STOCK PURCHASE AGREEMENT
By and Among
HOLOMETRIX, Inc.
and
National Metal Refining Company
and
Xxxxx X. Xxxxxx and Xxxxx X. Xxxxxxx
Dated as of September 30 , 1996
TABLE OF CONTENTS
1. Closing. 2
2. Purchase Price-Undertaking to Assist in Obtaining
Line of Credit. 2
3. Warrants. 3
4. Delivery of Nametre Shares and Warrants-Payment. 3
5. Representations and Warranties of The Major
Stockholders. 3
5.1 Corporate Status of Nametre. 3
5.2 Capitalization of Nametre. 3
5.3 Ownership and Restrictions. 4
5.4 Subsidiaries. 4
5.5 Title to Nametre Common Stock. 4
5.6 Necessary Permits; Regulatory Approvals. 4
5.7 Patents and Trademarks. 5
5.8 No Proceedings Asserted or Pending. 5
5.9 Correct Records. 5
5.10 Tax Matters. 6
5.11 Non-Contravention. 7
5.12 No Governmental Investigations. 7
5.13 Union Contracts. 7
5.14 Employee Benefit Plans. 8
5.15 Financial Statements. 8
5.16 Title to and Condition of Property. 9
5.17 No Dividends or Payment of Debt. 9
5.18 No Employee Actions. 9
5.19 No Adverse Communication. 10
5.20 Insurance Policies. 10
5.21 Contracts and Commitments. 10
5.22 No Violations or Pending Litigation. 11
5.23 No Change. 12
5.24 Preservation of Nametre Goodwill. 13
5.25 Brokerage Fee. 13
5.26 Authorization of Nametre and Major Stockholders. 13
5.27 Undisclosed Liabilities. 13
5.28 Disclosure by Major Stockholders. 14
5.29 Furnishing of Information to HOLOMETRIX. 14
5.30 Insider Interests. 14
5.31 Environmental Matters. 14
5.32 Backlog. 14
5.33 Product Liability. 15
5.34 Warranties True on Closing Date. 15
6. Representations and Warranties of HOLOMETRIX. 15
6.1 Corporate Status of HOLOMETRIX. 15
6.2 No Proceedings Asserted or Pending. 15
6.3 No Governmental Investigations. 16
6.4 Authorization of HOLOMETRIX. 16
6.5 Disclosure by HOLOMETRIX. 16
6.6 Furnishing of Information to Nametre and Major
Stockholders. 16
6.7 Warranties True on Closing Date. 17
7. Conduct of Business Prior to Closing Date. 17
8. Access and Information. 17
9. Conditions to Obligations of HOLOMETRIX. 18
9.1 Major Stockholders' Representations, Warranties,
Covenants and Agreements True on Closing Date. 18
9.2 Compliance with Agreement. 18
9.3 No Litigation. 18
9.4 No Casualty. 18
9.5 No Adverse Change. 18
9.6 Proceedings and Instruments Satisfactory. 19
9.7 Certificate of Fulfillment of Conditions. 19
9.8 Opinion of Counsel. 19
9.9 Consents. 20
9.10 Consents of Creditors. 20
9.11 Resolutions. 21
9.12 Certificates of Good Standing. 21
9.13 No Change in Nametre Capitalization. 21
9.14 All Authorizations. 21
9.15 Receipt of the Majority of Nametre Common Stock. 22
9.16 Employment Agreements. 22
10. Conditions to Obligations of Nametre and Major
Stockholders. 22
10.1 HOLOMETRIX' Representations, Warranties, Covenants.
and Agreements True on Closing Date. 22
10.2 Compliance With Agreement. 22
10.3 Proceedings and Instruments Satisfactory. 22
10.4 Certificate of Fulfillment of Conditions. 22
10.5 Delivery of Purchase Price. 23
10.6 Opinion of Counsel. 23
11. Major Stockholders' Indemnity Agreement. 23
12. HOLOMETRIX' Indemnity Agreement. 24
13. Survival of Obligations. 24
14. Claims Procedure. 24
15. Courts of Law and Consent to Jurisdiction. 25
15.1 Service of Process. 25
16. Termination and Abandonment. 25
17. Transaction Expenses. 26
18. Notices. 26
19. Entire Agreement. 27
20. Assignment. 27
21. Successors. 27
22. Counterparts. 27
23. Applicable Law. 27
24. Titles. 27
25. Severability. 27
26. Public Disclosure. 27
27. Election of HOLOMETRIX' Nominee Directors. 28
28. Receipt of Information: Disclosure of Conflicts. 28
Exhibits
1.0 Escrow Agreement
2.1 HOLOMETRIX Note
3.0 Warrants
5.1 Nametre's Articles of Association
5.2 Capitalization of Nametre
5.3 Ownership and Restrictions
5.4 Nametre Subsidiaries
5.5 Title to Nametre Common Stock
5.6 Nametre Permits
5.7 Patents and Trademarks
5.10 Tax Returns
5.11 Non-Contravention
5.12 Nametre Governmental Investigations
5.13 Union Contracts
5.14 Employee Benefit Plans
5.15 Consolidated Financial Statements of Nametre
5.16 Schedule and Description of Real Property Owned or Leased by
Nametre
5.17 Dividends or Payment of Debt
5.18 Employee Actions
5.19 Adverse Communication
5.20 Insurance Policies
5.21 Contracts and Commitments
5.22 Violations or Pending Litigation
5.23 Operations of Nametre and the Business
5.27 Undisclosed Liabilities
5.30 Insider Interests
5.31 Environmental Matters
5.32 Backlog
5.33 Product Liability
6.3 HOLOMETRIX Governmental Investigations
9.17 Employment Agreements
STOCK PURCHASE AGREEMENT
This is a Stock Purchase Agreement ("Agreement") dated as of the
30th day of September, 1996 by and among:
HOLOMETRIX, Inc. a corporation organized under the laws of
Delaware with its principal place of business in Bedford,
Massachusetts ("HOLOMETRIX");
and
National Metal Refining Company, a corporation organized under the
laws of New Jersey with its principal place of business in
Metuchen, New Jersey. ("Nametre")
and
Xxxxx X. Xxxxxx and Xxxxx X. Xxxxxxx, certain stockholders of
Nametre; on the date of this Agreement and on the Closing Date
collectively being the owners of a total of sixty-one and 36/100
per cent (61.36%) of the issued and outstanding shares of common
stock of Nametre ("Major Stockholders");
WHEREAS, Nametre is engaged in the business of developing,
manufacturing, marketing, and selling certain viscosity measuring
equipment for on-line process control and laboratory rheology
studies ("Business"); and
WHEREAS, HOLOMETRIX and Nametre have determined that the
Business will complement the thermal property measuring business
activities currently being conducted by HOLOMETRIX; and
WHEREAS, HOLOMETRIX, in accordance with the above
determination desires to purchase ("Acquisition") an amount
sufficient to constitute a majority, (on a fully-diluted basis),
of the authorized shares of the capital stock of Nametre which
sufficient amount Nametre and the Major Stockholders and
HOLOMETRIX have agreed shall equal One Hundred Twenty Thousand
(120,000) shares ("Majority of Nametre Common Stock"); and
WHEREAS, Nametre desires to sell to HOLOMETRIX that number of
shares to assure that, following the Acquisition, HOLOMETRIX will
own the Majority of Nametre Common Stock (on a fully-diluted
basis); and
WHEREAS, Major Stockholders believe that the Acquisition
would benefit Nametre and desire that it occur.
