STOCK PURCHASE AGREEMENT
This Stock Purchase Agreement (this "Agreement"), dated as
of August 21, 2006, is entered into by and between Dynasil
Corporation of America, a New Jersey corporation (the
"Purchaser"), Evaporated Metal Films Corp., a New York
corporation (the "Company"), and Xxxxx Xxxx, an individual (the
"Seller"). In consideration of the mutual covenants herein and
intending to be legally bound hereby, the parties agree as
follows:
Section 1. Sale and Purchase of the Stock
The Seller owns 110,882 shares of the common stock, par
value $.01 per share (the "Stock"), of the Company, constituting
100% of the issued and outstanding capital stock of the Company.
The Seller wishes to sell and the Purchaser wishes to purchase
the Stock on the terms and conditions, and subject to the
representations and warranties, set forth herein.
Section 2. Purchase Price for the Stock
The purchase price for the Stock shall be $1,100,000 ($9.92
per share) (the "Purchase Price"), which shall be payable at the
Closing by wire transfer of U.S. Dollar funds that will be
available not later than the close of business on the next
business day after the Closing Date (as defined below) to an
account or accounts designated by the Seller or, in the absence
of such designation, by certified or bank cashier's checks
payable to the order of the Seller.
Section 3. Closing; Transfer Procedures
3.1 Closing and Effectiveness. The closing of the sale and
purchase of the Stock (herein called the "Closing") shall take
place at 000 Xxxxxx Xxxx, Xxxx Xxxxxx, XX 00000, at 10:00 A.M.,
local time, on October 2, 2006 (the "Closing Date"), at the
offices of the Purchaser or at such other place as the parties
may agree. The Closing Date may be extended in accordance with
Section 11.1. Anything herein to the contrary notwithstanding,
the transactions contemplated herein shall be deemed to have
occurred on October 1, 2006.
3.2 Minute Books, Corporate Seal and Stock Records. At the
Closing, the Seller shall deliver or cause the Company to deliver
to the Purchaser all minute books, corporate seals, stock
certificate books and other corporate and stock records of the
Company.
3.3 Delivery of the Stock. At the Closing, the Seller shall
deliver to the Purchaser all certificates representing the Stock,
with assignments separate from certificates duly endorsed in
blank, with signatures guaranteed by a bank or trust company or a
member firm of the New York Stock Exchange, American Stock
Exchange or National Association of Securities Dealers, Inc.
3.4 Financial Institution Account Signatures. At the
Closing, if requested by the Purchaser, the Seller shall deliver
or cause the Company to deliver to the Purchaser all necessary
documents required by the banks and other financial institutions
listed on Exhibit 4.18 for the Company to replace the currently
authorized signatories with the Purchaser's designees.
Section 4. Representations and Warranties of the Seller, the
Company and the Purchaser.
On and as of the date of this Agreement and the Closing
Date, the Seller and the Company hereby jointly and severally
represent and warrant to the Purchaser, as follows:
4.1 Organization and Good Standing. The Company is a
corporation duly organized, validly existing and in good standing
under the laws of the State of New York. The Company is duly
qualified and in good standing as a foreign corporation in the
jurisdictions set forth in Exhibit 4.1.
4.2 Subsidiaries, Other Ventures, etc. Except as set forth
on Exhibit 4.2, the Company has no interest in any other
corporation, partnership, joint venture, trust, limited liability
company or other legal entity.
4.3 Capitalization. The capital stock of the Company
consists of 990,000 shares of authorized common stock, par value
$.01 per share, of which 110,882 shares are currently issued and
outstanding. Each share of such capital stock issued and
outstanding is validly issued, fully paid and nonassessable.
There are no outstanding options, warrants, puts, calls,
contracts, agreements, understandings, commitments, preemptive
rights, cumulative voting rights, assignments, pledges or demands
of any character relating to any shares of the capital stock of
the Company.
4.4 Stock Ownership. The Seller owns the Stock free and
clear of all liens, encumbrances, claims, options and/or other
charges or claims of any and every kind. The Seller has all
requisite capacity, power, authority and right to execute and
deliver this Agreement, consummate the transaction contemplated
herein and transfer the Stock to the Purchaser and, when
transferred to the Purchaser as contemplated by this Agreement,
the Stock will be owned by the Purchaser free and clear of all
liens, encumbrances, claims and other charges of every kind
created by, through or under the Company or the Seller and
without violating any agreement or understanding to which the
Company or the Seller is a party or by which either of them is
bound.
4.5 Title to Properties. Except as set forth on Exhibit 4.5,
the Company owns outright, and has good and marketable title to,
all of its properties free and clear of all liens, pledges,
mortgages, security interests, conditional sales contracts or
other encumbrances of any nature whatsoever, except for the lien
of current taxes not yet due and payable.
