AGREEMENT
THIS AGREEMENT is entered into this day of 1 1992, by and between Computer
Control Corporation, a New Jersey corporation having offices at 000 Xxxx
Xxxxxxx, Xxxxxxx Xxxxxx, Xxx Xxxxxx 00000 ("Computer Control") and Envirometrics
Development Company, Inc., a South Carolina corporation having offices at 0000
Xxxxxxxxxx Xxxxxxxxx, Xxxxx Xxxxxxxxxx, Xxxxx Xxxxxxxx 00000 ("Envirometrics")
WITNESSETH
WHEREAS, Computer Control is in the business of developing various
electronic devices with integrated computer capabilities for the industrial
hygiene/environmental market; and
WHEREAS, Envirometrics desires to have Computer Control develop an
electronic reader for utilization with a new line of passive air monitors based
upon photometry devices which change color or other optical characteristics
after exposure to airborne chemicals.
NOW, THEREFORE, in consideration of the above premises and the covenants
hereinafter set forth, the parties hereto do hereby agree as follows:
1. Computer Control hereby agrees to use its best efforts to develop an
electronic reader (the "Reader") for utilization with Quantitative Photometry
Monitors. For purposes of this Agreement, a "Quantitative Photometry Monitor"
shall mean a passive air monitor based upon photometry devices which change
color or other optical characteristics after exposure to airborne chemicals and
which can be utilized with an electronic reader. The Reader shall satisfy the
specifications set forth on Schedule A hereto, subject to such modifications to
such specifications as the parties shall mutually agree.
2. Envirometrics hereby agrees to make the following payments to Computer
Control:
a. Upon execution of this Agreement, Envirometrics shall pay to Computer
Control the sum of $10,000.00.
b. Upon completion of a prototype Reader by June 1, 1992 which shall
satisfy the specifications set forth on Schedule A hereto (subject to such
modifications to such specifications as the parties shall mutually agree) ,
Envirometrics shall pay to Computer Control an additional $20,000.00. If such a
prototype is not completed by June 1, 1992, (i) this Agreement shall
automatically terminate, (ii) Computer Control shall return to Envirometrics the
$10,000.00 payment made by Envirometrics pursuant to subparagraph 2(a), and
(iii) both parties shall be relieved of all further obligations hereunder.
C. Envirometrics hereby agrees to pay to Computer Control a royalty equal
to 3% of gross revenues collected from sales of Quantitative Photometry Monitors
by Envirometrics during the five year period commencing upon the first sale by
Envirometrics of a Reader (the "Monitor Royalty Period"). It is expressly
understood that royalties shall be payable on all revenues in respect of
Quantitative Photometry Monitors which are sold during the Monitor Royalty
Period, including revenues from such sales which are collected after the Monitor
Royalty Period. The minimum royalty which Envirometrics shall pay to Computer
Control pursuant to this clause (c) for the first year of the Monitor Royalty
Period shall be $25,000.00 and the minimum royalty which Envirometrics shall pay
to Computer Control pursuant to this clause (c) for the second year of the
Monitor Royalty Period shall be $30,000.00.
d. Envirometrics shall also pay to Computer Control a royalty equal to 10%
of gross revenues collected from sales, rentals and leases of Readers by
Envirometrics during the five year period commencing upon the first sale by
Envirometrics of a Reader developed by Computer Control (the "Reader Royalty
Period"; provided, however, that if Computer Control shall obtain a patent on
the Reader, the Reader Royalty Period shall continue until the expiration of
such patent. It is expressly understood that royalties shall be payable on all
revenues in respect of Readers which are sold, rented or leased during the
Reader Royalty Period, including revenues from such sales, rentals and leases
which are collected after the Monitor Royalty Period. Notwithstanding the
foregoing, no royalty shall be payable by Envirometrics in respect of Readers
Purchased by Envirometrics from Computer Control.
e. Envirometrics shall reimburse Computer Control for all legal fees,
filing fees and other out-of-pocket costs incurred by Computer Control in
connection with obtaining patents on the Reader or any components thereof or any
technology incorporated therein ("Patent Costs"), up to $5,000.00; all Patent
Costs incurred by Computer Control in excess of $5,000.00 shall be borne by
Computer Control. Envirometrics shall reimburse Computer Control for Patent
Costs in accordance with the preceding sentence within ten (10) days following
submission of an invoice by Computer Control.