NOW THEREFORE, in consideration of the premises and the
mutual covenants, agreements and provisions herein contained, and
for the purpose of consummating this Agreement and completing the
Acquisition, the parties hereto do hereby agree as follows:
I. Closing. The exchange of the Majority of Nametre Common Stock
(and certain Warrants as described below) for the Purchase Price
("Closing"), together with the execution of an escrow agreement in
the form of Exhibit 1.0, shall take place at the offices of
HOLOMETRIX, on Monday, September 30,1996 or such other time or
place as may be agreed upon by the parties. The actual date on
which the Closing shall occur is referred to herein as the
"Closing Date".
2. Purchase Price-Undertaking to Assist in Obtaining Line of
Credit. The purchase price ("Purchase Price") for the Majority of
Nametre Common Stock shall be Three Hundred Thousand Dollars
($300,000), which, based on a Closing Date of September 30, 1996 ,
shall be payable as follows :
Date Amount
Closing Date $225,000*
February 28, 1997 $ 25,000
May 31, 1997 $50,000
Total $300,000
*In addition to the amount of $175,000 to be paid at the
Closing, $50,000 has already been advanced ("Advance") to Nametre
by HOLOMETRIX as evidenced by a promissory note ("Nametre Note"),
with Nametre as Borrower and HOLOMETRIX as Payee dated June 24,
1996. At the Closing, the Advance will be applied as a part of
the payment to be made by HOLOMETRIX, so that, in addition to the
above payment to Nametre of $175,000 HOLOMETRIX will deliver to
Nametre the Nametre Note marked "Canceled-Paid in Full" so that at
the Closing Nametre will effectively receive $225,000.
Should the Closing Date occur later than September 30,1996
the above payment dates will be appropriately amended to reflect
that later closing time.
In Addition to the payment of the Purchase Price, in further
consideration of the Acquisition, HOLOMETRIX shall, no later than
the Closing Date use its best efforts to assist Nametre in
arranging for a line of credit ("Credit Line") to be extended to
Nametre in the minimum amount of One Hundred and Fifty Thousand
Dollars ($150,000). This effort shall include, without limiting,
introductions to HOLOMETRIX' bankers, Silicon Valley Bank and
other appropriate support.
3. Warrants. At the Closing, Nametre will issue two (2) sets of
warrants, substantially in the form of Exhibit 3.0 annexed hereto
and made a part, hereof ("Warrants") to HOLOMETRIX to purchase
additional shares of common stock of Nametre as follows: (i) one
set of Warrants shall be for Thirteen Thousand, Three Hundred
Thirty Four (13,334) shares at a strike price of Three Dollars
($3.00) per share and will be exercisable in whole or in part on
any one or more occasions between the third and eighth years
("Exercise Period") following the Closing (these Warrants shall
also provide that at any time during the Exercise Period [
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provided the Warrants have not been previously exercised ] Major
Stockholders, (acting through a representative upon whom they have
both agreed and whom they have identified to HOLOMETRIX pursuant
to the notice provisions of this Agreement) may direct Nametre to
"put" the Warrants to HOLOMETRIX and require that HOLOMETRIX
exercise those Warrants and make payment of the strike price) ;
and (ii) a second set of Warrants shall be for Ten Thousand
(10,000) shares at a strike price of Six Dollars ($6.00) per share
and will also be exercisable in whole or in part on any one or
more occasions during the Exercise Period. This second set of
Warrants will not contain the "put" provision set forth in (i)
above.
4. Delivery of Nametre Shares and Warrants- Payment of Purchase
Price. At the Closing, Nametre shall deliver One Hundred and
Twenty Thousand (120,000) shares of Nametre Common Stock and the
Warrants to HOLOMETRIX in exchange for the cash payment by
HOLOMETRIX to Nametre of a portion of the Purchase Price equaling
One Hundred Seventy Five Thousand Dollars ($175,000), and delivery
by HOLOMETRIX to Nametre of the HOLOMETRIX Note. (Insert escrow
language that Xxxx Xxxxx is drafting including the fact that even
though stock is in escrow Holometrix must have all the incidents
of ownership i.e. voting)
5. Representations and Warranties of Major Stockholders: As an
inducement to HOLOMETRIX, to enter into and to consummate this
Agreement, the Major Stockholders jointly and severally
represent, warrant, covenant and agree with and to HOLOMETRIX, as
of the date hereof and as of the Closing Date as follows:
5.1 Corporate Status of Nametre. Nametre is a corporation
duly organized, validly existing and in good standing under the
laws of New Jersey and has all requisite corporate power and
authority to own, lease and operate its properties and assets and
to carry on the Business. Nametre is duly qualified to do
business and is in good standing in all jurisdictions where the
activities conducted by it or the nature of the assets or
properties owned, operated or leased by it make such qualification
necessary and the absence of such qualification would, or may
reasonably be expected to, individually or in the aggregate, have
an adverse effect on the assets or business of Nametre. Annexed
hereto and made a part hereof as Exhibit 5.1 are true copies of
Nametre's Articles of Association as amended.