4.6 Tax Matters. The Company has filed or caused to be filed
all federal, state and local tax returns and reports through the
taxable year ended September 30, 2005 which are due and required
to be filed and has paid or caused to be paid all taxes due
through the date hereof and any assessment of taxes received,
except taxes or assessments that are being contested in good
faith and have been adequately reserved against. Since September
30, 2005, the Company has filed all tax forms required to be
filed by it and made all required interim tax payments,
including, without limitation, all payroll withholding taxes. The
provision for income taxes payable reflected in the Financial
Statements as of September 30, 2005 is adequate for the payment
of all taxes due for all periods ending on or before that date,
and includes provision for deferred taxes in accordance with
generally accepted accounting principles, consistently applied.
4.7 Litigation. Except as disclosed in Exhibit 4.7 attached
hereto and incorporated herein:
(a) there is no dispute, claim, counterclaim, action, suit,
proceeding, arbitration or governmental investigation, either
administrative or judicial, pending, or to the knowledge of the
Seller or the Company, threatened, against or related to (i) the
Company or its business or assets or (ii) the Seller that would
materially and adversely affect this Agreement or the
consummation of the transactions contemplated herein; and
(b) the Company is not in default with respect to any order,
writ, injunction or decree of any court or governmental
department, commission, board, bureau, agency or instrumentality
or with respect to any agreement, undertaking or commitment with
any other person, firm or entity, which involves the possibility
of any judgment or liability that may result in any material
adverse change in its financial condition, assets, liabilities or
business; and
(c) the Seller knows of no facts or circumstances that would
provide a basis for any such action, suit, proceeding or default
referred to in subsections 4.7(a) or (b) above.
4.8 Absence of Undisclosed Liabilities. The Company has no
material liabilities or obligations accrued, absolute, contingent
or otherwise, except as disclosed in this Agreement or the
Exhibits hereto or as incurred, consistent with past business
practice, in the normal and ordinary course of its business since
the Financial Statements dated June 30, 2006.
4.9 Absence of Debt. Except as set forth on Exhibit 4.9, the
Company is not a party to, guarantor of or accommodation party
for any debenture, note, conditional sale, loan or other
borrowing agreement or indebtedness, or any lease required to be
capitalized in accordance with generally accepted accounting
principles.
4.10 Absence of Certain Changes and Events. Since September
30, 2005, except as set forth in Exhibit 4.10, there has not
been:
(a) any damage to, destruction or loss of any tangible or
intangible asset of the Company, whether covered by insurance or
not, materially and adversely affecting the operations, business,
properties or assets of the Company;
(b) any declaration, setting aside or payment of any
dividend or any distribution with respect to the capital stock of
the Company or any direct or indirect redemption, purchase or
other acquisition by the Company of any such stock;
(c) any labor trouble, claim of unfair labor practice or
union organizing activity involving the Company;
(d) any sale, transfer, lease or other disposition, or
agreement to do so, of any of the properties or assets of the
Company other than in the ordinary course of its business
consistent with past practice;
(e) any mortgage, pledge or encumbrance of any of the
Company's properties or assets; or
(f) any sale by the Company of capital stock of the Company
or any security or instrument convertible into or exchangeable
for such capital stock or under which any person has any right to
acquire any such capital stock.
4.11 Leases. Exhibit 4.11 contains a complete and accurate
list of all leases that are not cancellable on thirty (30) days
or less notice without penalty or additional liability involving
a total annual financial obligation of $2,500 or more pursuant to
which the Company leases personal or real property to or from any
person or entity, all of which leases are in full force and
effect, no uncured default by any party thereto exists and no
event, fact or condition exists which, with the giving of notice
or the lapse of time, or both, would constitute a default by any
party thereto.
4.12 Other Agreements. Exhibit 4.12 contains a complete and
accurate list of all agreements to which the Company is a party
or by which it is bound which are not required to be listed in
any other Exhibit hereto which require an annual payment of
$10,000 or more in the aggregate or which may not be terminated
upon thirty (30) days or less notice without penalty or
additional liability. All of such agreements are in full force
and effect and no uncured default by any party thereto exists,
and no event, fact or condition exists that, with the giving of
notice or the lapse of time, or both, would constitute a default
by any party thereto.
4.13 Corporate Records. Except as set forth in Exhibit 4.13,
the Company has maintained minute books which are up to date and
in which are recorded accurately all actions taken by
shareholders and the board of directors to the extent that such
actions are required by law to be approved by shareholders or
directors, as the case may be. The Company has maintained stock
certificate books or transfer records in which are recorded
accurately all original issues, transfers, cancellations and
losses (with appropriate indemnity) of stock certificates.
4.14 Restrictions. The Company is not subject to any
judgment, order, writ, injunction or decree of a court that
materially and adversely affects or, so far as the Seller and the
Company can reasonably foresee, may in the future materially and
adversely affect, its business, operations, prospects,
properties, assets or condition, financial or otherwise.
4.15 Compliance with Laws. Except as set forth in Exhibit
4.15, the Company has received no notice of violation of any law,
ordinance, rule, regulation or order (including, without
limitation, any environmental, safety, health or price or wage
control law, ordinance, rule, regulation or order), and to its
and the Seller's knowledge, none are pending or threatened,
applicable to its operations, business or properties as presently
constituted.
