EXHIBIT 10.11
XXXX OF SALE AGREEMENT
THIS XXXX OF SALE AGREEMENT made and entered into this 12th day of
September, 1996 by and among Resource Technology, Inc., an Iowa corporation (the
"Seller"), and Xxxxxx Xxxxxx and Xxxxxxx Xxxxxx (solely for purposes of Sections
4 and 5 hereof), and Mercury Waste Solutions, Inc., a Minnesota corporation
("Buyer").
RECITALS
A. The Seller and U.S. Environmental, Incorporated ("USE") have
constructed and installed a mercury distillation system (the "Equipment") at a
facility in Union Grove, Wisconsin ("Union Grove Facility").
B. USE, Xxxx Xxxxxx and Seller had anticipated incorporating the
mercury distillation business under the name of U.S. Technology, Inc. ("UST"),
but have not done so as of the date hereof.
C. USE and Seller are also parties to an Agreement dated June 27, 1994
(the "Model 2000 Agreement") pursuant to which USE and Seller owned jointly the
design of the Model 2000 Fluorescent Lamp Processor ("Model 2000"), Seller owned
exclusive manufacturing rights to the Model 2000 ("Manufacturing Rights") and
USE owned exclusive rights to purchase, sell and distribute the Model 2000
("Distribution Rights").
D. USE transferred and assigned all of its rights and interests in the
Union Grove Facility, the Equipment and the Distribution Rights to Buyer.
E. The Buyer desires to purchase and Seller desires to sell all rights,
title and interest of Seller in UST, the Union Grove Facility, and the
Equipment, and in accordance therewith Buyer and Seller have executed a Letter
of Intent dated July 8, 1996 setting forth the terms and conditions of such sale
(the "Letter of Intent").
AGREEMENT
NOW THEREFORE, in consideration of the mutual promises and covenants
and for other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties hereto hereby agree as follows:
1. Assets. Seller does hereby sell, assign, transfer and convey unto
Buyer, its successors and assigns, all of Seller's right, title and interest, if
any, in UST, the Union Grove Facility, the Equipment and any other assets
related to the Equipment and the operations and business at Union Grove, WI, and
all processes, inventions, trademarks, trade secrets and intellectual property,
leasehold rights, distribution rights, whether related to the Equipment or the
Union Grove Facility, as well as the name "U.S. Technology, Inc.", goodwill
related to any of the foregoing, and any and all bank deposits and accounts
receivable relating to UST and the Equipment as of the date hereof
(collectively, the "Assets").
TO HAVE AND TO HOLD all and singular the Assets unto Buyer, its
successors and assigns, forever.
2. Consideration. In consideration of Seller's transfer of its rights
and interests in the Assets pursuant hereto, the Buyer shall pay to Seller the
sum of $400,000 upon the closing of this Agreement in cash or other immediately
available funds (the "Consideration").
3. Model 2000 Agreement. The Seller and Buyer have concurrently
herewith amended and restated the Model 2000 Agreement pursuant to the terms of
an Amended and Restated Model 2000 Agreement bearing even date herewith (the
"Amended Model 2000 Agreement").
4. Mutual Release. In consideration of the foregoing, Seller and Xxxxxx
Xxxxxx and Xxxxxxx Xxxxxx hereby release and discharge the Buyer and its
successors and assigns, and any affiliates, and any past or present officers,
directors, shareholders, employees, attorneys, and agents of Buyer, or any
affiliates (collectively, the "Buyer Released Parties") from any and all
actions, suits, claims, counterclaims, demands, causes of action, debts,
damages, judgments and liabilities, whether known or unknown, liquidated or
unliquidated, fixed, contingent, direct or indirect, which the Seller, Xxxxxx
Xxxxxx or Xxxxxxx Xxxxxx, or any of them, could in the past, may now, or in the
future assert or allege against the Buyer Released Parties (or any of them)
arising out of or based on such Buyer Released Parties' (or any of their)
actions or inactions, occurring prior to the date of this Agreement, under or
with respect to UST, the Union Grove Facility, the business to be conducted by
UST, the Equipment, the Model 2000 Agreement and the Model 2000 (except with
respect to the Amended Model 2000 Agreement), or the relationship between
Seller, Xxxxxx Xxxxxx, and Xxxxxxx Xxxxxx and USE, and/or Xxxx Xxxxxx, with
respect to UST, including without limitation any fiduciary duties.