3. The technology utilized by Computer Control to develop the Reader and
the technology embodied in the Reader, to the extent not already in the public
domain, shall be and remain the property of Computer Control. All patents
awarded shall be owned by Computer Control.
4. Computer Control hereby grants to Envirometrics an exclusive worldwide
license to manufacture and sell Readers for use with Quantitative Photometry
Monitors; provided, however, that Computer Control reserves the nonexclusive
right to manufacture and sell Readers to Envirometrics. The license granted
hereunder shall not be assignable. Envirometrics may not sublicense its rights
under the license granted hereunder. The license granted hereunder shall be
perpetual, subject, however, to termination by either party in the event of a
breach of this Agreement by the other party which remains uncured for thirty
(30) days following notice of such breach by the non-breaching party to the
breaching party. It is expressly understood that Computer Control reserves unto
itself the exclusive right to utilize the technology utilized by Computer
Control to develop the Reader and the technology embodied in the Reader for any
purpose other than the manufacture and sale of Readers for use with Quantitative
Photometry Monitors. In order to enable Envirometrics to manufacture Readers,
Computer Control shall disclose to Envirometrics all technical know-how, trade
secrets and proprietary information of Computer Control which is required to
manufacture Readers. All such trade secrets and proprietary information shall
remain the sole and exclusive property of Computer Control.
5. The royalties payable pursuant to clauses l(c) and l(d) above shall be
computed and paid quarterly. Within fifteen (15) days following the end of each
calendar quarter during the respective royalty periods for Quantitative
Photometry Monitors and Readers, and Envirometrics shall furnish to Computer
Control a statement of the gross revenues during such calendar quarter of
Envirometrics from the sale of Quantitative Photometry Monitors and from the
sale, leasing and rental of Readers and of the royalty due for such calendar
quarter. Within fifteen (15) days following the end of each calendar quarter
during the year following the termination of the respective royalty periods for
Quantitative Photometry Monitors and Readers, Envirometrics shall furnish to
Computer Control a statement of the gross revenues during such calendar quarter
of Envirometrics from the sale of Quantitative Photometry Monitors which were
sold during the Monitor Royalty Period and from the sale, leasing and rental of
Readers during the Reader Royalty Period and of the royalty due for such
calendar quarter. Each such statement shall be accompanied by payment of the
royalty due. Envirometrics agrees to keep accurate records pertaining to sales
of Quantitative Photometry Monitors and sales, leases and rentals of Readers.
Computer Control shall have the right to inspect and make copies of such records
upon reasonable notice to Envirometrics. In the event of a dispute regarding the
computation of royalties payable hereunder, Computer Control and Envirometrics
shall attempt to resolve the dispute among themselves and adjust the applicable
statement and royalty payment. In the event Computer Control and Envirometrics
are unable to resolve the dispute within thirty (30) days following notice by
Computer Control to Envirometrics of a dispute, then they shall attempt to agree
upon a nationally recognized accounting firm to act as "Umpire" hereunder. In
the event Computer Control and Envirometrics are unable to select an Umpire
within five days following the end of said thirty (30) day period, then each of
the parties will select a nationally recognized accounting firm within ten (10)
days following the end of said thirty (30) day period, and those accounting
firms shall agree upon a third nationally recognized accounting firm to serve as
Umpire within twenty (20) days following the end of said thirty (30) day period.
The nationally-recognized accounting firm which is selected to act as Umpire
hereunder shall review the books and records of Envirometrics and shall
determine the amount of royalties which should have been paid in respect of the
periods in question. The determination of the Umpire shall be final and binding
on the parties. Each party shall bear whatever fees and expenses are incurred by
the accounting firm selected by it. In the event that the Umpire determines that
there has been an underpayment of royalties, the Umpire's fees shall be borne by
Envirometrics; in the event that the Umpire determines that there has not been
an underpayment of royalties, the Umpire's fees shall be borne by Computer
Control.