5.2. Capitalization of Nametre. The authorized capitalization
of Nametre consists solely, of Seven Hundred and Seventy Thousand
(770,000) shares of common stock, $0.013 par value, of which
Seventy-five Thousand Nine Hundred and Ninety -Nine(75,989)
shares, and no more are issued and outstanding and an additional
Four Hundred and Thirty-six Thousand Eleven (436,011) are held in
the Nametre Treasury as Treasury Stock. Except as disclosed in
Exhibit 5.2 annexed hereto and made a part hereof, Nametre neither
has outstanding, nor has it entered into any direct or indirect
agreement or obligation of any character to issue shares of its
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capital stock or debentures, bonds or evidences of indebtedness
convertible, in whole or in part, into shares of its capital
stock, or options, warrants, calls, or rights to purchase or
receive shares of its capital stock. Each outstanding share of
Nametre common stock is validly issued, fully paid and non-
assessable.
5.3 Ownership and Restrictions: Except as disclosed in
Exhibit 5.3, there are no restrictions on the sale or transfer of
Nametre common stock and there are no registration covenants with
respect thereto. A majority of the issued and outstanding Nametre
common stock is owned beneficially and of record by the Major
Stockholders in the following amounts:
+---------------------+-----------------------------+
| Owner | Shares Owned |
+---------------------+-----------------------------+
|Xxxxx X. Xxxxxx |Twenty-three thousand, nine |
| |hundred and eighteen (23,918)|
| | |
|Xxxxx X. Xxxxxxx |Twenty-two thousand, seven |
| |hundred and eight (22,708) |
| | |
+---------------------+-----------------------------+
5.4 Subsidiaries. Exhibit 5.4 annexed hereto and made a
part hereof sets forth a complete list of all outstanding capital
stock or other equity interests of subsidiaries of Nametre
("Nametre Subsidiaries") and all record and beneficial owners of
such outstanding capital stock or other equity interests. Other
than as disclosed in Exhibit 5.4, there are no Nametre
Subsidiaries or any such shares of capital stock authorized,
issued, or outstanding.
5.5 Title to Nametre Common Stock. Except as disclosed in
Exhibit 5.5 annexed hereto and made a part hereof, Major
Stockholders have good and marketable title to, and own free and
clear of all claims, liens, pledges, options, restrictions and
other encumbrances all of the shares of Nametre Common Stock
listed in Article 5.3 as being owned by them and all other issued
Nametre stock is free of all encumbrances.
5.6 Necessary Permits; Regulatory Approvals. As used in
this Article 5.6, "Permit" means any permit, registration,
license, certificate, authorization, exemption, or approval from
governmental authorities necessary for Nametre to conduct the
Business, to sell its products, to use the property owned or
leased by it, and to own its assets.
5.6.1 Except as disclosed in Exhibit 5.6, annexed
hereto and made a part hereof, Nametre holds all Permits. Exhibit
5.6 also contains a list of all Permits that are currently held or
applied for by Nametre. Except as disclosed in Exhibit 5.6,
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Nametre is in full compliance with the terms of all Permits, and
no governmental proceeding is pending to cancel, amend, modify or
fail to renew any Permit.
5.6.2 Except as disclosed in Exhibit 5.6, no notices,
reports or other filings are required to be made by Nametre with,
nor are any consents, registrations, approvals, permits or
authorizations required to be obtained by Nametre, from, any
governmental or regulatory authorities, in connection with the
execution and delivery of this Agreement and the consummation of
the transactions contemplated hereby.
5.7 Patents and Trademarks. Exhibit 5.7 annexed hereto and
made a part hereof contains:
5.7.1 A list of all patents, trademarks and copyright
registrations owned by Nametre; a list of all pending applications
being pursued by Nametre for any patent, trademark or copyright
registration and a list of all licenses or other contracts and/or
agreements with copies thereof that authorize Nametre to use
patents, trademarks, copyrights or other intellectual property or
rights belonging to other persons (for purposes of this Article,
all of the foregoing are sometimes referred to herein collectively
as "Proprietary Rights");
5.7.2 A list of all licenses or other contracts or
agreements that authorize other persons to use patents,
trademarks, copyright registrations or other intellectual property
or rights belonging to Nametre;
5.7.3 A list of all claims that Nametre has asserted or
believes that it reasonably could assert against other persons for
infringement of patent, trademark, copyright registration or other
intellectual property rights belonging to Nametre;
5.7.4 A list of all claims asserted or known to be
threatened against Nametre for infringement of patent, trademark,
copyright registration or other intellectual property rights
belonging to other persons; and
5.7.5 A list of any patents, trademarks or copyright
registrations, belonging to other persons that are known to be
infringed by Nametre.
5.8 No Proceedings Asserted or Pending. There are no
proceedings or actions asserted and none are pending to dissolve
Nametre or to limit or impair Nametre's corporate powers, rights,
or privileges. Major Stockholders will not directly or indirectly
cause or voluntarily permit any such proceeding or action to be
commenced prior to the Closing Date; and they will promptly notify
HOLOMETRIX (but in any event not later than the Closing ) if they
or any of them, acquire knowledge that any such proceeding or
action is commenced or threatened prior to the Closing Date.
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5.9 Correct Records. The financial records, ledgers, account
books, stock certificate books, stock registers, and other
corporate records of Nametre are current, correct and complete in
all material respects and all signatures therein are the true
signatures of the persons who are purported to have signed.
5.10 Tax Matters.
5.10.1 For purposes of this Agreement "Tax Returns"
means all reports and returns required to be filed by Nametre on
or before the Closing Date with respect to any Taxes, as
hereinafter defined, or with respect to any Employee Benefit
Plans which are defined as Plans in Article 5.14.
5.10.2 For purposes of this Agreement, "Taxes" means
all American or Foreign federal, state, municipal or local income,
gross receipts, windfall profits, severance, property, production,
sales, use, value added, license, excise, franchise, employment,
withholding, capital stock, levies, imposts, duties, transfer and
registration fees or similar taxes or charges imposed on, or
measured by, the income, payroll, properties or operations of
Nametre, together with any interest, additions or penalties,
deficiencies, or assessments with respect thereto and any interest
in respect of such additions or penalties.
