ASSET PURCHASE AGREEMENT
AGREEMENT as of this28th day of April, 1997, by and between ENVIROMETRICS
PRODUCTS COMPANY, a South Carolina corporation with a principal place of
business at 0000 Xxxxxxxxxx Xxxxxxxxx, Xxxxxxxxxx, Xxxxx Xxxxxxxx 00000, Seller
(hereinafter "Envirometrics"), and MULTI-METRICS, INC., a New Hampshire
corporation with a principal place of business at X.X. Xxx 000, Xxxxxxxxxxx, Xxx
Xxxxxxxxx 00000-0000, Buyer (hereinafter "MM")
WHEREAS, Envirometrics is in the asbestos and lead air monitoring business
and has manufactured and sold certain asbestos and lead air monitors which it no
longer desires to manufacture and sell, and owns certain assets of that air
monitoring business ("the Business") that it is willing to sell; and
WHEREAS, MMI desires to acquire said assets from Envirometrics on the terms
and conditions set forth herein;
NOW, THEREFORE, in consideration of the foregoing premises and of the terms
and conditions set forth infra, Envirometrics and MMI agree as follows:
Purchase, Sale and Payment
A. Envirometrics shall sell to MMI, and MMI shall purchase from
Envirometrics, free and clear of all claims, mortgages, pledges, security
interests, liens, tax liens and other encumbrances whatsoever ("Encumbrances")
the following assets (the "Assets"):
(1) The fixed assets, molds, tooling, and equipment set forth on the Asset
List attached as Exhibit A hereto, which are all of the fixed assets, molds,
tooling and equipment solely and uniquely associated by Envirometrics with the
Business;
(2) The inventories of raw materials, work in progress, finished goods,
packing, and supplies, further identified in Exhibit B attached hereto.
(3) All price lists, materials vendors lists and costs, all literature and
related materials for the Business, and the comprehensive and complete customer
lists for the Business, showing both active and inactive accounts, aging trade
receivables, and order and payment history for all accounts.
(4) All of Envirometrics' other assets of whatever nature and wherever
situated, including, but not limited to, books and records, prints, engineering
data, process information records, including operating instructions and process
sheets, bills of material, and mold drawings, solely related to the Business
together with all patents, copyrights, trademarks, service marks and any other
intellectual property rights associated with the records and drawings, and all
other assets, tangible or intangible, used in or for the manufacturing,
development, sales, and administrative operations of the Business. Without
limiting the foregoing, Envirometrics expressly shall cause its parent company,
Envirometrics, Inc., to execute any and all documents necessary to assign to MMI
United States patent number 5205155 dated April 27, 1993 pursuant to assignment
forms attached as Exhibit C.
(5) Excluded from this sale are all assets related to the Act Monitoring
Card System, all cash on hand and in banks, government bonds, claims for tax
refunds, and other claims, notes, and accounts receivable.
B. Envirometrics shall deliver to MMI on April 28th 1997 one or more
written Instruments of Transfer and assignment reasonably satisfactory to MMI
evidencing Envirometrics' sale to MMI of all of the foregoing Assets, including
the Xxxx of Sale attached as Exhibit D. All said documents shall be held in
escrow by the Escrow Agent pending release of escrow as set forth in III. B.
C. In consideration for and conditioned upon delivery of the Instruments of
Transfer and assignment identified in 1. B., MMI shall pay for the benefit of
Envirometrics on the Closing date the sum of One Hundred Ten Thousand
($110,000.00) Dollars for all items on Exhibit A as well as price lists,
customer lists, and all other items identified in I.A. (1), (3), and (4), to be
held in escrow pending completion of all performance under this contract as set
forth in IV L., infra.
D. At Closing, Envirometrics shall transfer on consignment to MMI, and MMI
shall accept and take possession from Envirometrics, Envirometrics' remaining
inventory of raw materials, and other non-cassette finished inventory, as
identified in Exhibit B. MMI will thereafter use its best efforts to sell the
same on Envirometrics' behalf, reimbursing Envirometrics seventy-five (75%) per
cent of Envirometrics' actual cost of said inventory items--at the figures set
forth on Exhibit B, subject to modification as set forth therein. MMI will keep
this inventory segregated either physically or by computer records and
Envirometrics shall be allowed to audit said inventory a minimum of twice a year
until the same is sold or through November 30, 1998, whichever first occurs. MMI
will use its best efforts to sell this inventory prior to November 30, 1998, and
will make payment to Envirometrics at the specified rate as product is sold, no
less frequently than monthly. In addition, MMI will provide Envirometrics with
quarterly reconciliation's of inventory levels and make any payments then due.
Envirometrics shall have until December 31, 1998 to notify MMI in writing to
return any unsold inventory as of said date (F.O.B. Keene, New Hampshire). In
the event Envirometrics elects return of said inventory, it shall have the right
to market and sell the same, which shall be deemed not to violate the
noncompetition provisions of MMI, infra. In the event Envirometrics does not
elect return of any unsold inventory prior to December 31, 1998, any remaining
inventory shall thereafter come under the exclusive ownership, possession and
control of MMI, free and clear of any further claims under this Agreement or
otherwise.
E. Sale shall also include transfer to MMI of Envirometrics' 800 number as
of the date of Closing for a period of 120 days from the release of escrow set
forth in III.B. MMI promptly and courteously shall refer all calls relating to
the Act Monitoring Card System back to Envirometrics. After the 800 number is
retransferred to Envirometrics, Envirometrics promptly and courteously shall
refer all calls concerning MMI products back to MMI.