6. In the event the Reader is ever held by a court of competent
jurisdiction to infringe any patent or patents owned by others, Computer Control
shall have the right, at its own expense, to redesign the reader to avoid the
infringement or obtain a license to enable Envirometrics to continue to sell the
Reader. If within ninety (90) days following a final determination of
infringement, Computer Control fails to redesign the Reader so as to avoid the
infringement or to obtain a license, then Envirometrics may forthwith terminate
all its obligations outlined under clauses l(c) and l(d) above. In the event
Envirometrics is named as a defendant in a suit alleging that the Reader
infringes any patent or patents owned by others and Computer Control is also
named as a defendant in the suit, then Computer Control shall control the
defense and settlement of the suit and Envirometrics and Computer Control shall
each bear 50% of the cost of defending and settling such suit; provided,
however, that the selection of a law firm to defend any such suit and any
settlement thereof shall be subject to the approval of Envirometrics, which
approval shall not be unreasonably withheld or delayed. In the event
Envirometrics is named as a defendant in a suit alleging that the Reader
infringes any patent or patents owned by others and Computer Control is not also
named as a defendant in the suit, then Envirometrics shall control the defense
and settlement of the suit and Computer Control shall reimburse Envirometrics
for 50% of the cost of defending and settling such suit. Envirometrics and
Computer Control shall provide reasonable cooperation to one another, and shall
keep one another apprised of developments in, any such suit
7. In the event of infringement of the herein proposed licensed patent
rights by others, Computer Control shall have the right to, but shall have no
duty to, enforce said patent rights. If Computer Control does not agree to
enforce said Patent rights within sixty (60) days following a written request by
Envirometrics that it do so, then Computer Control shall assign to Envirometrics
the right to enforce said patent rights against the party or parties named in
the request, in which case the expenses of any such litigation shall be borne by
Envirometrics and Envirometrics shall be entitled to any recovery on account of
infringement. Computer Control shall provide reasonable cooperation in any such
enforcement action upon the request of Envirometrics, provided that
Envirometrics shall reimburse Computer Control for its reasonable out-of-pocket
expenses incurred by Computer Control in providing such cooperation.
8. Computer Control represents and warrants that (i) it has all requisite
corporate power and authority to enter into this Agreement and to perform its
obligations hereunder; (ii) this Agreement constitutes a valid and binding
obligation of Computer Control, enforceable in accordance with its terms; and
(iii) neither the execution nor performance of this Agreement by Computer
Control has or will violate any provisions of Computer Controls Articles of
Incorporation or Bylaws or of any material agreement or instrument to which
Computer Control is a party or by which Computer Control is bound.
9. Envirometrics represents and warrants that (i) it has all requisite
corporate power and authority to enter into this Agreement and to perform its
obligations hereunder; (ii) this Agreement constitutes a valid and binding
obligation of Envirometrics, enforceable in accordance with its terms; (iii)
neither the execution nor performance of this Agreement by Envirometrics has or
will violate any provisions of Envirometrics' Articles of Incorporation or
Bylaws or of any material agreement or instrument to which Envirometrics is a
party or by which Envirometrics is bound; and (iv) the manufacture and sale of
Quantitative Photometry Monitors by Envirometrics and the use of Quantitative
Photometry Monitors in conjunction with Readers will not violate any patent or
other rights of any third parties. Envirometrics covenants that it shall, upon
delivery of the prototype Reader due June 1, 1992, deliver to Computer Control a
true and complete copy of a valid license to Envirometrics for the manufacture
and sale of Quantitative Photometry Monitors worldwide for a period of not less
than six (6) years from the date hereof, which license shall be in full force
and effect on the date hereof. Envirometrics hereby covenants to take all
actions necessary to maintain the license referred to in the preceding sentence
in good standing until the termination of the Monitor Royalty Period. In the
event Computer Control is named as a defendant in a suit alleging that the
manufacture, use or sale of Quantitative Photometry Monitors, or their use in
conjunction with Readers, infringes any patent or patents owned by others,
Envirometrics shall bear the cost of defending and settling such suit.
