Exhibit 10.11
ASSET ACQUISITION AGREEMENT
THIS ASSET ACQUISITION AGREEMENT (this "Agreement") is dated as of the
March 12, 1999, by and between NORDX/CDT, Inc., a corporation organized under
the laws of Canada ("Seller"), and Tech Laboratories Inc., a New Jersey
corporation ("Purchaser").
WHEREAS, Seller, in connection with the purchase of Northern Telecom Inc.'s
structured wiring business, acquired certain assets and technology for a switch
matrix intended to provide physical connectivity functions between networking
equipment and users (such product line, excluding the automated
telecommunications switching apparatus (referred to internally by Seller as
"DynaTrax II" or "DynaTraX Voice Technology") and Data Valet programs devolved
by Seller, is referred to herein as the "DynaTrax Product").
WHEREAS, Seller has ceased the development, manufacturing and sales of the
DynaTrax Product;
WHEREAS, Purchaser desires to purchase the assets relating to the DynaTrax
Product;
WHEREAS, it is the intention of the parties that the sale of assets be on
an "as is" basis, and that, following the Closing Date, Seller have no
involvement with Purchaser's development, manufacturing or sales efforts in
connection with the DynaTrax Product except in the limited manner specifically
set forth herein;
WHEREAS, Seller had desired to close the transactions in January, 1999; and
WHEREAS, Purchaser requested that Seller provide Purchaser with additional
time to close the transactions contemplated hereby.
NOW, THEREFORE, in consideration of the mutual covenants, representations
and warranties made herein, the parties agree as follows:
ARTICLE 1. SALE OF ASSETS AND LIMITED ASSUMPTION OF LIABILITIES.
1.1 Transferred Assets. Subject to the terms and conditions of this
Agreement, on the Closing Date (defined in Section 2.1), Seller shall sell,
transfer, convey, assign and deliver to Purchaser, and Purchaser shall purchase,
acquire and accept from Seller, all of the rights, title and interests of Seller
in and to the assets relating exclusively to the DynaTrax Product, other than
the Excluded Assets (defined in Section 1.2), as the same shall exist on the
Closing Date (collectively, the "Transferred Assets"), which assets are
comprised of the following:
(a) the equipment and other assets listed on Exhibit A hereto;
(b) the files relating to the development and manufacture of, and
sales efforts relating to, the DynaTrax Product, including customer and
supplier lists;
(c) marketing and promotional materials used exclusively for the
DynaTrax Product;
(d) all raw materials, work in progress and finished inventory of the
DynaTrax Product ("Inventory"); and
(e) the patents and patent applications set forth on Exhibit B; the
"DynaTrax" trademark and trade name described on Exhibit C, and all
goodwill associated therewith; the DynaTrax web site and related
intellectual property; and all trade secrets, confidential information,
ideas, formulae, compositions, know-how, manufacturing and production
processes and techniques, research information, drawings, specifications,
designs, plans, improvements, proposals, technical and computer data,
documentation and software all other know-how and intellectual property
rights and all tangible embodiments thereof exclusively relating to the
DynaTrax Product (the "Proprietary Rights").
1.2 Excluded Assets. Seller is not selling, and Purchaser is not
purchasing, any of the following assets relating to the DynaTrax Product, all of
which shall be retained by Seller (collectively, the "Excluded Assets"):
(a) 50 DynaTrax units (as defined below), subject to reductions as
contemplated by Section 2.4 (the "Retained Units");
(b) equipment and other items relating to the service lab listed on
Exhibit D (the "Service Lab assets");
(c) replacement parts described on Exhibit E;.
For purposes of clarity, the following assets are also not included in the
Transferred Assets:
(a) Seller's rights under this Agreement;
(b) Seller's financial and accounting records relating to the DynaTrax
Product and all records related to employees employed in connection with
the DynaTrax Product;
(c) warehouse storage or shipping equipment;
(d) wiring installed in, and other fixtures of, the DynaTrax
laboratories;
(e) Proprietary Rights relating exclusively to the automated
telecommunications switching apparatus (referred to internally by Seller as
"DynaTrax II" or "DynaTraX Voice Technology") and Data Valet; and
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(f) any refunds, rebates, recoveries or other financial items relating
to the period prior to the Closing Date.
