AGREEMENT
THIS AGREEMENT is entered into this 18th day of June, 1996, 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 Xxxxxxx Xxxxx, Xxxxxxxxxx, Xxxxx Xxxxxxxx 00000
("Envirometrics").
WHEREAS, Computer Control and Envirometrics are parties to an Agreement
dated March 26, 1992 (the 111992 Agreement"), pursuant to which, among other
things, Computer Control granted to Envirometrics a license to manufacture and
sell electronic readers ("Readers") for use with Quantitative Photometry
Monitors ("Monitors") and Envirometrics agreed to pay royalties to Computer
Control on sales of Monitors and Readers; and
WHEREAS, Computer Control formally notified Envirometrics that
Envirometrics has failed to make certain royalty payments required pursuant to
the 1992 Agreement and has failed to furnish certain quarterly statements
required to compute the royalties due under the 1992 Agreement;
NOW, THEREFORE, in consideration of the mutual agreements hereinafter set
forth, the parties hereto do hereby agree as follows:
1. All capitalized terms used in this Agreement which are not otherwise
defined herein shall have the meanings ascribed to them in the 1992 Agreement.
2. Unless Envirometrics shall have breached its obligations pursuant to
this Agreement, Computer Control shall not exercise its right to terminate the
1992 Agreement or the license granted thereunder until the Payment Deadline. For
purposes of this Agreement, the "Payment Deadline" shall mean the first to occur
of July 31, 1996 or completion of the sale of securities of Envirometrics, Inc.
contemplated by that certain letter agreement dated June 6, 1996 between
Envirometrics, Inc., X.X. Xxxxxxx & Co. and Xxxxxx, Xxxxxx & Co.
3. Envirometrics shall, on or before the Payment Deadline, pay the
following amounts to Computer Control: (a) All royalties due under the 1992
Agreement, (b) all amounts due on the invoices listed on Schedule A hereto and
(c) interest at the rate of 9% per annum on all minimum royalties due under
Section 2.c. of the 1992 Agreement from the date such amounts became due.
4. Envirometrics shall, not later than June 21, 1996,furnish to Computer
Control an accounting of all royalties payable pursuant to clauses 1(c) and 1(d)
of the 1992 Agreement. Such accounting shall include a statement of the gross
revenues of Envirometrics during each calendar quarter (commencing with the
second calendar quarter of 1992) from the sale of Quantitative Photometry
Monitors and from the sale, leasing and rental of Readers and of the royalties
due pursuant to clauses 1(c) and 1(d) of the 1992 Agreement for each calendar
quarter.
5. The cost of any work required to modify or redesign the Reader
(including but not limited to redesign work required to keep the current version
of the Reader functional, such as redesign work caused by the discontinuation of
manufacture of the computer chip used in the current version of the Reader)
shall be borne by Envirometrics. Computer Control shall have no obligation to
perform such work unless and until it shall enter into a written agreement with
Envirometrics to do so.
Notwithstanding the foregoing, Computer Control agrees to enter a maximum
of five (5) new hazard-specific conversion algorithms into the Reader computer
program at no charge to Envirometrics during each year that Readers are
manufactured by Computer Control for Envirometrics. Envirometrics agrees to
supply the algorithms in equation form ready for integration into the Reader
computer program. If necessary, other algorithms (as selected by Envirometrics)
will be deleted from the Reader computer program to allow sufficient memory
space for the new algorithms. If Envirometrics wishes to expand memory space to
accommodate additional algorithms, the design will be modified at the expense of
Envirometrics in accordance with the preceding paragraph.
6. The 1992 Agreement is hereby amended as follows:
a. The Monitor Royalty Period is hereby extended through June 30, 2000.
b. The Reader Royalty Period is hereby extended through June 30, 2000.
c. From and after the last to occur of the Payment Deadline or the date any
payment under the 1992 Agreement shall become due and payable, interest shall
accrue thereon at the "default rate" until such amount shall be paid. The
"default rate" shall mean the "prime rate" plus 3 percentage points; the "prime
rate" shall mean the rate of interest per annum published from time to time as
the "prime rate" in the Wall Street Journal (New York edition). In no event
shall the rate of interest on late payments exceed the maximum rate authorized
by applicable law. Computer Controls right to receive interest on late payments
shall be in addition to, and not in lieu of, any and all other rights and
remedies which Computer may have at law or in equity or pursuant to any other
provision of the 1992 Agreement in the event of a breach of the 1992 Agreement
by Envirometrics.
d. Section 12 of the 1992 Agreement is hereby amended to read in its
entirety as follows:
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 non-breaching party; (ii) failure by Envirometrics to pay any other amount
owed to Computer Control as identified in Section 3 of the Agreement dated June
18, 1996 between Computer Control and Envirometrics when such payment is due,
provided such failure is not cured within ten (1 0) days following the giving of
written notice of such breach to Envirometrics by Computer Control; (iii) 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 non-breaching party; or (iv)
if either party hereto should ever be adjudged a bankrupt. For purposes of this
Agreement, an entity shall be deemed an affiliate of another entity if it
controls, is controlled by or is under common control with such other entity. If
an Event of Default shall have occurred and shall be continuing, the
non-defaulting 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 or pursuant to any other provision of this Agreement in
the event of a breach of this Agreement by the other party. Except as expressly
provided herein or in any subsequent agreement between the parties, breach of
any other agreement between the parties shall not constitute an Event of Default
hereunder; without limiting the foregoing, it is expressly agreed that clause
(ii) of this Section 12 is limited only to failures to pay amounts due under
Section 3 of the June 18, 1996 Agreement.
e. Section 17 of the 1992 Agreement is hereby ended to read in its entirety
as follows:
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, Xxxx 0
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:
Envirometrics Development Company, Inc.
0000 Xxxxxxx Xxxxx
Xxxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attention: Xx. X. Xxxxxxx, President
Fax No: 000-000-0000
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."
f. The following is hereby added to the Agreement as a new paragraph 24:
24. In the event that Envirometrics shall default in the payment of any
amount due hereunder, Envirometrics pay to Computer Control the costs of
collection of such amount, including reasonable attorney's fees."
g. The following is hereby added to the Agreement as a new paragraph 25:
25. Notwithstanding any provision of this Agreement to the contrary:
Computer Control shall not be required to disclose to Envirometrics any
technical know-how, trade secrets or proprietary information required to
manufacture Readers at any time that any amount owed by Envirometrics,
Envirometrics, Inc. or any other affiliate of Envirometrics to Computer Control,
BIOS International, Inc. or any other affiliate of Computer Control (including
but not limited to royalties under the 1992 Agreement and invoices for products)
shall be overdue."
7. Subject to the modifications hereinabove set forth, the 1992 Agreement
is hereby ratified and confirmed in all respects.
IN WITNESS WHEREOF, the parties hereto have executed this agreement in
duplicate.
ENVIROMETRICS DEVELOPMENT COMPANY, INC.
Signed By:____________________
Name:
Title:
COMPUTER CONTROL CORPORATION
Signed By:_____________________
Xxxxxx Xxxxxx
President
CONSENT
The undersigned hereby consents to the foregoing Agreement.
ENVIROMETRICS, INC.
Signed By:
Name:
Title:
SCHEDULE A
The following invoices issued by Computer Control:
Invoice Number Date Invoice Amount Owed
003944 3/11/96 Envirometrics, Inc. $7,120.00
003949 3/11/96 Envirometrics, Inc. 10,724.00
003952 3/27/96 Envirometrics, Inc. 205.05
003964 5/21/96 Envirometrics, Inc. 410.04