5.10.3 Except as disclosed on Exhibit 5.10 annexed
hereto and made a part hereof:
(a) All Tax Returns, that are required to be filed
on or before the Closing Date have been duly filed or are the
subject of a request for extension that has been timely submitted
to the applicable taxing authority. There are no errors or
omissions in said Tax Returns or inconsistencies with audited
statements of Nametre.
(b) All Taxes due with respect to any Tax Returns
for any period through the Closing Date have been or will be paid,
or adequate reserve has been or will be made therefor. There are
no Taxes claimed to be due for any Tax Returns by any taxing
authority as a result of audit, examination or otherwise, which
are not fully paid or adequately reserved for. Nametre has
withheld all Taxes required to be withheld for taxable periods (or
portions of taxable periods) ending on or prior to the Closing
Date under all applicable federal, state, municipal, local and
foreign tax regulations, and such withholdings have been paid in
full to the respective governmental agencies or authorities or
adequate reserve has been made therefor.
(c) All estimated tax payments for Tax Returns for
the current year for taxable periods (or portions of taxable
periods) ending on or prior to the Closing Date have been made at
a sufficient level to avoid any penalties for underpayment of
estimated taxes.
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(d) No Tax Returns of Nametre are currently under
examination by any tax authority nor is there any outstanding
assessment of Taxes not reserved for in the Financial Statements.
(e) No waivers of statutes of limitation or the
equivalent have been given by or requested with respect to any
Taxes shown to be due or claimed to be due on any Tax Returns.
(f) Current and complete copies of all Tax Returns
of Nametre for the past three (3) years along with all related tax
examiner receipts are hereby furnished separately with this
Agreement.
5.11 Non-Contravention. Except as disclosed in Exhibit 5.11
annexed hereto and made a part hereof, the execution and delivery
of this Agreement, the consummation of the Acquisition and the
other transactions herein contemplated, and the fulfillment of the
terms hereof by Nametre and the Major Stockholders, (i) do not and
will not violate, conflict with, or breach (A) any provision of
law, rule, regulation, or permit applicable to Nametre or the
Major Stockholders, except for such breaches which can readily be
cured without material cost to the Business and which will not
have (either singly or in the aggregate) a material adverse effect
on the Acquisition, the Business, Nametre; or (B) the Articles of
Association of Nametre, (ii) do not constitute and will not
constitute a breach of or default under (or an event which, with
the passage of time or the giving of notice, or both, would
constitute a default under) (A) any material contract, indenture,
mortgage, deed of trust or other agreement or instrument to which
Nametre is a party or by which Nametre is bound, or cause an
acceleration of payments thereunder, or (B) any order or decree
applicable to Nametre of any court, regulatory body,
administrative agency or other governmental body having
jurisdiction over Nametre, and (iii) have not resulted and will
not result in the creation or imposition of any lien, charge,
encumbrance or restriction on use upon any of the properties,
contracts or business of Nametre.
5.12 No Governmental Investigations. Except as disclosed in
Exhibit 5.12 annexed hereto and made a part hereof, there is no
pending action, claim, or proceeding, domestic or foreign, or, to
the knowledge of Major Stockholders, any governmental
investigation or threatened action, claim, or proceeding, that
challenges or reviews the execution, delivery or performance of
this Agreement by Nametre or the Major Stockholders or the
consummation of the transactions contemplated hereby, or seeks to
enjoin or obtain damages in respect of the consummation of the
transactions contemplated hereby. Nametre and the Major
Stockholders will promptly notify HOLOMETRIX (but in any event not
later than the Closing) if any of them acquires such knowledge or
notice of any such action, claim, proceeding, or investigation.
5.13 Union Contracts. Except as disclosed in Exhibit 5.13
annexed hereto and made a part hereof, Nametre is not subject to
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and has no collective bargaining agreements or any other contract
with any labor union and is not subject to any organizing efforts
of or with any labor union or organization; and at all times
Nametre has complied in all material respects with all domestic
and foreign laws and regulations relating to employment. Except
as disclosed in Exhibit 5.13, there are no pending claims,
controversies, or suits concerning employment, or any labor
grievances or any investigations or any threatened claims,
controversies, or suits concerning employment involving Nametre
and any of its employees and Nametre or Major Stockholders will
promptly notify HOLOMETRIX (but in any event not later than the
Closing) if any of them, acquire information regarding any such
grievances, investigations, claims, controversies, or suits.
5.14 Employee Benefit Plans.
5.14.1 Annexed hereto and made a part hereof as Exhibit
5.14 is a list of all employee pension, savings, retirement,
bonus, profit-sharing, deferred compensation, worker's
compensation insurance, group insurance and other employee welfare
or benefit plans ("Plans"), of any type whatsoever entered into or
maintained by Nametre for the benefit of, and pursuant to which,
there is an underlying obligation to employees of Nametre and all
available actuarial studies pertaining to the Plans. Current
copies of the Plans and studies are hereby furnished separately
with this Agreement to HOLOMETRIX.
5.14.2 Except as set forth in exhibit 5.14, Nametre is
in compliance in all material respects with all laws, acts, rules
and regulations concerning the Plans. All reports, documents,
statements and communications that are required to be filed,
published or disseminated under applicable laws and the rules and
regulations promulgated thereunder have been so filed, published
or disseminated. To the extent there is not such compliance,
prior to the Closing, Major Stockholders will, or will cause
Nametre to, make such modifications and amendments to the Plans in
sufficient time to assure compliance with such laws and the rules
and regulations promulgated thereunder to the extent necessary to
insure that Nametre will not incur penalties, expenses or other
costs.
5.14.3 None of the Plans and, to the knowledge of any of
Nametre or Major Stockholders, no trustee or administrator thereof
has engaged in any transaction which might subject any of the
Plans or any trustee or administrator thereof, or any party
dealing with them, to any tax or penalty on prohibited
transactions or to a civil penalty.
5.14.4 Except as disclosed in Exhibit 5.14, all of the
Plans have been fully funded.
