ASSET PURCHASE AGREEMENT
AGREEMENT as of this 14th day of November 1997, by and among ENVIROMETRICS
PRODUCTS COMPANY, a South Carolina corporation with a principal place of
business at 0000 Xxxxxxxxxx Xxxxxxxxx, Xxxxxxxxxx, Xxxxx Xxxxxxxx 00000, Seller
(hereinafter "Envirometrics"), Envirometrics, Inc., a Delaware Corporation
("EV") and ZELLWEGER ANALYTICS, INC., a Texas corporation with a principal
place of business at 000 Xxxxxxx Xxxxxxxxx, Xxxxxxxxxxxx, Xxxxxxxx, 00000, Buyer
(hereinafter "ZA").
WHEREAS, Envirometrics is in the air monitoring business and has manufactured
and sold certain direct read passive air monitors which it no longer desires to
manufacture and sell, and owns certain Technology relating to that air
monitoring business ("the Business") that it is willing to sell; and
WHEREAS, ZA has agreed to accept certain assets (but not liabilities) of the
Business from Envirometrics in conjunction with the settlement of certain claims
of ZA against Envirometrics, as more specifically set forth in a Mutual
Settlement and Release between the parties executed concurrently herewith
("Releas");
NOW, THEREFORE, in consideration of the foregoing premises and of the terms and
conditions set forth infra, Envirometrics and ZA agree as follows:
I.
Purchase, Sale and Payment
A. Concurrently with the performance of the parties' other obligations under the
Release, at Closing, as hereinafter defined, Envirometrics shall sell to ZA, and
ZA shall purchase from Envirometrics, free and clear of all liabilities, claims,
obligations, mortgages, pledges, security interests, liens, tax liens and other
encumbrances whatsoever ("Encumbrances") the following Technology & Trade Names
(the "Asset"):
(1) The ACT Monitoring Card Technology (ACT Card), defined as a direct read
colormetric passive air monitor that measures the airborne concentration of
certain chemicals, attached as Exhibit A hereto, by changes in the color of
proprietary chromophores. Said changes are identified either Qualitatively by
visually comparing the chromophore to a printed standard or Quantitatively using
an Electronic Reader. Formulations for the chemistries for the compounds
outlined in Exhibit A are attached as Exhibit B.
(2) The ACT Monitoring Card System, ACT and design, ACT Monitoring Card,
Air-Chem Technologies and ACT Card, and the rights to any trademark, trade
name, service xxxx, copyright or patent relating thereto or used in conjunction
therewith.
B. Envirometrics shall deliver to ZA on November 19, 1997, one or more written
Instruments of Transfer and Assignment reasonably satisfactory to ZA evidencing
Envirometrics' sale to ZA of all of the foregoing assets, free of encumbrances,
including the Xxxx of Sale attached as Exhibit C.
C. In consideration for and conditioned upon delivery of the Instruments of
Transfer and Assignment identified in I. B. and the concurrent performance of
the parties' obligations under the Release, ZA shall at Closing reduce the
unused Prepaid Purchase Deposits that were paid to Envirometrics by ZA under the
Master Distributorship Agreement, dated as of January 1, 1996 by $344,849.90.
Said consideration is part of the Release defined in Exhibit D.
II.
Closing
Closing ("Closing") of the transactions contemplated by this Agreement shall
take place on November 19, 1997 ("Closing Dat") at such time and place as the
parties mutually may agree.. The Assets, as itemized supra, shall be delivered
and transferred at closing.
III.
Envirometrics Covenants, Representations and Warranties
Envirometrics covenants, represents and warrants to ZA, which covenants,
representations and warranties shall survive the Closing, that:
A. Envirometrics has, and through and/or after the Closing Date will have, good
and marketable title to the Assets identified in I.A to be sold and delivered
hereunder, free and clear of all Encumbrances, and has the requisite authority
to sell and transfer good title to the Assets to ZA.
B. The manufacture and sale of the products of the Business, including the
Assets, as heretofore or hereafter manufactured and sold by Envirometrics, to
the best of the knowledge of Envirometrics and its shareholders, directors and
officers, do not infringe any patent, trademark, service xxxx, copyright or
other proprietary rights of any third party and there are no actual, pending or
threatened claims, suits, investigations, lawsuits or other proceedings relating
to same.
C. No claims, suits, investigations, lawsuits or other proceedings are pending
or threatened by any third parties involving the Assets.