4.16 Employees and Financial Interests. Exhibit 4.16 sets
forth the name and current annual rate of compensation (including
commissions and bonuses) paid by the Company to each director,
officer, employee or agent of the Company whose current annual
rate of compensation (including commissions and bonuses) is in
excess of $10,000. Except as referred to in Exhibit 4.16, to the
Seller's knowledge, no director, officer or employee of the
Company owns, directly or indirectly, any equity or other
financial interest in, or is an agent, employee, officer or
director of, any corporation, firm, association or business
organization which is a supplier, customer or landlord of, or
which competes with, the Company.
4.17 Employee Benefit Plans; Employee Relations.
(a) Exhibit 4.17 sets forth a true and complete list and
description of all pension, profit sharing, stock bonus, stock
option, employment or severance agreements, deferred
compensation, defined benefit, health, life, accident or
disability plans, or any other agreement, arrangement, commitment
or other employee benefit plan (including but not limited to,
"employee benefit plans" within the meaning of Section 3(3) of
the Employee Retirement Income Security Act of 1974, as amended
and the regulations promulgated thereunder ("ERISA") (the
SBenefit Plans") maintained by the Company or with respect to
which the Company has or may in the future have any liability
with respect to any current or former employee or their
beneficiaries.
(b) Except as set forth in Exhibit 4.17, no Benefit Plan is
a "multiple employer plan," within the meaning of ERISA, or a
"multiemployer plan," as defined in Section 4001(a)(3) of ERISA,
and the Company has not made any contribution to, participated in
or become obligated to contribute to or participate in any
multiple employer plan or multiemployer plan since September 30,
2005.
(c) With respect to each single employer Benefit Plan, if
applicable, the Company has delivered or made available to the
Purchaser true and complete copies of: (i) all plan texts,
related trust agreements or annuity contracts (or other funding
instruments) and other agreements, arrangements and commitments
set forth in Exhibit 4.17; (ii) all summary plan descriptions
(including summaries of material modifications thereto) and other
material employee communications; (iii) the most recent annual
report; (iv) the most recent annual audited financial statements
and opinion; (v) the most recent actuarial valuation; and (vi)
the most recent determination letter or opinion letter received
from the Internal Revenue Service.
(d) All single employer Benefit Plans that constitute
"employee benefit plans" within the meaning of Section 3(3) of
ERISA (the "Plans") are in substantial compliance with ERISA and
the Internal Revenue Code of 1986, as amended, and the
regulations promulgated thereunder (the "Code"). Each Plan
intended to be qualified under Section 401(a) of the Code has
received a favorable determination letter or favorable opinion
letter from the Internal Revenue Service, and neither the Seller
nor the Company is aware of any circumstances likely to result in
the revocation or invalidity of any such favorable letter except
as set forth in Exhibit 4.17(d). Neither the Seller nor the
Company is aware of any instance in which the Company has engaged
in a transaction with respect to any single employer Benefit Plan
that, assuming the taxable period of such transaction expired as
of the date hereof, could subject the Company or any of its
subsidiaries to a tax or penalty imposed by Section 4975 of the
Code or Section 502(i) of ERISA.
(e) With respect to each single employer Benefit Plan, no
event has occurred, and there exists no conditions or set of
circumstances (other than claims for benefits) in connection with
which the Company or any Benefit Plan could be directly or
indirectly subject to any material liability under ERISA, the
Code, or any other law, regulation or governmental order relating
thereto. There is no material pending or threatened litigation
relating to any Benefit Plan.
(f) Except as set forth in Exhibit 4.17, the Company has
never sponsored a single employer Benefit Plan subject to Title
IV of ERISA or the minimum funding requirements of Section 412 of the
Code.
(g) With respect to each single employer Benefit Plan, if
applicable, there are no unfunded benefit obligations arising in
any jurisdiction which are not accounted for by reserves or
accruals properly footnoted in accordance with generally accepted
accounting principles on the Financial Statements.
(h) Except as set forth in Exhibit 4.17, no Benefit Plan
provides medical or death benefits (whether or not insured) with
respect to current or former employees of the Company beyond
their retirement or other termination of service, other than (i)
coverage mandated by law or (ii) death benefits provided under
any Benefit Plan. There are no reserves, assets, surplus or
prepaid premiums under any Benefit Plan which is a "welfare plan"
as defined in Section 3(1) of ERISA. The Company has complied
with Section 162(k) of the Code, to the extent applicable.
(i) Except as described in Exhibit 4.17, the transfer of
stock pursuant to the Agreement will not by itself (i) entitle
any current or former employee of the Company to severance pay,
unemployment compensation or any similar payment, (ii) constitute
an "excess parachute payment" (as defined in Section 280 G(b) of
the Code) or otherwise accelerate the time of payment or vesting,
or increase the amount of, any compensation due to any such
employee or former employee, or (iii) result in any liability to
the Company with respect to any Benefit Plan.