F. Upon release of escrow as set forth in III and IV L., the Escrow
Agent shall issue a 2-party check payable to Envirometrics and Precision
Southeast, Inc. ("Precision") in the amount of all sums due Envirometrics under
1 C. and/or III A, less the sum of $3.00 per box of cassettes delivered to
and accepted by MMI pursuant to HI, (which sum shall be paid directly to
Envirometrics). Envirometrics shall be responsible for delivering to MMI a
letter from Precision (on Precision's letterhead) in the form attached hereto as
Exhibit K, prior to release of escrow).
II.
Closing,
Closing ("Closing") of the transactions contemplated by this Agreement
shall take place on April 28th 1997 at such time and place as the parties
mutually may agree in Charleston, South Carolina. All assets, as itemized supra,
shall be delivered and transferred at closing, subject to the escrow provisions
of III, infra. MMI shall be responsible for all freight charges associated
with transferring the assets (F.O.B. Charleston, South Carolina).
III.
Envirometrics' Further Obligations and Maintenance of Escrow
A. Subsequent to closing, Envirometrics shall retain all of the assets
identified in Exhibit A in order to manufacture 5,000 boxes of standard 25mm
cassettes, packaged complete, at a total cost to MMI of $3.00 per box, plus the
amount of $40,050.72 for Envirometrics' pre-purchased inventory at
Envirometrics' cost as itemized in Exhibit E attached hereto. In addition, MMI
shall purchase directly and have shipped to Envirometrics all materials for said
5,000 boxes which Envirometrics does not have in inventory. As further and
integral consideration for this Agreement, Envirometrics shall complete
manufacture of all 5,000 boxes of said standard 25mm cassettes and ship the same
to MMI (F.O.B. Charleston, South Carolina), subject to Envirometrics' fight to
reserve up to 500 boxes for sale to its own retail customers (in which event,
MMI shall receive appropriate credit, including reimbursement for MMI-purchased
inventory at MMI's cost and credit for reduction of Envirometrics pre-purchased
inventory shown on Exhibit E). MMI shall have the right to inspect the same
before acceptance.
B. Envirometrics shall deliver to MMI for shipment to Marlborough, New
Hampshire all cassette parts identified in Exhibit E which Envirometrics has not
used in manufacture of the boxes as called for under III A, such delivery
(F.O.B. Charleston) to be made concurrently with transfer of the Exhibit A.
assets.
C. Upon closing under the contract, MMI shall place into escrow all of the
following:
the contract sales price of One Hundred Ten Thousand
($110,000.00) Dollars;
the sum of Fifteen Thousand ($15,000.00) Dollars (5000 boxes x
$3.00) against anticipated delivery of the boxes of cassettes as set
forth in III A, supra; and
the inventory price of $40,050.72, as set forth in Exhibit E.
D. H. Xxxx Xxxxxxx of Keene, New Hampshire, MMI's attorney, shall be the
Escrow Agent and shall maintain the funds in a passbook savings account. Upon
verification from MMI that Envirometrics has completed performance under this
Agreement; that MMI has completed arrangements to ship the assets identified in
Exhibit A from South Carolina to New Hampshire; that the South Carolina Bulk
Sales Act notice period has expired without notice from any creditor that it
intends to exercise fights under the Bulk Sales Act --and absent any evidence
that either party is in breach of any of the covenants, representations and/or
warranties set forth in Article IV, infra' or its other obligations under this
Agreement--the Escrow Agent forthwith shall transfer all funds which he is
holding as follows:
the sum of $3.00 per box of completed cassettes delivered to MMI
pursuant to III A. payable in a one party check directly to
Envirometrics;
all other sums due in a two party check issued to Precision and
Envirometrics, forwarded to S. Xxxxxxx Xxxxxxxx, President; Precision
Southeast, Inc; X.X. Xxx 0000; Xxxxxx Xxxxx, Xxxxx Xxxxxxxx 00000.
E. At the same time as funds are transferred, the Escrow Agent shall
release and deliver the Xxxx of Sale and all other instruments of transfer and
assignment to MMI.
F. In the event this transaction fails to come out of escrow:
1. MMI nevertheless shall cause the Escrow Agent to remit directly to
Envirometrics the sum of $13.50 per box of cassettes actually shipped to and
accepted by MMI pursuant to III A, less all costs of MMI's direct payments to
Palmetto Packaging, Corning Costar, Xxxxxxxxxx & Schuell, Inc, and any other
suppliers to whom MMI has made direct payments pursuant to III A;
2. the Escrow Agent shall redeliver to Envirometrics the Xxxx of Sale, all
other Instruments of Transfer and Assignment, and any documents or other
physical property which are in his possession or control;
3. the Escrow Agent shall redeliver all remaining funds to MMI- and
4. the parties thereafter shall have no further fights or obligations under
the contract.
H. Both parties hereby indemnify and hold the Escrow Agent harmless in the
performance of his duties.
IV.
Envirometrics Covenants, Representations and Warranties
Envirometrics covenants, represents and warrants to MMI, which covenants,
representations and warranties shall survive the Closing and release of escrow,
that:
A. Envirometrics has, and through and/or after the Closing date will have,
good and marketable title to each of the assets identified in I.A., I.D., and
III.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 such assets.
