Exhibit 10.1
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STOCK PURCHASE AGREEMENT
AGREEMENT made as of the 1st day of January, 2005, by and
between XXXXXXXX X. XXXXXX, PH.D. ("XxXxxx"), residing at 00
Xxxxxx Xxxx, Xxx Xxxxxxxx, XX 00000 and XXXXXXX X. XXXXXX, ED.D.
("Xxxxxx"), residing at 00 Xxxxxx Xxxxxx Xxxx, Xxxxxxx, XX 00000
(collectively known as "Seller"), ASSESSMENT AND EVALUATION
CONCEPTS INC., a Massachusetts corporation with its principal
place of business at 00 Xxxxxx Xxxxxx Xxxx, Xxxxxxx, Xxxxxxxxxxxxx
(the "Corporation") and TOUCHSTONE APPLIED SCIENCE ASSOCIATES,
INC., a Delaware corporation, with its principal place of business
at 0 Xxxxxxxxxxxx Xxxxxxx, Xxxxxxxx, Xxx Xxxx 00000 ("Purchaser").
WHEREAS, XxXxxx is the owner of fifty (50) common shares of
the Corporation and Xxxxxx is the owner of fifty (50) common
shares of the Corporation; such hundred (100) shares (the
"Shares") constituting all of the issued and outstanding common
shares, zero par value per share, of the Corporation which has
authorized 100 common shares; and
WHEREAS, Seller desires to sell the Shares at the price set
forth below, and Purchaser desires to purchase the Shares, all on
and subject to the terms and conditions set forth herein;
NOW, THEREFORE, in consideration of the premises and the
mutual covenants contained herein, the parties hereby agree as
follows:
1. SALE OF STOCK. Purchaser will purchase and Seller will
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sell the Shares, which constitute all of the issued and
outstanding capital stock of the Corporation. After the Closing
(as defined hereinafter), the Corporation shall be operated as a
wholly-owned, subsidiary of Purchaser. XxXxxx shall be appointed
as its President and Treasurer during the term of his employment
with Purchaser pursuant to the terms of that certain Employment
Agreement between Purchaser and XxXxxx referenced in Section 5(c)
below ("XxXxxx Employment Agreement"). Xxxxxx shall be appointed
as its Clerk during the term of his employment with Purchaser
pursuant to the terms of that certain Employment Agreement between
Purchaser and Seller referenced in Section 5(c) below ("Xxxxxx
Employment Agreement").
2. PURCHASE PRICE. The Shares shall be purchased and sold
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hereunder for a total consideration of:
(a) Eighty-three thousand and 00/100 ($83,000.00)
dollars, payable as set forth in Section 7 below; and
(b) Twelve thousand (12,000) shares of common stock of
Purchaser which shares Purchaser agrees to register under the
Securities Act of 1933, not later than (6) six months after the
Closing (as hereinafter defined); and
(c) Options for 50,000 shares of common stock of
Purchaser, priced at fair market value as of the date of Closing
issued pursuant to the terms of the Xxxxxx Employment Agreement
and XxXxxx Employment Agreement.
3. REPRESENTATIONS, WARRANTIES, COVENANTS AND AGREEMENTS
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OF SELLER AND THE CORPORATION. XxXxxx, Xxxxxx and the Corporation
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each, jointly and severally, represent and warrant to Purchaser
and agree with Purchaser as follows:
(a) Each of Xxxxxx and XxXxxx owns beneficially and
of record the Shares being sold hereby, free and clear of any liens,
claims, charges, options or encumbrances, and each has full power
and authority to transfer the Shares to Purchaser in accordance
with the terms of this Agreement; the sale and delivery by Sellers
of certificates representing the Shares vests full legal and
beneficial title thereto in Purchaser free and clear of any liens,
claims, charges, or encumbrances. The Shares are duly authorized,
validly issued, fully paid and nonassessable and constitute one
hundred percent of the issued and outstanding capital stock of the
Corporation.
(b) There are no existing options, warrants,
subscription rights, convertible securities or similar rights
granted by the Corporation or either Seller or any commitments or
agreements of any character to which the Corporation or either
Seller is a party, relating to the authorized or issued capital
stock of the Corporation.