Notwithstanding anything to the contrary herein, this release shall not include
matters relating to Xxxxx Xxxxxx.
In consideration for the foregoing, Buyer hereby releases and
discharges the Seller, Xxxxxx Xxxxxx, Xxxxxxx Xxxxxx, and their successors and
assigns, and any affiliates, and any past or present officers, directors,
shareholders, employees, attorneys, and agents of Seller, or any affiliates
(collectively, the "Seller Released Parties") from any and all actions, suits,
claims, counterclaims, demands, causes of action, debts, damages, judgments and
liabilities, whether known or unknown, liquidated or unliquidated, fixed,
contingent, direct or indirect, which the Buyer could in the past, may now, or
in the future assert or allege against the Seller Released Parties (or any of
them) arising out of or based on such Seller Released Parties' (or any of their)
actions or inactions, arising prior to the date of this Agreement, under or with
respect to UST, the Union Grove Facility, the Equipment, the Model 2000
Agreement and the Model 2000 (except with respect to the Amended Model 2000
Agreement), or the relationship between Buyer and Seller, and/or Xxxxxx Xxxxxx
and Xxxxxxx Xxxxxx, including without limitation any fiduciary duties.
Notwithstanding anything to the contrary herein, this release shall not include
matters relating to Xxxxx Xxxxxx. Furthermore, the Seller Released Parties
voluntarily will agree to cooperate and comply with any subpoena to testify
issued on behalf of Buyer in connection with litigation involving Xxxxx Xxxxxx
("Xxxxxx").
5. Representations and Warranties. Seller (and each of Xxx Xxxxxx and
Xxxx Xxxxxx as applicable herein) represents and warrants to Buyer that: (i)
Seller has not granted any liens or security interests which encumber or affect
the Assets (ii) that Seller, Xxxxxx Xxxxxx or Xxxxxxx Xxxxxx (or any of them)
has not entered into, nor agreed to enter into or been actively pursuing, any
contracts or agreements with Xxxxxx, regarding an employment, independent
contractor, agency or distributor relationship, nor concerning the formation
with Xxxxxx of a partnership, joint venture or other business relationship
between Seller and Xxxxxx; and Seller, Xxxxxx Xxxxxx or Xxxxxxx Xxxxxx further
represent that none of them has knowingly assisted, aided or abetted Xxxxxx in
any substantial and material way with respect to the claims asserted by Xxxxxx
against USE, Xxxx Xxxxxx and Buyer; (iii) this Agreement, and the terms hereof,
have been approved by all necessary corporate or partnership action of Seller,
(iv) Seller has been represented by legal counsel in connection with the
transactions contemplated herein and has relied upon such independent counsel
with respect to all legal and tax consequences of the transactions contemplated
herein, or they have chosen not to retain such legal counsel, (v) concurrently
herewith Xxxxxx Xxxxxx and Xxxxxxx Xxxxxx have assigned all rights and interest
in the Assets to Seller pursuant to a Quit Claim Assignment, and Seller has not
previously assigned, encumbered or transferred in any way any of Seller's rights
in UST or the Assets, including without limitation any distribution rights with
respect to the Equipment, and none of Seller, Xxxxxx Xxxxxx or Xxxxxxx Xxxxxx
has previously assigned, encumbered or transferred any of the claims released
pursuant to Section 4 hereof.
Buyer, on behalf of itself and its successors, agrees to indemnify and
hold harmless Seller and Seller's past or present agents, directors, officers,
employees, successors, shareholders, assigns, or affiliates against liability
actually incurred by Seller directly arising from personal injury, product
liability, environmental or regulatory claims asserted against Seller, which
claims are based solely upon the past, present or future use or operation of the
Equipment. Buyer shall defend any actions brought against the Seller for any
such claims, and shall bear all costs, and expenses related to the defense of
any such action, and Buyer shall pay any judgment awarded against Seller on any
such claims. Buyer shall undertake to retain reasonably competent counsel to
handle any such claims, at Buyer's expense. If Seller decides to also retain
counsel in connection with any such claims, it shall be at Seller's sole cost
and expense. Seller will agree to fully cooperate with Buyer and Buyer's counsel
in the defense or prosecution of any such claims.