10. (a) Computer Control hereby covenants to indemnify and hold harmless
Envirometrics from and against any and all damages, losses, obligations,
liabilities, claims, actions or causes of action sustained or suffered by
Envirometrics and arising from a breach of any agreement, representation,
warranty or covenant of Computer Control contained in or made pursuant to this
Agreement, including all reasonable costs and expenses (including, without
limitation, reasonable attorneys' fees) incurred by Envirometrics in connection
therewith.
(b) Envirometrics hereby covenants to indemnify and hold harmless Computer
Control from and against any and all damages, losses, obligations, liabilities,
claims, actions or causes of action sustained or suffered by Computer Control
and arising from a breach of any agreement, representation, warranty or covenant
of Envirometrics contained in or made pursuant to this Agreement, including all
reasonable costs and expenses (including, without limitation, reasonable
attorneys' fees) incurred by Computer Control in connection therewith.
In the course of negotiating and performing this Agreement, the parties
have and will continue to provide to one another proprietary and confidential
product, financial and technical information, including but not limited to (a)
the specifications contained on Exhibit A hereto which were developed by
Envirometrics, (b) information regarding Quantitative Photometry Monitors
manufactured or being developed by Envirometrics, (c) sales information of
Envirometrics and (d) technical know-how, trade secrets and proprietary
information now owned by Computer Control or which may be developed by Computer
Control in connection with this project, including technical know-how, trade
secrets and proprietary information required to manufacture Readers (hereafter
referred to as "Confidential Information") . Confidential Information includes
not only written information but also information transferred orally, visually,
electronically or by any other means. Each of the parties hereto hereby
covenants that (i) it will use the other party's Confidential Information solely
for the purposes permitted by this Agreement and (ii) it shall keep all
Confidential Information of the other party secret and confidential and shall
not disclose it to anyone except to a limited group of its own employees and
consultants who are actually engaged in the design, development and manufacture
of Readers. Each person to whom such Confidential Information is disclosed must
be advised of its confidential nature and of the terms of this agreement and
prior to receiving any Confidential Information thereof (unless already bound by
obligations of confidentiality) must agree to abide by such terms. The term
"Confidential Information" does not include information which (i) is already in
the possession of the receiving party, provided that such information is not
known by the receiving party to be subject to another confidentiality agreement
with or other obligation of secrecy to the disclosing party, or (ii) becomes
generally available to the public other than as a result of a disclosure by the
receiving party or its directors, officers, employees, agents or advisors, or
(iii) becomes available to the receiving party on a non-confidential basis from
a source other than the disclosing party or its advisors, provided that such
source is not known by the receiving party to be bound by a confidentiality
agreement with or other obligation of secrecy to the disclosing party or another
party, or (iv) has been independently acquired or developed by the receiving
party without violating any of its obligations to the disclosing party under
this Agreement. In the event that a receiving party or anyone to whom a
receiving party transmits Confidential Information pursuant to this Agreement
becomes legally compelled to disclose any of the Confidential Information, such
receiving party will provide the disclosing party with prompt notice so that the
disclosing party may seek a protective order or appropriate remedy and/or waive
compliance with the provisions of this Agreement; in the event that such
protective order or other remedy is not obtained or that the disclosing party
waives compliance with the provisions of this Agreement, the receiving party
will furnish only that portion of the Confidential Information which it is
advised by counsel is legally required.
12. The following shall constitute Events of Default hereunder: (i) Failure
by either party hereto to make any payment due hereunder on the date such
payment is due, provided such failure is not cured within ten (10) days
following the giving of written notice of such breach to the breaching party by
the nonbreaching party; (ii) the material breach by either party hereto of any
covenant, representation or warranty contained herein, other than covenants to
pay money, provided such breach is not cured within thirty (30) days following
the giving of written notice of such breach to the breaching party by the
nonbreaching party; or (iii) if either party hereto should ever be adjudged a
bankrupt. If an Event of Default shall have occurred and shall be continuing,
the nondefaulting party may, by written notice to the defaulting party,
terminate this Agreement, whereupon both parties shall be relieved of all
further obligations hereunder and the license granted in Section 4 hereof shall
immediately terminate. The remedy provided for above shall be in addition to,
and not in lieu of, any and all other rights and remedies which either party may
have at law or in equity in the event of a breach of this Agreement by the other
party.