(c) The Corporation is a corporation duly
organized, validly existing and in good standing under the laws of
the Commonwealth of Massachusetts, and has full corporate power to
carry on its business as it is now being conducted, and it is not
necessary for the Corporation to be qualified, licensed or
domesticated as a foreign corporation to transact business in any
other jurisdiction. The copies of the Corporation's Articles of
Organization and Bylaws heretofore delivered to the Purchaser, are
true, correct and complete copies thereof as now in effect; no
provision of the Articles of Incorporation or Bylaws of the
Corporation which has not been waived by the Board of Directors,
nor any provision in any other instrument to which it or any
shareholder is a party or to which it or any shareholder or any
property of the Corporation is subject, prohibits, limits or
otherwise affects the right, power and authority of the Seller or
the Corporation, to enter into and consummate this Agreement.
(d) The Corporation has no subsidiaries or any
equity interest in any entity.
(e) All of the financial records and books of
account of the Corporation, to the best of the knowledge of each Seller
and the Corporation are true and complete and have been maintained in
accordance with generally accepted accounting principles consistently
applied. Sellers have heretofore delivered to Purchaser (i) federal
income tax returns, including all schedules thereto, for the years
ended 12/31/2000, through and including 12/31/2003; (ii) management
prepared cash basis balance sheets and profit and loss statements of
the Corporation as at and for the year ended 12/31/2004 (collectively,
the "Financial Statements"). The Financial Statements are true
and complete and accurately reflect the financial position and
results of operations of the Corporation as at the dates and for
the periods indicated. The Corporation has no material
liabilities or obligations whatsoever, liquidated or unliquidated,
actual or contingent which are not disclosed on or referred to in
the Financial Statements, other than (i) liabilities or
obligations incurred or arising since such date in the ordinary
course of business of the Corporation, none of which individually
or in the aggregate resulted or will result in a material adverse
change in the business or financial condition of the Corporation
and (ii) contingent liabilities which are fully covered under
valid and effective insurance policies. All liabilities of the
Corporation shall be paid or discharged in full by Sellers or the
Corporation prior to the Closing Date.
(f) Attached hereto as Schedule 3(f) is a list,
which is true and complete in all material respects, of all "Material
Contracts", which term, as used in this Agreement, includes all
material contracts and commitments, all indentures, mortgages,
security agreements, leases, loans and credit agreements, and all
other material agreements (including any employment contracts or
deferred compensation, pension, profit sharing or retirement
plans, supply contracts or contracts for the purchase or sale of
products or services), oral or written, imposing any obligation on
the Corporation or to which its properties are subject. A
contract, commitment or agreement shall be deemed to be material
if it either (i) involves or may involve the payment or receipt of
more than five thousand and 00/100 ($5,000.00) dollars over the
life of the contract or commitment, or (ii) regardless of the
amount involved, if it is not terminable without penalty solely at
the will of the Corporation upon notice of thirty (30) days or
less. Such list is true and complete in all material respects;
and, except as shown thereon, the Corporation is not a party to or
bound by any Material Contract whatsoever. Those copies of each
contract or other instrument described on such list which have
been delivered to the Purchaser or which will be delivered on
request and are true and complete copies thereof. Neither Seller
nor the Corporation is, or by the execution and performance of
this Agreement will be, in breach of, or in default under, any
Material Contract or outstanding indenture, mortgage, contract or
agreement to which either of them is a party or any provision of
the Certificate of Incorporation or Bylaws of the Corporation.
(g) The Corporation owns and holds good and
merchantable title, free and clear of any liens, encumbrances,
charges or assessments, to all of the assets shown on the
Financial Statements, except (i) assets disposed of since
12/31/2003 in the ordinary course of business, (ii) liens set
forth on such Financial Statements, (iii) liens for taxes not yet
due, and (iv) minor defects and irregularities in the title to,
and/or minor encumbrances on such assets, which, in the aggregate
do not materially affect the value of such property or impair the
use of such assets for the purpose for which it is held by the
Corporation or for any other purpose. Such assets and properties
are in good repair, physical condition and working order.
