Exhibit 8.3
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ASSET PURCHASE AGREEMENT
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Agreement made as of the 24th day of May, 1999, between Phytotech, Inc.,
D.I.P., a New Jersey corporation with its principal office at Xxx Xxxx Xxxx
Xxxxx, Xxxxx X, Xxxxxxxx Xxxxxxxx, Xxx Xxxxxx 00000 (the "Seller") in its
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capacity as Chapter 11 Debtor-in-Possession in Bankruptcy, Case No. 99-55905/kf
filed May 19, 1999, and pending in the United States Bankruptcy Court for the
District of New Jersey (the "Bankruptcy Court"), and Edenspace Systems
Corporation, a Delaware corporation with its principal office at 00000 Xxxxxxx
Xxxxxx Xxxxx, Xxxxx Xxxxx, Xxxxxxxx 00000 (the "Buyer").
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Preliminary Statement
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WHEREAS, the Buyer desires to purchase, and the Seller desires to sell, all
of the phytoremediation assets and business of the Seller, for the consideration
set forth below, subject to the terms and conditions of this Agreement,
including Bankruptcy Court approval.
WHEREAS, retaining the Business's (as defined herein) customers and key
employees is important to the ongoing value of the Business; certain customers
have indicated their intent to cancel contracts based on the Seller's perceived
failure to perform and the Seller's employees have expressed strong concern at
the Seller's inability to pay them months of accrued wages and expense
reimbursements; the Buyer and Seller agree that initial delivery of $50,000.00
provided by the Buyer to the Seller upon the execution of this Agreement is
essential to retaining such customers arid key employees; and the Seller agrees
to use such funds for that purpose.
NOW, THEREFORE, in consideration of the mutual promises hereinafter set
forth and other good and valuable consideration, the receipt of which is hereby
acknowledged, the parties hereby agree as follows:
1. Sale and Delivery of the Assets; Bankruptcy Provisions
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1.1 Sale and Delivery of the Assets.
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(a) Subject to and upon the terms and conditions of this
Agreement, at the closing of the transactions contemplated by this Agreement
(the "Closing"), the Seller shall sell, transfer, convey, assign and deliver to
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the Buyer, and the Buyer shall purchase from the Seller, the following
properties, assets and other claims, rights and interests related to the
phytoremediation business of the Seller (the "Business").
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(i) all inventories of raw materials, work in process,
finished goods, office supplies, maintenance supplies, packaging materials,
spare parts and similar items of the Setter (collectively, the "Inventory")
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which exist on the Closing Date (as defined below);
(ii) all accounts, accounts receivable, notes and notes
receivable existing on the Closing Date which are payable to the Seller,
including any security held by the Seller for the payment thereof (the accounts,
accounts receivable, notes and notes receivable, including any related security
therein, to be transferred to the Buyer pursuant hereto are collectively
referred to herein as the "Accounts Receivable").
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(iii) all prepaid expenses, customer prepayments and other
similar assets of the Seller existing on the Closing Date, including the cash
represented by such assets;
(iv) all rights of the Seller under the contracts,
agreements, leases, insurance policies, licenses (including but not limited to
licenses with respect to Intangible Property) and other instruments set forth on
Schedule 2.15 attached hereto (collectively, the "Contract Rights");
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(v) all books, records and accounts, correspondence,
production records, technical, accounting, manufacturing and procedural manuals,
customer lists, employment records, studies, reports or summaries relating to
any environmental conditions or consequences of any operation, present or
former, as well as all studies, reports or summaries relating to any
environmental aspect or the general condition of the Assets, and any
confidential information which has been reduced to writing relating to or
arising out of the business of the Seller.
(vi) all rights of the Seller under express or implied
warranties from the suppliers of the Seller;
(vii) all of the machinery, equipment, tools, production
reels and spools, tooling, dies, production fixtures, maintenance machinery and
equipment, furniture, leasehold improvements and construction in progress owned
by the Seller on the Closing Date whether or not reflected as capital assets in
the accounting records of the Seller (collectively, the "Fixed Assets");
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(viii) all of the Seller's right, title and interest in and
to all intangible property rights owned, or licensed to Seller, and used by the
Seller in the Business, including but not limited to: all technical and
commercial information, data and documents of whatever kind, and in whatever
form or medium, relating to or useful for phytoremediation, including but not
limited to inventions, discoveries, trade secrets, formulas, databases,
drawings, specifications, photographs, samples, models, processes, procedures,
reports and correspondence, including the underlying copyright in works of
authorship embodying the foregoing, owned by Seller or which Seller otherwise
may lawfully disclose to Buyer; every United States and foreign patent that is
owned by Seller, or which is licensed to Seller, as well as all patents issued
on or claiming priority from an application filed prior to ninety days after the
Closing Date, including but not limited to any later filed continued
prosecution, continuations, substitutions, or divisionals thereof, and any
reissues or reexaminations of such patents, including but not limited to the
patents and any patents issuing from any patent application listed in Schedule
2.22 attached hereto; trade names, including but not limited to the name
"Phytotech, Inc." or any derivation thereof; trademarks; trademark
registrations; applications for trademark registrations; copyrights; and
copyright registrations (collectively, the "Intangible Property"); and
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(ix) except as specifically provided in Subsection 1.1(b)
hereof, all other assets, properties, claims, rights and interests of the Seller
which exist on the Closing Date, of every kind and nature and description,
whether tangible or intangible, real, personal or mixed.
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(b) Notwithstanding the provisions of paragraph (a) above, the
assets to be transferred to the Buyer under this Agreement shall not include
those assets listed on Schedule 1.1 attached hereto (the "Excluded Assets").
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(c) The Inventory, Accounts Receivable, Contract Rights, Fixed
Assets, Intangible Property and other properties, assets and business of the
Seller described in paragraph (a) above, other than the Excluded Assets, shall
be referred to collectively as the "Assets."
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1.2 Further Assurances. At any time and from time to time after the
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Closing, at the Buyer's request and without further consideration, the Seller
promptly shall execute and deliver such instruments of sale, transfer,
conveyance, assignment and confirmation, and take such other action, as the
Buyer may reasonably request to more effectively transfer, convey and assign to
the Buyer, and to confirm the Buyer's title to, all of the Assets, to put the
Buyer in actual possession and operating control thereof, to assist the Buyer in
exercising all rights with respect thereto and to carry out the purpose and
intent of this Agreement.
1.3 Purchase Price.
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(a) The cash purchase price for the Assets shall be Six Hundred
Thousand Dollars ($600,000.00), plus 5% of Net Sales (as defined herein) through
December 31, 2002, payable quarterly in arrears on the 15th day of the second
month following each calendar quarter, with the first payment to be made on
August 15, 1999 for the quarter ending June 30, 1999, and the last payment to be
made on February 15, 2003 for the quarter ended December 31, 2002.
(b) "Net Sales" means the total of the gross consideration
received for any materials or product or kit, or any service, method, process,
or (the "Product") that is covered by a valid claim of the Seller's patents
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listed, or issuing from any patent application listed, on Schedule 2.22 attached
hereto, and made, used, leased, transferred, sold or otherwise disposed of by
the Buyer, its affiliates, and its sublicensees, at arms-length prices, less the
sum of the following actual and customary deductions (net of rebates or
allowances of such deductions received by the Buyer, its affiliates and
sublicensees) included on the invoice and actually paid: trade discounts; sales;
excise or use taxes imposed upon particular sales; import/export, customs or
duties or similar levies paid by the Buyer; royalties and other payments made by
Buyer to Rutgers, The State University of New Jersey under the Exclusive License
Agreement between Phytotech, Inc. and Rutgers, The State University of New
Jersey dated May 1997, and assigned to Buyer under the terms of this Agreement;
insurance; costs of packaging materials, boxes, cartons and crates required for
shipping; returns; and shipping, transportation and delivery charges. A product
shall be deemed made, used, leased, transferred, sold, or otherwise disposed of
at the time the Buyer receives payment for such Product.
(c) Upon signing this Agreement, the Buyer shall deliver to the
Seller by wire transfer the amount of Fifty Thousand Dollars ($50,000.00). At
the Closing, the Buyer shall deliver to the Seller the sum of Five Hundred Fifty
Thousand Dollars ($550,000.00) in cash, by cashier's or certified check or by
wire transfer of immediately available funds to an account designated by the
Seller, which shall constitute Buyer's second payment to Seller for the
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Assets. Specifically incorporated within this sum is a payment of Fifty Thousand
Dollars ($50,000.00) for the Seller's agreement not to compete with the Buyer.
(d) The Buyer shall have the right, in its sole determination,
to offset against the purchase price any payment of indebtedness or liability of
the Seller to the Buyer.
1.4 No Assumption of Liabilities.
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The Buyer shall not assume or agree to perform, pay or discharge, and the
Seller shall remain unconditionally liable for, all Seller's obligations,
liabilities and commitments, fixed or contingent, of the Seller whether or not
the relate to the Business.
1.5 The Closing. The Closing shall take place at the offices of
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Ravin, Xxxxxxxxx & Marks, 000 Xxxxxxxxxx Xxxxxxx, Xxxxxxxx, Xxx Xxxxxx 00000 at
10:00 a.m., New Jersey time, on June 11, 1999, or at such other place, time or
date as may be mutually agreed upon in writing by the parties hereto. The
transfer of the Assets by the Seller to the Buyer shall be deemed to occur at
9:00 a.m., Washington, D.C. Time, on the date of the Closing (the "Closing
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Date").
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1.6 Bankruptcy Procedural Provisions
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(a) The obligations of the Buyer and the Seller under this
Agreement are expressly conditioned upon the Seller obtaining approval of the
transactions contemplated by this Agreement from the Bankruptcy Court in an
order confirming the Seller's sale of Assets under 11 U.S.C. Section 363 (the
"Bankruptcy Order").
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(b) The sale of the Assets under this Agreement shall be
effectuated under the authority of 11 U.S.C. Section 363. The Seller's
conveyance, sale, transfer, assignment and delivery of all right, title and
interest of the Seller in and to the Assets shall be free and clear of any and
all liens, claims, encumbrances, rights, interests, easements, mortgages,
pledges, charges, equities, licenses, leases, agreements and restrictions of any
kind or nature whatsoever, to the fullest extent permitted by 11 U.S.C. Section
363, except as set forth on Schedule 2.4(ii) attached hereto.
(c) The Buyer acknowledges that, consistent with the Seller's
duties as Debtor-in-Possession, the Seller must consider competing offers, if
any, for the Assets. In addition to the deposit requirement set forth in Section
5.8, the Seller Agrees that it will not consider any such competing offer unless
such offer provides at least Fifty Thousand Dollars ($50,000.00) in additional
cash to Seller's bankruptcy estate. The Buyer will have the right to "top" any
competing offer submitted by the Seller to the Bankruptcy Court so long as the
Buyer's offer provides at least Twenty Thousand Dollars ($20,000.00) more cash
to the Seller's bankruptcy estate than is provided by such competing offer.
(d) The Seller hereby agrees to assume and assign to the Buyer
the contracts listed on Schedule 2.15 hereto in accordance with 11 U.S.C.
Section 365.
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2. Representations of the Seller
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Subject to the effect of the Bankruptcy Code and any orders entered by the
Bankruptcy Court, the Seller represents and warrants to the Buyer as follows:
2.1 Organization. The Seller is a corporation duly organized, validly
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existing and in good standing under the laws of the state of its incorporation,
and has requisite power and authority (corporate and other) to own its
properties, to carry on its business as now being conducted, to execute and
deliver this Agreement and the agreements contemplated herein, and to consummate
the transactions contemplated hereby, subject to approval by the Bankruptcy
Court. There are no corporate, partnership, joint venture and other entities in
which the Seller holds, directly or indirectly, a 50% or greater interest. The
Seller is duly qualified to do business and is in good standing in all
jurisdictions in which its ownership of property or the character of its
business requires such qualification. Certified copies of the Certificate of
Incorporation and Bylaws of the Seller, each as amended to date, have been
previously delivered to the Buyer, are complete and correct, and no amendments
have been made thereto or have been authorized since the date thereof. There are
no subsidiaries of the Seller, and the Seller does not own any capital stock of
or other equity interest in any corporation, partnership or other entity.
2.2 Capitalization of the Seller. All capital stock of the Seller has
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been duly and validly authorized, issued and is fully paid and nonassessable.
2.3 Authorization. The execution and delivery of this Agreement by
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the Seller, and the agreements provided for herein, and the consummation by the
seller of all transactions contemplated hereby, have been duly authorized by all
requisite corporate and shareholder action. This Agreement and all such other
agreements and obligations entered into and undertaken in connection with the
transactions contemplated hereby to which the Seller is a party constitute the
valid and legally binding obligations of the Seller, enforceable against the
Seller in accordance with their respective terms, subject to Bankruptcy Court
approval. The execution, delivery and performance by the Seller of this
Agreement and the agreements provided for herein, and the consummation by the
Buyer of the transactions contemplated hereby and thereby, will not, with or
without the giving of notice or the passage of time or both, (a) violate the
provisions of any law, rule or regulation applicable to the Seller; (b) violate
the provisions of the Certificate of Incorporation or Bylaws of the Seller; (c)
violate any judgment, decree, order or award of any court, governmental body or
arbitrator; or (d) conflict with or result in the breach or termination of any
term or provision of, or constitute a default under, or cause any acceleration
under, or cause the creation of any lien, charge or encumbrance upon the
properties or assets of the Seller pursuant to, any indenture, mortgage, deed of
trust or other instrument or agreement to which the Seller is a party or by
which the Seller or any of its properties is or may be bound. Schedule 2.3
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attached hereto sets forth a true, correct and complete list of all consents and
approvals of third parties that are required in connection with the consummation
by the Seller of the transactions contemplated by this Agreement.
2.4 Ownership of the Assets. Schedule 2.4(i) attached hereto sets
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forth a true, correct and complete list of all claims, liabilities, liens,
pledges, charges, encumbrances and equities of any kind affecting the Assets
(collectively, the "Encumbrances"). The Seller is, and at
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the Closing will be, the true and lawful owner of the Assets, and will have the
right to sell and transfer to the Buyer good, clear, record and marketable title
to the Assets, free and clear of all Encumbrances of any kind, except as set
forth on Schedule 2.4(ii) attached hereto (the "Permitted Encumbrances"),
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subject to Bankruptcy Court approval. The delivery to the Buyer of the
instruments of transfer of ownership contemplated by this Agreement will vest
good and marketable title to the Assets in the Buyer, free and clear of all
liens, mortgages, pledges, security interests, restrictions, prior assignments,
encumbrances and claims of any kind or nature whatsoever, except for the
Permitted Encumbrances.