B. The finished goods and material inventories represented on Exhibits B
and E, as well as the 4,500 boxes of standard 25mm cassettes referenced in
III.A., supra (1) were, are and will be respectively manufactured and purchased
(except for materials purchased by Envirometrics pursuant to HI.A., supra) in
the ordinary course of its business; (2) represent all existing inventory
manufactured and acquired by Envirometrics for and in the Business; (3) are of
the kind and quality salable or usable in the ordinary course of that Business;
and (4) are held by Envirometrics and sold and transferred to MMI with good and
marketable title. All such goods are warranted as merchantable and fit for the
ordinary purposes for which they are used.
C. The manufacture and sale of Business Products as heretofore or hereafter
manufactured and sold by Envirometrics, to the knowledge of Envirometrics, do
not infringe any patent, trademark, service xxxx, copyright or other proprietary
rights of any third party.
D. To the best of Envirometrics' knowledge, no claims, suits,
investigations or proceedings are pending or threatened by any third parties
involving the assets other than a disputed claim by Zellweger Analytics, Inc.;
and--notwithstanding Envirometrics' disclosure to MMI that it may be insolvent
under one or more tests of solvency as defined in the Uniform Fraudulent
Conveyance Act and/or the United States Bankruptcy Code--the sale and transfer
of the assets is not a fraudulent transfer, disposition or sale.
E. Exhibit B and all information transferred pursuant to I.A.(3), (4),
supra are true and accurate as they relate to historical information, and there
has not been any material adverse change in the Business from April 1, 1997 to
the date of this Agreement.
F. No consent by, approval or authorization of, or filing, registration or
qualification with, any federal, state or local governmental authority or other
person 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.
G. Envirometrics is a corporation duly organized, validly existing and in
good standing under the laws of the State of South Carolina.
H. 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 bylaws 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.
I. 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.
J. 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.
K. The fixed assets, molds, tooling and equipment, as set forth on Exhibit
A, transferred to MMI hereunder (1) were purchased and acquired by Envirometrics
in the ordinary course of its business; (2) represent all existing fixed assets,
molds, tooling and equipment purchased and acquired by Envirometrics for use in
the Business- and (3) are held by Envirometrics and sold and transferred to MMI
with good and marketable title. Upon delivery of possession to MMI, said fixed
assets, molds, tooling and equipment will be in reasonably good repair and
working order, capable of producing sound and merchantable products, if properly
used.
The transfer and sale of the assets complies and shall comply with the Bulk
Sales or Transfers laws of the state of South Carolina. Toward that end
Envirometrics shall do all of the following:
(1) At Closing, Envirometrics shall deliver to MMI a list containing the
names and business addresses of all creditors--general or secured--with all
amounts owing and, in addition, the names of all persons known to be asserting
claims against Envirometrics, even if said claims are disputed. Envirometrics
shall affirm on the list that it is true and accurate to the best of
Envirometrics' knowledge, information and belief The list and affirmation shall
be in the form attached hereto as Exhibit F.
(2) At the same time, Envirometrics shall furnish MMI with a true and
accurate list of all names and business addresses used by Envirometrics within
the three years preceding this Agreement.
(3) Envirometrics shall cooperate with MMI in preparing a schedule of
property transferred in the form attached hereto as Exhibit G.
(4) Contemporaneously with the Closing, Envirometrics shall cooperate with
MMI in transmitting to each of Envirometrics' creditors, listed in Exhibit F, by
certified mail, return receipt requested, with the return receipts to be
addressed to MMI and/or MMI's attorney, a notice in the form attached hereto as
Exhibit H. In particular, without limiting the foregoing, Envirometrics shall
produce the requisite letters and envelopes, for signature by MMI.
(5) All proceeds of closing shall remain in escrow pending expiration of
the notice period under the South Carolina Bulk Sales Act without assertion of
any claims, and otherwise as provided in III.
(6) If Envirometrics fails to cooperate fully with MMI in effectuating
compliance with the Bulk Sales Act, or if any action is commenced by any
creditor against this transfer or either party to this Agreement, or if any levy
is made on the assets to be transferred, MMI may rescind the Agreement in whole
or in part.
M. Envirometrics has no written contracts or agreements with any customers
of the Business.
N. 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.
O. Envirometrics shall provide the following training, technical
assistance, and consultation for MMI subsequent to the Closing date:
At the request of MMI, Envirometrics' President and CEO, Xxxxxx X. "Skip"
Xxxxxxx, or his designee possessing equal or greater knowledge, shall come to
MMI's point of manufacture in New Hampshire for up to the cumulative amount of
five business days, consisting of one to two days when all of the molds,
tooling, equipment and other fixed assets are transferred to New Hampshire for
the purpose of assisting MMI in setting up the same and conducting initial
training; an additional period of up to two days after setup to continue
training; and a further day to analyze samples and otherwise assist in any final
training and/or quality control. Xxxxxxx shall be reasonably available to MMI
within the first two months after the equipment is transferred, including at the
time of transfer. MMI shall pay all of Xxxxxxx'x travel, lodging expenses, meals
and customary incidentals within forty-eight (48) hours after submission, but
shall not be responsible for any salary or other costs.
At no additional cost to MMI, Envirometrics shall train MMI personnel--up
to a maximum of two days--in quality control procedures for the Business related
to the Niosh 7400. Such training will take place, at MMI's request, subsequent
to the Closing date at Envirometrics' headquarters in Charleston, South
Carolina. MMI shall be responsible for all of the expenses of any employees sent
for training, but shall not otherwise pay any costs.
(3) In addition to the above, Envirometrics' personnel shall be available
to MMI, at reasonable cost, for future consulting if necessary.