Notwithstanding anything to the contrary in this subparagraph, to
the extent liens arise which were not disclosed in connection with
this sale of stock for which Purchaser may be held liable.
Sellers, jointly and severally agree to pay Purchaser the amount
of such liens for which Purchaser may be held liable. Either
Sellers or Purchaser may elect to have such payments offset
against any other obligations of Purchaser to Seller by sending
written notice to the lienholder.
(h) The Corporation does not own or hold in fee or
under lease, or otherwise in any manner use or occupy, any real
property except that office space in the homes of each Seller.
(i) Except as disclosed on Schedule 3(i), there are,
to the best of each Seller's knowledge, no actions, suits, claims,
or proceedings pending (collectively, "Claims"), or known to be
threatened, against the Corporation, in law or in equity, or
before any federal, state, municipal or other governmental agency
or instrumentality, domestic or foreign or any Claims against
either Seller which could have a material adverse effect on the
transactions contemplated hereby.
(j) All insurance policies are listed on Schedule 3(j)
hereof which is a true, correct and complete list of all such
insurance.
(k) Since 12/31/2003, there has not been, and nothing
has come to the attention of either Seller or the Corporation
which reasonably appears likely in the future to constitute:
(i) Any materially adverse change in the
business, operations or assets of the
Corporation.
(ii) Any transaction outside the ordinary course
of business of the Corporation;
(iii) Any loans, advances, or payments of any kind
by the Corporation to any person except
payments of amounts due with respect to
obligations incurred prior to 12/31/2003, and
reflected in the Financial Statements, or
thereafter incurred in the normal course of
business, except a loan by Seller to the
Corporation with respect to its annual
pension contribution which shall be repaid in
connection with the Closing;
(iv) Any material increase in the compensation
payable or to become payable by the
Corporation to any of its officers,
directors, employees, or agents, or any
material bonus, percentage compensation,
service award or other like benefit, granted,
made or accrued to or to the credit of any of
such officers, directors, employees or
agents, or any employee welfare, pension,
retirement or similar payment or arrangement
made or agreed to by the Corporation;
(v) Any significant labor trouble, or any other
event or condition of any character which has
materially and adversely affected, or
reasonably appears likely to materially and
adversely affect, the business, prospects or
profitability of the Corporation, financial
or otherwise; or
(vi) Any sale or other disposition of any
interest in any of the Corporation's assets
or properties other than in the normal course
of business and in consideration of money or
monies worth equal to or exceeding the value
or price at which said asset was carried on
or included in the 12/31/2003 Balance Sheet.
(l) Sellers have delivered to Purchaser copies of the
documents which are listed on Schedule 3(l) annexed hereto which
constitute true, complete and correct copies of such documents and
all material United States and foreign patent, trademark and trade
name registrations, unexpired as of the date hereof, all material
United States and foreign applications pending on said date for
any patent, trademark, trade name, or copyright registrations and
all material trademarks, trade names, label and other trade rights
in use on the date hereof, all of the foregoing being owned, in
whole or in part on said date by the Corporation; all licenses
granted by or to the Corporation, and all other agreements to
which it is a party and which are in force as of the date hereof
and relate in whole or in part to any items of the categories
mentioned in this subsection (l) or to inventories, discoveries,
improvements, processes, formulate, proprietary rights, trade
secrets, ideas or other know-how, whether owned by the Corporation
or otherwise. To the best of each Seller's knowledge, there are
no claims presently pending or threatened against the Corporation
or either Seller for infringement of any patents, patent rights or
licenses, trademarks or trade names, or copyrights or copyright
registrations.
(m) Except as otherwise disclosed on Schedule 3(m), no
person holds any power of attorney, from either Seller with
respect to the stock held by such Seller, or from the Corporation
for any purpose whatsoever.