1.3 Excluded Liabilities. Purchaser does not assume and shall not pay,
perform or discharge any Liabilities of Seller, including any liabilities or
obligations relating to DynaTrax units sold or installed by Seller prior to the
Closing Date ("Unassumed Liabilities").
ARTICLE 2. PURCHASE PRICE; CLOSING.
2.1 Closing. The closing of the transactions contemplated herein (the
"Closing") will take place at the offices of Seller at 10:00 a.m., local time,
on such date as specified by Purchaser, which date must be on or before April
30, 1999, or at such place or on such other date as Seller and Purchaser may
mutually agree in writing. Such date and time of Closing is herein referred to
as the "Closing Date."
2.2 Consideration for Signing Purchase Agreement. As consideration for
signing this Agreement, Purchaser shall pay to Seller (a) Two Hundred Thousand
Dollars ($200,000) on the date of this Agreement and (b) One Hundred Thousand
Dollars ($100,000) on or before March 31, 1999 (or, if earlier, the Closing
Date). Such amount shall be paid in immediately available funds to an account
specified by the Seller. Such amounts are consideration to Seller for entering
into this Agreement (including the provisions of Section 5.13) and agreeing to
delay closing of the purchase and sale, and shall be non-refundable (except as
set forth in Section 5.14).
2.3 Closing Payment and Documents. At the Closing, Purchaser shall deliver
Two Hundred Thousand Dollars ($200,000) to Seller by wire transfer of
immediately available funds as the purchase price for the Transferred Assets
and, upon receipt of such payment, Seller shall deliver to Purchaser (a) a xxxx
of sale for the Transferred Assets and (b) assignments of patents and
assignments of trademarks and trade names referred to on Exhibits B and C,
respectively. To the extent requested by Purchaser, Seller shall assist
Purchaser in filing such transfer documents in the appropriate jurisdictions;
provided that in the event that the cost to Seller of such assistance exceeds
$2,000, Purchaser shall upon demand reimburse Seller.
2.4 Post-Closing Sales. In the event orders for DynaTrax unit(s) are
received by Seller prior to the Closing Date, Seller may accept such orders and
fulfill them out of Retained Units (thereby reducing the number of Retained
Units included in the Excluded Assets), and Seller shall be entitled to retain
100% of the sales proceeds. Following the Closing Date, Seller shall have the
right to sell Retained Units in connection with the Data Valet program.
"DynaTrax unit" shall have the definition set forth in Exhibit G.
2.5 Pre-Closing Loss or Damage. Prior to the sale and transfer of the
Transferred Assets, Seller shall have no liability to Purchaser in connection
with any loss or damage to the Transferred Assets (including any casualty loss)
except to the extent provided under Section 5.14.
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2.6 Inventory. Attached hereto as Schedule 2.6 is Seller's most current
list of the Inventory (the "Estimated Inventory"). Prior to the Closing Date,
Seller shall present to Purchaser an updated Inventory (the "Updated
Inventory"). Seller shall permit a representative(s) of Purchaser to participate
in the taking of the Updated Inventory. Following the taking of the Updated
Inventory, Purchaser shall use reasonable efforts to keep the Updated Inventory
segregated from other assets of Seller.
ARTICLE 3. REPRESENTATIONS AND WARRANTIES OF SELLER. Seller hereby represents
and warrants to Purchaser the following:
3.1 Capacity. Seller has the legal right, power and capacity to execute,
deliver and perform this Agreement and the agreements, certificates and
instruments to be executed and delivered by Seller pursuant hereto.
3.2 Enforceability. The execution, delivery and performance by Seller of
this Agreement and all agreements, certificates and instruments to be executed
and delivered by Seller pursuant hereto, and the consummation by Seller of the
transactions contemplated hereby and thereby, have been duly authorized by all
requisite corporate action. This Agreement and the agreements, certificates and
instruments to be executed and delivered by Seller pursuant hereto have been
duly and validly executed and delivered by Seller to the extent a party thereto
and, to the extent a party thereto, constitute, the valid and legally binding
obligations of Seller enforceable against Seller in accordance with their
respective terms.