D. No consent by, approval or authorization of, or filing, registration or
qualification with, any federal, state or local governmental authority or other
person, including any which may be required by any "bulk xxx" law, is required
for the execution, delivery or performance of this Agreement by Envirometrics or
in connection with the consummation of the transactions contemplated hereby by
Envirometrics.
E. Envirometrics is a corporation duly organized, validly existing and in good
standing under the laws of the State of South Carolina.
F. Envirometrics has the full corporate power to execute, deliver and perform
this Agreement and has taken all action required by law, its certificate of
incorporation, its by-laws or otherwise to authorize such execution, delivery
and performance of this Agreement and this Agreement is a valid and binding
agreement of Envirometrics, enforceable in accordance with its terms.
G.. The execution and delivery of this Agreement do not, and the consummation of
the transactions contemplated hereby will not: (1) violate any provision of the
certificate of incorporation or by-laws of Envirometrics; (2) violate any
provision of, or result in the termination or acceleration of any obligation
under any mortgage, note, lien, lease, franchise, license, permit, agreement,
instrument or obligation to which Envirometrics is a party or by which
Envirometrics is bound; or (3) violate or conflict with any other restriction of
any kind or character to which Envirometrics or the Business is subject.
H. No approval, authorization, license, permit or other action or finding by any
governmental authority or any third party, shareholder, or board of directors of
Envirometrics is required that has not been obtained in connection with the
execution and delivery of this Agreement or the consummation of the transactions
contemplated hereby.
I. No agent or broker or other persons acting pursuant to authority given by
Envirometrics is entitled to any commission or finder's fee in connection with
the transaction contemplated by this Agreement.
J. Envirometrics makes no warranties to ZA other than those expressly set forth
herein.
IV.
ZA's Covenants, Representations and Warranties
ZA covenants, represents and warrants to Envirometrics, which covenants,
representations and warranties shall survive the Closing, that:
A. ZA is a corporation duly organized, validly existing and in good standing
under the laws of the State of Texas.
B. ZA has the full corporate power to execute, deliver and perform this
Agreement and has taken all action required by law, its certificate of
incorporation, its by-laws or otherwise to authorize such execution, delivery
and performance of this Agreement and this Agreement is a valid and binding
agreement of ZA enforceable in accordance with its terms.
C. The execution and delivery of this Agreement do not, and the consummation of
the transactions contemplated hereby will not: (1) violate any provision of the
certificate of incorporation or by-laws of ZA; (2) violate any provision of, or
result in the termination or acceleration of any obligation under any mortgage,
note, lien, franchise, license, permit, agreement, instrument or obligation to
which ZA is a party or by which ZA is bound; or (3) violate or conflict with any
other restriction of any kind or character to which ZA or the Business is
subject.
D. No approval, authorization, license, permit or other action or finding by any
governmental authority or any third party, shareholder, or board of directors of
ZA is required that has not been obtained in connection with the execution and
delivery of this Agreement or the consummation of the transactions contemplated
hereby.
E. ZA knows of no pending or threatened government investigation, request for
information or action by any third party which would prohibit or prevent or
claim damages as a result of this Agreement or the transactions contemplated
hereby and there is no litigation pending or threatened to the knowledge of ZA
which would affect ZA's ability to perform its obligation hereunder.
F. No agent or broker or other persons acting pursuant to authority given by ZA
is entitled to any commission or finder's fee in connection with the transaction
contemplated by this Agreement.
V.
Sales and Use Taxes
Envirometrics shall be responsible to pay all sales, use and other taxes which
are due as a result of the transfer and conveyances of any of the Assets, and
shall indemnify and hold ZA harmless from any taxes, expenses, costs (including
reasonable attorneys' fees), liabilities and judgments arising from or relating
to any failure of Envirometrics to pay such taxes when due.
VI.
Business Transfer
A. Envirometrics and ZA agree upon the text of a letter in the form attached
hereto as Exhibit E. Said Letters from Envirometrics shall be addressed to each
of Envirometrics customers which purchased products of the business
("Customers"). These letters shall be sent to customers on, or before November
29, 1997.
B. Neither ZA nor Envirometrics shall issue any press release or make any public
statement regarding the terms of this Agreement without the consent of the
other, which shall not be reasonably withheld, except where a press release or
public statement is required by any law or regulation.
VII.