2.5 Financial Statements.
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(a) The Seller has previously delivered to the Buyer its audited
balance sheet as of December 31, 1997 (the "Audited Balance Sheet") and the
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related statements of income, shareholders' equity, retained earnings and
changes in financial condition of the Seller for the fiscal year then ended
(collectively, including the Audited Balance Sheet, the "Audited Financial
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Statements"). The Seller shall deliver to Buyer as soon as practicable, but in
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any event prior to the Closing Date, its Current Balance Sheet and the related
statements of income, shareholders' equity, retained earnings and changes in
financial condition of the Seller for 1998 and the 3-month period ended March
31, 1999 (collectively, the "Current Financial Statements"). The Audited
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Financial Statements, the Current Financial Statements and the interim financial
statements (the "Interim Financial Statements") to be delivered pursuant to
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Subsection 5.4 hereof (collectively, the "Financial Statements") have been (or
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will be) prepared in accordance with generally accepted accounting principles
applied consistently with past practice and are certified without qualification
by the Seller's independent public accountants, in the case of the Audited
Financial Statements, and have been (or will be) certified by the Seller's chief
financial officer, in the case of the Current Financial Statements and the
Interim Financial Statements.
(b) The Financial Statements fairly present, as of their
respective dates, the financial condition, retained earnings, assets and
liabilities of the Seller and the results of operations of the Seller's business
for the periods indicated; with respect to the contracts and commitments for the
sale of goods or the provision of services by the Seller, the Financial
Statements contain and reflect adequate reserves, which are consistent with
previous reserves taken, for all reasonably anticipated material losses and
costs and expenses; and the amounts shown as accrued for current and deferred
income and other taxes in the Financial Statements are sufficient for the
payment of all accrued and unpaid federal, state and local income taxes,
interest, penalties, assessments or deficiencies applicable to the Seller,
whether disputed or not, for the applicable period then ended and periods prior
thereto.
2.6 Absence of Undisclosed Liabilities affecting the Assets. Except
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as and to the extent (a) reflected and reserved in the Current Balance Sheet,
(b) set forth on Schedule 2.6 attached hereto or (c) incurred in the ordinary
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course of business after the date of the Current Balance Sheet and not material
in amount, either individually or in the aggregate, the Seller does not have any
liability or obligation, secured or unsecured, whether accrued, absolute,
contingent, unasserted or otherwise, affecting the Assets. For purposes of this
Subsection 2.6, "material" means any amount in excess of $20,000.00.
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2.7 Litigation. The Seller is not a party to, or to the Seller's best
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knowledge threatened with, and none of the Assets are subject to, any
litigation, suit, action, investigation, proceeding or controversy before any
court, administrative agency or other governmental authority relating to or
affecting the Assets or the business or condition (financial or otherwise) of
the Seller, except that the Assets are property of the Seller's bankruptcy
estate pursuant to 11 U.S.C. Sec. 541. The Seller is not in violation of or in
default with respect to any judgment, order, writ, injunction, decree or rule of
any court, administrative agency or governmental authority or any regulation of
any administrative agency or governmental authority.
2.8 Insurance. Schedule 2.8 attached hereto sets forth a true,
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correct and complete list of all fire, theft, casualty, general liability,
workers compensation, business interruption, environmental impairment, product
liability, automobile and other insurance policies insuring the Assets or
business of the Seller and of all life Insurance policies maintained for any of
its employees, specifying the type of coverage, the amount of coverage, the
premium, the insurer and the expiration date of each such policy (collectively,
the "Insurance Policies") and all claims made under such Insurance Policies
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since inception. True, correct and complete copies of all of the Insurance
Policies have been previously delivered by the Seller to the Buyer. The
Insurance Policies are in full force and effect and are in amounts and of a
nature which are adequate and customary for the Seller's business. All premiums
due on the Insurance Policies or renewals thereof have been paid and there is no
default under any of the Insurance Policies. Except as set forth on Schedule 2.8
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attached hereto, the Seller has not received any notice or other communication
from any issuer of the Insurance Policies since inception canceling or
materially amending any of the Insurance Policies, materially increasing any
deductibles or retained amounts thereunder, or materially increasing the annual
or other premiums payable thereunder, and, to the best knowledge of the Seller,
no such cancellation, amendment or increase of deductibles, retainages or
premiums is threatened.
2.9 Inventory. Schedule 2.9 attached hereto sets forth a true,
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correct complete list of the Inventory as of the date hereof, including a
description and book value thereof. Schedule 2.9, as updated pursuant to
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Subsection 7.9 hereof, shall set forth a true, correct and complete list of the
Inventory as of the Closing Date, including a description and valuation thereof.
Such Inventory consists of items of a quality and quantity which are usable or
saleable without discount in the ordinary course of the business conducted by
the Seller. The value of all items of obsolete materials and of materials of
below standard quality has been written down to realizable market value, and the
values at which such Inventory is carried reflect the normal inventory valuation
policy of the Seller of stating the Inventory at the lower of cost or market
value in accordance with generally accepted accounting principles.
2.10 Equipment and Fixed Assets. Schedule 2.10 attached hereto sets
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forth a true, correct and complete list of all Equipment and Fixed Assets as of
the date hereof, including a description and the book value thereof. Schedule
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2.10, as updated pursuant to Subsection 7.9 hereof, shall set forth a true,
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correct and complete list of all Equipment and Fixed Assets as of the Closing
Date, including a description and valuation thereof. All of the Equipment and
Fixed Assets are in good operating condition and repair, normal wear and tear
excepted, are currently used by the Seller ordinary course of business and in
the production of products of the Seller and
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normal maintenance has been consistently performed with respect to such
Equipment and Fixed Assets.
2.11 Change in Condition and Assets. Except as set forth on Schedule
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2.11 attached hereto, since the Balance Sheet Date, and except for the Seller's
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filing of its case with the Bankruptcy Court on May 19, 1999, there has been no
change which materially and adversely affects the business, properties, assets,
condition (other than financial) or prospects of the Seller. The Seller has no
knowledge of any existing or threatened occurrence, event or development which,
as far as can be reasonably foreseen, could have a material adverse effect on
the Seller or its business, properties, assets, condition (financial or
otherwise) or prospects.
2.12 Tax Matters. The Seller has filed all federal, state and local
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tax returns which are required to be filed and has paid all taxes, interest,
penalties, assessments and deficiencies which have become due or which have been
claimed to be due. The Seller is current in the payment of all income,
franchise, real estate, sales, use and withholding taxes and other employee
benefits, taxes or imposts. No deficiencies have been asserted or assessed as a
result of any audit by the Internal Revenue Service or any state or local taxing
authority and no such deficiency or audit has been proposed or threatened.
2.13 Accounts Receivable. Schedule 2.13 attached hereto sets forth a
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true, correct and complete list of all Accounts Receivable, including an aging
thereof as of the Balance Sheet Date. Schedule 2.13, as updated pursuant to
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Subsection 7.9 hereof, shall set forth a true, correct and complete list of the
Accounts Receivable as of the Closing Date, including an aging thereof. All
Accounts Receivable arose out of the sales of inventory or services in the
ordinary course of business and are collectible in the face value thereof within
90 days of the date of invoice, using normal collection procedures, net of the
reserve for doubtful accounts as set forth thereon, which reserve is adequate
and was calculated in accordance with generally accepted accounting principles
consistently applied.
2.14 Books and Records. The general ledgers and books of account of
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the Seller, all federal, state and local income, franchise, property and other
tax returns filed by the Seller, with respect to the Assets, and all other books
and records of the Seller are in all material respects complete and correct and
have been maintained in accordance with good business practice and in accordance
with all applicable procedures required by laws and regulations.
2.15 Contracts and Commitments.
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(a) Schedule 2.15 attached hereto, as updated pursuant to
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Section 7.9 hereof, contains a true, complete and correct list and description
of the following contracts and agreements related to the Business, whether
written or oral (collectively, the "Contracts"):
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(i) all loan agreements, indentures, mortgages and
guaranties to which the Seller is a party or by which the Seller or any of its
property is bound;
(ii) all pledges, conditional sale or title retention
agreements, security agreements, equipment obligations, personal property leases
and lease purchase
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agreements relating to any of the Assets to which the Seller is a party or by
which the Seller or any of its property is bound;
(iii) all contracts, agreements, commitments, purchase
orders, licenses or other understandings or arrangements to which the Seller is
a party or by which the Seller or any of its property is bound which (A) involve
payments or receipts by the Seller of more than $10,000.00 in the case of any
single contract, agreement, commitment, understanding or arrangement under which
full performance (including payment) has not been rendered by all parties
thereto or (B) which may materially adversely affect the condition (financial or
otherwise) or the properties, assets, business or prospects of the Seller.
(iv) all collective bargaining agreements, employment and
consulting agreements, executive compensation plans, bonus plans, deferred
compensation agreements, pension plans, retirement plans, employee stock option
or purchase plans and group life, health and accident insurance and other
employee benefit plans, agreements, arrangements or commitments to which the
Seller is a party or by which the Seller or any of its property is bound;
(v) all agency, distributor, sales, representative and
agreements to which the Seller is a party;
(vi) all contracts, agreements or other understandings or
arrangements between the Seller any stockholder or Affiliate of the Seller;
(vii) all leases, whether operating, capital or otherwise,
under which the Seller is lessor or lessee;
(viii) all contracts, agreements and other documents or
information relating to past disposal of waste (whether or not hazardous); and
(ix) any other material agreement or contract entered into
by the Seller.
(b) Except as set forth on Schedule 2.15 attached hereto:
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(i) each Contract is a valid and binding agreement of the
Seller, enforceable against the Seller in accordance with its terms, and the
Seller does not have any knowledge that any Contract is not a valid and binding
agreement of the other parties thereto;
(ii) the Seller has fulfilled all material obligations
required pursuant to the Contracts to have been performed by the Seller on its
part prior to the date hereof, and the Seller has no reason to believe that it
will not be able to fulfill, when due, all of its obligations under the
Contracts which remain to be performed after the date hereof;
(iii) the Seller is not in breach of or default under any
Contract, and no event has occurred which with the passage of time or giving of
notice or both would
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constitute such a default, result in a loss of rights or result in creation of
any lien, charge or encumbrance, thereunder or pursuant thereto;
(iv) to the best knowledge of the Seller, there is no
existing breach or default by any other party to any Contract, and no event has
occurred which with the passage of time or giving of notice or both would
constitute a default by such other party, result in a loss of rights or result
in the creation of any lien, charge or encumbrance thereunder or pursuant
thereto;
(v) the Seller is not restricted by any Contract from on
its business anywhere in the world; and
(vi) the Seller has no written or oral Contracts to sell
or perform services which are expected to be performed at, or to result in, a
loss.
(c) Except as set forth on Schedule 2.3 or Schedule 2.15, the
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continuation, validity and effectiveness of each Contract will not be affected
by the transfer thereof to Buyer under this Agreement and all such Contracts are
assignable to Buyer without a consent.
(d) True, correct and complete copies of all Contracts have
previously been delivered by the Seller to the Buyer.
2.16 Compliance with Agreements and Laws. The Seller has all
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requisite licenses, permits and certificates, including environmental, health
and safety permits, from federal, state and local authorities necessary to
conduct the Business and own and operate its assets related to the Business
(collectively, the "Permits"). Schedule 2.16 attached hereto sets forth a true,
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correct and complete list of all such Permits, copies of which have previously
been delivered by the Seller to the Buyer. The Seller is not in violation of any
law, regulation or ordinance (including, without limitation, laws, regulations
or ordinances relating to building, zoning, environmental, disposal of hazardous
substances, land use or similar matters) relating to its properties, the
violation of which could have a material adverse effect on the Seller or its
properties. The business of the Seller does not violate, in any material
respect, any federal, state, local or foreign laws, regulations or orders
(including, but not limited to, any of the foregoing relating to employment
discrimination, occupational safety, environmental protection, hazardous waste
(as defined in the Resource Conservation and Recovery Act, as amended, and the
regulations adopted pursuant thereto), conservation, or corrupt practices, the
enforcement of which would have a material and adverse effect on the results of
operations, condition (financial or otherwise), assets, properties, business or
prospects of the Seller. Except as set forth on Schedule 2.16 attached hereto,
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the Seller has not since inception received any notice or communication from any
federal, state or local governmental or regulatory authority or otherwise of any
such violation or noncompliance.
2.17 Employee Relations. The Seller is in compliance with all federal
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state and municipal laws respecting employment and employment practices, terms
and conditions of employment, and wages and hours, and is not engaged in any
unfair labor practice, and there are no arrears in the payment of wage-based
taxes, including social security taxes.
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2.18 Absence of Certain Changes or Events. Since the Balance Sheet
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Date, there has been no material adverse change in the condition, financial or
otherwise, net worth, or results of operations of the Seller, other than changes
occurring in the ordinary course of business, which changes have not,
individually or in the aggregate, had a materially adverse effect on the
business, prospects, properties, or condition, financial or otherwise, of the
Seller.
2.19 Customers. Schedule 2.19 attached hereto sets forth a true,
--------- -------------
correct and complete list of the names and addresses of all customers of the
Seller which accounted for more than 1% of the Seller's total sales in the
fiscal year ended December 31, 1998. None of such customers has notified the
Seller that it intends to discontinue its relationship with the Seller except
those customers that have notified Seller in the ordinary course of the
completion of the contract between Seller and the customer.
2.20 Suppliers. Schedule 2.20 attached hereto sets forth a true,
--------- -------------
correct and complete list of the names and addresses of the ten suppliers of the
Seller which accounted for the largest dollar volume of purchases by the Seller
for the fiscal year ended December 31, 1998. None of such suppliers has notified
the Seller that it intends to discontinue its relationship with the Seller
except those customers that have notified Seller in the ordinary course of the
completion of the contract between Seller and the customer.
2.21 Prepayments and Deposits. Schedule 2.21, as updated pursuant to
------------------------ -------------
Subsection 7.9 hereof, attached hereto sets forth all prepayments or deposits
from customers for products to be shipped, or services to be performed, after
the Closing Date which have been received by the Seller as of the date hereof.
2.22 Trade Names and Other Intangible Property.
-----------------------------------------
(a) Schedule 2.22, as updated pursuant to Subsection 7.9
-------------
hereof, attached hereto sets forth a true, correct and complete list and, where
appropriate, a description of, all Intangible Property. True, correct and
complete copies of all licenses and other agreements relating to the Intangible
Property have been previously delivered by the Seller to the Buyer.