4.18 Directors, Officers and Authorized Persons. Exhibit
4.18 sets forth a complete and accurate list of: (a) all
directors of the Company; (b) the names and offices of all
officers of the Company; (c) the names of all persons holding
powers of attorney from the Company and a summary statement of
the terms thereof; (d) the names of all persons authorized to
borrow money or incur or guarantee indebtedness on behalf of the
Company; (e) all safes, vaults and safe deposit boxes maintained
by or on behalf of the Company or in which property of the
Company is held and the names of all persons authorized to have
access thereto; and (f) all bank, securities or similar accounts
of the Company and the names of all persons who are authorized
signatories with respect to such accounts, the capacities in
which they are authorized signatories and the terms of their
authorizations.
4.19 Environmental.
(a) To the best of the knowledge of the Company or the
Seller after due inquiry, except in compliance with federal,
state or local statutes, laws or regulations, or as set forth in
Exhibit 4.19, no pollutants or other toxic or hazardous
substances, including any solid, liquid, gaseous or thermal
irritant or contaminant, such as smoke, vapor, soot, fumes,
acids, alkalis, chemicals or waste (including materials to be
recycled, reconditioned or reclaimed) (collectively, "Materials")
have been discharged, dispersed, released, stored, treated,
generated, disposed of, or allowed to escape (collectively
referred to as an "Incident") on or from any property owned or
occupied, under lease or otherwise (the "Premises") or disposed
of by the Company, in connection with its business or operations
or, to the best of the Company's or the Seller's knowledge, any
person acting on the Company or the Seller's behalf at any other
property or location (a "Site").
(b) To the best of the knowledge of the Company or the
Seller after due inquiry, no asbestos or asbestos-containing
materials have been installed (and have not since been removed),
used, incorporated into, or disposed of on any of the Premises or
in connection with its business or operations, and the Company
has not installed, used, incorporated into, or disposed of any
asbestos or asbestos-containing materials on any Site or in
connection with the Company's business or operations.
(c) To the best of the knowledge of the Company or the
Seller after due inquiry, no polychlorinated biphenyls ("PCBs")
are located on or in any of the Premises in the form of
electrical transformers, fluorescent light fixtures with
ballasts, cooling oils or any other device. The Company has not
installed, used, incorporated into, or disposed of any PCBs or
PCB-containing equipment or materials on or in any of the
Premises or any Site, or in connection with the business or
operations of the Company in violation of any federal, state or
local statutes, laws or regulations.
(d) To the best of the knowledge of the Company or the
Seller after due inquiry, no underground storage tanks are
located on any of the Premises or were located on any of the
Premises and subsequently removed or filled, except those tanks
that have been identified (by size, location, age, substance
contained therein, and whether removed or filled) in Exhibit
4.19.
(e) To the best of the knowledge of the Company or the
Seller after due inquiry, no action, suit or proceeding
(collectively referred to as "actions") with respect to the
Materials is proposed, or to the Company's or the Seller's
knowledge is threatened, or anticipated, or in existence with
respect to any of the Premises except the actions identified in
Exhibit 4.19.
(f) To the best of the knowledge of the Company or the
Seller after due inquiry, each of the Premises is in compliance
with all applicable federal, state and local statutes, laws and
regulations relating to the environment. No notice has been
served on the Company or the Seller, from any entity,
governmental body, or individual claiming any violation of any
law, regulation, ordinance or code, or requiring compliance with
any law, regulation, ordinance or code, or demanding payment or
contribution for environmental damage or injury to natural
resources, except those notices identified in Exhibit 4.19.
Copies of any such notices received between the date hereof and
the Closing and after the Closing shall be forwarded to Purchaser
within three (3) days of their receipt.
(g) Included in Exhibit 4.19 are copies of the most recent
studies, analyses and test results relating to Materials, if any,
in the Company's or the Seller's possession or that the Company
or the Seller caused to be performed or made.
4.20 Disclosure. No representation or warranty by the Seller
in this Agreement or in any other exhibit, list, certificate or
document delivered pursuant to this Agreement, contains or will
contain any material omission or untrue statement of material
fact. Disclosure in any particular Exhibit attached hereto shall
constitute disclosure for all purposes of this Agreement.
4.21 Securities Act. The Company and the Seller represent
and warrant that neither of them has offered the Stock or any
options, warrants, rights to acquire or any securities
convertible into or exchangeable for the Stock by means of any
public offering , general solicitation or general advertising.
On and as of the date of this Agreement, the Purchaser
hereby represents and warrants to the Seller, as follows:
4.22 Organization and Qualification of the Purchaser. The
Purchaser is a corporation duly organized, validly existing and
in good standing under the laws of New Jersey with all requisite
corporate power and authority to own or lease its properties and
conduct its business in the manner and in the place where such
properties are owned or leased or such business is conducted.
4.23 Authority and Binding Effect. The execution and
delivery of this Agreement by the Purchaser and the consummation
by it of the transactions contemplated herein have been duly
authorized by all requisite corporate action by the Purchaser.
This Agreement has been duly executed and delivered by the
Purchaser and constitutes its legal, valid and binding
obligation, enforceable against it in accordance with its terms.