5.15 Financial Statements. The consolidated financial
statements of Nametre ("Financial Statements") annexed hereto and
made a part hereof as Exhibit 5.15, consisting of balance sheets
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as of December 31, 1995, and the statements of income and retained
earnings and changes in financial positions for the twelve (12)
month period then ended, together with supplemental schedules
prepared at year end and reports (hereinafter referred to as the
"Notes") have been prepared in accordance with generally accepted
accounting principles applied on a consistent basis, and present
fairly, accurately and completely the financial positions of
Nametre as of December 31, 1995, and, the results of its
operations for the twelve (12) month period then ended and the
other financial information contained therein. The amounts
contained in the aforementioned financial statements of Nametre
have been examined by independent public accountants, as of
December 31, 1995. All of the inventories reflected in the
Financial Statements, including raw materials, work-in-process and
finished goods, are, net of any applicable reserves, in good and
usable condition and suitable for use in products currently
offered for sale by Nametre. Such inventories are and will be
valued on said Financial Statements according to generally
accepted accounting principles applied on a consistent basis at
the lower of cost or market value. Except as disclosed in Exhibit
5.15, from December 31, 1995 until the Closing there has not been
and will not be, without the written consent of HOLOMETRIX, any
change in the manner of keeping the books, accounts or records of
Nametre or the Business or in the accounting principles and
practices either of Nametre or the Business as theretofore applied
including, without limitation, the bases upon which assets and
liabilities are recorded on its books and the manner in which its
earnings and profits are ascertained. Not later than 60 days
following the Closing, Nametre will provide HOLOMETRIX (in format
suitable to be filed with the Securities Exchange Commission in
satisfaction of Form 8-k requirements) with (i) audited income and
cash flow statements covering the last two fiscal years of Nametre
as well as (ii) either an audited balance sheet dated within 90
days of the Closing Date or the aforementioned balance sheet dated
more than 90 days prior to the Closing Date and unaudited interim
statements for the period between the audited year-end balance
sheet and the Closing Date.
5.16 Title to and Condition of Property. Exhibit 5.16 annexed
hereto and made a part hereof is a true and correct schedule and
brief description of all real property owned or leased by Nametre.
Copies of any or all deeds, title insurance policies, real
property leases and other related documentation are hereby
furnished separately with this Agreement. Except as disclosed in
Exhibit 5.16, such plants and equipment, machinery, and other
assets and property therein are in good operating condition and
repair, and conform in all material respects with applicable
ordinances and regulations and applicable building and zoning laws
and codes. Nametre has good and marketable title to all
properties, real and personal, tangible and intangible, which are
used by it in connection with the Business or which are included
as assets in the balance sheets included in Exhibit 5.15, free and
clear of all liens, encumbrances, charges, conditional sales
agreements, security agreements, and restrictions. Except as
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disclosed in Exhibit 5.16, Nametre has the necessary rights to use
all computer software used in the Business or maintained on its
computer systems, and these rights shall remain unaffected by
virtue of this Agreement and the transactions contemplated herein.
5.17 No Dividends or Payment of Debt. Except as disclosed in
Exhibit 5.17 annexed hereto and made a part hereof, since December
31, 1995, and through and including the Closing, Nametre has not
paid or declared and will not pay or declare any cash, stock or
other dividend or repaid any debt and has not made and will not
make any distribution with respect to its shares or payment with
respect to its debt.
5.18 No Employee Actions. Except as disclosed in Exhibit 5.18
annexed hereto and made a part hereof, since December 31, 1995,
Nametre has not made and, without the written consent of
HOLOMETRIX, will not make any of the following arrangements or
agreements, and has not taken and will not take any of the
following actions, with respect to any director, officer or
employee of Nametre:
5.18.1 Increase the wages or salaries of officers or
employees or increase director's fees or other forms of
compensation of officers, employees or directors or make any gifts
of any nature whatsoever, except for salary increases to such
persons which will not exceed an amount equal to 6 percent of
prior base wages for any of them, and, in all such cases, said
increases will be consistent with prior practice;
5.18.2 Make any payment of or arrangement, agreement or
commitment to pay any bonus or incentive compensation or
retirement, termination or severance benefit to any director,
officer or employee other than benefits required by applicable
law; and
5.18.3 Make any payments or reimbursements for expenses
other than in the ordinary course of its business.
5.19 No Adverse Communication. Except as disclosed in Exhibit
5.19 annexed hereto and made a part hereof, neither Nametre nor
the Major Stockholders have knowledge of any communication from
any customers or suppliers to the Business regarding any material
adverse change in the Business or in the business, prospects or
condition of Nametre.
5.20 Insurance Policies. Nametre will maintain in full force
and effect, insurance policies covering (i) all real and personal
property, including stock, against all insurable risks, plus (ii)
any and all casualty policies typical to that type of operation
comprising the Business. Exhibit 5.20 annexed hereto and made a
part hereof, contains a list of all policies and bonds in force,
along with a listing of all outstanding claims against these
policies. Copies of all such insurance policies and bonds are
hereby furnished separately with this Agreement. Nametre is not
- 10 -
in default under any said policies or bonds and has made all
premium payment due or that will be due to continue coverage in
force until the Closing Date. Nametre or the Major Stockholders
will promptly notify HOLOMETRIX (but in any event no later than
the Closing) of any insurance policies or bonds obtained by it
subsequent to the date of this Agreement and of any subsequent
outstanding claims not previously included in Exhibit 5.19.
5.21. Contracts and Commitments. Exhibit 5.21 annexed hereto
and made a part hereof contains an accurate list and description,
categorized by items (a) through (h) of all executory or partially
executory written or oral agreements, contracts, leases,
commitments (including commitments for the sale of products or
services of the Business ) and instruments ("Contracts") to which
Nametre is a party or by which it is bound or which relate to the
Business which are: (a) (i) Contracts for the sale of products
made in the ordinary course of business involving amounts in
excess of $25,000 and (ii) all Contracts made outside of the
ordinary course of business and (iii) contracts with any federal,
state, domestic or foreign government or agency ; or (b)
employment Contracts and /or consulting contracts; or (c) material
Contracts with respect to any real property; or (d) Contracts with
licensees, agents, dealers, manufacturers' representatives, and
distributors; or (e) loans or Contracts to lend money or property
to officers, directors, employees of Nametre or to third parties;
or (f) material Contracts for the purchase of goods or services
including material Contracts not expected to be performed within a
period of 12 consecutive months; or (g) Contracts which because
of the Acquisition require consent to continue in effect; or (h)
Contracts which provide a guaranty, endorsement or indemnification
by Nametre of the obligations of any third person, firm or
corporation.