P. Envirometrics makes no warranties to MMI other than those expressly set
forth herein.
V.
MMI's Covenants, Representations and Warranties
MMI covenants, represents and warrants to Envirometrics, which covenants,
representations and warranties shall survive the Closing and release of escrow,
that:
A. MMI is a corporation duly organized, validly existing and in good
standing under the laws of the State of New Hampshire.
B, MMI 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 ties Agreement is a valid and binding agreement of MMI,
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 MMI; (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 MMI is a party or by which MMI is bound; or
(3) violate or conflict with any other restriction of any kind or character to
which MMI 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 MMI 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. MMI has and will have funds available to pay all amounts due under this
contract.
F. MMI knows of no pending or threatened governmental 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 MMI which would affect MMI's ability to perform its obligations
hereunder.
G. Subsequent to closing and breaking of escrow, MMI reasonably shall
provide information and/or assistance to Envirometrics in Envirometrics'
collection of its outstanding accounts receivable.
H. No agent or broker or other persons acting pursuant to authority given
by MMI is entitled to any commission or finder's fee in connection with the
transaction contemplated by this Agreement.
VI.
Supply Agreement
Notwithstanding anything to the contrary, closing under this Agreement is
contingent upon MMI's ability to enter into a five (5) year supply agreement for
a certain mixed ester membrane, with Coming Costar Corporation, or a subsidiary
thereof, which agreement shall be to MMI's satisfaction.
VII.
Sales and Use Taxes
Envirometrics shall be responsible to pay all sales and use taxes which are
due as a result of the transfer and conveyances of any of the assets, and shall
indemnify and hold MMI harmless from any failure of Envirometrics to pay such
taxes when due.
VIII.
Business Transfer
A. Envirometrics and MMI shall agree prior to the Closing date upon the
text of. (I) a letter substantially in the form attached hereto as Exhibit I to
be delivered by Envirometrics on its letterhead and in its envelopes to MMI.
Said letters from MMI shall be addressed to each of Envirometrics' customers
which purchase the Business Products ("Customers"), advising such Customers of
the transfer of the Business from Envirometrics to MMI; and (ii) a letter
substantially in the form attached hereto as Exhibit J to be delivered by
Envirometrics on its letterhead and in its envelopes to each Envirometrics'
Materials Vendor. Said letters shall advise each said vendor of the transfer of
the tooling and other equipment located at their places of business to MMI. Said
letters shall be mailed by MMI upon breaking of escrow.
B. As soon as is practicable, but not more than ninety (90) days after
payment of the closing proceeds from escrow, MMI will modify all product
components, packaging, labeling, labels, brochures and sales aides bearing the
Envirometrics name or xxxx by use of stickers or other appropriate means,
provided, however: (i) that MMI may sell the assets purchased hereunder, and may
use the assets for production as is without making any modifications and without
being subject to the aforesaid time limitation except to sticker the outside of
the boxes or packages in which such products, parts or components are contained;
and (ii) has the fight to produce parts from molds acquired without removing the
Envirometrics xxxx and not more than one hundred eighty (180) days after
Closing, MMI shall remove the Envirometrics xxxx from all molds obtained
pursuant to this Agreement. In any event, all use of the Envirometrics name or
xxxx by MMI shall cease one (1) year from the date funds are paid out of escrow.
C. Neither MMI 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.
D. Envirometrics warrants that the written communications described in
IV L. are sufficient to effect compliance with the Bulk Sales or Transfer laws
of the state of South Carolina and that no other act or activity is necessary as
a condition of such compliance.
IX.
Indemnification and Insurance
A. Envirometrics shall release, defend, indemnify and hold harmless MMI,
its officers, directors and employees, from and against all expenses, costs,
liabilities and judgments (including reasonable attorneys' fees) arising from:
claims solely relating to Envirometrics' operation of the Business, including,
but not limited to claims by purchasers, alleged owners or users of Business
Products for bodily injury, death, physical or property damage, infringement of
intellectual property rights or loss of wages assertedly resulting from an
alleged defect in such products manufactured or sold by Envirometrics prior to
the date of final shipment of the 4,500 boxes referred to in III.A., supra,
and claims resulting from or based upon any breach by Envirometrics of any its
representations, covenants, representations, warranties or agreements contained
in this Agreement.
B. MMI shall release, defend, indemnify and hold harmless Envirometrics,
its officers, directors and employees, from claims solely relating to MMI's use
and/or placement of Envirometrics' name or xxxx on products manufactured by MMI
after the release of escrow, except to the extent that materials furnished
and/or sold by Envirometrics to MMI constitute a basis of any claim.
C. Envirometrics shall maintain all existing products liability insurance
for the benefit of both itself and MMI, for any claims arising out of
Envirometrics manufacture of product, and shall provide MMI with certification
at Closing that said insurance remains in force.
D. Envirometrics shall continue to maintain all of the assets on its
property and casualty insurance through the time when the same are shipped from
Charleston, South Carolina. Envirometrics shall maintain all risk of loss
associated with the assets until all of the same come into the physical
possession of MMI, or its carrier. Notwithstanding anything to the contrary,
Envirometrics shall continue to maintain risk of loss for the consignment
inventory (Exhibit B) until the same is sold by MMI or released to MMI on or
after December 31,1998.
E. In the event that any replacement claims are made by purchasers or users
of Business Products resulting from an alleged defect in such products
manufactured or sold by Envirometrics, MMI shall sell Envirometrics such
replacement products at a price of Twenty Per Cent (20%) over the MMI production
cost under terms of sale extended to MMI's best customers, not to exceed $13.50
per box except to the extent that MMI has actual production costs in excess of
said amount.