(n) The only equipment owned by the Corporation is
office equipment listed on Schedule 3(n), and used by it in the
ordinary course of its business, situated in the Corporation
offices at 00 Xxxxxx Xxxxxx Xxxx, Xxxxxxx, XX 00000 and 00 Xxxxxx
Xxxxxx, Xxx Xxxxxxxx XX 00000, (the "Equipment"). The Equipment
is adequate for the business being conducted by the Corporation
and is in good and usable repair and condition, reasonable wear
and tear excepted.
(o) Except as disclosed in Schedule 3(o) hereof, all
United States, foreign, state, county, local and other taxes,
including, without limitation, income taxes, corporate franchise
taxes, and ad valorem taxes, due and payable by the Corporation on
or before the date of this Agreement have been paid, and all tax
returns and reports required to be filed by them with all such
taxing authorities have been filed. The Corporation has withheld
and collected all taxes and assessments it is or has been required
by law to withhold or collect, and all of the same are duly
reflected in said Balance Sheet. The Corporation has no
outstanding or unsatisfied deficiency assessments with respect to
any taxes. If, at any time within three (3) years following the
Closing, tax deficiencies, and any penalties and interest thereon,
applicable to years in which Seller was a Shareholder of the
Corporation are assessed against the Corporation, each Seller
shall repay to the Corporation his pro rata share (based on his
proportionate ownership of Shares in the Corporation in the year
for which liability is assessed) of sums actually expended by the
Corporation in meeting such assessments. Such repayment may, at
the Purchaser's option, be made by the set off against any other
amounts owed by Purchaser to Seller from time to time. If any
tax audit is in progress and said three (3) year period expires
prior to the completion of such audit, the parties hereto agree to
extend said three (3) year period to the period terminating ninety
(90) days following closing of audit, settlement of tax, or final
judgment, whichever occurs last.
(p) The Corporation is not a party to any collective
bargaining agreement.
(q) To the best of Seller's knowledge, the Corporation
is not in violation of any applicable zoning regulation, ordinance
or other similar law, order, regulation or requirement relating to
its operations or properties, or in violation of any other law,
ordinance, or regulation of any governmental authority having
jurisdiction, and the Corporation holds all permits, licenses and
other authorizations necessary for the conduct of its business as
it is now being operated.
(r) No representation or warranty by Seller or the
Corporation contained in this Agreement nor any written
representation, statement or certificate made or furnished, by
Seller or by any officer of the Corporation pursuant hereto or in
connection with the transactions contemplated hereby, contains any
material error or misstatement or omits to state any material fact
necessary to make the representations or statements contained
herein or therein are not misleading.
(s) This Agreement and the documents and instruments
executed and delivered by the Corporation or Seller in connection
with the transactions contemplated hereby, constitute the valid,
legal and binding obligations of the Corporation or Seller, as the
case may be, enforceable in accordance with their terms.
4. REPRESENTATIONS, WARRANTIES AND COVENANTS OF PURCHASER.
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(a) Purchaser hereby represents, warrants, and agrees
with Sellers that:
(i) Purchaser is a corporation duly organized,
validly existing and in good standing under the laws of the State
of Delaware, and has full corporate power to carry on its business
as it is now being conducted in the State of New York, and each
other jurisdiction where the character and location of the
properties owned or leased by it and the nature of the business
transacted by it, would require such qualification.
(ii) Purchaser has corporate power to enter into
and to perform all of its obligations under this Agreement; and
the Board of Directors of Purchaser has approved the execution and
delivery by Purchaser of this Agreement and the other agreements
contemplated herein.
(iii) There are, to the best of Purchaser's
knowledge, no actions, suits, claims, or proceedings pending, or
known to be threatened, against Purchaser, in law or in equity, or
before any federal, state, municipal or other governmental agency
or instrumentality, domestic or foreign which would impact in any
material way the obligations of Purchaser hereunder.
(iv) No representation or warranty by Purchaser
contained in this Agreement nor any written representation,
statement or certificate made or furnished, by Purchaser or by any
officer of Purchaser pursuant hereto or in connection with the
transactions contemplated hereby, contains any material error or
misstatement or omits to state any material fact necessary to make
the representations or statements contained herein or therein are
not misleading.