Except as disclosed in Exhibit 5.21, Nametre has performed
all obligations required to be performed by it, and has not
breached and is not in default under any Contract listed thereon
(or which was required to be disclosed thereunder) and the same
are enforceable in accordance with their terms.
Stockholders or Nametre will give HOLOMETRIX prompt written
notice of all Contracts of the type described in this Article 5.21
signed between the date of this Agreement and the Closing Date.
For purposes of this Article 5.21, a Contract shall be considered
"material" if the total of (a) the money consideration which has
been paid thereunder and (b) the money consideration which can
reasonably be expected to be paid thereunder exceeds Twenty-five
Thousand Dollars ($25,000).
5.22. No Violations or Pending Litigation. Except as set
forth in Exhibit 5.22 annexed hereto and made a part hereof,
Nametre is not in violation of any law, rule, regulation,
ordinance or order of any federal, state, municipal, domestic,
foreign, or other governmental department, commission, agency,
entity or instrumentality including (but not by way of limitation)
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laws, rules, regulations and orders pertaining to equal employment
opportunity, the protection and preservation of human health or
the environment, and the treatment, storage, or disposal of
hazardous materials, except for violations that can be readily
rectified without material expenditure and which in the aggregate
do not and will not have a material adverse affect on the assets,
business, operations, or prospects of Nametre or the Business.
Except as set forth on Exhibit 5.22, there are no claims,
actions, suits filed, labor grievances, judgments, orders, or
proceedings to dissolve, limit or impair Nametre's powers, rights
or privileges pending or, any pending investigations or
proceedings of any kind or any threatened investigations, claims,
actions, suits, labor grievances or proceedings against or
relating to Nametre, its operations, assets, or properties or to
the Business. Nametre is not a party to or subject to any
judgment, order, writ, injunction, or decree which adversely
affects or might reasonably be expected to adversely affect, the
Business, operations, prospects, properties, assets or condition,
financial or otherwise of Nametre.
5.23. No Change. Except as disclosed on Exhibit 5.23, annexed
hereto and made a part hereof, since January 1, 1996 the
operations of Nametre and the Business have been conducted in the
ordinary course of business consistent with past practice and
there has not been:
5.23.1 any material adverse change in the financial
condition, operations, prospects or business of Nametre;
5.23.2 any damage, destruction, or loss, whether or not
covered by insurance, which materially adversely affects the
products, properties, business, operations or prospects of
Nametre;
5.23.3 any labor dispute or any threat of a labor
dispute or any attempt to organize the employees of Nametre for
the purpose of collective bargaining;
5.23.4 any employment or consulting contract entered
into by Nametre with any of its directors, officers or employees;
5.23.5 any satisfaction or discharge of any lien by
Nametre or payment by Nametre of any obligation or liability,
other than an obligation or liability included in the consolidated
balance sheet of Nametre as of December 31, 1995, current
liabilities incurred since that date in the ordinary course of
business, liabilities incurred in carrying out the transactions
contemplated by this Agreement and obligations and liabilities
under contracts listed in Exhibit 5.21 or otherwise not required
to be disclosed thereunder;
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5.23.6 any guaranty, endorsement or indemnification by
Nametre of the obligations of any third person, firm or
corporation except in the ordinary course of business;
5.23.7 any sale, assignment, transfer or disposal of
any assets of any type of Nametre or the Business or cancellation
of debts or claims of Nametre or the Business except in each case
in the ordinary course of business on an arm's length basis
consistent with past practice;
5.23.8 any sale, assignment or granting of any rights
under patents, trade names, trademarks, or copyrights or any
application therefor, or other intellectual property right of
Nametre;
5.23.9 any waiver or release of any rights of material
value by Nametre or the Business;
5.23.10 any obligation or liability incurred or any
transaction entered into, other than in the ordinary course of
business consistent with past practice, except for this Agreement
and contracts identified as such in Exhibit 5.21;
5.23.11 any creation, incurrence or assumption of any
debt, liability or obligation, direct or indirect, whether
accrued, absolute, contingent or otherwise, relating to the
Business which is outside the ordinary course of business.
5.24. Preservation of Nametre Goodwill. From the date of this
Agreement until and including the Closing Date, Nametre and the
Major Stockholders will use all reasonable efforts to keep
available to Nametre the services of Nametre's present officers
and employees, and will take no action to impair the goodwill of
Nametre or the Business with its suppliers, customers, and others
having business relations with Nametre or the Business.
5.25. Brokerage Fee. Neither Nametre, nor Major Stockholders
on behalf of Nametre, have entered into any agreement for the
payment of any fee, commission, or brokerage in connection with
this Agreement or the transactions contemplated hereunder.
5.26. Authorization of Nametre and Major Stockholders.
Nametre and Major Stockholders have full corporate power and
authority to execute and deliver this Agreement and to perform
their obligations hereunder. The execution and delivery by
Nametre and Major Stockholders of this Agreement and the
performance by Nametre and Major Stockholders of their obligations
hereunder have been duly authorized by all necessary corporate
proceedings. This Agreement has been duly and validly executed
and delivered by Nametre and Major Stockholders and constitutes a
valid and binding agreement, enforceable against Nametre and Major
Stockholders in accordance with its terms, subject to bankruptcy,
insolvency, reorganization and other laws of general applicability
relating to or affecting creditors rights and, as to enforcement,
- 13 -
to general equity principles. Except, and only to the extent
provided for in the escrow provisions of Article 4, upon payment
of the cash portion of the Purchase Price due at the Closing and
delivery of the HOLOMETRIX Note, the shares comprising the
Majority of Nametre Common Stock will be fully paid, non-
assessable and free and clear of all encumbrances.
