vice President
with a copy (which shall not constitute notice) to:
Verner, Liipfert, Bernhard, XxXxxxxxx and Hand
000 - 00xx Xxxxxx, X.X.
Xxxxxxx Xxxxx
Xxxxxxxxxx, X.X. 00000
Attention: Xxxxxxx X. Xxxxxx, Esquire
(ii) IF TO SELLER:
Biospherics Incorporated
00000 Xxxxxx Xxxxx Xxxxx
Xxxxxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxx
with a copy (which shall not constitute notice) to:
Xxxxx, Somerville & Case, L.L.C.
000 Xxxxx Xxxxxx, 0xx Xxxxx
Xxxxxxxxx, Xxxxxxxx 00000
Attention: Xxxxx X. Xxxxx, Xx., Esquire
Each Party may designate by notice in writing a new address to which any notice,
demand, request or communication may thereafter be so given, served or sent.
Each notice, demand, request or communication which shall be hand delivered,
sent, mailed, telecopied or telexed in the manner described above, or which
shall be delivered to a telegraph company, shall be deemed sufficiently given,
served, sent, received or delivered for all purposes at such time as it is
delivered to the addressee (with the return receipt, the delivery receipt, or
(with respect to a telecopy of telex) the answerback being deemed conclusive,
but not exclusive, evidence of such delivery) or at such time as delivery is
refused by the addressee upon presentation.
18.10 HEADINGS. Article and Section headings contained in this
Agreement are inserted for convenience of reference only, shall not be deemed to
be a part of this Agreement for any purpose, and shall not in any way define or
affect the meaning, construction or scope of any of the provisions hereof.
18.11 EXECUTION IN COUNTERPARTS. To facilitate execution, this
Agreement may be executed in as many counterparts as may be required. It shall
not be necessary that the signatures of, or on behalf of, each Party, or that
the signatures of all persons required to bind any Party, appear on each
counterpart but it shall be sufficient that the signature of, or on behalf of
each Party, or that the signatures of the persons required to bind any Party,
appear on one or more of the counterparts. All counterparts shall collectively
constitute a single Agreement. It shall not be necessary in making proof of
this Agreement to produce or account for more than a number of counterparts
containing the respective signature of, or on behalf of, all of the Parties
hereto.
18.12 LIMITATION ON BENEFITS. The covenants, undertakings and
agreements set forth in this Agreement shall be solely for the benefit of, and
shall be enforceable only by, the Parties hereto and their respective
successors, heirs, executors, administrators, legal representatives and
permitted assigns, except that the agreements set forth in SECTION 7
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hereof also shall be for the benefit of, and enforceable by, Buyer Indemnified
Persons, Seller Indemnified Persons and their respective successors, heirs,
executors, administrators, legal representatives or permitted assigns.
18.13 BINDING EFFECT. Subject to any provisions hereof
restricting assignment, this Agreement shall be binding upon and shall inure to
the benefit of the Parties hereto and their respective successors, heirs,
executors, administrators, legal representatives and permitted assigns.
18.14 ARBITRATION. Any controversy between Buyer and Seller
arising out of or related to this Agreement, including, without limitation, the
scope of this SECTION 18.14, shall be settled by arbitration in Prince George's
County, Maryland, in accordance with the rules of the American Arbitration
Association. In the event a Party determines that there is a dispute hereunder
which such Party does not believe can be resolved without arbitration, such
Party shall give notice thereof to the other Party and such notice shall
specifically state that it is being given pursuant to this SECTION 18.14.
Within 15 days after the other Party receives such notice, both Parties shall
select an arbitrator mutually agreeable to them, or, if the Parties cannot agree
on the selection of an arbitrator, then an arbitrator shall be selected within
15 days by the American Arbitration Association, in accordance with the rules
thereof. Any award or determination made by the arbitrator shall be binding and
conclusive upon the Parties and shall not be subject to appeal to any court
except for the reasons now set forth in 9 U.S.C. Section 10(a)(1)-(5). The
expenses of arbitration shall be allocated to the Parties as determined by the
arbitrator.
18.15 MONTHLY REPORTS. Until such time as Buyer has paid the full
amount due hereunder for the Operational Receivables, Buyer shall provide Seller
on a monthly basis with accounts receivable reports which shall reflect in
detail all unpaid Operational Receivables. Such reports shall be provided not
later than the 15th day after the end of each preceding month.
IN WITNESS WHEREOF, the Parties hereto have duly caused this Agreement to
be executed on their behalf as of the day and year first above written.
BUYER:
MANTECH ENVIRONMENTAL
CORPORATION
By:__________________________________________
Name:__________________________________
Title:_______________________________________
SELLER:
BIOSPHERICS INCORPORATED
By:__________________________________________
Name:__________________________________
Title:_______________________________________
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EXHIBIT A
NON-COMPETITION AGREEMENT
THIS NON-COMPETITION AGREEMENT ("Agreement") is entered into as of
February 27, 1996, by and among (I) ManTech Environmental Technology, Inc.,
a Virginia corporation (the "Company"), and Biospherics Incorporated, a
Delaware corporation ("Biospherics") (the Company and Biospherics are
hereinafter sometimes referred to individually as a "Party" and collectively
as the "Parties").