Indemnification
A. EVRM and Envirometrics shall release, defend, indemnify and hold harmless ZA,
its officers, directors and employees, from and against all expenses, costs,
liabilities and judgments (including reasonable attorneys' fees) arising from or
relating to claims relating to Envirometrics' operation of the Business,
including, but not limited to claims by purchasers, alleged owners or users of
products of the Business for bodily injury, death, physical or property damage,
infringement of intellectual property rights, loss of wages or other damages or
claims allegedly resulting from in whole or in part a defect in products
designed or manufactured or sold by Envirometrics prior to the Closing Date and
claims resulting from or based upon any breach by Envirometrics of any of its
representations, covenants, warranties or agreements contained in this
Agreement.
B. ZA shall release, defend, indemnify and hold harmless Envirometrics, its
officers, directors and employees, from claims solely relating to ZA's use of
the technology and/or the ACT Monitoring Card name or xxxx on products
manufactured by ZA after the Closing Date or based upon any breach by ZA of any
of its representations, covenants, warranties or agreements contained in this
Agreement.
C. The parties' obligations hereunder shall survive the Closing.
IX.
Further Assurances and Actions
Subject to the provisions of this Agreement, EV and Envirometrics will execute
all documents and take all such further actions as ZA shall reasonably request,
and ZA will execute all documents and take all such actions as Envirometrics may
reasonably request, prior to, at or after the Closing Date in order to
consummate the transactions provided herein and to accomplish the purposes of
this Agreement.
X.
No Brokers
Envirometrics represents and warrants to ZA and ZA represents and warrants to
Envirometrics that all negotiations relative to this Agreement have been carried
on by it or its representatives directly with the other without the intervention
of any person in their behalf and that no broker brought about this Agreement on
their behalf.
XI.
Non-Competition/Non-Solicitation
EV and Envirometrics, individually and collectively, and expressly including any
agent, employee, officer, parent or subsidiary, branch, division or affiliate,
agree that for a period of three years following the date of Closing, they will
not:
(a) of their own right or in concert with any other person, corporation or
business entity, knowingly, for themselves or for any person, corporation
or business entity, call upon, solicit, divert or take away, or attempt to
solicit, divert or take away any of the Customers;
(b) of their own right or in concert with any person, corporation or other
business entity, knowingly engage, for themselves or on account of or as an
agent or servant of another, directly or indirectly, in the business of
distributing, wholesaling, selling or marketing of Assets to Customers or
in the marketing or selling of products to Customers designed to compete
with the Assets; and
(c) of their own right or in concert with any other person, corporation or
business entity, knowingly, for themselves or for any person, corporation
or business entity, will not directly or indirectly, in the United States
and Canada, engage in any business or related activities which is the same
or similar to the Business or which designs, manufactures, markets,
distributes or sells goods or services the same as or similar to the
Business, the Assets or any component thereof.
The parties acknowledge that the giving of the foregoing restrictions and
covenants to ZA were a condition upon which ZA entered into the transactions
contemplated hereby and that the limitations of this section have been carefully
considered by the parties and are deemed to be reasonable and necessary to
protect the value of the Assets and that EV and Envirometrics are entering into
the foregoing without duress.
In the event of a breach or threatened breach of any of EV or Envirometrics'
foregoing obligations, ZA shall be entitled to temporary or permanent injunctive
relief, in addition to whatever other legal or equitable relief may be available
to it. EV and Envirometrics further acknowledge that in the event of a breach or
threatened breach of the foregoing, ZA has no adequate remedy at law and that
any monetary damages which may result as a consequence of its breach or
threatened breach may be difficult or impossible to measure. EV and
Envirometrics hereby waive and agree not to assert, now or in the future, the
claim or defense that a remedy at law exists and is adequate.
XII.
Conditions Precedent to Obligations of Parties
A. The obligation of ZA to purchase the assets is subject to the fulfillment on
or prior to the Closing Date as the case may be of each of the following
conditions:
(1) Envirometrics shall have complied in all material respects with all of its
agreements and convenants contained herein to be performed as of the time of
Closing including those under the Release and all of the representations
contained herein shall be true and accurate in all material respects on, as of,
and after the Closing Date.
(2) No order of any court or governmental regulatory authority or body which
restrains or prohibits the transactions contemplated hereby shall be in effect
on the Closing Date, and no suit, proceeding, or investigation by a government
agency or third party to enjoin the transaction contemplated hereby or seek
damages or other relief as a result thereof shall be pending or threatened as of
the Closing Date.
B. The obligation of Envirometrics to execute and deliver the Xxxx of Sale and
the other documents required to be provided hereunder, attached hereto as
Exhibit C, is subject to:
(1) ZA shall have complied in all material respects with all of its agreements
and covenants contained herein to be performed as of the time of Closing and all
of the representations contained herein shall be true and accurate in all
material respects on, as of, and after the Closing Date.