X.
Limitation of Liability
Except as expressly stated in this Agreement, neither party shall be liable
to the other for special or consequential damages, including but not limited to
lost profits, loss of goodwill, loss of reputation, impairment of other goods,
work stoppage or breach of other contract.
XI.
Further Assurances and Actions
Subject to the provisions of this Agreement, Envirometrics will execute all
documents and take all such further actions as MMI shall reasonably request, and
MMI will execute all documents and take all such other 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.
XII.
No Brokers
Envirometrics represents and warrants to MMI and MMI 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
XIII.
Non-Competition
A. Envirometrics agrees that, for a period of three (3) years after the
Closing date, neither it nor any branch, division or subsidiary company, nor any
of its officers, executives, managers, key employees, directors, or engineers,
will, directly or indirectly, engage in any business in the United States or
Canada which is substantially the same as or materially competitive with the
Business. For purposes of this Section, "Business" means the business of
manufacturing, marketing, selling or distributing products or components that
are used in the asbestos and/or lead air monitoring business.
B. Envirometrics recognizes and agrees (i) that is has been engaged in the
Business throughout the United States and Canada; (ii) that the covenant
contained in this Article is of the essence of this Agreement- (iii) that the
covenant is reasonable and necessary to protect and preserve the interests and
properties of MMI and the Business; (iv) that the covenant was not made under
duress; (v) that irreparable loss and damage will be suffered by MMI should
Envirometrics breach the covenant; (vi) that the covenant is separate, distinct
and severable from the remaining provisions of this Agreement; (vii) that, if
the covenant is found by a court of competent jurisdiction to be over broad in
any respect, Envirometrics desires that the covenant be amended by such court to
a reasonable breadth; (viii) that, in addition to other remedies available to
it, MMI shall be entitled to both temporary and permanent injunctions to prevent
a breach or contemplated breach by Envirometrics of the covenant; and (ix) that,
if MMI incurs any costs or expenses (including reasonable attorneys' fees) in
attempting to enforce the covenant, Envirometrics agrees to reimburse to MMI,
and indemnify MMI against, any such costs or expenses in the event MMI is
successful in such enforcement action or activities.
Conditions Precedent to Obligations of Parties
A. The obligation of MMI to purchase the assets is subject to the
fulfillment on or prior to the Closing date--or as of the time all funds come
out of escrow, 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 covenants contained herein to be performed as of the time of
Closing and/or as of the time of breaking of Escrow, and all of the
representations contained herein shall be true and accurate in all material
respects on, as of, and after the Closing date with the same effect as though
made on and as of the Closing date.
(2) No order of any court or governmental regulatory authority of body which
restrains or prohibits the transactions contemplated hereby shall be in effect
on the Closing date or the date that funds are to come out of escrow, and no
suit, proceeding, or investigation by a governmental 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 or the
Escrow Date.
B. The obligation of Envirometrics to execute and deliver the Xxxx of Sale,
attached hereto as Exhibit D, is subject to:
MMI 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/or
as of the time of breaking of Escrow, and all of the representations contained
herein shall be true and accurate in all material respects on, as of, and after
the Closing date with the same effect as though made on and as of the Closing
date.
No order of any court or governmental regulatory authority of body which
restrains or prohibits the transactions contemplated hereby shall be in effect
on the Closing date or the date that funds are to come out of escrow, and no
suite, proceeding, or investigation by an governmental 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 or the date
of release of funds from escrow.
XV.
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 and CEO
If to MMI: Multi-Metrics, Inc.
c/o Xxxxxxx X. Xxxxxx, President
X.0 Xxx 000
Xxxxxxxxxxx, XX 00000-0000
or at such other addresses as each such party may furnish to the other
parties in writing.
XVI.
Choice of Law
This Agreement shall be governed by and construed in accordance with the
laws of the state of New Hampshire, without regard to its conflicts of law
principles.
XVII.
Entire Agreement
This instrument constitutes the entire understanding between Envirometrics
and MMI 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 a writing executed by the duly authorized
officers of Envirometrics and MMI, 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 offices as of the date hereof
ENVIROMETRICS PRODUCTS COMPANY
By: Xxxxxx X. "Skip" Xxxxxxx
President and CEO
MULTI-METRICS, INC.
By:
Xxxxxxx X. Xxxxxx, President
JOINDER OF ENVIROMETRICS, INC. AND
XXXXXX X. "SKIP" XXXXXXX, PRESIDENT AND CEO
OF ENVIROMETRICS PRODUCTS COMPANY AND
ENVIROMETRICS, INC. IN CERTAIN PROVISIONS OF
ASSET PURCHASE AGREEMENT
In consideration of MMI's willingness to execute and proceed under the
above Asset Purchase Agreement, Envirometrics, Inc. and Xxxxxx X. "Skip" Xxxxxxx
join in all of the provisions of 13.A. and 13.B. of the Agreement relative to
noncompetition, agreeing to be bound thereby, and further agreeing that MMI
shall have the same remedies for breach by Envirometrics, Inc. and/or Xxxxxx X.
"Skip" Xxxxxxx of the provisions of 13.A. of the Agreement as provided in 13.B.