WITNESSETH:
WHEREAS, the Parties have agreed to enter that certain Asset Purchase
Agreement (the "Asset Purchase Agreement") of even date herewith, pursuant to
which the Company has agreed to purchase certain assets of Biospherics; and
WHEREAS, the Asset Purchase Agreement requires Biospherics to execute
and deliver this Non-Competition Agreement: and
WHEREAS, the Parties wish to set forth herein their understandings and
agreements regarding the terms of Biospherics' agreement not to compete with the
Company.
NOW, THEREFORE, in consideration of the mutual covenants and promises
contained herein and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Parties agree as follows:
1. TERMS. Capitalized terms not otherwise defined herein shall have the
meanings attributed thereto in the Asset Purchase Agreement.
2. NON-COMPETITION, NON-INDUCEMENT, NON-SOLICITATION.
(a) Subject to (b) herein, Biospherics hereby agrees that for a
period of five (5) years from the date hereof, it shall not:
(i) engage in the same business lines as those of the
Biospherics' Environmental and Laboratory Services Division,
including, but not limited to asbestos surveys, lead-based paint
surveys, indoor air quality investigations, remediation design,
abatement oversight, abatement monitoring with air sample
collection; environmental auditing, site assessment, historical
research, environmental testing; environmental training for
contractors, consultants, and property owners; laboratory
analytical services for asbestos (referred to herein as the
"Business Line(s)");
(ii) own, manage, operate, join, control, or participate in the
ownership, management, operation, or control of or work for any
person, corporation or entity which, directly or indirectly, is
engaged in similar Business Lines;
(iii) actively solicit or attempt to solicit for hire any person
who the Company or any of its Affiliates (as defined below)
employs, whether or not such person was an employee,
representative or agent of Biospherics prior to the date hereof,
for employment by any other business or entity in competition
with the Company; or
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(iv) induce or attempt to induce any person, business or entity
which is a customer of the Company or any of its Affiliates, or
which otherwise is a contracting party with the Company or any of
its Affiliates, to terminate any written or oral agreement or
understanding with the Company or any of its Affiliates, or to
enter into a business arrangement with Biospherics that is
similar to or in competition with the Company.
Items (i), (ii), (iii) and (iv) above, shall be referred to herein as
"Compete" or "Competing".
(b) Notwithstanding anything to the contrary herein, any
relationships, associations, or alliances by Biospherics with third
parties that Compete with Biospherics' ELSD shall be specifically
excluded from the purview of this Agreement if, and only if,
Biospherics can establish by contemporaneous, clear, and convincing
written evidence that the relationship, association or alliance is
based on principles unrelated to the Business Lines.
(c) Biospherics has carefully read and considered the provisions of
this Agreement and, having done so, agrees that the restrictions set
forth herein are fair and reasonable and are reasonably required for
the protection of the Company and its Affiliates.
(d) Biospherics agrees that, if the Company believes in its reasonable
judgment reached in good faith that Biospherics shall be violating the
provisions of this Agreement, the Company shall so advise Biospherics.
3. DEFINITION OF AFFILIATE. For purposes of this Agreement, "Affiliate"
means, in relation to any Person (as defined herein), any other Person that
(directly or indirectly) controls or is controlled by or is under the common
control with such Person, and also shall include any Person that is so
affiliated with any such Affiliate, as well as any partner, shareholder,
warrantholder, member, director, officer, or manager of any such Person or of
any Person so affiliated with such Person. For the purposes of this definition,
the term "control", as used with respect to any Person, shall mean the
possession (directly or indirectly) of the power to direct or to cause the
direction of the management or the policies of such Person, whether through the
ownership of shares of any class in the capital of such Person or by contract or
otherwise. Also for purposes of this definition, the term "Person" shall mean
any natural person, corporation, association, partnership, joint venture, trust,
governmental authority or any agency or department thereof, or any other entity
of any kind.
4. REMEDIES.
(a) The Company shall be entitled, if it elects, to enjoin any breach
or threatened breach of, or enforce the specific performance of, the
obligations of Biospherics under this Agreement without showing any
actual damage or that monetary damages would be inadequate. Any such
equitable remedy will not be the sole and exclusive remedy for any such
breach, and the Company may pursue other remedies for such a breach.
(b) Any court proceeding to enforce this Agreement may be commenced in
the federal courts, or in the absence of federal jurisdiction, the
state courts, located in Maryland. The Parties submit to the
non-exclusive jurisdiction of such courts and waive any objection which
they may have to the pursuit of any such proceeding in any such court.