4.24 Government Consent, etc. No consent, approval or
authorization of or registration, designation, declaration or
filing with any governmental authority on the part of the
Purchaser is required in connection with the execution and
delivery of this Agreement or the consummation of the
transactions contemplated herein.
4.25 No Violations. Neither the execution and delivery of
this Agreement nor the consummation of the transactions
contemplated herein violates or conflicts with or constitutes a
default under any term or provision of the Purchaser's articles
of incorporation or by-laws or of any material contract,
indenture, agreement or understanding to which it is a party or
by which it is bound.
4.26 Absence of certain changes. Since October 1, 2005, the
Purchaser has not suffered any material adverse change in its
financial condition, assets, liabilities or business, taken as a
whole.
4.27 Purchase for investment; knowledge and experience. The
Purchaser represents that its purchase of the Stock hereunder is
for its own account for investment, and with no present intention
of resale. The Purchaser further represents that it has such
knowledge and experience in business affairs and otherwise that
it is capable of making its own informed investment decision with
respect to the purchase of the Stock.
Section 5. Conduct Pending the Closing
The Seller hereby covenants and agrees that, pending the
Closing and except as otherwise approved in advance in writing by
the Purchaser, which approval shall not unreasonably be withheld,
conditioned or delayed:
5.1 Conduct of Business. The Company shall carry on its
business diligently and substantially in the same manner as
heretofore and refrain from any action that would result in the
breach of any of the representations, warranties or covenants of
the Seller or the Company hereunder.
5.2 Access. The Purchaser and its authorized representatives
shall have full access during normal business hours upon
reasonable prior notice to the Seller to all properties, books,
records, contracts and documents of the Company, and the Seller
shall furnish or cause to be furnished to the Purchaser and its
authorized representatives all information with respect to the
Company as the Purchaser may reasonably request. In the event of
the termination of this Agreement, all such information shall
remain confidential and not be disclosed or used by the Purchaser
or its agents in any matter whatsoever, and all copies thereof
shall be returned to the Seller.
5.3 Contracts and Commitments. The Company shall not enter
into any contract, commitment or transaction not in the usual and
ordinary course of its business or inconsistent with past
practices.
5.4 Sale of Capital Assets. The Company will not sell or
dispose of any capital asset with an original cost in excess of
$10,000.00.
5.5 Liabilities. The Company will not, and will not agree
to, create any indebtedness or any other fixed or contingent
liability including, without limitation, liability as a guarantor
or otherwise with respect to the obligations of others, other
than that incurred in the usual and ordinary course of its
business consistent with past practices, or that is incurred
pursuant to existing contracts disclosed in Exhibit 5.5 attached
hereto.
5.6 Amendment. The Company will not, and will not agree to,
amend its Articles of Incorporation or Bylaws, nor will there be
any change in its authorized, outstanding or unissued capital
stock.
5.7 Insurance. All insurance maintained by the Company
insuring the Company, its employees, or its business or
operations will be maintained by the Company in all respects.
5.8 Preservation of Organization and Employees. The Company
will use its commercial best efforts to preserve its business and
transactions intact, to keep available its respective key
officers and employees, and to preserve the present relationships
of the Company with its suppliers, customers, banks and others
having business relations with it. The Company will not change
its present relationship with its employees or the compensation
payable or to become payable to any of them or declare or pay any
bonus or make any other payment to any employee not consistent
with past practice.
5.9 No Default. The Company shall not do any act or omit to
do any act, or permit any act or omission, which will cause a
material breach of any material contract, agreement,
understanding, commitment or obligation to which it is a party or
by which it is bound.
5.10 Tax Returns. The Company will prepare and file all
state, federal and other tax returns, and amendments thereto
required to be filed between the date of this Agreement and the
Closing Date. The Purchaser shall have a reasonable opportunity
to review all such returns and amendments thereto, prior to their
being filed.
Section 6. Conditions Precedent to the Purchaser's
Obligations
All obligations of the Purchaser under this Agreement are
subject to the fulfillment, prior to or at the Closing, of each
of the following conditions:
6.1 Representations and Warranties. The Seller's and the
Company's representations and warranties contained in this
Agreement or in any exhibit, list, certificate or document
delivered pursuant to the provisions hereof shall be true,
correct and complete in all material respects at and as of the
time of Closing.
6.2 Performance of Agreements. The Seller and the Company
each shall have performed and complied in all material respects
with all agreements and conditions required by this Agreement to
be performed or complied with by them prior to or at the Closing.
6.3 Closing Deliveries. The Seller or the Company shall have
delivered the documents and other items described in Section 3
hereof.
6.4 Employment Agreement. The Seller shall have executed and
delivered to the Purchaser the Employment Agreement in
substantially the form attached hereto as Appendix A.
6.5 Opinion of Counsel. The Seller shall have delivered to
the Purchaser a favorable written opinion of their counsel, Bond,
Xxxxxxxxx & Xxxx, PLLC, dated as of the Closing Date addressed to
the Purchaser in form and substance set forth in Exhibit 6.5.