13. This Agreement shall be binding upon, inure to the benefit of, and be
enforceable by, the parties hereto and their respective successors and permitted
assigns. If Computer Control sells, assigns or transfers any patent rights
obtained or created as a result of this Agreement, the terms and conditions of
this Agreement shall be binding on the purchaser, assignee or transferee of such
rights, and Envirometrics shall continue to pay the royalties due under this
Agreement to Computer Control absent written notice from Computer Control to the
contrary. Nothing expressed or implied in this Agreement is intended or shall be
construed to confer upon or give to any person other than the parties hereto any
rights or remedies under or by reason of this Agreement or any transaction
contemplated hereby.
14. This Agreement contains the entire understanding of the parties with
respect to its subject matter. This Agreement supersedes all prior agreements
and understandings between the parties with respect to its subject matter.
Without limiting the generality of the foregoing, there are no restrictions,
promises, representations, warranties, covenants or understandings other than
those expressly set forth or referred to herein.
15. This Agreement may be amended, modified or supplemented only by a
written instrument duly executed by the parties hereto.
16. Neither this Agreement nor any of the rights, interests or obligations
hereunder shall be assigned or sub-licensed by either party hereto without the
prior written consent of the other party hereto. In the event of a permitted
assignment by either party of this Agreement, the assignor shall cause such
assignee to assume all of the assignor's obligations hereunder, which assumption
shall be by a written instrument addressed to both parties hereto in form and
substance reasonably satisfactory to the non-assigning party and its counsel.
Provided, the sale of the stock of either party hereto shall not require the
consent of the other party. In the event that Envirometrics intends to sell all
or substantially all of its assets, it shall notify Computer Control at least
twenty (20) days prior to such sale and, if requested to do so by Computer
Control within ten (10) days of the giving of such notice, Envirometrics shall
assign its rights hereunder to the purchaser of such assets and shall cause such
purchaser to assume all of Envirometrics' obligations hereunder, which
assumption shall be by a written instrument addressed to Envirometrics and
Computer Control in form and substance reasonably satisfactory to Computer
Control and its counsel.
17. All notices, claims, certificates, requests, demands and other
communications hereunder shall be in writing and shall be deemed to have been
duly given if delivered personally, sent by facsimile transmission (and
confirmed by mail) or mailed (by registered or certified mail, return receipt
requested and postage prepaid) to the parties as follows:
If to Computer Control:
Computer Control Corporation
000 Xxxx Xxxxxxx
Xxxxxxx Xxxxxx, Xxx Xxxxxx 00000
Attention: Xx. Xxxxxx Xxxxxx, President
Fax No.: 000-000-0000
with copy to:
Xxxxxx X. Xxxxxxxxx, Esq.
Williams, Caliri, Xxxxxx & Otley
0000 Xxxxx 00
Xxxxx, Xxx Xxxxxx 00000
Fax No.: 000-000-0000
If to Seller:
Environmetrics Development Company, Inc.
0000 Xxxxxxxxxx Xxxxxxxxx
Xxxxx Xxxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attention: Mr. R. Xxxxxxx Xxxxxxx, CEO
Fax No.:
with copy to:
Attention:
Fax No.:
or to such other address or facsimile number as the party to whom notice is
to be given may have furnished to the other parties in writing in accordance
herewith. Any such communication shall be deemed to have been given on the date
it is received by the addressee (as evidenced, in the case of registered or
certified mail, by the date noted on the return receipt) . Provided that any
communication sent by facsimile transmission and confirmed by mail, shall be
deemed to have been given at the time of transmission.
18. This Agreement may be executed in any number of counterparts, and by
the different parties on separate counterparts, and each such counterpart hereof
shall be deemed to be an original instrument, but all such counterparts together
shall constitute but one agreement. 9
19. This Agreement and the legal relations between the parties hereto shall
be governed by and construed in accordance with the laws of the State of New
Jersey, without giving effect to the choice of law principles thereof.