3.3 No Conflicts. The (a) execution, delivery and performance of this
Agreement by Seller do not, (b) execution, delivery and performance by Seller of
the agreements, certificates and instruments to be executed and delivered by
Seller pursuant hereto will not, and (c) consummation of the transactions by
Seller contemplated hereby and thereby will not, (i) conflict with, or result in
any violation of, the articles of incorporation or by-laws of Seller as the same
may have been amended or (ii) conflict with, result in a breach of any term of,
constitute a default under or result in the acceleration of any material
agreement, or any judgment, decree, order, statute, rule or regulation to which
Seller or any material portion of their assets is subject or bound. No consent
or authorization of or filing with any court or other governmental entity is
required of Seller in connection with Seller's execution, delivery or
performance of this Agreement.
3.4 Title. Seller has good and marketable title to all of the Transferred
Assets free and clear of all liens, security interests and other similar
encumbrances. Nothing in this Section 3.4 shall be deemed to be a representation
or warranty as to the validity or enforceability of any Proprietary Rights, the
condition of any assets or the existence of any quantities of inventory or other
equipment.
3.5 Sale on an "As Is" Basis. The sale of the Transferred Assets hereunder
is being made on an "as is" basis. Except for the specific representations and
warranties set forth in this Article 3, neither Seller, any of its affiliates
nor any of their officers, directors,
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employees, advisors or agents shall be deemed to have made any representation or
warranty regarding the Transferred Assets, and Seller expressly disclaims any
other representation or warranty of any kind, express or implied, arising by law
or custom, with respect to the Transferred Assets, including warranties of
merchantability; fitness for a particular purpose; non-infringement; validity or
enforceability of Proprietary Rights; condition of any of the Transferred
Assets; function, performance or salability of the DynaTrax Product; cost of
development, manufacturing or marketing of the DynaTrax Product; quantity or
condition of inventory; interest of potential or actual customers in the
DynaTrax Product; or any other matter.
ARTICLE 4. REPRESENTATIONS AND WARRANTIES OF Purchaser. Purchaser represents and
warrants to Seller as follows:
4.1 Existence; Good Standing; Corporate Authority. Purchaser is a
corporation duly incorporated, validly existing and in good standing under the
laws of the State of New Jersey. Purchaser has all requisite corporate power and
authority to execute, deliver and perform this Agreement and all other
agreements, certificates and instruments to be executed and delivered by it
pursuant hereto.
4.2 Enforceability. The execution, delivery and performance by Purchaser of
this Agreement and all agreements, certificates and instruments to be executed
and delivered by Purchaser pursuant hereto, and the consummation by Purchaser of
the transactions contemplated hereby and thereby, have been duly authorized by
all requisite corporate action. This Agreement and the agreements, certificates
and instruments to be executed and delivered by Purchaser pursuant hereto have
been duly and validly executed and delivered by Purchaser to the extent a party
thereto and, to the extent a party thereto, constitute, the valid and legally
binding obligations of Purchaser enforceable against Purchaser in accordance
with their respective terms.
4.3 No Conflicts. The (a) execution, delivery and performance of this
Agreement by Purchaser do not, (b) execution, delivery and performance by
Purchaser of the agreements, certificates and instruments to be executed and
delivered by Purchaser pursuant hereto will not, and (c) consummation of the
transactions by Purchaser contemplated hereby and thereby will not, (i) conflict
with, or result in any violation of, the articles of incorporation or by-laws of
Purchaser as the same may have been amended or (ii) conflict with, result in a
breach of any term of, constitute a default under or result in the acceleration
of any material agreement, or any judgment, decree, order, statute, rule or
regulation to which Purchaser or any material portion of their assets is subject
or bound. No consent or authorization of or filing with any court or other
governmental entity is required of Purchaser in connection with Purchaser's
execution, delivery or performance of this Agreement.
4.4 Diligence. Purchaser has conducted such due diligence as it deems
necessary in connection with the transactions contemplated hereby. Except as
specifically set forth in Article 3, no representation or warranty has been made
to Purchaser, any its affiliates,
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or any officer, director, employee, agent or advisor to Purchaser or its
affiliates, in connection with the Transferred Assets, this Agreement or the
transactions contemplated hereby.
ARTICLE 5. CERTAIN OTHER AGREEMENTS.
5.1 Expenses. Each of the parties hereto agrees to bear its own transaction
expenses and brokerage fees in connection with the transactions contemplated
hereby.
5.2 Transfer Taxes. Purchaser shall pay any sales or other transfer taxes
relating to the transfer of the Transferred Assets.