5. AGREEMENT BILLING. Biospherics' obligations hereunder shall be binding
legal obligations and shall inure to the benefit of any successor(s) to all or
substantially all of the Company's business by purchase, merger, consolidation,
or otherwise. This Agreement shall be binding upon and inure to the benefit of
any representatives and/or successor(s) of Biospherics, unless such successor(s)
already operates similar Business Lines.
6. WAIVER. No waiver by either Party at any time of any breach by the
other Party of, or compliance with, any condition or provision of this Agreement
to be performed by any other Party shall be deemed a waiver of any other
provisions or conditions at the same time or at any prior or subsequent time.
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7. APPLICABLE LAW. This Agreement shall be construed and interrupted
pursuant to the laws of Maryland without giving effect to conflict of laws
provisions thereof.
8. ENTIRE AGREEMENT. This Agreement, together with the Asset Purchase
Agreement, contains the entire agreement between the Parties relating to the
subject matter hereof and supersedes any and all previous agreements, written or
oral, between the parties relating to the subject matter hereof. No amendment
or modification of the terms of this Agreement shall be binding upon the Parties
unless reduced to writing and signed by all Parties affected thereby.
9. SEVERABILITY. Any term or provision of this Agreement that is invalid
or unenforceable in any situation in any jurisdiction shall not affect the
validity or enforceability of the remaining terms and provisions hereof or the
validity or enforceability of the offending term or provision in any other
situation or in any other jurisdiction. If the final judgment of a court of
competent jurisdiction declares that any term or provision hereof is invalid or
unenforceable, the Parties agree that the court making the determination of
invalidity or unenforceability shall have the power to reduce the scope,
duration, or area of the term or provision, to delete specific words or phrases,
or to replace any invalid or unenforceable term or provision, to delete specific
words or phrases, or to replace any invalid or unenforceable term or provision,
and this Agreement shall be enforceable as so modified after the expiration of
the time within which the judgment may be appealed. Without limiting the
foregoing, in the event that any provisions of this Agreement relating to the
time period of restriction shall be declared by a court of competent
jurisdiction to exceed the maximum time period, the time period deemed
reasonable and enforceable shall become and thereafter be the maximum time
period.
10. COUNTERPARTS. This Agreement may be executed in counterparts and may
be executed by facsimile signature, each of which shall be deemed an original
and all of which together shall constitute one and the same instrument.
11. NOTICE. Notices under this Agreement shall be in writing and deemed
effective when received via certified, registered mail or common carrier, return
receipt requested, to the following addresses or to such other address as the
Party being notified may have previously furnished to the others by written
notice.
IF TO THE COMPANY:
ManTech Environmental Technology, Inc.
00000 Xxx Xxxxxxx Xxxxxxx
Xxxxxxx, Xxxxxxxx 00000-0000
Attention: Xxxxxxx X. Xxxxxxxx, III
With a copy (which shall not constitute notice) to:
Verner, Liipfert, Bernhard, XxXxxxxxx and Hand
000 00xx Xxxxxx, X.X., Xxxxx 000
Xxxxxxxxxx, XX 00000
Attention: Xxxx X. Xxxxxx
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IF TO BIOSPHERICS:
Biospherics Incorporated
00000 Xxxxxx Xxxxx Xxxxx
Xxxxxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxx
With a copy (which shall not constitute notice) to:
Xxxxx, Somerville & Xxx, L.L.C.
000 Xxxxx Xxxxxx, 0xx Xxxxx
Xxxxxxxxx, Xxxxxxxx 00000
Attention: Xxxxx X. Xxxxx, Xx., Esquire
IN WITNESS WHEREOF, each Party hereto has executed this Agreement or caused this
Agreement to be executed in its name and on its behalf as of the day and year
first above written.
MANTECH ENVIRONMENTAL TECHNOLOGY, INC.
_____________________________________
Xxxxxxx X. Xxxxxxxx, III
Vice President
______________________________________
Name: ______________________
Title: _____________________
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EXHIBIT B
SUBLEASE AGREEMENT
THIS SUBLEASE AGREEMENT (this "Sublease") is effective this 29th day of
February, 1996, by and between Biospherics Incorporated ("Sublessor"), a
Delaware corporation, having offices at 00000 Xxxxxx Xxxxx Xxxxx, Xxxxxxxxxx, XX
00000, and ManTech Environmental Corporation, a Virginia corporation qualified
to transact business in the State of Maryland ("Sublessee"), having offices at
00000 Xxx Xxxxxxx Xxxxxxx, Xxxxxxx, XX 00000. For the purposes of this
Sublease, the term "Party" shall mean Sublessor and Sublessee severally and the
term "Parties" shall mean Sublessor and Sublessee collectively.