(b) Except as otherwise disclosed in Schedule 2.22 attached
-------------
hereto, the Seller is the sole and exclusive owner of all Intangible Property
and all designs, permits, labels and packages used on or in connection
therewith. The Intangible Property owned by the Seller is sufficient to conduct
the Seller's business as presently conducted and, when transferred to the Buyer
pursuant to this Agreement, will be sufficient to permit the Buyer to conduct
the business of the Seller as presently conducted by the Seller. The Seller has
received no notice of, and has no knowledge of any basis for, a claim against it
that any of its operations, activities, products or publications infringes on
any patent, trademark, trade name, copyright or other property right of a third
party, or that it is illegally or otherwise using the trade secrets, formulae or
any property rights of others. The Seller has no disputes with or claims against
any third party for infringement by such third party of any trade name or other
Intangible Property of the Seller. The Seller has taken all steps reasonably
necessary to protect its right, title and interest in and to the Intangible
Property.
-11-
2.23 Employee Benefit Plans.
----------------------
(a) The Seller does not have or otherwise contribute to or
participate in any employee benefit plan subject to the Employee Retirement
Income Security Act of 1974 other than a medical benefit plan with respect to
which the Seller has made all required contributions and has complied with all
applicable laws.
(b) Liabilities. The Buyer assumes no liabilities with respect
-----------
to any employee plan of the Company which liability relates to any period prior
to the Closing Date, including, without limitation, any taxes, accrued vacation
or sick pay (whether or not vested), accrued vacation, sick and personal leaves,
employee policies, employee benefit claims or liability to the Pension Benefit
Guaranty Corporation.
2.24 Real Estate. The Seller does not own any real property.
-----------
2.25 Acquired Assets Complete. The Assets are, when utilized by a
------------------------
labor force substantially similar to that employed by the Seller on the date
hereof, adequate to conduct the Business.
2.26 Regulatory Approvals. Except for Bankruptcy Court approval,
--------------------
there are no consents, approvals, authorizations and other requirements
prescribed by any law, rule or regulation which must be obtained or satisfied by
the Seller or which are necessary for the execution and delivery by the Seller
of this Agreement.
2.27 Powers of Attorney and Suretyships. Except as set forth on
----------------------------------
Schedule 2.27 attached hereto, the Seller has no general or special powers of
-------------
attorney outstanding (whether as grantor or grantee thereof) and has no
obligation or liability (whether actual, accrued, accruing, contingent or
otherwise) as guarantor, surety, co-xxxxxx, endorser, co-maker, indemnitor or
otherwise in respect of the obligation of any person, corporation, partnership,
joint venture, association, organization or other entity, except as endorser or
maker of checks or letters of credit, respectively, endorsed or made in the
ordinary course of business.
2.28 Disclosure. No representation or warranty by the Seller in this
----------
Agreement or in any Exhibit hereto, or in any list, statement, document or
information set forth in or attached to any Schedule delivered or to be
delivered pursuant to this Agreement, contains or will contain any untrue
statement of a material fact or omits or will omit any material fact necessary
in order to make the statements contained therein not misleading. The Seller has
disclosed to the Buyer all material facts pertaining to the transactions
contemplated by this Agreement.
2.29 Confidentiality. The Seller has taken and will continue to take
---------------
reasonable security measures to protect the secrecy, confidentiality and value
of the Assets.
2.30 Operating of Business. Since its filing with the Bankruptcy
---------------------
Court, the Seller has continued to operate the Business as Debtor-in-Possession.
3. Representations of the Buyer
----------------------------
The Buyer represents and warrants to the Seller as follows:
-12-
3.1 Organization and Authority. The Buyer is a corporation duly
--------------------------
organized, validly existing and in good standing under the laws of the state of
Delaware, and has requisite power and authority (corporate and other) to own its
properties and to carry on its business as now being conducted. The Buyer has
full power to execute and deliver this Agreement and to consummate the
transactions contemplated hereby and thereby. Certified copies of the
Certificate of Incorporation and the Bylaws of the Buyer, as amended to date,
have been previously delivered to the Seller, are complete and correct, and no
amendments have been made thereto or have been authorized since the date
thereof.
3.2 Capitalization of the Buyer. All capital stock of the Buyer has
---------------------------
been duly and validly authorized, issued and is fully paid and nonassessable.
3.3 Authorization. The execution and delivery of this Agreement by
-------------
the Buyer, and the agreements provided for herein, and the consummation by the
Buyer of all transactions contemplated hereby, have been duly authorized by all
requisite corporate action. This Agreement and all such other agreements and
written obligations entered into and undertaken in connection with the
transactions contemplated hereby constitute the valid and legally binding
obligations of the Buyer, enforceable against the Buyer in accordance with their
respective terms. The execution, delivery and performance of this Agreement and
the agreements provided for herein, and the consummation by the Buyer of the
transactions contemplated hereby and thereby, will not, with or without the
giving of notice or the passage of time or both, (a) violate the provisions of
any law, rule or regulation applicable to the Buyer; (b) violate the provisions
of the Buyer's Certificate of Incorporation or Bylaws; (c) violate any judgment,
decree, order or award of any court, governmental body or arbitrator; or (d)
conflict with or result in the breach or termination of any term or provision
of, or constitute a default under, or cause any acceleration under, or cause the
creation of any lien, charge or encumbrance upon the properties or assets of the
Buyer pursuant to, any indenture, mortgage, deed of trust or other agreement or
instrument to which it or its properties is a party or by which the Buyer is or
may be bound.
3.4 Regulatory Approvals. All consents, approvals, authorizations and
--------------------
other requirements prescribed by any law, rule or regulation which must be
obtained or satisfied by the Buyer and which are necessary for the consummation
of the transactions contemplated by this Agreement have been, or will be prior
to the Closing Date, obtained and satisfied.
3.5 Disclosure. No representation or warranty by the Buyer in this
----------
Agreement or in any Exhibit hereto, or in any list, statement, document or
information set forth in or attached to any Schedule delivered or to be
delivered pursuant hereto, contains or will contain any untrue statement of a
material fact or will omit any material fact necessary in order to make the
statements contained therein not misleading.
4. Access to Information; Public Announcements
-------------------------------------------
4.1 Access to Management, Properties and Records.
--------------------------------------------
-13-
(a) From the date of this Agreement until the Closing Date, the
Seller shall afford the officers, attorneys, accountants and other authorized
representatives of the Buyer free and full access upon reasonable notice and
during normal business hours to all management personnel, offices, properties,
books and records of the Seller, so that the Buyer may have full opportunity to
make such investigation as it shall desire to make of the management, business,
properties and affairs of the Seller, and the Buyer shall be permitted to make
abstracts from, or copies of, all such books and records. The Seller shall
furnish to the Buyer such financial and operating data and other information as
to the Assets and the business of the Seller as the Buyer shall reasonably
request.
(b) The Seller shall authorize the release to the Buyer of all
files pertaining to the Seller, the Assets or the business or operations of the
Seller held by any federal, state, county or local authorities, agencies or
instrumentalities.
4.2 Confidentiality. All information not previously disclosed to the
---------------
public or generally known to persons engaged in the business of the Buyer which
shall have been furnished by the Buyer to the Seller in connection with the
transactions contemplated hereby or as provided pursuant to this Section 4 shall
not be disclosed to any person other than the Seller's employees, directors,
attorneys, accountants or financial advisors or other than as contemplated
herein. In the event that the transactions contemplated by this Agreement shall
not be consummated, all such information which shall be in writing shall be
returned to the Buyer, including, to the extent reasonably practicable, all
copies or reproductions thereof which may have been prepared, and the Seller
shall not at any time thereafter disclose to third parties, or use, directly or
indirectly, for its own benefit, any such information, written or oral, about
the business of the Buyer hereto.
4.3 Public Announcements. The parties agree that prior to the Closing
--------------------
Date, except as otherwise required by law (including the Bankruptcy Code), any
and all public announcements or other public communications concerning this
Agreement and the purchase of the Assets by the Buyer shall be subject to the
approval of both parties, which approval shall not be unreasonably withheld.
5. Pre-Closing Covenants of the Seller
-----------------------------------
From and after the date hereof and until the Closing Date, except by order
of the Bankruptcy Court:
5.1 Conduct of Business. The Seller shall carry on its business
-------------------
diligently and substantially in the same manner as heretofore and shall not make
or institute any unusual or new methods of manufacture, purchase, sale, shipment
or delivery, lease, management, accounting or operation, and shall not ship or
deliver any quantity of products in excess of normal shipment or delivery
levels, except as Agreed to in writing by the Buyer. All of the property of the
Seller shall be used, operated, repaired and maintained in a normal business
manner consistent with past practice.
5.2 Absence of Material Changes. Without the prior written consent of
---------------------------
the Buyer, the Seller shall not:
-14-
(a) Mortgage, pledge, or subject to any lien, charge or any
other encumbrance any of the Assets;
(b) Sell, assign, or transfer any of the Assets, except for
inventory sold in the ordinary course of business, at a normal profit margin,
and for not less than replacement cost;
(c) Modify, amend, alter or terminate any Contracts;
(d) Take or permit any act or omission constituting a breach or
default under any contract, indenture or agreement by which it or its properties
are bound;
(e) Fail to (i) preserve the possession and control of its
assets and business, (ii) keep in faithful service its present officers and key
employees, except for such employees, if any, hired by the Buyer, (iii) preserve
the goodwill of its customers, suppliers, agents, brokers and others having
business relations with it, and (iv) keep and preserve its business existing on
the date hereof until after the Closing Date;
(f) Fail to operate its business and maintain its books,
accounts and records in the customary manner and in the ordinary or regular
course of business and maintain in good repair its business premises, fixtures,
machinery, furniture and equipment;
(g) Enter into any leases, contracts, agreements or
understandings other than those entered into in the ordinary course of business
calling for payments which in the aggregate do not exceed $3,000.00 for each
such lease, contract, agreement or understanding; or
(h) Commit or agree to do any of the foregoing in the future.
5.3 Taxes. The Seller will, on a timely basis, file all tax returns
-----
for and pay any and all taxes which shall become due or shall have accrued (a)
on account of the operation of the business of the Seller or the ownership of
the Assets on or prior to the Closing Date or (b) on account of the sale of the
Assets (including a pro-rata portion of all personal property and excise taxes
payable with respect to the Assets by the Seller).
5.4 Communication with Customers and Suppliers.
------------------------------------------
(a) Unless instructed otherwise by the Buyer in writing, the
Seller will accept customer orders in the ordinary course of business and
consistent with past practice as the Buyer's agent for all products offered by
the Seller but expected to be shipped by the Buyer after the Closing Date.
(b) The Seller and the Buyer will cooperate in communication
with suppliers and customers to accomplish the transfer of the Assets to the
Buyer on the Closing Date.
5.5 Compliance with Laws. The Seller will comply with all laws and
--------------------
regulations which are applicable to it, its ownership of the Assets or to the
conduct of its business
-15-
and will perform and comply with all contracts, commitments and obligations by
which it is bound.
5.6 Continued Truth of Representations and Warranties of the Seller.
---------------------------------------------------------------
The Seller will not take any actions which would result in any of the
representations or warranties set forth in Section 2 hereof being untrue.
5.7 Continuing Obligation to Inform. From time to time prior to the
-------------------------------
Closing, the Seller will deliver or cause to be delivered to the Buyer
supplemental information concerning events subsequent to the date hereof which
would render any statement, representation or warranty in this Agreement or any
information contained in any Schedule inaccurate or incomplete in any material
respect at any time after the date hereof until the Closing Date.
5.8 Competing Offers. The Seller will not, directly or indirectly,
----------------
through any officer, director, agent or otherwise, solicit, initiate or
encourage submission of proposals or offers from any person relating to any
acquisition or purchase of all or a material portion of the Assets, or any
equity interest in, the Seller or any equity investment, merger, consolidation
or business combination with the Seller. The Seller shall promptly notify the
Buyer if any such proposal or offer, or any inquiry or contact with any person
with respect thereto, is made. The Seller acknowledges that any competing bid
for the Assets must include a non-refundable deposit in an amount not less than
Fifty Thousand Dollars ($50,000.00), to be credited toward the purchase price at
closing, in order to place such competing bid on an equal footing with this
Agreement.
6. Best Efforts to Obtain Satisfaction of Conditions
-------------------------------------------------
The Seller and the Buyer covenant and agree to use their best efforts
to obtain the satisfaction of the conditions specified in this Agreement.
7. Conditions to Obligations of the Buyer
--------------------------------------
The obligations of the Buyer under this Agreement are subject to the
fulfillment, at the Closing Date, of the following conditions precedent, each of
which may be waived in writing, in the sole discretion of the Buyer:
7.1 Continued Truth of Representations and Warranties of the Seller;
---------------------------------------------------------------
compliance with Covenants and Obligations. The representations and warranties of
------------------------------------------
the Seller shall be true on and as of the Closing Date as though such
representations and warranties were made on and as of such date, except for any
changes permitted by the terms hereof or consented to in writing by the Buyer.
The Seller shall have performed and complied with all terms, conditions,
covenants, obligations, agreements and restrictions required by this Agreement
to be performed or complied with by it prior to or at the Closing Date.
7.2 Corporate Proceedings. All corporate and other proceedings
---------------------
required to be taken on the part of the Seller to authorize or carry out this
Agreement and to convey, assign, transfer and deliver the Assets shall have been
taken.
-16-
7.3 Governmental Approvals. All governmental agencies, departments,
----------------------
bureaus, commissions and similar bodies, the consent, authorization or approval
of which is necessary under any applicable law, rule, order or regulation for
the consummation by the Seller of the transactions contemplated by this
Agreement and the operation of the Seller's business by the Buyer shall have
consented to, authorized, permitted or approved such transactions, including the
Bankruptcy Court.
7.4 Consents of Lenders, Lessors and Other Third Parties. The Seller
----------------------------------------------------
shall have received all requisite consents and approvals of all lenders, lessors
and other third parties whose consent or approval is required in order for the
Seller to consummate the transactions contemplated by this Agreement, including
the Bankruptcy Order as required by Section 1.6(a), and including, without
limitation, those set forth on Schedule 2.3 attached hereto, which consents may
------------
be obtained through the Bankruptcy Order on notice to the parties listed
thereon.
7.5 Adverse Proceedings. No action or proceeding by or before any
-------------------
court or other governmental body shall have been instituted or threatened by any
governmental body or person whatsoever which shall seek to restrain, prohibit or
invalidate the transactions contemplated by this Agreement or which might affect
the right of the Buyer to own or use the Assets after the Closing.