5.3 Removal of Assets. Within 30 days following the Closing Date, Purchaser
shall cause any Transferred Assets located in any of Seller's premises to be
removed at the cost of Purchaser; provided that if events beyond the reasonable
control of Purchaser prevent such removal during such 30 day period, Seller
shall extend such period for a reasonable period. Any such removal shall be
coordinated with Seller so as not to disrupt any production or other activity of
Seller. Purchaser shall be liable for any damage caused to Seller's premises in
connection with such removal. Purchaser shall bear the risk of loss or damage of
any such Transferred Assets prior to such removal from Seller's premises, except
for any loss or damage caused by Seller's gross negligence or willful
misconduct.
5.4 No License of Seller's Intellectual Property Rights. Nothing in this
Agreement or otherwise shall be deemed to grant to, or establish in, Purchaser
or any of its affiliates a license or other right to any trade name, trademark,
service xxxx or other similar right of Seller or its affiliates, except the
Trademark. Without limiting the foregoing, (a) any references to "NORDX/CDT" or
any of its affiliates (including any trade names or trademarks of Seller or its
affiliates) in or on any of the Transferred Assets shall, at Purchaser's cost,
be removed or permanently covered and (b) Purchaser shall not make references to
Seller or its affiliates (including any references to the limited support
contemplated by Section 5.6) in any of its marketing, promotional or other
activities relating to the Transferred Assets. In the event that the action
required by clause (a) of the prior sentence are not possible with respect to
any Transferred Asset, such Transferred Asset shall be destroyed by Purchaser
at, Purchaser's cost and without recourse to Seller or its affiliates. This
Section 5.4 shall not prevent press releases as provided in Section 6.6.
5.5 License by Purchaser. Effective on the Closing Date, Purchaser grants
to Seller a non-exclusive, royalty free license, to use the Proprietary Rights
contained in the Transferred Assets in connection with the service of any
DynaTrax Products sold or installed prior to the Closing Date and in connection
with any sales contemplated under Section 2.4. The license contained in this
Section 5.5 shall be for a period of 2 years from the Closing Date.
5.6 Limited Post-Closing Service. To the extent the necessary resources are
available (including knowledgeable personnel) and it does not divert resources
from other activities of Seller (in each case, determined in Seller's sole
discretion), following the Closing
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Date, Seller will provide Purchaser with post-installation service support using
the Service Lab assets for a period up to the date on which Seller offers to
sell the Service Lab assets to Purchaser in accordance with Section 5.7, which
service is intended to be required on an infrequent basis. Such assistance shall
be limited to service that Seller is able to be performed from its premises
using available equipment. Seller has no obligation to retain personnel or
maintain the Service Lab assets. Purchaser shall pay Seller $75 per hour for
such assistance (provided that such amount shall be adjusted in good faith to
reflect any increases in the costs of providing such assistance). Seller shall
have no liability to Purchaser or any third party for any such service provided,
and Purchaser shall indemnify and hold Seller, its affiliates and their
officers, directors, employees, agents and advisors harmless from any and all
losses, claims, actions, damages and liabilities, and any and all out-of-pocket
costs and expenses, including reasonable attorneys' fees and disbursements and
costs of investigation (collectively, "Losses") arising from or relating to
providing such service, except to the extent a court of competent jurisdiction
determines that such Losses were the result of Seller's gross negligence or
willful misconduct.
5.7 Purchase of the Service Lab assets; Access by Purchaser.
(a) Upon Seller's determination that any commitment (legal or
otherwise) relating to DynaTrax Products sold or installed prior to the
Closing Date have ceased, Seller will offer to sell the Service Lab assets
(as described on Exhibit D) to Purchaser (in such condition or state as
they shall then exist) for an amount equal to $100; provided that Seller
will offer such assets no later than December 31, 1999. Purchaser may
accept such offer during the 30 days after such offer is made, and must
close such purchase within 30 days following such acceptance. Any sale of
such assets shall be on an "as is" basis, without representation or
warranty and subject to terms similar to those set forth herein with
respect to the Transferred Assets (excluding Section 5.6). Nothing in this
Section 5.7 shall be deemed to require Seller to service or maintain the
Service Lab assets, or make Seller liable for any loss or damage relating
thereto; provided that in the event of a casualty event relating to such
assets for which Seller has third party insurance, Seller shall, upon
recovery of any such insurance proceeds (reduced by the amount of any
self-insurance or deductible or costs associated with such recovery),
either (i) use such insurance proceeds, to the extent available, to replace
the Service Lab assets (which shall remain subject to this purchase option)
or (ii) turn such proceeds over to the Purchaser, net of the $100 purchase
price. Seller shall not be liable in the event such proceeds are not
available for any reason.