RECITALS
WHEREAS, pursuant to that certain Agreement of Lease ("Master Lease") by
and between Indian Creek Holding Associates Limited Partnership c/o Liberty
Property Trust as Landlord ("Master Lessor"), and Sublessor as Tenant, effective
the 7th day of April, 1987, a copy of which is attached hereto and incorporated
herein as EXHIBIT A. Sublessor is leasing from Master Lessor approximately
95,100 square feet in the building known as 00000 Xxxxxx Xxxxx Xxxxx,
Xxxxxxxxxx, XX 00000 (the "Building") on the lot which underlies the Building
(the Building and lot hereinafter referred to collectively as the "Premises").
WHEREAS, Sublessor desires to sublease to Sublessee, and Sublessee desires
to sublease from Sublessor approximately 9,000 square feet (the "Subleased
Premises") upon, and subject to, the prior consent of Master Lessor on the terms
and conditions hereinafter set forth. The Subleased Premises are more
particularly delineated on the floor plan attached hereto and incorporated
herein as EXHIBIT B.
NOW THEREFORE, in consideration of the premises and for other good and
valuable consideration, receipt and sufficiency which are hereby acknowledged by
both Parties, it is agreed as follows:
1. INCORPORATION OF RECITALS AND MASTER LEASE DEFINITIONS.
The Parties agree that the Recitals above are a part of this Sublease.
Unless otherwise expressly defined in this Sublease, terms defined in the Master
Lease shall have the same meaning under this Sublease.
2. SUBLEASED PREMISES.
(a) Sublessor hereby subleases to Sublessee and Sublessee hereby subleases
from Sublessor, the Subleased Premises, including the right to use a
proportionate number of parking spaces, upon and subject to all of the terms and
conditions hereinafter set forth.
(b) For the purposes hereof, it is agreed that the square footage of the
Subleased Premises is 9,000 square feet based upon previous measurement.
3. TERM.
(a) This Sublease shall be in full force and effect from the date of its
execution by Sublessor, Sublessee and Master Lessor. The term of the Sublease
shall commence on March 1, 1996 (the "Commencement Date") and expire on May 1,
1996 (the "Expiration Date") unless otherwise terminated or extended as
hereinafter provided (the "Primary Term").
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(b) If Sublessee does not immediately surrender the Subleased Premises on
the day after the end of the Primary Term, the term automatically extends to
August 31, 1996, on a month to month basis, unless earlier terminated as set
forth below (the "Extended Term"). The Primary Term and Extended Term shall be
referred to herein as the "Term." Sublessor and Sublessee shall be subject to
all of the conditions and covenants of this Sublease as though the tenancy had
originally been a monthly tenancy. Sublessee shall give at least fifteen (15)
days prior written notice to the Sublessor to terminate this Sublease at any
time during the Extended Term.
4. RENT
(a) During the Term, Sublessee shall pay to Sublessor, monthly rent of
$9,500.00 ("Monthly Rent"). All such Monthly Rent shall be due and payable in
advance on or before the first (1st) day of each month during the Term without
any prior demand or previous notice. If the Sublease Commencement or
Termination Dates fall on a day other that the first day, or last day
respectively, of a calendar month, Monthly Rent shall be prorated on a per diem
basis at the rate of one-thirtieth (1/30th) of the Monthly Rent.
(b) Monthly Rent is all inclusive such that Monthly Rent includes, without
limitation, Minimum Annual Rent and all operating expenses, utility charges,
maintenance and janitorial fees, taxes, increases in insurance premiums
maintained by Master Lessor, parking fees, telephone/fax service including local
and long distance charges and any reproduction charges. Under no condition
shall Sublessee be required to pay any additional rent (as defined in the Master
Lease) or any other sums which may otherwise be due and payable pursuant to the
Master Lease.
(c) Monthly Rent and any other sums payable by Sublessee hereunder shall
be paid to Sublessor in lawful money of the United States at Sublessor's address
provided above or as otherwise designated in writing to Sublessee. A late
charge of five percent (5%) will be imposed with respect to Monthly Rent due
hereunder that is not received by Sublessor within ten (10) days following the
date such rent was due. In addition, such late payment shall bear interest at
ten percent (10%) per annum, accrued monthly, from the date that it is fifteen
(15) days past due to the date of payment thereof by Sublessee; provided,
however, that nothing contained herein shall be construed as permitting
Sublessor to charge or receive interest in excess of the maximum rate then
allowed by applicable law. Such late charge and interest shall be due and
payable with the next installment of Monthly Rent due hereunder.
5. SUBLESSEE'S INSURANCE
From the Commencement Date of this Sublease and continuing throughout the
Term hereof, Sublessee shall obtain and maintain all insurance with respect to
the Subleased Premises and the contents thereof that Sublessor is required to
obtain and maintain pursuant to the Master Lease with respect to the Premises
leased by Sublessor under the Master Lease and the contents thereof. The
insurance required to be carried by Sublessee pursuant hereto shall be carried
with a company or companies licensed to do business in the State of Maryland and
shall meet all other requirements for Sublessor's insurance under the Master
Lease. In addition, such insurance policies shall provide that such policies
cannot be canceled without thirty (30) days prior written notice to Sublessor.