5.27. Undisclosed Liabilities. Except as disclosed in Exhibit
5.27 annexed hereto and made a part hereof, Nametre has no
material liabilities, fixed or contingent, which are not fully
reflected or provided for in the balance sheet of Nametre as of
December 31, 1995, included herein as part of the Financial
Statements, except:
5.27.1 Requirements of liabilities incurred in or as a
result of the ordinary course of business since December 31,1995,
which have been incurred in a manner consistent with past
practices;
5.27.2 Liabilities specifically permitted by or
provided for, or otherwise disclosed, in this Agreement; and
5.27.3. Obligations which are to be performed after the
date of this Agreement under Contracts listed in Exhibit 5.21 or
not required to be listed in Exhibit 5.21 pursuant to the that
Exhibit.
5.28. Disclosure by Major Stockholders. No representation or
warranty made by Major Stockholders in this Agreement or any
statement, certificate or document furnished or to be furnished by
or on behalf of Major Stockholders or Nametre pursuant to this
Agreement, or any document or certificate delivered to HOLOMETRIX
pursuant to this Agreement or in connection with actions
contemplated hereby, contains or will contain any untrue
statement of a material fact or omits or will omit a material fact
necessary to make the statements contained herein or therein not
misleading. No disclosure of information with respect to any
warranty or representation contained in this Agreement, or other
matters contemplated by this Agreement, shall be deemed to have
been made or given unless it expressly appears in this Agreement
or in any document submitted pursuant to this Agreement.
5.29. Furnishing of Information to HOLOMETRIX. Major
Stockholders will promptly furnish to HOLOMETRIX and Nametre all
of the information concerning themselves or Nametre or the
Business which may be reasonably requested for inclusion in any
application or statement to be made by HOLOMETRIX to any
governmental agency in connection with the transactions
contemplated by this Agreement. All such information furnished to
HOLOMETRIX for such applications and statements shall be true and
correct in all material respects without omission of any material
fact required to be stated to make the information therein not
misleading.
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5.30. Insider Interests. Except as disclosed in Exhibit 5.30
annexed hereto and made a part hereof, no officer or director of
Nametre (or the immediate family of any of them), has any
agreement with Nametre or any interest in any property, real,
personal or mixed, tangible or intangible, used in or pertaining
to the Business or in any creditor, debtor, supplier, customer,
agent, sales representative, or distributor of the Business.
5.31. Environmental Matters. Except as set forth in Exhibit
5.31 annexed hereto and made a part hereof, there are no past or
present events, conditions, circumstances, activities, practices,
incidents, actions or plans of Nametre either collectively,
individually or severally, which may interfere with or prevent
continued compliance, or which may give rise to any common law or
legal liability, or otherwise form the basis of any claim, action,
suit, proceeding, hearing, or investigation, based on or related
to the disposal, storage, handling, manufacture, processing,
distribution, use, treatment, transport, or the emission,
discharge, release or threatened release into the environment, of
any pollutant.
5.32. Backlog. Exhibit 5.32 annexed hereto and made a part
hereof contains a list of all accepted purchase orders for the
sale of products and other services by Nametre to unaffiliated
third parties which make up Nametre's backlog, which as of the
Closing Date, will not be less than Two Hundred Fifty Thousand
Dollars ($250,000) as calculated according to Nametre's method for
determining such amounts. All accepted purchase orders and
commitments and any Nametre quotations for the sale of products
which are outstanding at that time contain profit margins and
terms and conditions that are consistent with the practices of
Nametre and the Business over the past twelve (12) months, and,
except as disclosed in Exhibit 5.31 no individual contract or
commitment and no product line is priced below cost or is expected
to produce revenue below the cost thereof, where cost is defined
as fully loaded manufacturing cost computed in accordance with
generally accepted accounting principles. If, at any time before
the Closing, Major Stockholders or Nametre become aware of any
event which may materially adversely affect the amount of backlog
or its completion or delivery date, they shall give prompt notice
thereof to HOLOMETRIX.
5.33. Product Liability. Except as disclosed in Exhibit 5.33
annexed hereto and made a part hereof, there is no pending legal,
administrative or other action, claim for compensation, proceeding
or governmental investigation, domestic or foreign, pending or
threatened, relating to claims of product liability to which
Nametre has been a party in connection with the Business. All
forms of warranties customarily used in connection with the
Business are hereby furnished separately with this Agreement.
5.34. Warranties True on Closing Date. Subject to Article
9.1, the representations, warranties, covenants and agreements of
Major Stockholders set forth in this Article 5 shall be true on
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the date of this Agreement and on and as of the Closing Date,
except for representations, warranties, covenants or agreements
made as of another date specific, which shall be true as of such
date specific.
6. Representations and Warranties of HOLOMETRIX. As an
inducement to the Major Stockholders and Nametre to enter into and
to consummate this Agreement, HOLOMETRIX represents, warrants,
covenants and agrees with and to Major Stockholders and Nametre ,
as of the date hereof and as of the Closing Date as follows:
6.1 Corporate Status of HOLOMETRIX. HOLOMETRIX is a
corporation duly organized, validly existing and in good standing
under the laws of Massachusetts and has all requisite corporate
power and authority to own, lease and operate its properties and
assets and to carry on its business. HOLOMETRIX is duly qualified
to do business and is in good standing in all jurisdictions where
the activities conducted by it or the nature of the assets or
properties owned, operated or leased by it make such qualification
necessary and the absence of such qualification would, or may
reasonably be expected to, individually or in the aggregate, have
an adverse effect on its assets or business.
6.2. No Proceedings Asserted or Pending; There are no
proceedings or actions asserted and none are pending to dissolve
HOLOMETRIX or to limit or impair HOLOMETRIX' corporate powers,
rights, or privileges. HOLOMETRIX will not directly or indirectly
cause or voluntarily permit any such proceeding or action to be
commenced prior to the Closing Date; and it will promptly notify
Nametre and Major Stockholders (but in any event not later than
the Closing Date) if it acquires knowledge that any such
proceeding or action is commenced or threatened prior to the
Closing Date.