6. License. The Buyer agrees that the Seller shall not be restricted
from the design, manufacture, or distribution of mercury distillation equipment,
and the Buyer hereby grants the Seller and its subcontractors or other agents a
non-exclusive paid-up worldwide, royalty-free license to use the processes,
inventions, trademarks, trade secrets and any other necessary or desirable
intellectual property with respect to the Equipment sufficient to enable Seller
to make and sell mercury distillation equipment or systems; provided, however,
that Seller shall not be permitted to use in any way, including in any sales
materials the name "Mercury Waste Solutions", "USA Lights", "US Lights" or any
similar name, and Seller shall not use or display any trademark, service xxxx,
tradename, logo or advertising of Buyer or designating Buyer. This non-exclusive
license shall not be assignable other than to a successor of Seller's business.
The Seller agrees to indemnify the Buyer for any costs, liabilities, damages, or
expenses, incurred by Buyer in connection with any claims arising out of the
Seller's rights as a licensee of the mercury distillation equipment, provided
that Buyer did not cause or initiate said claim. As a precondition to said
indemnification, Buyer shall provide Seller with timely notice of any claim and
shall cooperate fully with Seller in the investigation, disposition, and
resolution of any claim. In connection with such indemnification, Seller shall
defend any actions brought against the Buyer for any such claims, and shall bear
all costs, and expenses related to the defense of any such action, and Seller
shall pay any judgment awarded against Buyer on any such claims. Seller shall
undertake to retain reasonably competent counsel to handle any such claims, at
Seller's expense. If Buyer decides to also retain counsel in connection with any
such claims, it shall be at Buyer's sole cost and expense. Buyer will agree to
fully cooperate with Seller and Seller's counsel in the defense or prosecution
of any such claims.
7. Future Assurances. Each party, its successors, and assigns hereby
covenants and agrees to and with the other party, its successors and assigns, to
do, execute, acknowledge and deliver, or to cause to be done, executed,
acknowledged and delivered, to the other party, its successors and assigns, all
such further acts, assignments, transfers, and assurances that may be reasonably
requested, conveying, delivering, assuring and confirming, to the other party,
its successors or assigns, or for aiding and assisting in collecting or reducing
to possession, any or all of the Assets, or otherwise to assist in the
performance under this Agreement.
8. Counterparts. This Agreement may be executed in two (2) or more
counterparts, each of which shall be an original and all of which taken together
shall constitute but one and the same instrument.
9. Governing Law. This Agreement and the rights and obligations of the
parties hereunder shall be governed by and interpreted and construed in
accordance with the laws of the State of Minnesota. All actions or proceedings
with respect to this Agreement shall be conducted in the Courts of the State of
Minnesota (State or Federal) and, by execution and delivery of this Agreement,
Seller irrevocably and unconditionally submits to the jurisdiction (both subject
matter and personal) of such courts, and irrevocably and unconditionally waives
(i) any objection Seller may have or hereafter have to the laying of venue in
such a court, and (ii) any claim that any action proceeding in such court has
been brought in an inconvenient forum. Service of process may be effected upon
Seller through such service outside of the State of Minnesota due to its waiver
of objection to such service.
10. Superseding Effect. This Agreement, from and after the date hereof,
supersedes and has merged into it all prior oral and written agreements on the
same subjects by or between the parties hereto, including without limitation the
Letter of Intent, with the effect that this Agreement shall control.
11. Buyer as Sole Owner. Upon execution of this Agreement, Buyer shall
be the sole owner of the Assets, and Seller shall have no further claim or
interest in the Assets, and Buyer may transfer its rights and interests in the
Assets, and assign its rights and obligations under this Agreement, at any time
without the consent of the Seller, including without limitation, to any
investor, partner or joint venturer of Buyer.
12. Amendment. This Agreement may only be modified or amended pursuant
to a written amendment executed by all parties hereto.
IN WITNESS WHEREOF, the parties have caused this Xxxx of Sale Agreement
to be executed as of the date and year first above written.
SELLER: RESOURCE TECHNOLOGY, INC.
By: /s/ Xxxxxx Xxxxxx
Its: President
XXXXXX XXXXXX (for purposes of Sections 4
and 5 only)
/s/ Xxxxxxx Xxxxxx
XXXXXXX XXXXXX (for purposes of Sections 4
and 5 only)
BUYER: MERCURY WASTE SOLUTIONS, INC.
By: /s/ Xxxxxxx X. Xxxxxxx
Its: Chairman