7.6 Board of Directors Approval. The Board of Directors of the
---------------------------
Seller shall have duly authorized the transactions contemplated by this
Agreement.
7.7 The Assets. Except for the Permitted Encumbrances and the
----------
Permitted Exceptions, at the Closing the Buyer shall receive good, clear, record
and marketable title to the Assets, free and clear of all liens, liabilities,
security interests and encumbrances of any nature whatsoever.
7.8 Update. The Seller shall have provided the Buyer with a true,
------
correct and complete list and amount, as of the Closing Date, of:
(a) the Inventory;
(b) the Fixed Assets;
(c) the Accounts Receivable, including an aging thereof;
(d) Intangible Property;
(e) all contracts, customer prepayments and unfilled customer
orders; and
(f) all shipments made during the period from the date of this
Agreement to the Closing Date, none of which information shall be materially
different from the information supplied by the Seller as of the date hereof on
Schedules 2.9, 2.10, 2.13, 2.15, 2.21 and 2.22 attached hereto.
--------- --- ---- ---- ---- ----- ----
-17-
7.9 Cross-License Agreement. On the Closing Date, Buyer and Seller
-----------------------
shall have entered into a Cross License Agreement substantially in the form
attached hereto as Exhibit A, and as specifically approved by the Bankruptcy
---------
Court.
7.10 Employment Agreements. On or prior to the Closing Date, the
---------------------
Buyer shall have executed employment agreements with Xxxx Frost, Xxxxxxx
Xxxxxxxx, Xxxxx Xxxxxxx, Xxxx Xxxxxx and Xxxxxxx Xxxxx.
7.11 Assignment of Insurance Policies. On or prior to the Closing
--------------------------------
Date, the Seller shall have assumed and assigned to the Buyer any and all
insurance policies extending warranty or products liability coverage to the
Seller for products manufactured by the Seller prior to the Closing Date or for
claims made on or prior to the Closing Date.
7.12 Assignment of Contracts. The Seller shall have assumed and
-----------------------
assigned to the Buyer the contracts listed on Schedule 2.15 hereto in accordance
with 11 U.S.C. Section 365.
7.13 Closing Deliveries. The Buyer shall have received at or prior
------------------
to the Closing each of the following documents:
(a) a xxxx of sale substantially in the form attached hereto as
Exhibit B;
---------
(b) such instruments of conveyance, assignment and transfer, in
form and substance satisfactory to the Buyer, as shall be appropriate to convey,
transfer and assign to, and to vest in, the Buyer, good, clear, record and
marketable title to the Assets, including but not limited to copies of Forms
UCC-3 filed with respect to liens listed in Schedule 2.4(i);
(c) all technical data, formulations, product literature and
other documentation relating to the Seller's business, all in form and substance
satisfactory to the Buyer;
(d) such contracts, files and other data and documents
pertaining to the Assets or the Seller's business as the Buyer may reasonably
request;
(e) copies of the general ledgers and books of account of the
Seller, and all federal, state and local income, franchise, property and other
tax returns filed by the Seller with respect to the Assets since inception;
(f) such certificates of the Seller's officers and such other
documents evidencing satisfaction of the conditions specified in Section 7 as
the Buyer shall reasonably request;
(g) a certificate of the Secretary of State of the State of New
Jersey as to the legal existence and good standing (including tax) of the Seller
in New Jersey and any other jurisdiction in which the Seller does business;
(h) certificates of the Secretary of the Seller attesting to
the incumbency of the Seller's officers, respectively, the authenticity of the
resolutions authorizing
-18-
the transactions contemplated by the Agreement, and the authenticity and
continuing validity of the charter documents delivered pursuant to subsection
2.1;
(i) the schedules listed in Subsection 7.9;
(j) evidence of compliance with all state and federal
environmental, occupational, work place disclosure and right to know laws;
(k) cross receipt executed by the Buyer and the Seller;
(l) documents and materials comprising and sufficient to
disclose and transfer to Buyer all Intangible Property;
(m) such other documents, instruments or certificates as
the Buyer may reasonably request; and
(n) an order from the Bankruptcy Court approving this
Agreement and the Cross License Agreement.
8. Conditions to Obligations of the Seller
---------------------------------------
The obligations of the Seller under this Agreement are subject to the
fulfillment, at the Closing Date, of the following conditions precedent, each of
which may be waived in writing at the sole discretion of the Seller:
8.1 Continued Truth of Representations and Warranties of the Buyer;
--------------------------------------------------------------
Compliance with Covenants and Obligations. The representations and warranties of
-----------------------------------------
the Buyer in this Agreement shall be true on and as of the Closing Date as
though such representations and warranties were made on and as of such date,
except for any changes consented to in writing by the Seller. The Buyer shall
have performed and complied with all terms, conditions, obligations, agreements
and restrictions required by this Agreement to be performed or complied with by
it prior to or at the Closing Date.
8.2 Corporate Proceedings. All corporate and other proceedings
---------------------
required to be taken on the part of the Buyer to authorize or carry out this
Agreement shall have been taken.
8.3 Governmental Approvals. All governmental agencies, departments,
----------------------
bureaus, commissions and similar bodies, the consent, authorization or approval
of which is necessary under any applicable law, rule, order or regulation for
the consummation by the Buyer of the transactions contemplated by this Agreement
shall have consented to, authorized, permitted or approved such transactions,
including the Bankruptcy Court.
8.4 Consents of Lenders, Lessors and Other Third Parties. The Buyer
----------------------------------------------------
shall have received all requisite consents and approvals of all lenders, lessors
and other third parties whose consent or approval is required in order for the
Buyer to consummate the transactions contemplated by this Agreement, including
the Bankruptcy Order as required by Section 1.6(a).
-19-
8.5 Adverse Proceedings. No action or proceeding by or before any
-------------------
court or other governmental body shall have been instituted or threatened by any
governmental body or person whatsoever which shall seek to restrain, prohibit or
invalidate the transactions contemplated by this Agreement or which might affect
the right of the Seller to transfer the Assets.
8.6 Closing Deliveries. The Seller shall have received at or prior
------------------
to the Closing each of the following documents:
(a) such certificates of the Buyer's officers and such other
documents evidencing satisfaction of the conditions specified in this Section 8
as the Seller shall reasonably request;
(b) a certificate of the Secretary of State of the State of
Delaware as to the legal existence and good standing (including tax) of the
Buyer in Delaware;
(c) a certificate of the Secretary of the Buyer attesting to the
incumbency of the Buyer's officers, the authenticity of the resolutions
authorizing the transactions contemplated by this agreement, and the
authenticity and continuing validity of the charter documents delivered pursuant
to Subsection 3.1;
(d) cross receipt executed by the Buyer and the Seller; and
(e) such other documents, instruments or certificates as the
Seller may reasonably request.
9. Indemnification
---------------
9.1 By the Buyer and the Seller. The Buyer and the Seller each hereby
---------------------------
indemnifies and holds harmless the other party against all claims, damages,
losses, liabilities, costs and expenses (including, without limitation,
settlement costs and any legal, accounting or other expenses for investigating
or defending any actions or threatened actions) reasonably incurred by the Buyer
or the Seller in connection with each and all of the following:
(a) Any breach by the indemnifying party of any representation
or warranty in this Agreement;
(b) Any breach of any covenant, agreement or obligation of the
indemnifying party contained in this Agreement or any other agreement,
instrument or document contemplated by this Agreement; and
(c) Any misrepresentation contained in any statement,
certificate or schedule furnished by the indemnifying party pursuant to this
Agreement or in connection with the transactions contemplated by this Agreement.
9.2 By the Seller. The Seller further agrees to indemnify and hold
-------------
harmless the Buyer from any and all claims, damages, losses, liabilities, costs
and expenses (including, without limitation, settlement costs and any legal,
accounting or other expenses for investigating
-20-
or defending any actions or threatened actions) reasonably incurred by the
Buyer, in connection with each and all of the following:
(a) Any claims against, or liabilities or obligations of,
the Seller or against the Assets not specifically assumed by the Buyer pursuant
this Agreement;
(b) The failure of the Buyer to obtain the protections
afforded by compliance with the notification and other requirements of the bulk
sales laws in force in the jurisdictions in which such laws may be applicable to
either the Seller or the transactions contemplated by this Agreement;
(c) Any violation by the Seller of, or any failure by the
Seller to comply with, any law, ruling, order, decree, regulation or zoning,
environmental permit requirement applicable to the Seller, the Assets or its
business, whether or not any such violation or failure to comply has been
disclosed to the Buyer, including any costs incurred by the Buyer (i) in order
to bring the Assets into compliance with environmental laws as a consequence of
noncompliance with such laws on the Closing Date or (ii) in connection with the
transfer of the Assets;
(d) Any warranty claim or product liability claim relating
to (i) products manufactured or sold by the Seller prior to the Closing Date or
(ii) the Seller's business or operation prior to the Closing Date;
(e) Any tax liabilities or obligations of the Seller; and
(f) Any claims against, or liabilities or obligations of,
the Seller respect to obligations under Employee Plans not specifically assumed
by the Buyer pursuant to this Agreement.
9.3 Claims for Indemnification. Whenever any claim shall arise for
--------------------------
indemnification hereunder the party seeking indemnification (the "Indemnified
-----------
Party"), shall promptly notify the party from whom indemnification is sought
-----
(the "Indemnifying Party") of the claim and, when known, the facts constituting
------------------
the basis for such claim. In the event of any such claim for indemnification
hereunder resulting from or in connection with any claim or legal proceedings by
a third-party, the notice to the Indemnifying Party shall specify, if known, the
amount or an estimate of the amount of the liability arising therefrom. The
Indemnified Party shall not settle or compromise any claim by a third party for
which it is entitled to indemnification hereunder without the prior written
consent of the Indemnifying Party, which shall not be unreasonably withheld,
unless suit shall have been instituted against it and the Indemnifying Party
shall not have taken control of such suit after notification thereof as provided
in Subsection 9.4 of this Agreement.
9.4 Defense by Indemnifying Party. In connection with any claim
-----------------------------
giving rise to indemnity hereunder resulting from or arising out of any claim or
legal proceeding by a person who is not a party to this Agreement, the
Indemnifying Party at its sole cost and expense may, upon written notice to the
Indemnified Party, assume the defense of any such claim or legal proceeding if
it acknowledges to the Indemnified Party in writing its obligations to indemnify
the
-21-
Indemnified Party with respect to all elements of such claim. The Indemnified
Party shall be entitled to participate in (but not control) the defense of any
such action, with its counsel and at its own expense. If the Indemnifying Party
does not assume the defense of any such claim or litigation resulting therefrom
within 30 days after the date such claim is (a) the Indemnified Party may defend
against such claim or litigation, in such manner as it may deem appropriate,
including, but not limited to, settling such claim litigation, after giving
notice of the same to the Indemnifying Party, on such terms as the Indemnified
Party may deem appropriate, and (b) the Indemnifying Party shall be entitled to
participate in (but not control) the defense of such action, with its counsel
and at its own expense. If the Indemnifying Party thereafter seeks to question
the manner in which the Indemnified Party defended such third party claim or the
amount or nature of any such settlement, the Indemnifying Party shall have the
burden to prove by a preponderance of the evidence that the Indemnified Party
did not defend or settle such third party claim in a reasonably prudent manner.
9.5 Payment of Indemnification Obligation. The Seller hereby agrees
-------------------------------------
that any claim for indemnification by the Buyer under this Section 9 or under
any other provision of this Agreement may, at the Buyer's option, be set off
against the Buyer's obligation to make payments of the purchase price set forth
in Subsection 1.3. All indemnification by the Buyer or the Seller hereunder (to
the extent not satisfied in the manner specified in the preceding sentence)
shall be effected by payment of cash or delivery of a cashier's or certified
check in the amount of the indemnification liability.
9.6 Survival of Representations; Claims for Indemnification. All
-------------------------------------------------------
representations and warranties made by the parties herein or in any instrument
or document furnished in connection herewith shall survive the Closing and any
investigation at any time made by or on behalf of the parties hereto. All such
representations and warranties shall expire on the second anniversary of the
Closing Date, except for claims, if any, asserted in writing prior to such
second anniversary, which shall survive until finally resolved and satisfied in
full. All claims and actions for indemnity pursuant to this Section 9 for
breach of any representation or warranty shall be asserted or maintained in
writing by a party hereto on or prior to the expiration of such two-year period.
Notwithstanding anything to the contrary in this Section 9, Buyer shall not be
entitled to receive, and the Seller shall not be obligated to pay, the first
$5,000 in the aggregate of indemnity obligations otherwise payable by Seller to
Buyer pursuant to this Section 9.
10. Post-Closing Agreements
-----------------------
The Seller agrees that from and after the Closing Date:
10.1 Proprietary Information.
-----------------------
(a) The Seller shall hold in confidence, and use its best
efforts to have all of its officers, directors and personnel hold in confidence,
all knowledge and information of a secret or confidential nature with respect to
the business of the Seller and shall not disclose, publish or make use of the
same without the consent of the Buyer, except to the extent that such
information shall have become public knowledge other than by breach of this
Agreement by the Seller.
-22-
(b) The Seller agrees that the remedy at law for any breach of
this Subsection 10.1 would be inadequate and that the Buyer shall be entitled to
injunctive relief in addition to any other remedy it may have upon breach of any
provision of this Subsection 10.1.
10.2 No Solicitation or Hiring of Former Employees. Except as
---------------------------------------------
provided by law, for a period of three (3) years after the Closing Date, the
Seller shall not solicit any person who was an employee of the Seller on the
Closing Date to terminate his employment with the Buyer or to become an employee
of the Seller or hire any person who was such an employee on the date hereof or
on the Closing Date.
10.3 Non-Competition Agreement.
-------------------------
(a) For a period of three (3) years after the Closing Date,
neither the Seller nor any Affiliate thereof shall (i) manufacture, market or
sell any product or service (except for nutritional supplement products or
services) which has the same or substantially the same form, function and
primary application as any existing or proposed product or service manufactured
or provided by the Seller on or prior to the Closing Date or (ii) engage in any
business competitive with the business of the Seller (except as such business
directly pertains to nutritional supplement products and services) as conducted
on the date hereof or on the Closing Date, in the United States or any other
country in which the Seller conducted its business during the two years prior to
the Closing Date.