6.6 No Litigation. There shall not be any pending or, to the
knowledge of the Company or the Seller, threatened, any action,
suit or proceeding by or before any court, arbitrator,
governmental body or agency which shall seek to restrain,
prohibit or invalidate the transactions contemplated hereby or
which, if adversely determined, would result in a material breach
of a representation, warranty or covenant of the Company or the
Seller.
6.7 Adverse Change. There shall not have occurred a material
adverse change, event or casualty, financial or otherwise, in the
Company or to its business or operations whether covered by
insurance or not.
6.8 Financing. The Purchaser shall have obtained or had made
available to it financing in an amount and on terms deemed
acceptable by it in its sole judgment to enable it to pay the
Purchase Price, enable it to fulfill its other obligations under
this Agreement and fund its anticipated working capital
requirements for the Company for a reasonable period after
Closing.
6.9 Permits, Licenses, Consents and Approvals. The Seller
shall have received and delivered to the Purchaser all permits,
licenses, consents or approvals from government authorities or
other third parties required to consummate the transactions
contemplated by this Agreement.
6.10 Cancellation of Stock Certificates. The stock
certificates dated September 29, 2000 and May 11, 1999 registered
in the names of Xxxxxx X. Xxxxxx and Xxxxxxx X. Xxxx,
respectively, shall have been cancelled.
6.11 Resignations of Board Members. The Seller shall have
delivered to the Purchaser the resignations of all members of the
Company's Board of Directors, effective as of the Closing.
Section 7. Conditions Precedent to the Seller's Obligations
All obligations of the Seller under this Agreement are
subject to the fulfillment, prior to or at the Closing, of the
following conditions:
7.1 Representations and Warranties. The Purchaser's
representations and warranties contained in this Agreement shall
be true at and as of the time of Closing.
7.2 Performance of Agreements. The Purchaser shall have
performed and complied with all agreements and conditions
required by this Agreement to be performed or complied with by it
prior to or at the Closing.
7.3 Closing Deliveries. The Purchaser shall have paid the
Purchase Price to the Seller as described in Section 2 hereof.
7.4 Closing Certificates. The Purchaser shall have executed
and delivered to the Seller: (i) a certificate of the Secretary
or Assistant Secretary of the Purchaser certifying and attaching
true and complete copies of the resolutions of the Board of
Directors of the Purchaser authorizing the execution and delivery
of this Agreement and the performance of the obligations of the
Purchaser hereunder; (ii) a certificate of the President or Vice
President of the Purchaser confirming satisfaction of the
conditions set forth in Sections 7.1 and 7.2 above; and (iii) the
Employment Agreement in substantially the form attached hereto as
Appendix A..
7.5 Opinion of Counsel. The Purchaser shall have delivered
to the Seller a favorable written opinion of its counsel, Xxxxxx
Xxxxxxxx, Esq., dated as of the Closing Date addressed to the
Seller in form and substance set forth in Exhibit 7.5 attached
hereto and incorporated herein.
7.6 No Litigation. There shall not be any pending or, to the
knowledge of the Purchaser, threatened, action, suit or
proceeding by or before any court, arbitrator, governmental body
or agency which shall seek to restrain, prohibit or invalidate
the transactions contemplated hereby or which, if adversely
determined, would result in a material breach of a
representation, warranty or covenant of the Purchaser.
Section 8. Commissions, Fees and Expenses
8.1 Brokers and commissions. Each party hereby represents
and warrants to the other that it has not engaged or dealt with
any broker or other person who may be entitled to any brokerage
fee or commission in respect of the execution of this Agreement
or the consummation of the transactions contemplated hereby. Each
of the parties hereto shall indemnify and hold the other harmless
against any and all claims, losses, liabilities or expenses which
may be asserted against a party as a result of such other party's
dealings, arrangements or agreements with any such broker or
person.
8.2 Fees and Expenses. Each of the parties hereto will bear
its own legal fees, consulting or professional fees, and all
other fees or expenses incurred in connection with the
negotiation, execution and delivery of this Agreement and the
consummation of any transaction contemplated by this Agreement.
Section 9. Indemnification
9.1 Survival of Representations, Warranties and Agreements.
All representations, warranties and agreements made by the Seller
or the Purchaser in this Agreement or in any exhibit, certificate
or financial statement delivered pursuant hereto shall survive
the Closing and shall not merge into the consummation of the
transactions contemplated hereunder for a period of one (1) year
and shall be deemed to have been relied upon by the other party.
9.2 Indemnification by the Seller. The Seller shall defend,
indemnify and hold the Purchaser harmless from and against all
actual or potential claims, demands, liabilities, damages, losses
and out-of-pocket expenses including reasonable attorneys' fees
whether or not reduced to judgment, order or award, caused by or
arising out of the breach of any agreement of or any
representation or warranty made by the Seller individually and
collectively in this Agreement or in any exhibit, list,
certificate or document delivered by them pursuant hereto;
provided, that any claim for indemnification hereunder may be
asserted only to the extent that the aggregate amount accumulated
exceeds $20,000. Subject to Section 9.4, the Seller's entire
indemnification obligation and liability hereunder for all and
all claims shall not exceed $100,000 in the aggregate.