(b) Following the Closing Date and prior to the time when Seller
offers to sell the Service Lab assets to Purchaser, Seller shall permit
Purchaser reasonable access to such Service Lab assets so that Purchaser
may service its customers. Purchaser shall comply with such rules,
regulations and procedures regarding security, access, number of persons
having access, visitors, types of activities which may be carried on and
other reasonably related matters as designated by Seller from time to time.
Seller shall not be responsible or liable for any of Purchaser's employees
or invitees (including any injury or death thereto) or any use or non-use
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of the Service Lab assets by Purchaser, and Purchaser shall indemnify and
hold Seller harmless from any liability relating thereto.
5.8 Service Obligation of Tech Labs. At the request of Seller,
Purchaser will offer to any persons or entities that purchased DynaTrax Products
prior to the Closing Date service of such DynaTrax Products at a level, priority
and cost commensurate with service provided to any purchasers or users of the
DynaTrax Products after the Closing Date.
5.9 Retained Units. The handling, location and other matters relating to
the Retained Units are described on Exhibit F.
5.10 Prohibition on Hiring Seller's Employees. Without Seller's consent,
for a period of two years following the date hereof, Purchaser shall not (a)
induce or attempt to induce any person employed by Seller or its affiliates on
the date hereof to leave the employ of Seller or such affiliate, or in any way
interfere with the relationship between Seller or such affiliate and any
employee thereof or (b) hire directly or through another entity any person who
is an employee of Seller or its affiliates on the date hereof.
5.11 Indemnification. Purchaser shall indemnify and hold Seller, its
affiliates and their officers, directors, employees, agents and advisors
harmless from any Losses arising out of (a) the breach by Purchaser of any
covenant, representation or warranty set forth herein or (b) any activities of
Purchaser or its affiliates in connection with the DynaTrax Product, including
marketing efforts, sales, installations or other activities of Purchaser in
connection with the DynaTrax Product, or any DynaTrax Product sold by Purchaser.
Seller shall indemnify and hold Purchaser, its affiliates and their officers,
directors, employees, agents and advisors harmless from any Losses arising out
of (a) the breach by Seller of any covenant, representation or warranty set
forth herein or (b) any Unassumed Liability.
5.12 Litigation Support. In the event and for so long as any party to this
Agreement is actively contesting or defending against any third party action,
suit, proceeding, hearing, investigation, charge, complaint, claim or demand in
connection with any fact, situation, circumstance, status, condition, activity,
practice, plan, occurrence, event, incident, action, failure to act, or
transaction, with respect to the Transferred Assets, the party not so contesting
or defending agrees to (a) use reasonable efforts to make available employees,
as reasonably necessary, to provide testimony, to be deposed, to act as
witnesses and to assist counsel and (b) provide reasonable access to its books
and records relating to the Transferred Assets (to the extent it has any such
books and records) as may be reasonably necessary in connection with the defense
or contest, all at the sole cost and expense of the contesting or defending
party (including the cost of any legal advice or support in providing such
access or information).
5.13 Exclusivity. Neither Seller nor any of its affiliates or their
employees, officers, directors or agents will solicit, initiate, encourage or
discuss any proposal or offer from any person (other than Purchaser) relating to
the sale of the Transferred Assets, or provide any confidential information
relating thereto after the date hereof and until the termination of this
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Agreement pursuant to Section 5.14; provided that this Section 5.13 shall not
prohibit sales of DynaTrax units as contemplated in Section 2.4.
5.14 Termination. This Agreement may be terminated:
(a) by mutual written consent of the Seller and Purchaser;
(b) by Purchaser if there is any material change between the Estimated
Inventory and the Updated Inventory (which shall be reported promptly) or
any material damage or loss to the Transferred Assets between the date
hereof and the Closing Date (including any material discrepancy from the
Updated Inventory); or
(c) by Seller if Purchaser fails to make the payment contemplated by
Section 2.2.