(2) No order of any court or governmental regulatory authority or body which
restrains or prohibits the transactions contemplated hereby shall be in effect
on the Closing Date and no suits proceeding, or investigation by a government
agency or third party to enjoin the transaction contemplated hereby or seek
damages or other relief as a result thereof shall be pending or threatened as of
the Closing Date.
XIII.
Notices
All notices, requests, demands or other communications hereunder shall be in
writing and shall be deemed to have been duly given if delivered or mailed, by
registered or certified mail, postage prepaid to the following addresses:
If to Envirometrics: Envirometrics Products Company
0000 Xxxxxxxxxx Xxxxxxxxx
Xxxxxxxxxx, XX 00000
Attn: Xxxxxx X. "Skip" Xxxxxxx, III, President
If to ZA: Zellweger Analytics, Inc.
000 Xxxxxxx Xxxxxxxxx
Xxxxxxxxxxxx, Xxxxxxxx 00000
Attn: Xxx XxXxxxx, President and CEO
or at such other addresses as each such party may furnish to the other parties
in writing.
XIV.
Choice of Law
This Agreement shall be governed by and construed in accordance with the laws of
the state of Illinois, without regard to its conflicts of law principles.
XV.
Entire Agreement
This instrument and other documents referenced herein constitutes the entire
understanding between Envirometrics and ZA with respect to the Business and as
such supersedes all prior representations, agreements and understandings between
them with respect to such subject matter. This Agreement or any term hereof may
be changed, waived, discharged or terminated only in writing executed by the
duly authorized officers of EV and Envirometrics and ZA, which writing shall
indemnify this Agreement and shall express the plan or intention to modify,
waive or terminate it.
IN WITNESS WHEREOF, the parties have executed this Agreement by their duly
authorized officers as of the date hereof.
ENVIROMETRICS PRODUCTS COMPANY
------------------------------------------------
By: Xxxxxx X. Xxxxxxx, III
President
ZELLWEGER ANALYTICS, INC.
------------------------------------------------
By: Xxx XxXxxxx
President and CEO
XXXX OF SALE
EXHIBIT C
FOR VALUE RECEIVED, ENVIROMETRICS PRODUCTS COMPANY, a South Carolina Corporation
(hereinafter called "Seller") has bargained, sold, conveyed, assigned and
delivered unto ZELLWEGER ANALYTICS, INC., a Texas Corporation (hereinafter
called "Purchaser"), pursuant to an Asset Purchase Agreement between the parties
dated November 14, 1997 (the "Agreement"), all of the assets rights and
properties listed and described in Exhibit A, attached hereto and expressly
incorporated herein by reference (hereinafter called the "Assets").
TO HAVE AND TO HOLD all and singular the above-described Assets, and all title
thereto and interest therein, unto Purchaser, its successors and assigns, to its
own use and behoove forever.
Seller warrants and represents to, and covenants and agrees with Purchaser, that
Seller is the lawful owner of all of said Assets; that Seller has the right to
sell, convey, assign and deliver the same unto Purchaser as herein provided;
that the purchase price for the Assets has been fully paid; that there are no
liens or encumbrances whatsoever affecting the Assets.
The undersigned represents and warrants that he has all necessary and requisite
power and authority to execute the within Xxxx of Sale on behalf of the Seller.
IN WITNESS WHEREOF, Seller has set its hand and seal this November 18, 1997.
ENVIROMETRICS PRODUCTS COMPANY
----------------------------------------------
By: Xxxxxx X. Xxxxxxx, III
President
STATE OF SOUTH CAROLINA
COUNTY OF CHARLESTON
Subscribed and sworn to before me this 18th date of November, 1997 by Xxxxxx X.
Xxxxxxx, III as the voluntary act and deed of Envirometrics Products Company,
duly authorized.
----------------------------------------------
Notary Public
My Commission Expires :___________________
Exhibit A
(To Xxxx of Sale)
ASSET LIST
(1) The ACT Monitoring Card Technology (ACT Card), defined as a direct read
colormetric passive air monitor that measures the airborne concentration of
certain chemicals, by changes in the color of proprietary chromophores. Said
changes are identified either Qualitatively by visually comparing the
chromophore to a printed standard or Quantitatively using an Electronic Reader.
(2) Formulations for all ACT Monitoring Cards.
(3) The ACT Monitoring Card System, ACT and design, ACT Monitoring Card,
Air-Chem Technologies and ACT Card.
(4) Bills of materials, drawings, formulations and manufacturing procedures for
badges.
(5) Customer List(s).