(v) This Agreement and the documents and
instruments executed and delivered by Purchaser in connection with
the transactions contemplated hereby, constitute the valid, legal
and binding obligations of Purchaser, enforceable in accordance
with their terms.
5. CONDITIONS TO PURCHASER'S OBLIGATIONS. The obligations
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of Purchaser are subject to the fulfillment of each of the
following conditions:
(a) There shall be furnished to the Purchaser a
certificate executed by the Sellers and the Corporation that the
representations and warranties of the Sellers and the Corporation,
contained in this Agreement, are true and correct at the date
hereof and will be true and correct on and as of the Closing Date.
(b) Purchaser shall have received the written opinion,
dated the Closing Date, from Assiran, Ellis, & Xxxxxx, counsel for
Sellers and the Corporation, in the form annexed hereto as Exhibit
"A";
(c) There shall be executed and delivered the
following:
(i) XxXxxx Employment Agreement, substantially in
the form of Exhibit "B", annexed hereto and made a part hereof
(the "Employment Agreement");
(ii) Xxxxxx Employment Agreement, substantially in
the form of Exhibit "C", annexed hereto and made a part hereof
(the "Employment Agreement");
(iii) XxXxxx Option Agreement, substantially in the
form of Exhibit "D", annexed hereto and made a part hereof (the
"Option Agreement"); and
(iv) Xxxxxx Option Agreement, substantially in the
form of Exhibit "E", annexed hereto and made a part hereof (the
"Option Agreement").
(vi) Such other ancillary documents as counsel for
the parties deem necessary or appropriate to consummate the
transactions contemplated hereunder and hereby.
(d) Each Seller shall have furnished to the Purchaser
a representation in form satisfactory to the Purchaser's counsel
that the Seller is acquiring the shares of the Purchaser for its
own account for investment and not with a view for the sale or
distribution thereof, that it understands the nature and effect of
such representations, and that it will not sell or transfer any of
the shares so acquired by it unless (i) a registration statement
under the Securities Act of 1933 shall be in effect with respect
thereto, or (ii) it shall have received written notice from the
Securities and Exchange Commission that such sale or transfer may
be made without registration under said Act, or (iii) it has
obtained and delivered to Purchaser a legal opinion from counsel
satisfactory to Purchaser, that registration under such Act is not
required.
6. CONDITIONS TO SELLER'S OBLIGATIONS. The obligations of
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each Seller are subject to the fulfillment by Purchaser of each of
the following conditions:
(a) There shall be furnished to Sellers a certificate
executed by Purchaser to the effect that the representations and
warranties of Purchaser, contained in this Agreement, are true and
correct at the date hereof and will be true and correct on and as
of the Closing Date.
(b) Sellers shall have received the written opinion,
dated the Closing Date, from Rider, Weiner & Xxxxxxx, P.C. counsel
for Purchaser, to the effect that (i) Purchaser has been duly
incorporated and is existing as a corporation in good standing
under the laws of the State of Delaware; (ii) Purchaser is in good
standing and legally authorized to carry on its business under the
laws of the State of New York, and (iii) this Agreement, and any
and all other documents and instruments executed and delivered in
connection therewith, have been duly executed and delivered by
Purchaser and is a legal and binding obligation of Purchaser,
enforceable in accordance with their terms.
(c) There shall be executed and delivered the
following:
(i) XxXxxx Employment Agreement;
(ii) Xxxxxx Employment Agreement
(iii) XxXxxx Option Agreement;
(iv) Xxxxxx Option Agreement;
(v) Such other ancillary documents as counsel to
the parties may deem reasonably necessary or desirable to
consummate the transactions contemplated hereunder and hereby.
(d) The Purchaser shall have furnished to the Sellers
a representation in form satisfactory to the Seller's counsel that
the Purchaser is acquiring the Shares for its own account for
investment and not with a view for the sale or distribution
thereof, that it understands the nature and effect of such
representations, and that it will not sell or transfer any of the
shares so acquired by it unless (i) a registration statement under
the Securities Act of 1933 shall be in effect with respect
thereto, or (ii) it shall have received written notice from the
Securities and Exchange Commission that such sale or transfer may
be made without registration under said Act, or (iii) it has
received an opinion from Vedder, Price, Xxxxxxx & Kammholz,
special securities counsel for Seller, or other counsel
satisfactory to the Seller, that registration under such Act is
not required.