(b) The parties hereto agree that the duration and geographic
scope of the non-competition provision set forth in this Subsection 10.3 are
reasonable. In the event that any court determines that the duration or the
geographic scope, or both, are unreasonable and that such provision is to that
extent unenforceable, the parties hereto agree that the provision shall remain
in full force and effect for the greatest time period and in the greatest area
that would not render it unenforceable. The parties intend that this non-
competition provision shall be deemed to be a series of separate covenants, one
for each and every county of each and every state of the United States of
America and each and every political subdivision of each and every country
outside the United States of America where this provision is intended to be
effective. The Seller agrees that damages are an inadequate remedy for any
breach of this provision and that the Buyer shall, whether or not it is pursuing
any potential remedies at law, be entitled to equitable relief in the form of
preliminary and permanent injunctions without bond or other security upon any
actual or threatened breach of this non-competition provision.
10.4 Sharing of Data.
---------------
(a) The Seller shall have the right for a period of three years
following the Closing Date to have reasonable access to such books, records and
accounts, including financial and tax information, correspondence, production
records, employment records and other similar information as are transferred to
the Buyer pursuant to the terms of this Agreement for the limited purposes of
concluding its involvement in the business of the Seller prior to the Closing
Date and for complying with its obligations under the Bankruptcy Code and under
applicable securities, tax, environmental, employment or other laws and
regulations. The Buyer shall have the right for a period of four years following
the Closing Date to have reasonable access to those books, records and accounts,
including financial and tax information,
-23-
correspondence, production records, employment records and other records which
are retained by the Seller pursuant to the terms of this Agreement to the extent
that any of the foregoing relates to the business of the Seller transferred to
the Buyer hereunder or is otherwise needed by the Buyer in order to comply with
its obligations under applicable securities, tax, environmental, employment or
other laws and regulations.
(b) The Seller and the Buyer agree that from and after the
Closing Date they shall cooperate fully with each other to facilitate the
transfer of the Assets from the Seller to the Buyer and the operation thereof by
the Buyer.
10.5 Use of Name. The Seller agrees to cease the use of the name
-----------
"Phytotech, Inc." or any derivation thereof by the date which occurs two full
calendar months after the Closing Date, and agrees to only use such name or
derivation in the interim as to those matters for which it has received consent
from the Buyer.
10.6 Cooperation in Litigation. Each party hereto will fully
-------------------------
cooperate with the other in the defense or prosecution of any litigation or
proceeding already instituted or which may be instituted hereafter against or by
such party relating to or arising out of the conduct of the business of the
Seller prior to or after the Closing Date (other than litigation arising out the
transactions contemplated by this Agreement). The party requesting such
cooperation shall pay the out-of-pocket expenses (including legal fees and
disbursements) of the party providing such cooperation and of its officers,
directors, employees and agents reasonably incurred in connection with providing
such cooperation, but shall not be responsible to reimburse the party providing
such cooperation for such party's time spent in such cooperation or the salaries
or costs of fringe benefits or similar expenses paid by the party providing such
cooperation to its officers, directors, employees and agents while assisting in
the defense or prosecution of any such litigation or proceeding.
10.7 Product Claims and Returns. Seller shall be responsible for
--------------------------
customer claims relating to services rendered by Seller prior to the Closing
Date, and customer claims relating to, or returns of, products of Seller which
(a) were sold and shipped by the Seller prior to the Closing Date, (b) were in
the finished goods inventory of the Seller as of the Closing Date, or (c) were
work in process and more than fifty percent (50%) completed by the Closing Date.
If a customer makes a claim or seeks a return and, in the judgment of the Buyer,
the claim or return is proper, Buyer shall replace or repair, as the case may
be, the services rendered or product purchased at the Buyer's then generally
prevailing prices and labor rates. Such repairs or returns shall be for the
account of Seller and Seller shall promptly reimburse Buyer for the amounts
thereof in excess of reserves for such items included in the Closing Balance
Sheet.
10.8 Seller Services. The Seller will cooperate with reasonable
---------------
requests of the Buyer following the date of this Agreement and post-closing,
including providing to Buyer reasonable access to certain employees, and
equipment and facilities set forth on Schedule 1.1 attached hereto, that are
useful to the Buyer in the Business. From time to time, at the Buyer's request,
the Seller may make available such employees and furnish the use of such
equipment and facilities to the Buyer at a price equal to Seller's cost plus a
fifteen percent profit.
11. Termination of Agreement
------------------------
-24-
11.1 Termination by Lapse of Time. This Agreement shall terminate at
----------------------------
5:00 p.m., E.S.T. on June 11, 1999, if the transactions contemplated hereby have
not consummated, unless such date is extended by the written consent of all of
the parties hereto.
11.2 Termination by Agreement of the Parties. This Agreement may be
---------------------------------------
terminated by the mutual written agreement of the parties hereto. In the event
of such termination by agreement, the Buyer shall have no further obligation or
liability to the Seller under this Agreement and the Seller shall have no
further obligation or liability to the Buyer under this Agreement.
11.3 Termination by Reason of Breach. This Agreement may be
-------------------------------
terminated by the Seller, if at any time prior to the Closing there shall occur
a breach of any of the representations, warranties or covenants of the Buyer or
the failure by the Buyer to perform any condition or obligation hereunder, and
may be terminated by the Buyer, if at any time prior to the Closing there shall
occur a breach of any of the representations, warranties or covenants of the
Seller or the failure of the Seller to perform any condition or obligation
hereunder.
12. Transfer and Sales Tax
----------------------
12.1 Notwithstanding any provisions of law imposing the burden of
such taxes on the Seller or the Buyer, as the case may be, the Seller shall be
responsible for and shall pay (a) all sales, use and transfer taxes, and (b) all
governmental charges, if any, upon the sale or transfer of any of the Assets
hereunder. If the Seller shall fail to pay such amounts on a timely basis, the
Buyer may pay such amounts to the appropriate governmental authority or
authorities, and the Seller shall promptly reimburse the Buyer for any amounts
so paid by the Buyer.
13. Brokers
-------
13.1 For the Seller. The Seller represents and warrants that it has
--------------
not engaged any broker or finder or incurred any liability for brokerage fees,
commissions or finder's fees in connection with the transactions contemplated by
this Agreement. The Seller agrees to indemnify and hold harmless the Buyer
against any claims or liabilities asserted against it by any person acting or
claiming to act as a broker or finder on behalf of the Seller.
13.2 For the Buyer. The Buyer agrees to pay all fees, expenses and
-------------
compensation owed to any person, firm or corporation who has acted in the
capacity or broker or finder on its behalf in connection with the transactions
contemplated by this Agreement. The Buyer agrees to indemnify and hold harmless
the Seller against any claims or liabilities asserted against it by any person
acting or claiming to act as a broker or finder on behalf of the Buyer.
14. Notices
-------
Any notices or other communications required or permitted hereunder
shall be sufficiently given if delivered personally or sent by telex, federal
express, registered or certified mail, postage prepaid, addressed as follows or
to such other address of which the parties may have given notice:
-25-
To the Seller: Phytotech, Inc.
Xxx Xxxx Xxxx Xxxxx, Xxxxx X
Xxxxxxxx Xxxxxxxx, XX 00000
Office: 732/438-0900
Fax: 732/000-0000
Attention: Xxxx X. Xxxxxx, President
With a copy to: Ravin, Xxxxxxxxx & Marks, P.A.
000 Xxxxxxxxxx Xxxxxxx
Xxxxxxxx, XX 00000
Office: 973/226-1500
Fax: 973/000-0000
Attention: Xxxxx Xxxxxx, Esq.
To the Buyer: Edenspace Systems Corporation
00000 Xxxxxxx Xxxxxx Xxxxx
Xxxxx Xxxxx, XX 00000
Office: 703/406-0036
Fax: 703/000-0000
Attention: Xxxxx X. Xxxxxxxx, President
With a copy to: Xxxx and Xxxx LLP
0000 Xxxxxxxxxxxx Xxxxxx, X.X.
Xxxxxxxxxx, X.X. 00000
Office: 202/942-8400
Fax: 202/000-0000
Attention: Xxxxx Xxxxxxxxx, Esq.
Unless otherwise specified herein, such notices or other communications shall be
deemed received (a) on the date delivered, if delivered personally; or (b) three
business days after being sent, if sent by registered or certified mail.
15. Successors and Assigns
----------------------
This Agreement shall be binding upon and inure to the benefit of the
parties hereto and their respective successors and assigns, including any
trustee appointed by the Bankruptcy Court, except that the Buyer and the Seller
may not assign their respective obligations hereunder without the prior written
consent of the other party; provided, however, that the Buyer may assign this
Agreement, and its rights and obligations hereunder, to a subsidiary or
affiliate. Any assignment in contravention of this provision shall be void. No
assignment shall release the Buyer from any obligation or liability under this
Agreement.
16. Entire Agreement; Amendments; Attachments
-----------------------------------------
(a) This Agreement, all Schedules and Exhibits hereto, and all
agreements and instruments to be delivered by the parties pursuant hereto
represent the entire
-26-
understanding and agreement between the parties hereto with respect to the
subject matter hereof and supersede all prior oral and written and all
contemporaneous oral negotiations, commitments and understandings between such
parties. The Buyer and the Seller, by the consent of their respective Boards of
Directors, or officers authorized by such Boards, may amend or modify this
Agreement, in such manner as may be agreed upon, by a written instrument
executed by the Buyer and the Seller.
(b) If the provisions of any Schedule or Exhibit to this
Agreement are inconsistent with the provisions of this Agreement, the provision
of the Agreement shall prevail. The Exhibits and Schedules attached hereto or to
be attached hereafter are hereby incorporated as integral parts of this
Agreement.
17. Expenses
--------
Except as otherwise expressly provided herein, the Buyer and the
Seller shall each pay their own expenses in connection with this Agreement and
the transactions contemplated hereby.
18. Legal Fees
----------
In the event that legal proceedings are commenced by the Buyer against
Seller, or by the Seller against the Buyer, in connection with this Agreement or
transactions contemplated hereby, the party or parties which do not prevail in
such proceedings shall pay the reasonable attorneys' fees and other costs and
expenses, including investigation costs, incurred by the prevailing party in
such proceedings.
19. Governing Law
-------------
This Agreement shall be governed by and construed in accordance with
of the State of Delaware.
20. Section Headings
----------------
The section headings are for the convenience of the parties and in no
way alter, modify, amend, limit, or restrict the contractual obligations of the
parties.
21. Severability
------------
The invalidity or unenforceability of any provision of this Agreement
shall not affect the validity or enforceability of any other provision of this
Agreement.
22. Counterparts
------------
This Agreement may be executed in one or more counterparts, each of
which shall be deemed to be an original, but all of which shall be one and the
same document.
-27-
23. Third Party Beneficiaries
-------------------------
Nothing in this Agreement, expressed or implied, is intended or shall
be construed to confer upon or give to any person, firm, corporation, or legal
entity, other than the parties, any rights, remedies, or other benefits under or
by reason of this Agreement.
[Remainder of Page Intentionally Left Blank]
-28-
IN WITNESS WHEREOF, this Agreement has been duly executed by the parties
hereto as of and on the date first above written.
SELLER:
PHYTOTECH, INC., D.I.P.
ATTEST:
/s/Xxxxxxxxx Xxxxxxxxx /s/Xxxx X. Xxxxxx
---------------------- --------------------------------
Xxxxxxxxx Xxxxxxxxx, Xxxx X. Xxxxxx,
Chief Financial Officer President
BUYER:
EDENSPACE SYSTEMS CORPORATION
ATTEST:
/s/Xxxxxxx X. Xxxxxxxxx /s/Xxxxx X. Xxxxxxxx
----------------------- --------------------------------
Xxxxxxx X. Xxxxxxxxx, Xxxxx X. Xxxxxxxx,
Treasurer President
-29-
Schedule 1.1
Excluded Assets
I. Nutriceutical Inventory
A. 250kg of selenium
B. 250kg of chronium
C. Approximately 10,000 lbs. of Indian Mustard seeds stored at CD
Warehouse, 0000 Xxxxxxxxx Xxxxxx, Xxxxxxxx, Xxxxxxx 00000
D. Approximately 200 lbs. of Indian Mustard seeds stored at Phytotech
E. Seeding trays, racks, timers, tools and other materials relating to
mutriceutical production
II. Computers
A. All computers relating to the administrative functions of Phytotech
1. Gateway GP6-300 used by Xxxx Xxxxxxxxx
2. Gateway GP6-233 used by Xxxxx Xxxxxxxx
3. Gateway Laptop
(These are all leased.)
4. Proteva computer
5. Printers and hookups (HP Laser6P, Apple printer, HP Ink Jet
855ce)
6. Apple Macintosh computers
7. Gateway P5-133 in Lab
8. Compaq with Packard Xxxx monitor
III. A. Patents Related to Nutritional Supplements
Title Patent Number Country
----- ------------- -------
NONE
B. Applications Related to Nutritional Supplements
Title Application Number Country
----- ------------------ --------
Nutritional Supplements 09/041,355 USA
Nutritional Supplements 60/089,821 USA
Nutritional Supplements US99/05433 WIPO PCT
Nutritional Supplements 09/187,608 USA
IV. Other
A. All furniture and fixtures
B. HPLC
C. Roof Greenhouse
D. Ovens in the Labs
E. ICP and computer
F. Copy machine
G. File cabinets used to store nutriceutical or administrative files
H. Overhead projection equipment, television and VCR
I. Telephone systems
J. Refrigerators and microwave ovens
K. All leasehold improvements
L. Net operating losses and other tax attributes of the Seller
M. Proceeds of any claim, cause of action, lawsuit, claim or demand
including but not limited to those arising under the Bankruptcy
Code Sections 544, 547, 548 and 550.
Total Value on the Seller's Books: Approximately $90,000
---------------------------------
Schedule 2.3
Third Party Consents
I. The Seller's Board of Directors
II. United States Bankruptcy Court for the District of New Jersey
III. The entities listed on Schedule 2.15 Contracts hereto as required pursuant
to the applicable contracts, which consents may be obtained through the
Bankruptcy Order on notice to the parties listed thereon.
Schedule 2.4(ii)
Permitted Encumbrances
Exclusive License Agreement, dated March 16, 1999, between Phytotech, Inc.
and Consolidated Growers & Processors, Inc. for the exclusive use of hemp.
Consolidated Growers & Processors, Inc.