If requested by Sublessor, Sublessee shall provide certificates of insurance.
6. USE
Sublessee shall use the Subleased Premises for the full Term hereof for an
analytical laboratory, the Sublessee's offices, a training facility and/or any
one or more lawful uses, but for no other purpose. Sublessee shall comply with
all present and future laws, ordinances, regulations and requirements of all
federal, state, and other governmental authorities relating to use of the
Subleased Premises. Sublessee shall not permit the Subleased Premises to be
used in any manner that constitutes a public or private nuisance or that
interferes with the lawful use of the Building by Sublessor or any other tenant
of the Building. Sublessee shall observe and abide by all rules and regulations
that are established by Master Lessor with respect to use of the Subleased
Premises or any other part of the Building.
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7. IMPROVEMENTS
(a) The Subleased Premises shall be delivered to Sublessee clean and ready
for use and Sublessee agrees to accept the Subleased Premises in their "as is"
"as built" condition as of the effective date of this Sublease. Sublessee
acknowledges that it has inspected the Subleased Premises and that they are in
reasonably good condition and repair.
(b) Sublessee shall not make or install any additions, renovations,
alterations, improvements or changes ("Tenant Improvements") in or to the
Subleased Premises, including the walls, floors, ceiling and fixtures located
therein, without first obtaining the prior written approval of Sublessor and, if
and to the extent required pursuant to the Master Lease, the Master Lessor. All
work done by or for Sublessee with respect to the Subleased Premises, including,
but not limited to, any removal or restoration work done at the expiration or
termination of this Sublease, shall be at Sublessee's sole cost and expense.
Sublessee shall comply with all present and future laws, ordinances, regulations
and requirements of all federal, state and other governmental authorities
relating to any and all Tenant Improvements of the Subleased Premises.
(c) Sublessor hereby waives any rights, whether vested as a matter of law
or otherwise, to liens or other security interests in or to any trade fixtures
or other personal property owned by Sublessee and located in or about the
Subleased Premises.
8. REPAIRS AND MAINTENANCE
Throughout the Term of this Sublease, Sublessee shall, at its sole cost and
expense, keep and maintain the Subleased Premises and all property located
therein in good order and condition, provided however, Sublessor shall keep and
maintain the exterior portions of the Subleased Premises as well as the
electrical and heating and air conditioning systems for the Subleased Premises
in good order and repair. Sublessor or Master Lessor shall have the right to
make repairs to the Subleased Premises which Sublessee does not make or
diligently pursue after receiving prior written notice requesting such repair be
made within a reasonable amount of time consistent with the nature of the repair
or replacement from Sublessor or Master Lessor, and Sublessee shall pay to
Sublessor all reasonable costs and expenses of such repairs within fifteen (15)
days after receiving an invoice for such work. Upon the expiration or
termination of this Sublease, Sublessee shall surrender the Subleased Premises
in as good condition as it was in at the effective date of this Sublease
reasonable wear and tear, casualty damage for which the Master Lessor and/or
Sublessor are responsible to repair or restore, and other conditions for which
the Master Lessor and/or Sublessor are responsible to repair or restore
excepted. The foregoing obligation includes by way of example and not by
limitation, the obligation of Sublessee to repair and restore any damage or
injury to the Subleased Premises caused by the installation and/or removal of
any of its trade fixtures, except for the costs of restoring the Subleased
Premises pursuant to the provisions herein relating to the relocation of the
Transmission Electron Microscope, where the Parties hereby agree to equally
divide the reasonable restoration costs thereof.
9. INDEMNIFICATION AND WAIVER OF SUBROGATION
(a) Sublessee hereby agrees to indemnify and hold harmless Sublessor from
and against any and all losses, damages, liabilities, actions, claims, costs and
expenses, including court costs and reasonable attorneys' fees, arising out of
or relating to (i) Sublessee's negligent use or occupancy of the Subleased
Premises; or (ii) any neglect act or omission by Sublessee or any of its
employees, guests or invitees; or (iii) any failure by Sublessee to perform or
observe any of the covenants or obligations required of Sublessee under this
Sublease, in each case only to the extent not caused by the negligence, gross
negligence or willful misconduct of Sublessor, its officers, representatives,
agents, employees or invitees, in which event Sublessor agrees to indemnify and
defend Sublessee as provided above. Sublessee's obligations under this
paragraph shall survive the expiration or termination of this Sublease.