Envirometrics, Inc. and Xxxxxxx further agree that, at the request of MMI,
Xxxxxxx, or his designee possessing equal or greater knowledge, shall come to
Keene, New Hampshire for the cumulative amount of five business days, consisting
of one to two days when all of the molds, tooling, 6quipment and other fixed
assets are transferred to New Hampshire for the purpose of assisting MMI in
setting up the same and conducting initial training- an additional period of up
to two days after setup to continue training, and a further day to analyze
samples and otherwise assist in any final training and/or quality control.
Xxxxxxx (or his designee, as above) shall be reasonably available to MMI within
the first two months after the equipment is transferred, including at the time
of transfer. MMI shall pay all of Xxxxxxx'x (or his designee's) travel and
lodging expenses, meals and customary incidentals within 48 hours after
submission, but shall not be responsible for any salary or other costs.
Envirometrics, Inc. further joins in the provisions of the contract calling
for transfer of United States Patent No. 5,205,155 to MMI, and executes the
instruments of transfer pursuant to authority from its officers and directors.
ENVIROMETRICS, INC.
By:
Xxxxxx X. Skip" Xxxxxxx Duly Authorized
Xxxxxx X. "Skip" Xxxxxxx, Individually
EXHIBIT LIST TO ASSET PURCHASE AGREEMENT
Exhibit A Asset List
Exhibit B Consignment Inventory of Raw Materials, Finished Goods,
Packing and Supplies.
Exhibit C Assignment of U.S. Patent No. 5,205,155
Exhibit D Xxxx of Sale
Exhibit E Itemized, and Cost to MMI of, Envirometrics' Cassette Parts
Inventory
Exhibit F Certified List of Creditors
Exhibit G Schedule of Property
Exhibit H Form Notice of Bulk Transfer to Creditors
Exhibit I Customer Letter
Exhibit J Materials Vendor Letter
Exhibit K Letter from Precision
EXHIBIT A
ASSET LIST
TOOLING LIST
1-16 cavity mold to produce the 25 mm Conductive Air Monitor Inlet
I-1 6 cavity mold to produce the 25 mm Conductive Air Monitor Outlet
I-1 6 cavity mold to produce the 25 mm Conductive Air Monitor Extension All
available spares for the above molds and Q. C. go-no go gauge
1-DNE Jiffy Ejector with spares for the above molds
1-1O cavity mold to produce the Long Luer Plug
Laminar flow hood with table(2)
Pneumatic closing stations (2)
Air compressor
Hydraulic press with dies
Heat tunnel with conveyor for the individual cassettes
Back winding equipment with table
Packaging box
Heat tunnel for box of cassettes
Mold - Bellmouth 25 mm inlet, 8 cavity
Mold - Bellmouth 25 mm retainer, 8 cavity
Mold - Bellmouth 25 mm outlet, 8 cavity
Mold - Bellmouth 25 mm plug, 48 cavity
2. ASSEMBLY EQUIPMENT and MISCELLANEOUS
I Static Eliminators
4 Chairs
Miscellaneous table lights
Miscellaneous trays for parts
All Totes
I Rack with rollers for Totes
Miscellaneous tables
I Roll-around Cart
I Labeling machine
Any other tools, fixtures and equipment associated with the assembly process
(including remaining Corning Costar equipment)
All available mold drawings (originals, if available)
All products drawings - copies only (originals if available)
EXHIBIT B
EXHIBIT B
CONSIGNMENT INVENTORY OF RAW MATERIALS,
FINISHED GOODS, PACKING AND SUPPLIES
(ATTACHED)
(NOTE: Notwithstanding anything to the contrary, the counts on the attached list
may be modified by Envirometrics prior to shipment after the breaking of escrow,
with the final submitted counts to be confirmed by MMI upon receipt.)
EXHIBIT C
ASSIGNMENT OF U.S. PATENT NO. 5,205,155
WHEREAS, Envirometrics, Inc. a Delaware corporation with a place of
business at 0000 Xxxxxxxxxx Xxxx., Xxxxxxxxxx, XX 00000 (hereafter "Assignor")
hereby represents and warrants that it is the sole and exclusive owner of United
States Patent No. 5,205,155, issued April 27, 1993, entitled "Air Monitoring
Cassette" by virtue of a written assignment from the named inventor, Xxxxxxx X.
Xxxxxx, as recorded in the assignment Branch of the United States Patent and
Trademark Office; and
WHEREAS, Multi-Metrics, Inc. a New Hampshire corporation with a place of
business at 00 Xxxxxx Xxxxxx, Xxxxx, Xxx Xxxxxxxxx 00000 (hereafter "Assignee")
is desirous of acquiring the entire and exclusive right, title and interest in
and to said U.S. Patent No. 5,205,155;
NOW, THEREFORE, for good and valuable consideration, receipt of which is
hereby acknowledged by Assignor, Assignor hereby assigns, transfers and conveys
to Assignee all of Assignor's right, title and interest throughout the world
and to the U.S. Patent No. 5,205,155 and to all inventions described therein,
and all corresponding Letters Patent, whether U.S. or foreign, that are or may
be granted therefrom, including without limitation any extensions,
continuations, continuations-in-part, divisions, reissues and renewals thereof,
or other equivalents thereof
IN TESTIN0NY WHEREOF, the undersigned authorized representative of
Assignor has hereunto signed his name this 28th day of April, 1997.
ENVIROMETRICS, INC.