9.3 Indemnification by the Purchaser. The Purchaser shall
defend, indemnify and hold the Seller harmless from and against
all damages, losses and out-of-pocket expenses including
reasonable attorneys' fees, caused by or arising out of the
breach of any agreements of or any representation or warranty
made by the Purchaser in this Agreement or in any certificate or
document delivered by it pursuant hereto; provided, that any
claim for indemnification hereunder may be asserted only to the
extent that the aggregate amount accumulated exceeds $20,000.
subject to Section 9.4, the Purchaser's entire indemnification
obligation and liability hereunder for any and all claims shall
not exceed $100,000 in the aggregate.
9.4 Absence of Indemnification Limits. Notwithstanding
anything to the contrary in Sections 9.2 and 9.3, the parties
agree that the $20,000 and $100,000 limitations on
indemnification claims hereunder shall not apply to cases of (a)
fraud or (b) material misstatement or omission or material
failure to comply in all material respects with Sections 4.21,
4.27, 8.1 or 8.2.
9.5 Defense of Claims. Promptly after any service of process
in any third party litigation in respect of which indemnity may
be sought from the other party pursuant to this Section 9, the
party so served shall notify the indemnifying party of the
commencement of such litigation, and the indemnifying party shall
be entitled to assume the defense thereof at its expense with
counsel of its own choosing; provided, however, that the
indemnifying party shall not settle, compromise or in any manner
resolve any claim, suit, action or proceeding in such a manner as
would admit or imply wrongdoing by or liability of the
indemnified party without the indemnified party's prior written
consent, to be withheld in such party's sole discretion, or
prejudice any right of the indemnified party, unless (i) the sole
relief provided in connection with such settlement is monetary
damages that are paid in full by the indemnifying party; (ii)
such settlement involves no finding or admission of any violation
or breach by indemnified party of any right of the indemnifying
party or any third party or any applicable laws, orders,
contracts or governmental regulations; and (iii) such settlement
has no effect on any other claims that may be made against the
indemnified party.
9.6 Exclusive Remedy; Survival. This Section 9 sets forth
the sole and exclusive remedies for the parties in the event of a
breach or alleged breach of any agreements or any representation
or warranty by the other party. This Section 9 shall survive any
termination, expiration or recission of this Agreement.
Section 10. Post Closing
The Purchaser agrees that from and after the Closing Date
until September 30, 2007, without the Seller's knowledge and
consent, which will not unreasonably be withheld, the Purchaser
shall not, nor shall it permit any person, firm or entity under
its control, directly or indirectly, to: (i) make any reductions
in at will personnel of the Company other than changes caused by
normal attrition or loss of business; (ii) reduce any of the
personnel benefits or employee benefit plans currently offered by
the Company to the Company's employees, or (iii) reduce any
wages, salaries, bonus programs or compensation plans or manner
or method of payment of compensation to employees of the Company.
Section 11. Termination.
11.1 Termination of Agreement. Unless extended for up to an
additional thirty one (31) days at the option of either the
Seller or the Purchaser by written notice to the other party sent
prior to the close of business on October 2, 2006, this Agreement
will automatically terminate if (a) the Closing does not occur by
the close of business on October 2, 2006; (b) any voluntary
petition in bankruptcy or any petition for similar relief is
filed by the Purchaser, the Company or the Seller; (c) any
involuntary petition in bankruptcy is filed against the
Purchaser, the Company or the Seller, the party against which
such petition has been filed does not immediately commence
appropriate action to dismiss that petition and the petition has
not been dismissed within sixty (60) days from the filing
thereof; (d) a receiver is appointed for the Purchaser, the
Company or the Seller or any material portion of their property
or assets; (e) the Purchaser, the Company or the Seller makes an
assignment for the benefit of creditors; or (f) the Purchaser,
the Company or the Seller admits in writing an inability to meet
debts as they become due. Further, the Buyer and the Seller may
terminate this Agreement: by mutual written consent at any time
prior to the Closing. The Purchaser may terminate this Agreement
by giving written notice to the Seller on or before the Closing
Date if the Seller has breached any representation, warranty, or
covenant contained in this Agreement in any material respect, the
Purchaser has notified the Seller of the breach, and the breach
has continued without cure for a period of fifteen (15) days
after the notice of breach. The Seller may terminate this
Agreement by giving written notice to the Purchaser at any time
prior to the Closing if the Purchaser has breached any
representation, warranty, or covenant contained in this Agreement
in any material respect, the Seller has notified the Purchaser of
the breach, and the breach has continued without cure for a
period of fifteen (15) days after the notice of breach.
11.2 Effect of Termination. If any Party terminates this
Agreement pursuant to Section 11.1 above, all rights and
obligations of the Parties hereunder shall terminate without any
liability of any party to any other party except as otherwise
result hereunder or under the Letter of Intent dated June 29,
2006 executed by the parties (the "Letter of Intent").
Section 12. Miscellaneous
12.1 Further Assurances. Each of the Seller will, at the
request of the Purchaser from time to time, execute and deliver
such further instruments and will take such other action
reasonably required to consummate the transactions contemplated
by this Agreement.