(b) Sublessor and Sublessee hereby release each other and waive any claims
against each other for bodily injury or loss or damage to the Premises,
Subleased Premises, fixtures, equipment or any other personal property arising
from a risk insured against and actually paid under insurance policies required
to be carried by Sublessor and Sublessee hereunder even though such loss or
damage was caused by an act or omission of Sublessor or Sublessee, their
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representatives, agents, employees or invitees. Sublessor and Sublessee agree
to obtain and maintain throughout the Term of this Sublease endorsements to
their respective insurance policies waiving the right of recovery or subrogation
of their insurance companies against the other Party and its agents and
employees to the extent of the foregoing release and waiver. Except to the
extent expressly provided herein, nothing contained in this Sublease shall
relieve Sublessor or Sublessee of any liability to each other or to their
insurance carriers which Sublessor or Sublessee may have under law or the
provisions of this Sublease, in connection with any bodily injury or loss or
damage to the Premises, Subleased Premises, fixtures, equipment or any other
personal property.
10. BUILDING SERVICES
In the event Master Lessor agreed to furnish certain services to Sublessor
pursuant to the Master Lease, Sublessee shall be entitled to the use and benefit
of such services; however, Sublessor shall not have the liability or
responsibility to Sublessee for the quality of such services for interruption,
failure or disruption in the provision of such services to the extent not caused
by the negligence, gross negligence or willful misconduct of Sublessor, or its
agents, representatives, employees or invitees. Sublessee's obligations
hereunder shall survive the expiration or termination of this Sublease.
11. ASSIGNMENT AND SUBLETTING
Without the prior written approval of Sublessor, which approval may not be
unreasonably withheld, delayed or conditioned, Sublessee shall not assign,
pledge, or encumber this Sublease or any interest herein, further sublease the
Subleased Premises or any part thereof or permit anyone other than Sublessee's
employees, guests or invitees to use the Subleased Premises. Any attempted
assignment, pledge or hypothecation of this Sublease or subletting of the
Subleased Premises, whether voluntary or involuntary, without prior written
approval of Sublessor and Master Lessor shall be void and shall, and at the
option of the Sublessor, terminate this Sublease. In no event shall Sublessee
be released from liability under this Sublease. Sublessor reserves the right to
assign or otherwise transfer its interest in and to this Sublease, including all
of its rights and obligations hereunder, to any entity or person who shall
succeed to Sublessor's interest in and to Master Lease, provided, however,
Sublessor shall use its best efforts to obtain from any future mortgage non-
disturbance agreement subordinating its lien to Sublessee's right of quiet
enjoyment under this Sublease.
12. SUBORDINATION TO AND INCORPORATION OF THE TERMS OF THE MASTER LEASE
(a) Notwithstanding anything to the contrary in this Sublease, Sublessee
acknowledges the right it is hereby acquiring in and to the Subleased Premises
are derived from the Master Lease and that the rights, terms and conditions of
this Sublease are in all respects subordinate and subject to the terms and
conditions of the Master Lease. Except as expressly set forth herein, Sublessee
agrees to be bound by each term, condition and covenant of the Master Lease that
governs the use and occupancy of the Subleased Premises as if each such term,
condition, and covenant were set forth in full in this Sublease.
Notwithstanding anything to the contrary herein, it is further agreed that, in
the event the Master Lease terminates for any reason, this Sublease and all
rights of Sublessee in and to the Subleased Premises shall automatically
terminate on the date the Master Lease is terminated and neither Sublessor nor
Sublessee shall have any obligation or liability to the other as a result of
such termination. Notwithstanding anything to the contrary contained in the
foregoing, Sublessee shall remain obligated to Sublessor for all obligations
accrued prior to the termination date and such obligations shall survive such
termination.
(b) Except as otherwise provided herein, all acts to be performed and all
terms and provisions to be observed by Sublessor as Tenant under the Master
Lease shall be performed with respect to the Subleased Premises. Sublessee
covenants and agrees that Sublessee shall not do anything that would constitute
a default under the Master Lease or omit to do anything that Sublessee is
obligated to do under the terms of this Sublease so as to cause a default under
the Master Lease.
(c) Sublessor agrees that as long as Sublessee is not in default
hereunder, Sublessor will not (i) take any action which would constitute a
voluntary surrender under the Master Lease, or (ii) willfully default thereunder
resulting in the termination of this Sublease and/or Sublessee's eviction
thereunder.
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13. SUCCESSORS AND ASSIGNS
Subject to the restriction on assignment and subletting described above,
this Sublease shall be binding upon and shall inure to the benefit of the
Parties hereto, their successors, assigns and legal representatives.
14. DEFAULT
Either (i) the failure by Sublessee to pay Monthly Rent when due if such
failure shall continue for ten (10) days after receipt of written notice from
Sublessor; or (ii) the failure by Sublessee to pay other amounts when due, if
such failure shall continue for fifteen (15) days after receipt of written
notice from Sublessor, or (iii) the failure by Sublessee to observe or perform
any covenant, obligation or condition required to be observed or performed by
Sublessee hereunder, if such failure shall continue after fifteen (15) days
after receipt of written notice from Sublessor, shall constitute a default by
Sublessee and Sublessor shall have the right to terminate this Sublease and to
recover immediate possession of the Subleased Premises. In addition, in the
event of any default by Sublessee hereunder, Sublessor shall be entitled to
recover all damages and to enforce all rights, powers and remedies of Sublessor
which shall be cumulative, and the exercise of any one or more of such rights or
remedies shall not impair Sublessor's right to exercise any other right or
remedy, either concurrently or at any later time. In the event of any reletting
by Sublessor, Sublessee shall also pay to Sublessor the difference between the
Monthly Rent due through the remaining Term of this Sublease at the time of
default and any amount received under such reletting for the remaining Term, in
addition to all costs and expenses, including reasonable attorneys' fees in the
event Sublessor is deemed a prevailing party in such enforcement actions and
costs, incurred by Sublessor in such reletting.