In the event of any termination of pursuant to clauses (a) or (c) of this
Section 5.14, the payments made pursuant to Section 2.2 shall be retained by
Seller unless, in the case of clause (a), otherwise agreed by Seller and
Purchaser. In the event of any termination pursuant to clause (b) of this
Section 5.14, the payments made pursuant to Section 2.2 shall be promptly
returned to Purchaser.
ARTICLE 6. MISCELLANEOUS.
6.1 Dollar Amounts. All currency amounts set forth herein are United States
dollars.
6.2 Notice. Any notice required or permitted hereunder shall be in writing
and shall be sufficiently given if personally delivered, sent by nationally
recognized overnight courier, faxed or mailed by certified or registered mail,
return receipt requested, addressed as follows:
If to Seller:
NORDX/CDT, Inc.
0000 Xxxxxxx Xxxx.
Xxxxxx-Xxxxxx, Xxxxxx X0X 0X0
Fax: (000) 000-0000
Attn: Chief Financial Officer
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with a copy to:
Cable Design Technologies Corporation
Xxxxxx Plaza 7
000 Xxxxxxxx Xxxxx
Xxxxxxxxxx, Xxxxxxxxxxxx 00000
Fax:(000) 000-0000
Attn:General Counsel
If to Purchaser:
Tech Laboratories Inc.
000 Xxxxxxx Xxxxxx
Xxxxx Xxxxxxx, X.X. 00000
Fax: (000) 000-0000
Attn:President
with a copy to:
Stursberg & Xxxxx
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, X.X. 00000
Fax: (000) 000-0000
Attn: Xxxxxx Xxxxxxxxx
(or to such other address as any party shall specify by written notice so
given), and shall be deemed to have been delivered as of the date so personally
delivered, one day following deposit with a nationally recognized overnight
courier (with all delivery charges prepaid), upon the sending machine's
confirmation of receipt by the receiving fax machine if faxed or three days
following mailing if mailed (postage prepaid).
6.3 Execution of Additional Documents. The parties hereto will at any time,
and from time to time after the Closing Date, upon request of another party,
execute, acknowledge and deliver all such further assignments, transfers and
assurances as may be required to carry out the intent of this Agreement, and to
transfer and vest title to any Transferred Assets, and to protect the right,
title and interest in and enjoyment of all of the Transferred Assets sold,
assigned, transferred and delivered pursuant to this Agreement, provided,
however, that this Agreement shall be effective regardless of whether any such
additional documents are executed.
6.4 Binding Effect; Benefits; Assignment. This Agreement shall be binding
upon and shall inure to the benefit of the parties hereto and their respective
heirs, executors, administrators, successors and permitted assigns. Except as
specifically provided herein, nothing in this Agreement is intended to confer on
any person other than the parties hereto or their respective heirs, executors,
administrators, successors and permitted assigns any rights, remedies,
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obligations or liabilities under or by reason of this Agreement. Nothing
contained herein shall restrict Purchaser's ability to assign any or all of its
rights hereunder.
6.5 Limitation of Damages. Under no circumstances shall any party hereto be
liable to the other party for any consequential or special damages (including,
without limitation, loss of profits, damage to business reputation or damage to
systems or components), excluding in the case of any indemnification by
Purchaser of Seller, any such damages that are asserted by a third party against
Seller, its affiliates or any of their officers, directors, employees, agents or
advisors. In no event will Seller have any liability to Purchaser under or in
connection with this Agreement in excess of the amounts actually paid to
Purchaser pursuant to this Agreement.
6.6 Press Releases and Public Announcements. No party shall issue any press
release or make any public announcement relating to the subject matter of this
Agreement without the prior written approval of the other party, which approval
will not be unreasonably withheld.
6.7 Entire Agreement. This Agreement, together with the Exhibits, Schedules
and other documents executed and delivered pursuant hereto, constitute the final
written expression of all of the agreements between the parties, and is a
complete and exclusive statement of those terms, superseding all understandings
and negotiations concerning the subject matter hereof. Any representations,
promises, warranties or statements made by any party that differ in any way from
the terms of this written Agreement, and the Exhibits, Schedules and other
documents executed and delivered pursuant hereto, shall be given no force or
effect. The parties specifically acknowledge and agree that there are no
additional or supplemental agreements between them related in any way to the
matters herein contained. No addition to or modification of any provision of
this Agreement shall be binding upon any party unless made in writing and signed
by the parties against whom enforcement is sought.