X.X. Xxx 0000
Xxxxxxxx, XX 00000-0000
Attention: Ms. Xxxxx. Xxxxx (888-333-4246)
Schedule 2.4(i)
Encumbrances
Secured Lien Holders:
--------------------
1. Xxxx X. Xxxxxx
2. Xxxxxx X. Xxxxxxxx
3. Xxxxxxx X. Nechemie
4. Union D'Etudes et D'Investissements
5. Xxxxxx X. Xxxxxx and Xxxxx X. Xxxxxx
6. Xxxxxxx Xxxxxx Xxxxxxxxxx & Xxxxx Xxxx Xxxxxxxxxx
7. Xxxxxx Xxxxx Xxxxxxxx
8. Xxxxxx Xxxx & Xxxxx X. Xxxx
9. Xxxxxxx Xxxxxx Xxxxxxxxx
10. Xxxxxx X. Xxxxxxxx
11. Xxxxx Xxxxxxxxxxxx
12. Xxxxxxx Xxxxx
13. Xxxxxxx Xxxxxxxxx
14. Xxxxxx Xxxxxxx & Xxxxxx Xxxxxxx
15. Xxxxxx X. Xxxxxxx
16. Xxxxxxx Xxxxxxxxxxx
17. Xxxxxx X. Xxxxx & Xxxxxxx X. Xxxxx
18. Xxxx X. Xxxxx
19. Xxxx X. Xxxxx
20. Xxxx Xxxxxx
21. H. Xxxxxxx Xxxxxx & Xxxxxx X. Xxxxxx
22. Xxx X. Xxxx
23. Xxxxx X. Xxxxxxx
24. Xxxxxxx X. Xxxxx
25. Xxxxx X. Xxxxxx
26. Xxxx X. Xxxxx, M.D. & Xxxx X Xxxxx, P.C.
27. Xxxxx Investments, Inc.
28. Xxxxxxxxx Xxxxxxxx
29. Xxx Xxxxxx and Xxx Xxxxxx
Schedule 2.6
Undisclosed Liabilities
None.
Schedule 2.8
Insurance
1. United Capital Insurance - Product and General Liability
Szerlip & Co., Inc. 000 Xxxx Xxxxxx, Xxxxxxxx, Xxx Xxxxxx 00000
2. Pemequid - Workers Comp
000 Xx. 00, X. Xxxxxxxxx Xx X., Xxxxxxxx, Xxx Xxxxxx 00000
3. Unum - Disability
00000 Xxxxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx 00000-0000
4. Standard Insurance - Life
X.X. Xxx 0000, Xxxxxxxx, Xxxxxx 00000-0000
5. Nylcare Health Plans
One Liberty Plaza, Mail Drop 00-0, Xxx Xxxx, Xxx Xxxx 00000
Schedule 2.9
Inventory
General lab equipment, chemicals, irrigation, timers, tools and other materials
relating to phytoremediation.
1-(10 cell) rhizofiltration system
5-6 50 lb bags Piper Sudan grass
9 50 lb bags of Sorghum Sudan
3 50 lb bags of sunflower (cv. 187)
5, 25-50 lb bags misc. Brassica species/cultivars
2- 55 gal drums of Triton-X 100
2- 55 gal drums (one open) Acetic Acid
1 55 gal drum KEDTA (less than 1/2 full)
1 partial container of HEDTA powder
rototiller (small)
1 large roll of burlap
1 roll of heavy, coated fence
10 50 lb bags of zinc sulfate
7 50 lb bags of manganese
1 50 lb bag Ferrous sulfate (partial bag)
3 50 lb bags of citric acid
10+ bags of pelletized lime
Approximately 5,000 lbs of Indian Mustard seeds stored at CD Warehouse,
0000 Xxxxxxxxx Xxxxxx, Xxxxxxxx, Xxxxxxx 00000
Total Value on the Seller's Books: Approximately $25,000
---------------------------------
Schedule 2.10
Equipment and Fixed Assets
Atomic Absorption Spectrometer 3100
Planting drill (purchased from Xxxxxxx Equipment, stored with EnviroScopes)
Soil Library
Nitons (2)
1 battery charger
1 postal scale
50+ Irrometer soil moisture meters, various sizes
50+ Irrometer lysimeters (for sampling of water in soil), various sizes
25 (Approx.) shelving units
6 back pack sprayers
2 gas cans
1 spreader
2 pumps
3 hard xxxxx
1 large rake
2 soft xxxxx
3 pitch forks
3 small shovels
4 large tarps
2 electric hedge trimmers
miles of hose (various sizes)
boxes and boxes of pvc pipes, couplers, "Ts", connectors, etc.
Misc. tolls, pvc glue, cutters, hand pruners, marking flags, etc.
2- pancake xxxxxx counters
50+ 1' x 2' black rhizofiltration trays
PC's for phytoremediation employees
All Computers relating to the Business
File cabinets used to store files relating to the Business
All other equipment and fixed assets used in the Business
Total Value on the Seller's Books: Approximately $25,000
---------------------------------
Schedule 2.11
Change in Condition
None.
Schedule 2.13
Accounts Receivable
See attached list of current Accounts Receivable.
PHYTOTECH, INC.
A/R Aging Summary
As of May 14, 1999
Current 1-30 31 - 61 - *90 TOTAL
--------- --------- ---- ---- ---- -----
ABCO Laboratories, Inc. 0.00 0.00 0.00 0.00
ARMY SBIR
97028 42,765.20 0.00 0.00 0.00 0.00 42,765.20
--------- --------- ---- ---- ---- ---------
Total ARMY SBIR 42,765.20 0.00 0.00 0.00 0.00 42,765.20
Xxxxxxx Environmental, Inc. 0.00 13,000.00 0.00 0.00 0.00 13,000.00
DOE 0.00 0.00 0.00 0.00
DOE SBIR 0.00 0.00 0.00 0.00
Ecological Formulae 0.00 0.00 0.00 0.00
XXXXXXX XXXXX XXXXXXXXXX
00000 0.00 11,000.00 0.00 0.00 0.00 11,000.00
--------- --------- ---- ---- ---- ---------
Total FLORIDA STATE UNIVERSITY 0.00 11,000.00 0.00 0.00 0.00 11,000.00
VERSAR, INC. 0.00 6,000.00 0.00 0.00 0.00 6,000.00
VARIOUS-R 0.00 0.00 0.00 0.00 0.00
--------- --------- ---- ---- ---- ---------
TOTAL 42,765.02 38,008.00 0.00 0.00 0.00 72,765.20
========= ========= ==== ==== ==== =========
* Greater than
Schedule 2.15
Contracts
1. SBIR phase II with DOD
US Army ARDEC
Building 321
Picatinny Arsenal, NJ 07806-5000
Attention: Mr. Per Arienti AMSRA AR UEA
973/724-3544
2. Dredge Spoils Project
Rutgers, The State University
Biotech Center for Agricultural & Environmental Studies
59 Xxxxxx Road
Xxxxx Hall Xxxx College
New Brunswick, NJ 08901-8250
Attention: XX. Xxxx Xxxx, Xx. Xxxxx Xxxxxx
732/932-8165
3. Florida State University
Institute for Central & Eastern European Cooperative
Environmental Research.
Xxxxxxxxxxx, XX 00000-0000
Attention: Xx. Xxxx Xxxxxxxx
850/222-3249
4. Fort Xxxxxx
Bristol Environmental Services Corporation
000 - Xxxx 00xx Xxxxxx, Xxxxx 000
Xxxxxxxxx, Xxxxxx 00000
Attention: Xx. Xxxxxxx Xxxxx
907/563-0013
5. Fort Xxx
Concurrent Technologies Corporation
0000 Xxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Attention: Xx. Xxx Xxx Xxxxx
814/269-2481
6. Brookhaven National Laboratory
Long Island, NY
7. Tampa Electric
Tampa Electric Company
000 Xxxxxxxx Xxxxxx, Xxxxx 0
Xxxxx, XX 00000
Attention: Ms. Xxxxx Xxxxxxx
8. Ensign Xxxxxxxx
00 Xxxx Xxxx Xxxx
Xxxxxxxx, XX 00000-0000
Attention: Xx. Xxxxxxx X. Xxxxxxx
860/843-2843
9. TRC Environmental
Danbury, CT
Attention: Ms. Paola
10. Chicago Xxxxxxx Environmental
Xxxxxxx Environmental, Inc.
000 Xxxx Xxxxxxxx Xxxxxx
Xxxxxxx, XX 00000
Attention: Xx. Xxxxxx X. Xxxxxx, CHMM VP Operations
11. Versar (Sacramento)
Versar, Inc.
0000 Xxxxxxx Xxxxxx
Xxxxx 000
Xxxx Xxxx, XX 00000
Attention: Xx. Xxx Xxxxxx/Mr. Xxxxx Klieneke
12. Conestoga Rovers & Associates
00000 Xxxxx Xxxxxxx Xxxxxx Xxxxx
Xxxxx 000
Xxxxxxx, XX 00000
Attention: Xx. Xxxxxxxxx X. Xxxxxx, P.E.
734/942-0909
13. Consolidated Growers & Processors, Inc.
X.X. Xxx 0000
Xxxxxxxxx, XX 00000-0000
Attention: Xx. Xxxxx Xxxxx
888/333-4246
[See Attached Revenue Sheet].
Schedule 2.19
Customer List
1. SBIR phase II with DOD
US Army ARDEC
Building 321
Picatinny Arsenal, NJ 07806-5000
Attention: Mr. Per Arienti AMSRA AR UEA
973/724-3544
2. Dredge Spoils Project
Rutgers, The State University
Biotech Center for Agricultural & Environmental Studies
00 Xxxxxx Xxxx
Xxxxx Xxxx-Xxxx College
New Brunswick, NJ 08901-8250
Attention: Xx. Xxxx Xxxx, Xx. Xxxxx Xxxxxx
732/932-8165
3. Florida State University
Institute for Central & Eastern European Cooperative
Environmental Research
Xxxxxxxxxxx, XX 00000-0000
Attention: Xx. Xxxx Xxxxxxxx
850/222-3249
4. Adak Project
Bristol Environmental Services Corporation
000 - Xxxx 00xx Xxxxxx, Xxxxx 000
Xxxxxxxxx, Xxxxxx 00000
Attention: Xx. Xxxxxxx Xxxxx
907/563-0013
5. Fort Xxx
Concurrent Technologies Corporation
0000 Xxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Attention: Xx. Xxx Xxx Xxxxx
814/269-2481
6. MSE, Inc.
X.X. Xxx 0000
Xxxxx, Xxxxxxx 00000
7. General Electric
X.X. Xxx 000, X/X X-00
Xxxxxxxxxx, XX 00000
Xxxxx, XX 00000
Attention: Ms. Xxxxx Xxxxxxx
8. Magic Marker
Rutgers, The State University
Biotech Center for Agricultural & Environmental Studies
59 Xxxxxx Road
Xxxxx Xxxx- Xxxx College
New Brunswick, NJ 08901-8250
Attention: Xx. Xxxx Xxxx, Xx. Xxxxx Xxxxxx
732/932-8165
9. Xxxxxxx Engineering
0000 Xxxxxx Xxxx Xxxxx
Xxxxx 000
Xxxxxx, XX 00000
Attention: Xx. Xxxxxxx Xxxxxx
10. Norfolk Southern Corporation
Environmental Protection Department
000 Xxxxxxxx Xxxx X.X.
Xxxxxxx, XX 00000-0000
11. Ensign Xxxxxxxx
Ensign Xxxxxxxx
00 Xxxx Xxxx Xxxx
Xxxxxxxx, XX 00000-0000
Attention: Xx. Xxxxxxx X. Hammnett
860/843-2843
12. Conestoga Rovers & Associates
00000 Xxxxx Xxxxxxx Xxxxxx Xxxxx
Xxxxx 000
Xxxxxxx, XX 00000
Attention: Xx. Xxxxxxxxx X. Xxxxxx, P.E.
734/942-0909
13. Consolidated Growers & Processors, Inc.
X.X. Xxx 0000
Xxxxxxxxx, XX 00000-0000
Attention: Xx. Xxxxx Xxxxx
888/333-4246
14. United Technologies, Inc.
M/S 503
Xxxxxxxx, XX 00000
Attention: Xx. Xxxx Xxxxx
15. Tampa Electric
Tampa Electric Company
000 Xxxxxxxx Xxxxxx, Xxxxx 0
Xxxxx, XX 00000
Attention: Ms. Xxxxx :Xxxxxxx
16. USDA
Department of Health & Human Services
Grants Management Branch
Cooperative State Research Education and Extension Service - XXXX
Xxxx 0000
Xxxxxxxxxx, XX 00000-0000
Attention: Xx. Xxxxxxx X. Xxxxxxx
17. Xxx X. Xxxxxx, Inc.
0000 Xxxxxxxxxx Xxxx Xxxxx, Xxxxx 000
Xxxxxx, Xxxxxxxx 00000-000000
Attention: Xx. Xxxxx Xxxxxxxxx
18. Chicago Xxxxxxx Environmental
Xxxxxxx Environmental, Inc.
000 Xxxx Xxxxxxxx Xxxxxx
Xxxxxxx, XX 00000
Attention: Xx. Xxxxxx X. Xxxxxx, CHVM VP Operations
19. Versar (Sacramento)
Versar, Inc.
0000 Xxxxxxx Xxxxxx
Xxxx Xxxx, XX 00000
Attention: Xx. Xxx Xxxxxx / Mr. Xxxxx Klieneke
20. Versar, Inc.
0000 Xxxxxx Xxxxxx
Xxxxxxxxxxx, XX 00000
703/750-3000
Schedule 2.20
Suppliers
1. Chemplex Chemicals, Inc.
Xxxxxxxxxxxxx Xxxx., Xxxxx 000
Xxxxxx, XX 00000-X00
Attention: Xx. Xxxx Xxxx
201/512-8788
2. Xxxxxx Scientific
00 Xxxxx Xxxx
Xxxxxxxxxxx, XX 00000
800/766-7000
3. McMaster Xxxx
Xxxxxx, New Jersey
Attention:
732/329-6666
4. VWR Scientific Products
X.X. Xxx 000000
Xxxxxxxxxx, XX 00000-0000
Attention:
Telephone:
5. Sigma Xxxxxxx
X.X. Xxx 00000X
Xx. Xxxxx, XX 00000
Attention:
800/521-8956
Subcontractors
1. Enviroscapes
X.X. Xxx 0000
Xxxxxxxxxx, XX 00000
Attention:
732/636-6407
2. Greenlane
Lambs Road
Xxxxxx, New Jersey
Attention: Xx. Xxxx Xxxxxxxxx
609/589-4461
3. Advanced Environmental Technical Services
0000 Xxxxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000
Attention:
215/289-3700
Schedule 2.21
Prepayments and Deposits
$45,000 Prepayment by Tampa Electric Co.