15. SPACE COOPERATION
Sublessor and Sublessee hereby acknowledge the prior arrangement between
the Parties not to physically separate the Subleased Premises from the Premises
and agree to take all reasonable precautions to protect the property of one
another and respect the other Party's right to carry on their respective lines
of business.
16. DAMAGED SUBLEASED PREMISES
In the event the Subleased Premises shall at any time be destroyed by fire
(or other unavoidable casualty), not proximately caused by Sublessee or any of
its employees, guests or invitees, as to be unfit for occupancy or use, then the
Monthly Rent herein reserved, or a fair and just proportion thereof, shall be
suspended and cease to be payable unless and until the Subleased Premises have
been rebuilt or restored and made fit for occupancy or use.
17. CONDEMNATION
If the Subleased Premises, or any part thereof, is condemned or taken by
any Government authority under the power of eminent domain, this Sublease shall
terminate as of the date of such condemnation of taking. Sublessee shall have
no claim for any portion of the condemnation award or other compensation paid
for such taking; provided, however, that nothing contained herein shall waive or
prejudice Sublessee's right to independently pursue an award for damage to
Sublessee's furniture, equipment or other personal property, for Sublessee's
moving expenses or for loss of profits due to the interruption of Sublessee's
business, provided that no such claim by Sublessee shall in any way diminish the
award or compensation payable or recoverable by Master Lessor or Sublessor in
connection with such taking or condemnation.
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18. HOLDING OVER
Any holding over by Sublessee after the expiration of the Extended Term of
this Sublease shall be subject to the prior written approval of Sublessor, which
approval may not be unreasonably withheld, delayed or conditioned, and shall
continue at a month to month tenancy at a Monthly Rent to be determined by
mutual agreement of the Parties.
19. BROKER'S COMMISSIONS
Sublessor and Sublessee each represent and warrant that it has not employed
a broker in connection with this Sublease. Sublessor and Sublessee each agree
to indemnify and hold harmless the other from any and all claims, damages and
expenses, including reasonable attorneys' fees, incurred by the other as a
result of the breach by such Party of its representation and warranty set forth
herein.
20. SUBLESSOR'S COVENANT
Sublessor covenants that it has the right to make this Sublease for the
Term hereof, and if Sublessee shall pay the rents and perform all of the
covenants, terms and conditions of this Sublease, and if Sublessee is not in
default hereunder, Sublessee shall during the Term hereof (and any renewal and
extension thereof) peaceably and quietly have, hold and enjoy the Subleased
Premises, subject however to the terms of the Master Lease.
21. GENERAL PROVISIONS
(a) The waiver by Sublessor of a breach of any covenant, obligation or
condition set forth herein shall not be deemed to be a waiver of any subsequent
breach of any covenant, obligation or condition of this Sublease.
(b) This Sublease shall be governed by and construed in accordance with
the laws of the State of Maryland.
(c) This Sublease, including all exhibits, constitutes the entire
agreement between the Parties hereto and may not be modified except by a written
instrument executed by a written instrument executed by the Parties hereto.
(d) If any provision of this Sublease is declared invalid or
unenforceable, the remainder of this Sublease shall continue in full force and
effect.
(e) All notices required or permitted to be given to Sublessor hereunder
shall be effective upon receipt delivered in person or by certified mail, return
receipt requested or via common carrier with proof of receipt to Xxxxxxx X.
Xxxxx, Vice President, Biospherics Incorporated, 00000 Xxxxxx Xxxxx Xxxxx,
Xxxxxxxxxx, XX 00000, or to such other individual or address as Sublessor shall
from time to time designate. All notices required or permitted to be given to
Sublessee hereunder shall be delivered in person or by certified mail, return
receipt requested or via common carrier with proof of receipt to Xxxxxxx X.
Xxxxxxxx, III, Vice President, ManTech Environmental Technology, Inc., 00000 Xxx
Xxxxxxx Xxxxxxx, Xxxxxxx, XX or to such other individual or address as Sublessor
shall from time to time designate.
(f) Paragraph headings are used herein solely for reference purposes and
are not to be construed as part of this Sublease.
(g) This Sublease may be executed in counterpart copies, each of which
shall constitute an original but all of which together shall constitute one and
the same Sublease.
(h) Time is of the essence in this Sublease.