By: Xxxxxx Xxxxxxx III
Print Name:
Its:
EXHIBIT D
XXXX OF SALE
FOR VALUE RECEIVED, ENVIROMETRICS PRODUCTS COMPANY, a South Carolina
corporation (hereinafter called "Seller") has bargained, sold, conveyed,
assigned and delivered unto MULTI-METRICS, INC., a New Hampshire corporation
(hereinafter called "Purchaser"), pursuant to an Asset Purchase Agreement
between the parties dated April 28, 1997 (the "Agreement"), all of the assets,
rights and properties listed and described in Exhibits A and B, 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 Seller has taken no action that would give any party or entity any right or
interest in the Assets; that the purchase price for the Assets has been fully
paid- that there are no liens or encumbrances whatsoever affecting the Assets;
and that Seller will forever warrant and defend title to the Assets unto the
Purchaser, its successors and assigns.
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
Seller.
IN WITNESS WHEREOF, Seller has set its hand and seal this 28th day of April,
1997.
ENVIROMETRICS PRODUCTS COMPANY
By: Xxxxxx X. "Skip" Xxxxxxx, III
STATE OF SOUTH CAROLINA
COUNTY OF CHARLESTON
Subscribed and sworn to before me this 28th day of April, 1997 by Xxxxxx X.
"Skip 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
TOOLING LIST
1- 1 6 cavity mold to produce the 25 mm Conductive Air Monitor Inlet
1- 1 6 cavity mold to produce the 25 mm Conductive Air Monitor Outlet
1- 1 6 cavity mold to produce the 25 mm Conductive Air Monitor Extension
All available spares for the above molds and Q.C. go-no go gauge
1-DME Jiffy Ejector with spares for the above molds
1-10 cavity mold to produce the Long Luer Plug
Laminar flow hood with table (2)
Pneumatic closing stations (2)
Air compressor
Hydraulic press with dies
Heat tunnel with conveyor for the individual cassettes
Back winding equipment with table
Packaging box
Heat tunnel for box of cassettes
Mold - Bellmouth 25 mm inlet, 8 cavity
Mold - Bellmouth 25 mm retainer, 8 cavity
Mold - Bellmouth 25 mm outlet, 8 cavity
Mold - Bellmouth 25 mm plug, 48 cavity
ASSEMBLY EQUIPMENT and MISCELLANEOUS
1-Static Eliminators
4-Chairs
Miscellaneous table lights
Miscellaneous trays for parts
All Totes
1-Rack with rollers for Totes
Miscellaneous tables
1-Roll-around Cart
1-Label' machine
Any other tools, fixtures and equipment associated with the assembly process
(including remaining Corning Costar equipment)
All available mold drawings (originals, if available)
All products drawings - copies only (originals if available)
Exhibit A - continued
All price lists, materials vendors lists and costs, all literature and related
materials for the Business, and the comprehensive and complete customer lists
for the Business, showing both active and inactive accounts, aging trade
receivables, and order and payment history for all accounts.
All of Envirometrics' other assets of whatever nature and wherever situated,
including, but not limited to, books and records, prints, engineering data,
process information records, including operating instructions and process
sheets, bills of material, and mold drawings, solely related to the Business
together with all patents, copyrights, trademarks, service marks and any other
intellectual property rights associated with the records and drawings, and all
other assets, tangible or intangible, used in or for the manufacturing,
development, sales, and administrative operations of the Business.
EXHIBIT B TO XXXX OF SALE
ITEMIZED LIST AND COST TO MMI OF ENVIROMETRICS'
CASSETTE PARTS INVENTORY
(SEE ATTACHED)
(Note: Notwithstanding anything to the contrary, the counts on the attached list
may be modified by Envirometrics prior to shipment after the breaking of escrow,
with the final submitted counts to be confirmed by MMI upon receipt. MMI shall
only be responsible to pay Envirometrics for portions of the attached inventory
either used to manufacture cassettes shipped to MMI or otherwise transferred to
MMI pursuant to III B of the Agreement-)
25mm BellMouth Cassettes
On-hand Purchased Extended
Description Quantity Price Cost
Cassette Boxes 0.35
separators 0.209
Filter Material 9.27 -
Inlet 5,389 0,039 210.17
outlet 41,000 0-033 1,353.00
Retainer 12,389 0,039 483.17
Red Plug 0,009
Blue Plug 0-009
Labels 0.8 & 0.45 27,459 0,049 1,345.49
Support Pads 1.23
Warranty Sheets 0.04
Vinyl White Bands 0.00264
Vinyl Red Bands 0.00264
Case Boxes 0.82
Box Labels 0.008
Case Box Label 0.008
5mm Standard Cassettes
On-hand Purchase Extended
Description Quantity Price Cost
Cassette Boxes 675 0.35 236.25
Seperators 24,295 0.209 5,OT7.65
Filter Material 0 9.27
Inlet 217,152 0.022 4,777.34
Outlet 221,780 0.-023 5,100.94
Cowl 188,652 0.074 13,96025
Red Plug 191,000 0.009 1,719.00
Blue Plug 214,112 0.009 1,927.01
Labels 18,400 0,049 901.60
Support Pads 335 1.93 648.48
Warranty Sheets 30,416 0.04 1,218.64
Vinyl White Bands 156,000 0.00264 411.54
Vinyl Red Bands 22,000 0.00254 58-08
Case Boxes 750 0.82 615.00
B ox Labels 1,000 0.008 8.00
Case Box Label 100 0.008 0.80
EXHIBIT E
ITEMIZED LIST AND COST TO MMI OF ENVIROMETRICS'
CASSETTE PARTS INVENTORY
(SEE ATTACHED)
(NOTE: Notwithstanding anything to the contrary, the counts on the attached list
may be modified by Envirometrics prior to shipment after the breaking of escrow,
with the final submitted counts to be confirmed by MMI upon receipt. MMI shall
only be responsible to pay Envirometrics for portions of the attached inventory
either used to manufacture cassettes shipped to MMI or otherwise transferred to
MMI pursuant to III B of the Agreement.)