20. Any reference expressed in any gender shall be deemed to include each
of the other genders, and the singular shall be deemed to include the plural and
vice versa, unless the context otherwise requires. The term "person" as used in
this Agreement, unless the context otherwise requires, shall include any
individual and any corporation, partnership, association, or other entity or
group. This Agreement has been jointly prepared by the parties hereto and the
terms hereof shall not be construed in favor of or against any party on account
of its participation in such preparation.
21. To the fullest extent permitted by applicable law, any party to this
Agreement may waive any provision of this Agreement; provided, that no such
waiver shall be of any force or effect unless the same is evidenced by a writing
executed by the party against which enforcement of such waiver is sought. The
waiver by any party hereto of a failure of any condition or of any breach of
this Agreement shall not operate or be construed as a waiver of, or estoppel
with respect to, any subsequent or other failure or breach.
22. Each of the parties hereto agrees to execute and deliver such
instruments and take such other actions as any other party hereto may reasonably
require in order to carry out the intent of this Agreement.
23. Upon execution of this Agreement, Envirometrics shall furnish to
Computer Control an attorneys opinion, addressed to Computer Control, in the
form of Schedule B hereto.
IN WITNESS WHEREOF, the parties hereto have executed this agreement in
duplicate.
ENVIROMETRICS DEVELOPMENT COMPANY, INC.
Signed By:
R. Xxxxxxx Xxxxxxx
Chief Executive Officer
COMPUTER CONTROL CORPORATION
Signed By:
Xxxxxx Xxxxxx
President
GUARANTY
Envirometrics, Inc., as an inducement to Computer Control Corporation
("Computer Control") to enter into the preceding Agreement between Computer
Control and Envirometrics Development Company, Inc. ("Envirometrics") , dated of
even date herewith (the "Agreement") hereby guarantees the performance by
Envirometrics of Envirometrics' obligations under the Agreement.
ENVIROMETRICS, INC.
Signed By:
R. Xxxxxxx Xxxxxxx
Chief Executive Officer
EXHIBIT A - PRELIMINARY SPECIFICATION
March 23, 1992
PHYSICAL:
- Portable
- Rechargeable battery, 8 hour operating life
- Charger can power unit on AC with discharged batteries
- Input: 16 position keypad
- Outputs: 16 character by 2 or 4 line LCD display
Parallel printer port (IBM compatible)
- single well design - Unit will memorize each badge's
baseline (unexposed) value. 100 badge capacity.
- Program memory in user-changeable chip for updatesChip
contains correction curves or tables for each badge type.
"INITIALIZE" OPERATING MODE:
- Warning: All prior data will be cleared. Does user want to print?
- Enter hazard type and badge ID (1 to 256)
- Error warning if ID is already in use
- Badge is inserted and unit stores baseline value
"READ" OPERATING MODE:
- Lowest stored ID is offered as a default. Subsequently the
number is incremented for each badge. Default number can be
overwritten from keypad.
- Relative humidity and temperature are entered for each read
session. Prior values are offered as default and can be
overwritten.
- Exposure time is entered for each badge. Prior value is offered
as default and can be overwritten.
- If badge is not already inserted, unit will prompt.
- Computer will search by ID for previous reading and use it with
present reading to display:
- Hazard
- ID number
- Interval concentration
- Cumulative concentration
- Computer will ask whether to store,, warning that prior
baseline will be destroyed. If printer is detected, unit will ask
whether to print prior data before overwriting it.
- Next badge ID is offered (and can be overwritten) "PRINT"
OPERATING MODE - Continuous print mode prints each reading as
taken
- "Print" button allows printing on demand
- "Batch" mode allows choice of ID range, all readings, complete
session or only previously unprinted readings
"CALIBRATE" OPERATING MODE
- Prompts to insert white card and stores reading for later
calculations
"OUT OF MEMORY WARNING"
- If EEROM is full, user is asked which range of samples to
delete (by ID, previous session or all). User is prompted "Are
you sure?" to make certain data is not lost accidentally.