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IN WITNESS WHEREOF, the Parties hereto have executed this Sublease
effective the day and year first written above.
Sublessee: Sublessor:
MANTECH ENVIRONMENTAL CORPORATION BIOSPHERICS INCORPORATED
By: By:
------------------------------ ---------------------------
Xxxxxxx X. Xxxxxxxx, III
Title: Vice President Title:
-------------------------- -----------------------
MASTER LESSOR:
--------------------------------
JOINS HEREIN FOR THE SOLE PURPOSE OF GRANTING ITS CONSENT TO THE SUBLEASE BUT
WITHOUT IN ANY WAY MODIFYING THE TERMS AND CONDITIONS OF THE MASTER LEASE.
BY:
------------------------------
TITLE:
------------------------------
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EXHIBIT C
XXXX OF SALE
FOR VALUE RECEIVED, BIOSPHERICS INCORPORATED, a Delaware corporation
("Seller"), hereby grants, sells, assigns and conveys to MANTECH ENVIRONMENTAL
CORPORATION, a Virginia corporation ("Buyer"), all Seller's right, title and
interest in and to the Assets (as that term is defined in the Asset Purchase
Agreement dated February 27, 1996, by and between Seller and Buyer) of Seller
that are particularly described in Schedule A attached hereto and made a part
hereof.
IN WITNESS WHEREOF, the undersigned Seller has caused this instrument to be
duly executed this 29th day of February, 1996.
ATTEST: BIOSPHERICS INCORPORATED
___________________________________ By: ______________________________
Secretary
[Corporate Seal]
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EXHIBIT D-I
BIOSPHERICS INCORPORATED
CERTIFICATE
I, Xxxxx Xxxxxxxx, hereby certify:
1. I am a Program Manager for Biospherics Incorporated, a Delaware
corporation (the "Corporation"). As Program Manager, I am familiar with the
matters herein certified.
2. I have reviewed the financial statements, reports and certificates
(the "Information") furnished by the Corporation to ManTech Environmental
Corporation ("ManTech") in connection with the anticipated purchase by ManTech
of certain assets of the Corporation known as the Environmental & Laboratory
Services Division ("ELSD").
3. I do not know of, and have no reason to believe there are, any losses
or uncollectible debts that are not fully reflected in the Information.
IN WITNESS WHEREOF, I have executed this Certificate this 29th day of
February, 1996.
__________________________
Xxxxx Xxxxxxxx
ELSD Division Director
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EXHIBIT D-I, CONTINUED
BIOSPHERICS INCORPORATED
CERTIFICATE
I, Xxxxxxxxx X. Xxxxx, hereby certify:
1. I am a Billing Coordinator for Biospherics Incorporated, a Delaware
corporation (the "Corporation"). As Billing Coordinator, I am familiar with the
matters herein certified.
2. I have reviewed the financial statements, reports and certificates
(the "Information") furnished by the Corporation to ManTech Environmental
Corporation ("ManTech") in connection with the anticipated purchase by ManTech
of certain assets of the Corporation known as the Environmental & Laboratory
Services Division ("ELSD").
3. I do not know of, and have no reason to believe there are, any losses
or uncollectible debts that are not fully reflected in the Information.
IN WITNESS WHEREOF, I have executed this Certificate this 29th day of
February, 1996.
__________________________
Xxxxxxxxx X. Xxxxx
Billing Coordinator
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EXHIBIT D-II
BIOSPHERICS INCORPORATED
CERTIFICATE
I, Xxxxxx X. Xxxxx, III, hereby certify:
1. I am the Vice President of Finance for Biospherics Incorporated, a
Delaware corporation (the "Corporation"). As Vice President, I have access to
the books and records of the Corporation and am familiar with the matters herein
certified.
2. The financial statements, reports and certificates (the "Information")
furnished by the Corporation to ManTech Environmental Corporation ("ManTech") in
connection with the anticipated purchase by ManTech of certain assets of the
Corporation known as the Environmental & Laboratory Services Division ("ELSD")
pursuant to the Asset Purchase Agreement dated as of the date hereof between the
Corporation and ManTech (the "Asset Purchase Agreement") (a) do not contain any
untrue statement of a material fact and (b) do not omit any material fact
necessary to make statements contained therein not misleading. To the best of
my knowledge and up to the date hereof, there are no losses or uncollectible
debts that are not fully reflected in the Information.
3. I know of no fact that the Corporation has not disclosed to ManTech
prior to the date hereof with respect to the transactions contemplated by the
Asset Purchase Agreement which materially and adversely affects, or in the
future could, in my reasonable opinion, materially adversely affect the
condition, financial or otherwise, results of operations, business, or assets
being purchased by ManTech pursuant to the Asset Purchase Agreement.
IN WITNESS WHEREOF, I have executed this Certificate this 29th day of
February, 1996.
__________________________
Xxxxxx X. Xxxxx, III
Vice President of Finance
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