12.2 Governing Law; Venue; Prevailing party. This Agreement
shall be governed by, and construed and enforced in accordance
with, the laws of the State of New Jersey. Any action, suit or
proceeding may only be brought in a court of general jurisdiction
in Camden County, New Jersey, Xxxxxxxx County, New York or the
United States District Courts for the District of New Jersey or
the Northern District of New York. Each party hereby consents to
the jurisdiction and venue of whichever of the foregoing courts
in which such action, suit or proceeding is first commenced and
waives the right to argue forum non conveniens. The prevailing
party in any action, suit or proceeding hereunder shall be
entitled to recover its costs from the other party (including,
without limitation, attorneys' and experts' fees).
12.3 Nature and survival of representations and warranties.
All representations and warranties made by the parties hereto or
statements made by any of them in any certificate or other
instrument delivered pursuant hereto, or in connection with the
transactions contemplated hereby, shall, except as otherwise
expressly stated herein or therein, shall survive the Closing and
any investigation at any time made by or on behalf of any of
them.
12.4 Assignment. This Agreement shall not be assignable by
either party without the prior written consent of the other,
which consent shall not unreasonably be withheld. This Agreement
shall be binding upon, and inure to the benefit of, the Purchaser
and the Seller and their respective heirs, personal
representatives, successors and assigns. Notwithstanding the
foregoing, the Purchaser may assign its rights (but not
performance of its obligations) hereunder to Optometrics
Corporation or any other wholly-owned subsidiary of the
Purchaser.
12.5 Headings for Reference Only. The section and paragraph
headings in this Agreement are for convenience of reference only
and shall not be deemed to modify or limit the provisions of this
Agreement.
12.6 Notices. Any notice, communication, demand or other
writing (a "notice") required or permitted to be given, made or
accepted by any party to this Agreement shall be given by
personal delivery, facsimile, electronic mail or by depositing
the same in the United States mail, properly addressed, postage
prepaid and registered or certified with return receipt
requested. A notice given by personal delivery, facsimile or
electronic mail shall be effective upon delivery and a notice
given by registered or certified mail shall be deemed effective
on the second business day after such deposit. For purposes of
notice, the addresses of the parties shall be, until changed by a
notice given in accordance herewith, as follows:
If to the Purchaser:
Dynasil Corporation of America
000 Xxxxxx Xxxx
Xxxx Xxxxxx, XX 00000
Attention: Xx. Xxxxx X. Xxxxxx, President
Facsimile: 000-000-0000
Email: xxxxxxx@xxxxxxx.xxx
With a required copy to:
Xxxxxx Xxxxxxxx, Esq.
000 X. Xx. Xxxxxxxx Xxx.
Xxxxxxxxxxxx, XX 00000
Facsimile: 000-000-0000
Email: xxxxxxxxx@xxxxxxx.xxx
If to the Seller:
Xx. Xxxxx Xxxx
000 Xxxxxxxx Xxxxxx
Xxxxxx, Xxx Xxxx 00000
Facsimile: [To be completed]
Email: xxxxxx@xxx.xxx
With a required copy to:
Xxxxx Xxxxxxxx Esq.
Bond, Xxxxxxxxx & King, PLLC
Xxx Xxxxxxx Xxxxxx
Xxxxxxxx, Xxx Xxxx 00000
Facsimile: (000) 000-0000
Email: xxxxx@xxx.xxx
12.7 Incorporation of Documents. All exhibits, appendices
and Schedules referred to in this Agreement shall be deemed to be
incorporated herein and made a part of this Agreement.
12.8 Knowledge of Entity. References to the "knowledge of"
an entity herein shall mean the actual knowledge of the executive
officers or directors of the entity.
12.9 Counterparts. This Agreement may be executed in one or
more counterparts, each of which shall be deemed an original, but
all of which together shall constitute one and the same
instrument.
12.10 Severability. If any term or provision of this
Agreement or any application hereof shall be invalid or
unenforceable, the remainder of this Agreement and any other
application of such term or provision shall not be affected
thereby.
12.11 Entire Agreement and Amendment. This Agreement
represents the entire agreement reached between the parties
hereto with respect to the transactions contemplated hereby and
supersedes all prior or contemporaneous agreements,
understandings, representations and warranties between the
parties, including, without limitation, the Letter of Intent, and
may not be amended except by written instrument executed by the
parties hereto.
IN WITNESS WHEREOF, the undersigned have executed and
delivered this Agreement
on and as of the day and year first above written.
SELLER:
WITNESS:
Xxxxx Xxxx
COMPANY:
[CORPORATE SEAL] EVAPORATED METAL FILMS CORP.
ATTEST:
By
Authorized Officer Xxxxx Xxxx
President
PURCHASER:
[CORPORATE SEAL] DYNASIL CORPORATION OF AMERICA
ATTEST:
By
Authorized Officer Xxxxx X. Xxxxxx
President
APPENDIX A
FORM OF EMPLOYMENT AGREEMENT FOR XXXXX XXXX