Final Revised Exhibit E Continued
25mm BellMouth Cassettes
On-hand Purchase Extended
Description Quantity Price $ Cost $
Cassette Boxes 0.35
Separators 0.209
Filter Material 9.27 -
Inlet 5,389 0.039 210.17
Outlet 41,000 0.033 1,353.00
Retainer 12,389 0.039 483.17
Red Plug 0.009
Blue Plug 0.009 -
Labels 0.8 & 0.45 25,156 0.049 1,232.64
Support Pads 1.93
Warranty Sheets 0.04
Vinyl White Bands 0.00264
Vinyl Red Bands 0.00264
Case Boxes 0.82
Box Labels 0.008
Case Box Label 0.008
3,278.99
Agreed to:
By: Xxxxxx X. "Skip" Xxxxxxx, III
For Envirometrics Products Company
By-. Xxxxxxx X. Xxxxxx
For Multi-Metrics, Inc.
Date
Final Revised Exhibit E to Asset Purchase Agreement
25mm Standard Cassettes
29-May-97
To Build Purchase Extended
Description 4060 Boxes Price $ Cost $
Cassette Boxes 175 0.35 61.25
Separators 4,060 0.209 848.54
Filter Material 0 9.27
Inlet 203,000 0.022 4,466.00
Outlet 203,000 0.023 4,669.00
Cowl 203,000 0.074 15,022.00
Red Plug 203,000 0.009 1,827.00
Blue Plug 203,000 0.009 1,827.00
Labels 20,300 0.049 994.70
Support Pads 262 1.93 505.66
Warranty Sheets 4,060 0.04 162.40
Vinyl White Bands 131,000 0.00264 345.84
Vinyl Red Bands 22,000 0.00264 58.08
Case Boxes 406 0.82 332.92
Box Labels 4,060 0.008 32.48
Case Box Label 406 0.008 3.25
31,156.12
Filter material used to build 500 boxes for EPC (877.50)
30,278.62
Agreed to:
By: Xxxxxx X. Xxxxxxx, III
For Envirometrics Products Company
By: Xxxxxxx X. Xxxxxx
For Multi-Metrics, Inc.
Date:
Final Revised Exhibit E
to Asset Purchase Agreement
25mm Standard Cassettes
On-hand Purchase Extended
Description Quantity Price $ Cost $
Cassette Boxes 0 0.35
Separators 19,735 0.209 4,124.62
Filter Material 0 9.27
Inlet 112,740 0.022 2,480.28
Outlet 93,000 0.023 2,139.00
Cowl 73,850 0.074 5,464.90
Red Plug 66,350 0.009 597.15
Blue Plug 149,840 0.009 1,348.56
Labels 0 0.049
Support Pads 0 1.93 -
Warranty Sheets 26,356 0.04 1,054.24
Vinyl White Bands 0 0.00264 -
Vinyl Red Bands 22,000 0.00264 58.08
Case Boxes 302 0.82 247.64
Box Labels 0 0.008
Case Box Label 0 0.008
17,514.47
Agreed to:
By: Xxxxxx X. "Skip" Xxxxxxx, III
For Envirometrics Products Company
By: Xxxxxxx X. Xxxxxx
For Multi-Metrics, Inc.
Date:
EXHIBIT F
CERTIFIED LIST OF CREDITORS
Envirometrics Products Company now manufactures and sells Environrnental
Air Monitoring Products from a principal place of business at 0000 Xxxxxxxxxx
Xxxxxxxxx, Xxxxxxxxxx, Xxxxx Xxxxxxxx 00000, and has entered into an Agreement
dated April 28, 1997 to sell certain assets related to manufacture and sale of
its asbestos and lead air monitoring products to Multi-Metrics, Inc. a New
Hampshire Corporation.
Envirometrics Products Company, by its President, Xxxxxx X. "Skip" Xxxxxxx,
III, duly authorized, represents that attached hereto are one list of the names
of all of its creditors with the amount due and owing to each, if known (and the
nature of the product, services, claim, etc.) and a second list of the addresses
of all said creditors.
Dated at Charleston, South Carolina this 28th day of April, 1997
ENVIROMETRICS PRODUCTS COMPANY
By:
Xxxxxx X. "Skip" Xxxxxxx, III
Duly Authorized
STATE OF SOUTH CAROLINA
CHARLESTON, SC.
Xxxxxx X. "Skip" Xxxxxxx, III, being duly sworn, deposes and says that he
is the President of Envirometrics Products Company and is duly authorized to
make all of the representations contained in this Affidavit and the list of
creditors to which it attaches; that the attached lists include a full,
accurate, and complete list of all the names and addresses of the creditors of
Envirometrics Products Company and, if listed, of its indebtedness to each; that
the foregoing statement includes a full, accurate, and complete list of all
persons now known to the despondent to assert claims against Envirometrics
Products Company even though such claims are disputed; and that the foregoing
statement is intended to be delivered to Multi-Metrics, Inc. in accordance with
request made under Section 6-104 of the South Carolina U
Xxxxxx X. "Skip" Xxxxxxx, III
Sworn to before me this 28th day of April, 1997
Notary Public