7. PAYMENT OF PURCHASE PRICE.
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Subject to the conditions, representations and warranties
hereof, at the closing, Purchaser shall deliver to Sellers:
(a) good funds, by check of Purchaser in the aggregate
amount of Eighty-Three Thousand and 00/100 ($83,000.00) Dollars
($41,500 to each Seller);
(b) Twelve (12,000) Thousand shares of common stock of
Purchaser (50% to each Seller).
8. INDEMNIFICATION.
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(a) Each Seller, jointly and severally, agrees to and
shall indemnify Purchaser, its successors and assigns, against any
and all damages resulting from any breach of any representation,
warranty or agreement, set forth in this Agreement, or the untruth
or inaccuracy thereof, including, but not limited to all
statements or figures contained in any of the Schedules or
Exhibits to this Agreement. Each Seller further agrees to and
shall indemnify Purchaser against any and all debts, liabilities,
or claims of any nature, absolute or contingent, together with all
expenses and legal fees resulting from any such breach, untruth or
inaccuracy, or which may be incurred to compromise, or defend such
liabilities, or claims of any nature, absolute or contingent,
including, but not limited to, any and all liabilities for federal
income or excise taxes, or state or municipal taxes of any nature.
(b) Purchaser agrees to and shall indemnify Sellers,
their heirs, successors and assigns, against any and all damages
resulting from any breach of any representation, warranty or
agreement of Purchaser, set forth in this Agreement, or the
untruth or inaccuracy thereof, including, but not limited to all
statements or figures contained in any of the Schedules or
Exhibits to this Agreement. Purchaser further agrees to and shall
indemnify Sellers against any and all debts, liabilities, or
claims of any nature, absolute or contingent, together with all
expenses and legal fees resulting from any such breach, untruth or
inaccuracy, or which may be incurred to compromise, or defend such
liabilities, or claims of any nature, absolute or contingent,
including, but not limited to, any and all liabilities for federal
income or excise taxes, or state or municipal taxes of any nature.
(c) The indemnity of (a) and (b) above shall survive
the closing but shall be limited to liabilities of which the
indemnifying party shall receive notice in writing from the other
within three (3) years from the date hereof. The party claiming
indemnification shall notify the indemnitor of any such breach or
claim with reasonable promptness and the indemnitor or its legal
representatives shall have, at its election, the right to
compromise or defend any such matter through counsel of its own
choosing, at the expense of such indemnitor. Such notice and
opportunity to compromise or defend, if applicable, shall be a
condition precedent to any liability of any party under this
indemnity. In the event that a party undertakes to compromise or
defend any such liability, it shall notify the other in writing
promptly of its intention to do so and each agrees to cooperate
with the other and its counsel in the compromising of or the
defending against any such liabilities.
10. FINDER'S FEES. Each Seller and Purchaser represent
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that to the best of their knowledge there is no obligation to pay
any commission, finder's fee, or similar charge in connection with
the transactions provided for in this Agreement. Each Seller and
Purchaser will indemnify and hold each other harmless from and
against any loss, liability, and damage, including expenses,
arising our of any claim for such commission, fee or charge, so
far as any claim for such commission, fee, or charge, so far as
any thereof arises by reason of services alleged to have been
rendered to, or at the instance of, such party.