6.8 Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York exclusive of the conflict of
law principles thereof.
6.9 Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original but all of which shall
constitute one and the same instrument.
6.10 No Strict Construction. The language used in this Agreement will be
deemed to be the language chosen by the parties hereto to express their mutual
intent, and no rule of strict construction shall be applied to this Agreement.
6.11 Severability. If for any reason whatsoever, any one or more of the
provisions of this Agreement shall be held or deemed to be inoperative,
unenforceable or invalid as applied to any particular case or in all cases, such
circumstances shall not have the effect of
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rendering such provision invalid in any other case or of rendering any of the
other provisions of this Agreement inoperative, unenforceable or invalid.
6.12 Delivery by Facsimile. This Agreement, any signed agreement or
instrument entered into pursuant to this Agreement, and any amendments hereto or
thereto, to the extent signed and delivered by means of a facsimile machine,
shall be treated in all manner and respects as an original agreement or
instrument and shall be considered to have the same binding legal effect as if
it were the original signed version thereof delivered in person. At the request
of any party hereto or to any such agreement or instrument, each other party
hereto or thereto shall re-execute original forms thereof and deliver them to
all other parties. No party hereto or to any such agreement or instrument shall
raise the use of a facsimile machine to deliver a signature or the fact that any
signature or agreement or instrument was transmitted or communicated through the
use of a facsimile machine as a defense to the formation of a contract and each
such party forever waives any such defense.
6.13 Gender; Number. The use of the masculine, feminine or neuter pronoun
herein shall not be restrictive as to gender, and the use of the singular or
plural herein shall not be restrictive as to number, but shall be interpreted in
all cases as the context may require.
6.14 Interpretation. When a reference is made in this Agreement to a
Section, Subsection, Exhibit or Schedule, such reference shall be to a Section,
Subsection, Exhibit or Schedule of this Agreement unless otherwise indicated.
The headings contained in this Agreement are for reference purposes only and
shall not affect in any way the meaning or interpretation of this Agreement. As
used herein, the term "include" or "including" shall be deemed to be followed by
"without limitation."
* * * * *
IN WITNESS WHEREOF, the parties have executed this Agreement and caused the
same to be duly delivered on their behalf on the day and year hereinabove first
set forth.
NORDX/CDT, INC.
By: /s/
-----------------------------
Name:
Its:
TECH LABORATORIES INC.
By: /s/ Xxxxxxx X. Xxxxxxxx
-----------------------------
Name: Xxxxxxx X. Xxxxxxxx
Its: President
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EXHIBIT F
25 completed DynaTrax units will be retained by Seller on Closing Date; provided
that in the event Retained Units are sold prior to the Closing Date, such number
shall be reduced by the number of such sold units. The remaining Retained Units
shall be held by Purchaser for the benefit of the Seller (provided such units do
not need to be fully assembled until such time as they are shipped to the Seller
and provided further that Purchaser may substitute newly manufactured DynaTrax
units for units held on behalf of Seller).
Promptly following notice from Seller that Seller has sold DynaTrax units,
including sales prior to the Closing Date (which notice does not need to be
given immediately following a sale), Purchaser shall, without any cost to
Seller, ship to Seller a number of completed DynaTrax units equal to the number
of units sold by Seller, but in no event more than the total number of Retained
Unites held for the benefit of Seller by Purchaser (i.e., the 50 units less the
number sold by Seller prior to the Closing Date less the number retained by
Seller on the Closing Date). Seller's request for replacement shall be made at
reasonable times and with reasonable notice taking into account the demand of
Seller and Purchaser and the completed DynaTrax unit inventory levels of Seller
and Purchaser.
Purchaser shall, without charge, provide to Seller and Seller's purchasers with
its customary warranty and service.
On June 30, 2000, Purchaser may purchase from Seller any unsold Retained Units
(including any units that are held by Purchaser on behalf of Seller) for a cash
purchase price of $5,000 per unit, on an "as is basis." In the event that such
units are not purchased by Purchaser, the number of units then held by Purchaser
shall be promptly delivered to Seller in a completed form.