Schedule 2.22
Intangible Property
I. Patents
A. Patents Owned by Phytotech Related to Phytoremediation
Title Patent Number Country
----- ------------- -------
Method for Removing Soluble Metals from 5,393,426 USA
an Aqueous Phase
Phytoremediation of Metals 5,364,451 USA
Phytoremediation of Metals 5,785,735 USA
Method for Removing Soluble Metals from 678262 Australia
an Aqueous Phase
Method for Removing Soluble Metals from 692162 Australia
an Aqueous Phase
B. Patents Related to Phytoremediation Owned by Rutgers Which are the
Subject of the Exclusive License Agreement Between Phytotech, Inc. and Rutgers,
The State University of New Jersey Dated May, 1997, of Which Phytotech's
Interest is Being Assigned to Edenspace.
Title Patent Number Country
----- ------------- -------
Method for Removing Soluble Metals from 5,876,484 USA
an Aqueous Phase
C. Patents Related to Phytoremediation Jointly Owned by Phytotech and
Rutgers Which are Subject to the Exclusive License Agreement Between Phytotech,
Inc. and Rutgers, The State University of New Jersey Dated May, 1997 at Reduced
Royalty Rates Pursuant to the Bankruptcy Stipulation and Consent Order Between
Phytotech, Edenspace, and Rutgers, The State University of New Jersey, of Which
Phytotech's Interest is Being Assigned to Edenspace.
Title Patent Number Country
----- ------------- -------
Phytorernediation of Metals Using Seedlings 5,728,300 USA
Phytoremediation of Metals Using Seedlings 5,853,576 USA
D. Patent Applications Owned by Phyiotech Related to Phytoremediation
Title Patent Number Country
----- ------------- -------
Method for Removing Soluble Metals 000000 Xxxxxxx
from an Aqueous Phase
Method for Removing Soluble Metals 2,163,666 Canada
from an Aqueous Phase
Method for Removing Soluble Metals 2,163,665 Canada
from an Aqueous Phase
Method for Removing Soluble Metals 94919315.5 European Patent
from an Aqueous Phase Office
Method for Removing Soluble Metals 94920059.6 European Patent
from an Aqueous Phase Office
Method for Removing Soluble Metals 000000 Xxxxxx
from an Aqueous Phase
Method for Removing Soluble Metals 000000 Xxxxxx
from an Aqueous Phase
Method for Removing Soluble Metals 96100539 Russian
from an Aqueous Phase Federation
Method for Removing Soluble Metals 95125101 Ukraine
from an Aqueous Phase
Phytoremediation of Metals 2,163,665 Canada
Phytoremediation of Metals 000000 Xxxxxx
Phytoremediation of Metals 000000 Xxxxxx
Inducing Hyperaccumulation of Metals 24242/97 Australia
in Plant Shoots
Inducing Hyperaccumulation of Metals 2,249,353 Canada
in Plant Shoots
Inducing Hyperaccumulation of Metals 97919929.6 European Patent
in Plant Shoots Office
Inducing Hyperaccumulation of Metals 000000 Xxxxxx
in Plant Shoots
Inducing Hyperaccumulation of Metals 000000 Xxxxxx
in Plant Shoots
Inducing Hyperaccumulation of Metals 98119145 Russian Federation
in Plant Shoots
Inducing Hyperaccumulation of Metals 98105528 Ukraine
in Plant Shoots
E. Patent Applications Owned by Rutgers Related to Phytoremediation Which
are the Subject of the Exclusive License Agreement Between Phytotech, Inc. and
Rutgers, The State University of New Jersey Dated May, 1997, of Which
Phytotech's Interest is Being Assigned to Edenspace.
Title Patent Number Country
----- ------------- -------
Conversion of Metal Oxidation States 08/333,143 USA
through Phytoreduction
Method for Removing Soluble Metals EA-97-0328U Eurasian Patent
from an Aqueous Phase Office
Method for Removing Soluble Metals 96912794.3 European Patent
from an Aqueous Phase Office
Method for Removing Soluble Metals P0325630 Poland
from an Aqueous Phase
Method for Removing Soluble Metals 08/443,154 USA
from an Aqueous Phase
F. Patent Applications Related to Phytoremediation Jointly Owned by
Phytotech and Rutgers Which are Subject to the Exclusive License Agreement
Between Phytotech, Inc. and Rutgers, The State University of New Jersey Dated
May, 1997 at Reduced Royalty Rates Pursuant to the Bankruptcy Stipulation and
Consent Order Between Phytotech, Edenspace, and Rutgers, The State University of
New Jersey, of Which Phytotech's Interest is Being Assigned to Edenspace.
Title Patent Number Country
----- ------------- -------
Inducing Hyperaccumulation. of Metals 08/621,138 USA
in Plant Shoots
60/027,127
G. Patent Applications Subject to Determination of Ownership Through
Arbitration Proceedings Under Section 0(5) of the Bankruptcy Stipulation and
Consent Order Between Phytotech, Edenspace, and Rutgers, The State University of
New Jersey.
Title Patent Number Country
----- ------------- -------
Phytoremediation of Metals 09/040,755 USA
II. Other licenses to use patents related to the Business
III. Databases, including databases of field and greenhouse results, related to
the Business
IV. Trade secrets related to the Business
V. Proposals, reports, planning documents, applications, correspondence,
software, computer files, related to the Business
VI. The name, service xxxx and trademark "PHYTOTECH"
Exhibit 8.3
-----------
PATENT CROSS-LICENSE AGREEMENT
Between
EDENSPACE SYSTEMS CORPORATION
and
PHYTOTECH, INC, D.I.P.
-i-
TABLE OF CONTENTS
-----------------
Page
----
PRELIMINARY STATEMENT..................................................... 1
1. Definitions..................................................... 1
1.1 Affiliate.................................................. 1
1.2 Nutriceutical Patents...................................... 2
1.3 Phytoremediation Patents................................... 2
2. Grant........................................................... 2
2.1 License-Phytoremediatoin Patents........................... 2
2.2 License-Nutriceutical Patents.............................. 2
3. Representations and Warranties.................................. 3
3.1 By Seller.................................................. 3
3.2 By Buyer................................................... 3
4. Term of the Agreement; Default and Termination.................. 4
4.1 Term....................................................... 4
5. Miscellaneous................................................... 4
5.1 Assignment................................................. 4
5.2 Governing Law.............................................. 4
5.3 Counterparts............................................... 4
5.4 Waiver..................................................... 4
5.5 Entire Agreement........................................... 5
5.6 Severability............................................... 5
5.7 Notices.................................................... 5
5.8 No Joint Venture........................................... 6
5.9 Further Assurances......................................... 6
5.10 Trademarks................................................. 6
5.11 Attorneys' Fees............................................ 7
5.12 Headings................................................... 7
5.13 Export Control............................................. 7
-i-
PATENT CROSS-LICENSE AGREEMENT
------------------------------
This Patent Cross-License Agreement (the "Agreement") is made and
entered into effective as of May 24, 1999 (the "Effective Date"), by and between
Edenspace Systems Corporation, a Delaware corporation with its principal office
at 00000 Xxxxxxx Xxxxxx Xxxxx, Xxxxxx, Xxxxxxxx 00000 ("Buyer"), and Phytotech,
Inc., D.I.P., a New Jersey corporation with its principal office at Xxx Xxxx
Xxxx Xxxxx, Xxxxx X, Xxxxxxxx Xxxxxxxx, Xxx Xxxxxx 00000 ("Seller") in its
capacity as Debtor-in-Possession in Bankruptcy Case No. 99-550905/KF pending in
the U.S.B.C. for the District of New Jersey (the "Bankruptcy Court").
PRELIMINARY STATEMENT
---------------------
Buyer owns or has the right to license the Phytorernediation Patents
(as hereinafter defined) which pertain to phytoremediation and, possibly, to
nutritional supplement products, subject to the terms and conditions of this
Agreement. Seller owns or has the right to license the Nutriceutical Patents
(as hereinafter defined) which pertain to nutritional supplement products, and,
possibly to phytoremediation subject to the terms and conditions of this
Agreement. Buyer desires to license, and Seller desires to obtain a license to
use, the Phytoremediation Patents. Seller desires to license, and Buyer desires
to obtain a license to use, the Nutriceutical patents.
NOW, THEREFORE, in consideration of the mutual promises set forth
herein, and other good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, the parties agree as follows:
1. Definitions
1.1 "Affiliate" means an incorporated or unincorporated entity, wherever
----------
organized, which controls, is controlled by or is under common control with
Buyer or Seller as the context
of usage indicates. For this purpose, "control" means the direct or indirect
legal, equitable or factual power to select a majority of the members of, or
otherwise to direct the decisions made by, the directors or other governing
authorities of an organization (determined without regard to events of default
of fiduciary obligations which might limit or restrict exercise of such power).
1.2 "Nutriceutical Patents" means every United States and foreign patent
----------------------
that is owned by Seller, or which Seller has the right to license, as well as
all patents issued on or claiming priority from an application filed prior to
ninety (90) days after the Effective Date, including but not limited to any
later filed continued prosecution, continuations, substitutions, divisionals
thereof, and any reissues or reexaminations of such patents. The Nutriceutical
Patents include, but are not limited to, the patents, and any patents issuing
from any patent application, listed in Schedule A.
1.3 "Phytoremediation Patents" means every United States and foreign
------------------------
patent that is owned by Buyer or which Buyer has the right to license (but
excluding patents that are solely or jointly owned by Rutgers, the State
University of New Jersey) as a result of the Asset Purchase Agreement between
Buyer and Seller dated May 24, 1999. The Phytoremediation Patents include, but
are not limited to, the patents and any patents issuing from any patent
application listed in Schedule B.
2. Grant
2.1 License-Phytoremediation Patents. Buyer grants to Seller under the
--------------------------------
Phytoremediation Patents an exclusive, irrevocable, transferable, royalty-free,
worldwide license, with the right to sublicense, to make, have made, use,
import, offer for sale, sell, have sold and otherwise dispose of, any and all
products and services anywhere in the world solely for purposes directly related
to nutritional supplements.
-2-
2.2 License-Nutriceutical Patents. Seller grants to Buyer under the
-----------------------------
Nutriceutical patents, an exclusive, irrevocable, transferable, royalty-free,
worldwide license with the right to sublicense, to make, have made, use, import,
offer for sale, sell, have sold and otherwise dispose of, any and all products
and services anywhere in the world solely for purposes directly related to
phytoremediation.
3. Representations and Warranties
3.1 By Seller. Seller represents and warrants to Buyer as follows:
------
3.1.1 Subject to Bankruptcy Court approval, the execution and
delivery of this Agreement on behalf of Seller, and Seller's performance of its
obligations under this Agreement, have been duly authorized by all necessary
corporate action and will not violate any provision of the charter or by-laws of
Seller.
3.1.2 Subject only to Bankruptcy Court approval and any other
required governmental consents or approvals, Seller's performance of its
obligations under this Agreement is not in conflict with, and will not result in
a breach of or constitute a default under, any other contract, instrument, rule
of law or order of any court or government agency to which Seller is a party or
by which Seller or its property is bound, nor will it result in the imposition
or creation of any lien on any property owned by Seller.
3.1.3 Seller has given all required notices and obtained all
licenses, permits, consents, approvals and authorizations from third parties as
are required in order to enable Seller to perform its obligations under this
Agreement, including all consents and approvals required to permit it to license
the Nutriceutical Patents and to enable Buyer to enjoy all the rights and
benefits thereof.
3.2 By Buyer. Buyer represents and warrants to Seller as follows:
--------
-3-
3.2.1 The execution and delivery of this Agreement on behalf of Buyer
and Buyer's performance of its obligations under this Agreement, have been
authorized by all necessary corporate action and will not violate any provision
of the charter or by-laws of Buyer.
3.2.2 Subject only to any required governmental consents or
approvals, Buyer's performance of its obligations under this Agreement is not in
conflict with, and will not result in a breach of or constitute a default under,
any contract, instrument, rule of law or order of any court or government agency
to which Buyer is a party or by which Buyer is bound, nor will it result in the
imposition or creation of any lien on any property owned by Buyer.
4. Term of the Agreement; Default and Termination
4.1 Term. This Agreement and the rights, licenses and privileges granted
----
hereunder shall extend for the entire unexpired life of each patent licensed
pursuant to this Agreement. Notwithstanding the foregoing, upon the expiration,
invalidation or unenforceability of any patent included in the Phytorernediation
Patents or the Nutriceutical Patents, all rights and obligations under this
Agreement shall terminate with respect to that particular patent.
5. Miscellaneous
5.1 Assignment. This Agreement may not be assigned or otherwise
----------
transferred by Buyer or Seller without the prior written consent of the other
party, which shall not be unreasonably withheld or delayed, except that it may
be assigned to an acquiror of all or substantially all the assets, business or
stock of a party. Any other attempted assignment or transfer, by operation of
law or otherwise, without such consent shall be void.
5.2 Governing Law. This Agreement shall be construed and enforced in
-------------
accordance with the laws of the State of Delaware without regard to its
conflicts of law provisions.
-4-
5.3 Counterparts. This Agreement may be executed in multiple
------------
counterparts, each of which shall be deemed an original and all of which shall
constitute one agreement, and a signature of any party to any counterpart shall
be deemed to be the signature to any and may be appended to any other
counterpart.
5.4 Waiver. Any waiver of a right under this Agreement must be in writing
------
executed by or on behalf of the waiving party. Any waiver of a particular
default shall constitute a waiver of such default only and not of any other
default by the nonwaiving party (whether similar or dissimilar in nature). Any
waiver of a specific right or remedy under this Agreement shall constitute a
waiver or such right only and not of any other remedy of the waiving party under
this Agreement.
5.5 Entire Agreement. This Agreement, and the Asset Purchase Agreement,
----------------
all Schedules and Exhibits thereto and all agreements and instruments to be
delivered by the parties pursuant thereto represent the entire understanding
between the parties hereto with respect to the subject matter hereof and
supersede all prior oral and written and all contemporaneous oral negotiations,
commitments and understandings between such parties.
5.6 Severability. If any provision of this Agreement or the application
------------
thereof to any person or circumstances shall, for any reason and to any extent,
be invalid or unenforceable, the remainder of this Agreement and the application
of such provision to other persons or circumstances shall not be affected
thereby, but rather shall be enforced to the greatest extent permitted by law.