11. CLOSING. The Closing Date shall be effective as of
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January 1, 2005, and the Closing shall take place at the offices
of TASA at 11:00 a.m. on January 14, 2005, unless otherwise agreed
to in writing by Purchaser and Sellers. The closing shall be
conditioned upon the following:
(a) The Corporation shall not have, since the date of
this Agreement or as otherwise permitted hereunder (i) issued or
sold any shares, bonds, or other corporate securities, or given
options or rights to purchase or otherwise acquire such shares,
bonds, notes, or corporate securities; (ii) incurred any
obligation or liability, absolute or contingent, except current
liabilities and obligations incurred in the ordinary course of
business, except legal fees incurred in connection with this
transaction which shall be discharged by Sellers at Closing; (ii)
discharged or paid any obligation or liability, absolute or
contingent, other than current liabilities and obligations
incurred in the ordinary course of business; (iv) made any payment
or distribution to its Shareholders or purchased or redeemed any
of its shares; (v) mortgaged pledged, created a security interest
in, or subjected to lien or other encumbrances any of its assets,
tangible or intangible, except in the ordinary course of business;
(vi) sold or transferred any of its tangible assets, or canceled
any debts or claims, except in each case in the ordinary course of
business, (vii) sold, assigned, or transferred any intangible
assets, or (viii) entered into any transaction other than in the
ordinary course of business.
(b) The representations and warranties of the
respective parties, and the contents of the Schedules annexed
hereto and made a part hereof and any certificate furnished in
their behalf pursuant hereto, shall be true and correct.
12. EXPENSES. Each party hereto will pay the expenses
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incurred by him or it under or in connection with this Agreement,
including counsel fees and expenses of his or its representatives,
whether or not the transactions contemplated by this Agreement are
consummated.
13. SURVIVAL OF REPRESENTATIONS. The representations,
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warranties, and agreements of Seller and Purchaser contained in
this Agreement shall not be discharged or dissolved upon, but
shall survive, the closing, and shall be unaffected by any
investigation made by any party at any time.
14. NOTICES. All notices given under any of the provisions
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of this Agreement shall be deemed to have been duly given if
mailed by certified mail, return receipt requested, as follows:
To: Xxxxxxxx X. XxXxxx, Ph.D.
00 Xxxxxx Xxxx
Xxx Xxxxxxxx, XX 00000
To: Xxxxxxx X. Xxxxxx, Ed.D.
00 Xxxxxx Xxxxxx Xxxx
Xxxxxxx, XX 00000
with a copy to Xxxxx X. Xxxxx, Esq.
Assiran, Ellis & Xxxxxx
00 Xxxxxx Xxxxx
Xxxxxxx, XX 00000
To Purchaser: Touchstone Applied Science Associates, Inc.
0 Xxxxxxxxxxxx Xxxxxxx
Xxxxxxxx, XX 00000
Att: Mr. Xxxxxx Xxxxx, President
with a copy to Rider, Weiner & Xxxxxxx, P.C.
000 Xxxxxx Xxxxxxx Xxxx
Xxxxxxxx, XX 00000
Att: Xxxxxxx Crush, Esq.
or at such other address as each of the foregoing may designate in
writing by certified mail, return receipt requested, to each of
the others, and shall be deemed to have been duly given three (3)
business days after deposit into the United States mails if mailed
by certified mail, return receipt requested, properly addressed
with postage affixed.
15. AMENDMENT. Neither this Agreement nor any term or
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provision hereof may be changed, waived, discharged, or terminated
orally, or in any manner other than by an instrument in writing
signed by the party against which the enforcement of the change,
waiver discharge or termination is sought.
16. BINDING EFFECT. This Agreement shall be binding upon
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and inure to the benefit of the respective parties, and their
successors and assigns, heirs and personal representatives, except
as otherwise expressly provided herein.
17. COUNTERPARTS. This Agreement may be executed in any
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number of counterparts, each of which shall be deemed to be an
original.
18. GOVERNING LAW. This Agreement shall be construed and
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enforced in accordance with the laws of the State of New York,
applicable to agreements made and to be performed wholly within
the State of New York. Any legal or equitable action or
proceeding with respect to this Agreement brought by Seller may be
brought only in a Federal or State court of competent jurisdiction
located in the County of Xxxxxx, State of New York.
19. CONSENT TO JURISDICTION. The parties irrevocably
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accept the jurisdiction of the Federal or New York State courts of
competent jurisdiction located in the County Xxxxxx and any
related appellate court, irrevocably agrees to be bound by any
judgment rendered thereby in connection with this commitment, and
irrevocably waives any objection it or he may now or hereafter
have as to the venue of any such action or proceeding brought in
such a court or that such a court is an inconvenient forum. Each
party irrevocably consents to the service of process out of any of
the aforementioned courts in any such action or proceeding by the
mailing of copies thereof by registered mail, postage prepaid,
such service to become effective three (3) business days after
mailing. Nothing herein shall affect any party's right to serve
process in any other manner prescribed by law or the right to
bring legal or equitable actions or proceedings in other competent
jurisdictions.
20. BINDING EFFECT; NO ASSIGNMENT. This Agreement shall be
------------------------------
binding upon and inure to the benefit of the parties hereto and
their respective successors and assigns. Neither party shall have
the right to assign its rights or delegate its obligations
hereunder without the prior written consent of the other. Any
purported assignment or delegation without such consent shall be
void.
21. CAPTION. Captions set forth herein are for convenience
--------
and reference only and are not intended to modify, limit, describe
or affect in any way the content, scope or intent of this
Agreement.
22. FURTHER ASSURANCES. The parties agree to do any act or
-------------------
execute and deliver any additional documents reasonably required
to fully effect the purposes of this Agreement and the other
documents and instruments executed and delivered in connection
therewith.
23. SEVERABILITY. Any provision of this Agreement that is
-------------
prohibited or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions
hereof.
IN WITNESS WHEREOF, the parties hereto have duly executed
this Agreement as of the day and year first above written.
ASSESSMENT AND EVALUATION CONCEPTS INC.
By:__________________________________________
Name: Xxxxxxxx X. XxXxxx, Ph.D.
Title: President and Treasurer
__________________________________________
Xxxxxxxx X. XxXxxx
__________________________________________
Xxxxxxx X. Xxxxxx
TOUCHSTONE APPLIED SCIENCE ASSOCIATES, INC.
By:__________________________________________
Name: Xxxxxx X. Xxxxx
Title: President and Chief Executive Officer
SCHEDULE "3(f)"
MATERIAL CONTRACTS
LIST OF CURRENT ASSESSMENT & EVALUATION CONCEPTS PROJECTS December 2004
Assessment and Testing Consulting
Riverside Publishing Company
Itasca, Illinois
$30,000
Presentation to Riverside Publishing staff regarding
suggestions for state assessment proposals, how to work with
state and local testing officials and providing ongoing
consulting services.
Evaluation of Innovative Earth Science Curriculum
American Geological Institute
Alexandria, Virginia
$20,000
Conducting a comprehensive evaluation of an inquiry based Earth
science curriculum (EarthComm) in the Los Angeles Unified
School District and the Newark, Delaware High School.
National Assessment of Educational Progress (NAEP) State Analysis
American Institute of Research
Washington, D.C.
$25,000 for Second Year of Five Year Contract
Total Contract $125,000
Working as a sub-contractor to the American Institute for
Research, AEC will assist with the analysis of NAEP testing data.
AEC will focus, among other tasks, on testing accommodations of
special needs and limited English proficient students.
Reading First Program
Vermont Department of Education
Montpelier, Vermont
$39,800 First Year of Two Year Contract
Total Contract $88,318
Currently conducting a comprehensive evaluation of the federally-
funded Reading First Program for kindergarten through grade
three students in several local school districts.
SCHEDULE "3(i)"
LITIGATION AND OTHER CLAIMS
None
SCHEDULE "3(j)"
INSURANCE
None
SCHEDULE "3(l)"
PATENTS, TRADEMARKS & COPYRIGHTS
None
SCHEDULE "3(m)"
ATTORNEY'S IN FACT
None
SCHEDULE "3(n)"
FURNITURE, FIXTURES AND EQUIPMENT
File cabinets, copier, fax machine, chairs, printer.
SCHEDULE "3(o)"
TAXES
None
EXHIBIT "A"
OPINION OF COUNSEL
EXHIBIT "B"
XXXXXX EMPLOYMENT AGREEMENT
EXHIBIT "C"
XXXXXX EMPLOYMENT AGREEMENT
EXHIBIT "D"
XXXXXX OPTION AGREEMENT
EXHIBIT "E"
XXXXXX OPTION AGREEMENT