5.7 Notices. Any notice required or desired to be given by a party hereto
-------
in connection with or arising out of this Agreement shall be in writing and,
except as otherwise provided below, shall be deemed to have been given either
(i) when delivered by private courier
-5-
service with receipt of delivery or (ii) five (5) days after being deposited in
certified or registered mail, postage prepaid, to the parties at the address set
forth below or at such other address as a party may designate by written notice
to the other party from time to time.
If to Buyer to: Phytotech, Inc., or its successor in interest
Xxx Xxxx Xxxx Xxxxx, Xxxxx X
Xxxxxxxx Xxxxxxxx, XX 00000
Telephone No. (000) 000-0000
Facsimile No. (000) 000-0000
Attention: Xx. Xxxx Xxxxxx
With a copy to: Ravin, Xxxxxxxxx and Marks, P.C.
000 Xxxxxxxxxx Xxxxxxx
Xxxxxxxx, XX 00000
Telephone No. (000) 000-0000
Facsimile No. (000) 000-0000
Attention: Xxxxx Xxxxxx, Esq.
If to Seller to: Edenspace Systems Corporation
00000 Xxxxxxx Xxxxxx Xxxxx
Xxxxx Xxxxx, XX 00000
Telephone No. (000) 000-0000
Facsimile No. (000) 000-0000
Attention: Xxxxx X. Xxxxxxxx
With a copy to: Jenner & Block
Xxx XXX Xxxxx
Xxxxxxx, XX 00000
Telephone No. (000) 000-0000
Facsimile No. (000) 000-0000
Attention: Xxxxxxx X. Xxxxxxxxx, Esq.
5.8 No Joint Venture. Nothing contained in this Agreement shall be
-----------------
construed as creating a joint venture or partnership between the parties hereto.
Except as otherwise expressly provided, neither party is by virtue of this
Agreement authorized as an agent, employee or legal representative of the other
party, and their status is, and at all times will continue to be, that of
-6-
independent contractors with respect to each other. Neither party shall have,
or shall hold itself out as having, any power or authority to bind or commit the
other.
5.9 Further Assurances. Each party agrees to cooperate fully with the
------------------
other party and to execute such further instruments, documents and agreements
and to give such further written assurances, as may be reasonably requested by
the other party, to better evidence and reflect the transactions contemplated
hereby, and to carry into effect the intents and purposes of this Agreement.
5.10 Trademarks. No right is granted by this Agreement to either party to
----------
use any registered or unregistered trademark or trade name of the other party.
5.11 Attorneys' Fees. The prevailing party in any action or proceeding to
---------------
enforce or interpret any part of this Agreement shall be entitled to recover its
reasonable attorneys' fees and costs.
5.12 Headings. Headings and captions are for convenience only and are not
--------
to be used in the interpretation of this Agreement.
5.13 Export Control. Each party will comply with all applicable export
--------------
control laws, restrictions and regulations of any United States or foreign
agency or authority and will not export or re-export or allow the export or re-
export of any product, technology or information it obtains or learns pursuant
to this Agreement (or any direct product thereof) in violation of any such laws,
restrictions or regulations.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their duly authorized representatives.
-7-
EDENSPACE SYSTEMS CORPORATION PHYTOTECH, INC., DIP, or its
successor in interest
By: /s/Xxxxx X. Xxxxxxxx By: /s/Xxxx X. Xxxxxx
--------------------------- ---------------------------
Xxxxx X. Xxxxxxxx Xx. Xxxx Xxxxxx, President
-8-
SCHEDULE A
1.1 PATENTS OWNED BY PHYTOTECH RELATED TO NUTRITIONAL SUPPLEMENTS
Title Patent Number Country
----- ------------- -------
NONE
1.2 PATENT APPLICATIONS OWNED BY PHYTOTECH RELATED TO NUTRITIONAL SUPPLEMENTS
Title Application Number Country
----- ------------------ -------
Nutritional Supplements 60/089,821 USA
2.1 PATENTS JOINTLY OWNED WITH RUTGERS RELATED TO NUTRITIONAL SUPPLEMENTS
Title Application Number Country
----- ------------------ -------
NONE
2.2 PATENT APPLICATIONS JOINTLY OWNED WITH RUTGERS RELATING TO NUTRITIONAL
SUPPLEMENTS
Title Application Number Country
----- ------------------ -------
Nutritional Supplements 09/041,355 USA
Nutritional Supplements US99/05433 WIPO PCT
3.1 PATENT APPLICATIONS SUBJECT TO ARBITRATION UNDER 0(5) OF THE STIPULATION
AND CONSENT ORDER BETWEEN PHYTOTECH, EDENSPACE, AND RUTGERS
Title Application Number Country
----- ------------------ -------
Nutritional Supplements 09/187,608 USA
SCHEDULE B
1.1 PATENTS OWNED BY EDENSPACE RELATED TO PHYTOREIVIEDIATION
Title Patent Number Country
----- ------------- -------
Method for Removing Soluble 5,393,426 USA
Metals from an Aqueous Phase
Phytoremediation of Metals 5,364,451 USA
Phytoremediation of Metals 5,785,735 USA
Method for Removing Soluble 678262 Australia
Metals from an Aqueous Phase
Method for Removing Soluble 692162 Australia
Metals from an Aqueous Phase
1.2 PATENT APPLICATIONS OWNED BY EDENSPACE RELATED TO PHYTOREIVIEDIATION
Title Application Number Country
----- ------------------ -------
Method for Removing Soluble 000000 Xxxxxxx
Metals from an Aqueous Phase
Method for Removing Soluble 2,163,666 Canada
Metals from an Aqueous Phase
Method for Removing Soluble 2,163,665 Canada
Metals from an Aqueous Phase
Method for Removing Soluble 94919315.5 European Patent
Metals from an Aqueous Phase Office
Method for Removing Soluble 94920059.6 European Patent
Metals from an Aqueous Phase Office
Method for Removing Soluble 000000 Xxxxxx
Metals from an Aqueous Phase
Title Application Number Country
----- ------------------ -------
Method for Removing Soluble 94 4092 Mexico
Metals from an Aqueous Phase
Method for Removing Soluble 96100539 Russian Federation
Metals from an Aqueous Phase
Method for Removing Soluble 95125101 Ukraine
Metals from an Aqueous Phase
Phytoremediation of Metals 2,163,665 Canada
Phytoremediation of Metals 000000 Xxxxxx
Phytoremediation of Metals 94 4088 Mexico
Inducing Hyperaccumulation of 24242/97 Australia
Metals in Plant Shoots
Inducing Hyperaccumulation of 2,249,353 Canada
Metals in Plant Shoots
Inducing Hyperaccumulation of 97919929.6 European Patent
Metals in Plant Shoots Office
Inducing Hyperaccumulation of 000000 Xxxxxx
Metals in Plant Shoots
Inducing Hyperaccumulation of 000000 Xxxxxx
Metals in Plant Shoots
Inducing Hyperaccumulation of 98119145 Russian Federation
Metals in Plant Shoots
Inducing Hyperaccumulation of 98105528 Ukraine
Metals in Plant Shoots
2.1 PATENT APPLICATIONS SUBJECT TO ARBITRATION UNDER 0(5) OF THE STIPULATION
AND CONSENT ORDER BETWEEN PHYTOTECH, EDENSPACE, AND RUTGERS
Title Application Number Country
----- ------------------ -------
Phytoremediation of Metals 09/040,755 USA
-2-
ASSIGNMENT OF EXECUTORY CONTRACTS AGREEMENT
-------------------------------------------
THIS ASSIGNMENT OF EXECUTORY CONTRACTS AGREEMENT (hereinafter referred to
as this "Agreement"), made this 4th day of June 1999 between Phytotech, Inc.,
D.I.P. a New Jersey Corporation having an address of Xxx Xxxx Xxxx Xxxxx,
Xxxxxxxx Xxxxxxxx, Xxx Xxxxxx 00000 (hereafter the "Assignor") and Edenspace
Systems Corporation, a Delaware Corporation having an address of 00000 Xxxxxxx
Xxxxxx Xxxxx, Xxxxx Xxxxx, Xxxxxxxx 00000 (hereafter referred to as "Assignee").
W I T N E S S E T H:
RECITALS:
A. Assignor is a party to certain executory contracts with non-debtor
parties as more particularly described in Schedule 2.19 of a May 24, 1999 Asset
Purchase Agreement between the Assignor and the Assignee, a copy of which
Schedule is attached hereto as Exhibit "A".
B. Assignor filed a voluntary petition in bankruptcy with the United
States Bankruptcy Court for the District of New Jersey (the "Bankruptcy Court")
on May 19, 1999 and this Agreement has been expressly authorized by a June 22,
1999 Bankruptcy Court order approving the assumption and assignment of the
aforesaid executory contracts.
NOW, THEREFORE, in consideration of good and valuable consideration,
receipt of which is hereby acknowledged, the parties agree as follows:
1. ASSIGNMENT. Assignor hereby sells, transfers and assigns to Assignee
----------
any and all of Assignor's right, title and interest in, to and under the
executory contracts referenced on attached Exhibit A, which assignment has been
duly authorized by the entry of a Bankruptcy Court Order approving the
Assignor's assumption and assignment thereof.
2. ACCEPTANCE. Assignee hereby accepts the foregoing sale, assignment and
----------
transfer of the executory contracts referenced on attached Exhibit "A" and
agrees to assume all responsibility of the Assignor under such contracts arising
after the date hereof.
BINDING AGREEMENT
-----------------
This Agreement shall be binding upon the successors and assigns of the
parties hereto. The parties agree to execute and deliver such further and
additional instruments and agreements and other documents as may be reasonably
necessary to evidence or carry out the provisions of this Agreement. This
Agreement is made pursuant to the terms, provisions and conditions of the
aforesaid Asset Purchase Agreement between the Assignor and Assignee.
IN WITNESS WHEREOF, each of the parties hereto have caused this Assignment
of Executory Contracts Agreement to be executed as of the date and year first
set forth above.
Witness:
Assignor: PHYTOTECH, INC., D.I.P.
/s/ By: /s/ Xxxx X. Xxxxxx
------------------------------ ---------------------------------------
Xxxx X. Xxxxxx, President
Witness: Assignee: EDENSPACE SYSTEMS CORPORATION
/s/ By: /s/ Xxxxx X. Xxxxxxxx
------------------------------ ---------------------------------------
Xxxxx X. Xxxxxxxx/President
-2-
XXXX OF SALE
------------
This Xxxx of Sale dated June ___, 1999 is executed and delivered by
Phytotech, Inc., D. I. P., a New Jersey corporation (the "Seller"), to Edenspace
Systems Corporation, a Delaware corporation (the "Buyer"). All capitalized
words and terms used in this Xxxx of Sale and not defined herein shall have the
respective meanings ascribed to them in the Asset Purchase Agreement dated May
24, 1999 between the Seller and the Buyer (the "Agreement").
WHEREAS, pursuant to the Bankruptcy Order and the Agreement, the Seller has
agreed to sell, transfer, convey, assign and deliver to the Buyer certain of the
assets and business of the Seller as set forth in the Agreement;
NOW, THEREFORE, for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Seller hereby agrees as
follows:
1. The Seller hereby sells, transfers, conveys, assigns and delivers to
the Buyer, its successors and assigns, to have and to hold forever, the Assets,
including Inventory; the Accounts Receivable; all prepaid expenses, customer
prepayments and other similar assets of the Seller existing on the date hereof,
including the cash represented by such assets; the Contract Rights; all books,
records and accounts, correspondence, production records, technical, accounting,
manufacturing and procedural manuals, customer lists, employment records,
studies, reports or summaries relating to any environmental conditions or
consequences of any operation, present or former, as well as all studies,
reports or summaries relating to any environmental aspect or the general
condition of the Assets and any confidential information which has been reduced
to writing relating to or arising out of the business of the Seller; all rights
of the Seller under express or implied warranties from suppliers of the Seller;
all rights of the Seller under express or implied warranties from suppliers of
the Seller; the Fixed Assets; all of the Seller's right, title and interest in
the Intangible Property and all goodwill associated therewith. Notwithstanding
the foregoing, the Assets to be transferred to the Buyer under this Xxxx of Sale
shall not include those assets listed on Schedule 1.1 attached to the Agreement,
------------
which is incorporated herein by reference.
2. The Seller hereby covenants and agrees that it will, at the request of
the Buyer and without further consideration, execute and deliver, and will cause
its employees to execute and deliver, such other instruments of sale, transfer,
conveyance and assignment, and take such other action as may reasonably be
necessary to more effectively sell, transfer, convey, assign and deliver to, and
vest in, the Buyer, its successors and assigns, good, clear, record and
marketable title to the Assets hereby sold, transferred, conveyed, assigned and
delivered, or intended so to be, and to put the Buyer in actual possession and
operating control thereof, to assist the Buyer in exercising all rights with
respect thereto and to carry out the purpose and intent of the Agreement.
3. The Seller does hereby irrevocably constitute and appoint the Buyer,
its successors and assigns, its true and lawful attorney, with full power of
substitution, in its name or
otherwise, and on behalf of the Seller, or for its own use, to claim, demand,
collect and receive at any time and from time to time any and all assets,
properties, claims, accounts and other rights, tangible or intangible, hereby
sold, transferred, conveyed, assigned and delivered, or intended so to be, and
to prosecute the same at law or in equity and, upon discharge thereof, to
complete, execute and deliver any and all necessary instruments of satisfaction
and release.
4. This sale, transfer, conveyance and assignment has been executed and
delivered by the Seller in accordance with the Agreement and is expressly made
subject to those liens, claims or encumbrances which are Permitted Encumbrances.
5. The Seller, by its execution of this Xxxx of Sale, and the Buyer, by
its acceptance of this Xxxx of Sale, each hereby acknowledges and agrees that
neither the representations and warranties nor the rights and remedies of any
party under the Agreement shall be deemed to be enlarged, modified or altered in
any way by this instrument.
[Remainder of Page Intentionally Left Blank]
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IN WITNESS WHEREOF, the Seller and the Buyer have caused this instrument to
be duly executed under seal as of and on the date first above written.
SELLER:
PHYTOTECH, INC., D.I.P,
/s/ Xxxx X. Xxxxx
--------------------------------------------
Xxxx X. Xxxxxx
President
ATTEST: /s/ Xxxxxxxxx Xxxxxxxxx
------------------------------
Alexander Balfovski
Chief Financial Officer
ACCEPTED:
BUYER:
EDENSPACE SYSTEMS CORPORATION
/s/ Xxxxx X. Xxxxxxxx
-------------------------------------
Xxxxx X. Xxxxxxxx
President
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