6.3 No Governmental Investigations. Except as disclosed in
Exhibit 6.3 annexed hereto and made a part hereof, there is no
pending action, claim, or proceeding, domestic or foreign, or, to
the knowledge of HOLOMETRIX, any governmental investigation or
threatened action, claim, or proceeding, domestic or foreign, that
challenges or reviews the execution, delivery or performance of
this Agreement by HOLOMETRIX or the consummation of the
transactions contemplated hereby, or seeks to enjoin or obtain
damages in respect of the consummation of the transactions
contemplated hereby. HOLOMETRIX will promptly notify Nametre and
the Major Stockholders (but in any event not later than the
Closing) if it acquires such knowledge or notice of any such
action, claim, proceeding, or investigation
6.4. Authorization of HOLOMETRIX. HOLOMETRIX has full
corporate power and authority to execute and deliver this
Agreement and to perform its obligations hereunder. The execution
and delivery by HOLOMETRIX of this Agreement and the performance
by HOLOMETRIX of its obligations hereunder have been duly
authorized by all necessary corporate proceedings. This Agreement
- 16 -
has been duly and validly executed and delivered by HOLOMETRIX and
constitutes a valid and binding agreement, enforceable against
HOLOMETRIX in accordance with its terms, subject to bankruptcy,
insolvency, reorganization and other laws of general applicability
relating to or affecting creditors rights and, as to enforcement,
to general equity principles.
6.5. Disclosure by HOLOMETRIX. No representation or warranty
made by HOLOMETRIX in this Agreement or any statement, certificate
or document furnished or to be furnished by or on behalf of
HOLOMETRIX pursuant to this Agreement, or any document or
certificate delivered to Nametre or Major Stockholders pursuant to
this Agreement or in connection with actions contemplated hereby,
contains or will contain any untrue statement of a material fact
or omits or will omit a material fact necessary to make the
statements contained herein or therein not misleading. No
disclosure of information with respect to any warranty or
representation contained in this Agreement, or other matters
contemplated by this Agreement, shall be deemed to have been made
or given unless it expressly appears in this Agreement or in any
document submitted pursuant to this Agreement.
6.6. Furnishing of Information to Nametre and Major
Stockholders. HOLOMETRIX will promptly furnish to Nametre and
Major Stockholders all of the information concerning itself which
may be reasonably requested for inclusion in any application or
statement to be made by any of them to any governmental agency in
connection with the transactions contemplated by this Agreement.
All such information furnished to any of them for such
applications and statements shall be true and correct in all
material respects without omission of any material required to be
stated to make the information therein not misleading.
6.7. Warranties True on Closing Date. Subject to Article
10.1, the representations, warranties, covenants and agreements of
HOLOMETRIX set forth in this Article 6 shall be true on the date
of this Agreement and on and as of the Closing Date, except for
representations, warranties, covenants or agreements made as of
another date specific, which shall be true as of such date
specific.
7. Conduct of Business Prior to the Closing Date. Except to the
extent contemplated by this Agreement and the Exhibits hereto,
from and after the date of this Agreement until the Closing Date,
Major Stockholders shall cause Nametre to comply with, the
following:
(a). Except as otherwise provided in this Agreement, Nametre
shall carry on the Business in the ordinary course consistent with
past practice.
(b). Nametre shall use all commercially reasonable efforts to
maintain and keep its plants and assets in substantially as good
- 17 -
repair, working order and condition as on the date of this
Agreement except for ordinary wear and tear.
(c). Nametre shall perform in all material respects all of
its obligations under leases, contracts, and other agreements
relating to its properties and business and will use all
commercially reasonable efforts to maintain all licenses, permits,
certificates, insurance policies and bonds in full force and
effect.
(d). Nametre shall not amend its Articles of Association or
make any change in its authorized capital stock without the prior
written consent of HOLOMETRIX.
8. Access and Information. HOLOMETRIX shall be entitled to
perform a due diligence investigation, including a legal and
financial review and environmental audit, relating to Nametre and
the Business. Accordingly, until the Closing Date, upon
reasonable notice, Major Stockholders shall, or shall cause
Nametre to, afford HOLOMETRIX' directors, officers, employees,
counsel, accountants and other authorized representatives access
(including, without limitation, access for the purposes of
conducting environmental audits and surveys), during normal
business hours throughout the period prior to the Closing Date, to
the employees, properties, books, Tax Returns, contracts and
records of Nametre and the Business and, during such period, Major
Stockholders shall, or shall cause Nametre to, furnish promptly to
HOLOMETRIX all information concerning Nametre and the Business as
HOLOMETRIX may reasonably request, including the right to discuss
operations of the Business with management employees of Nametre.
No investigation pursuant to this Article shall affect or be
deemed to modify any representation or warranty by Major
Stockholders.
9. Conditions to Obligations of HOLOMETRIX. The obligations of
HOLOMETRIX under this Agreement are subject to the satisfaction on
or prior to the Closing of the following conditions:
9.1. Major Stockholders' Representations, Warranties,
Covenants and Agreements True on Closing Date. The
representations, warranties, covenants and agreements of Major
Stockholders set forth in this Agreement, shall be true on the
date of this Agreement and on and as of the Closing Date, as
though such representations and warranties were made on and as of
the Closing Date, except for representations, warranties,
covenants, agreements, and undertakings made as of a date
specific, which shall be true as of such date specific, and except
for changes which have been approved in writing by HOLOMETRIX. In
the event that Major Stockholders notify HOLOMETRIX in a written
disclosure of changes in any representations, warranties,
covenants and agreements made by them in this Agreement which
HOLOMETRIX does not approve, they shall have failed to satisfy the
conditions of this Article 9.1 and HOLOMETRIX shall have the right
to terminate this Agreement in accordance with Article 16.2.
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9.2. Compliance with Agreement. Each of the Major
Stockholders and Nametre shall have performed and complied in all
material respects with all obligations under this Agreement which
are to be performed or complied with by them on or prior to the
Closing.
9.3. No Litigation. At Closing, no claim litigation,
proceeding, investigation or inquiry, shall be pending or
threatened (except as previously disclosed in the Exhibits to this
Agreement): (a) to enjoin or prevent the consummation of the
transactions contemplated by this Agreement or to obtain damages
or other relief by reason of such consummation; or (b) involving
any of the business, products, properties or prospects of Nametre
or the Business which may reasonably be expected to result in any
adverse change in such business, products, properties or prospects
taken as a whole or which may effect the equity of Nametre or its
financial position in any other sense; or (c) involving any
patent, trademark, trade name or copyright which, if sustained
would materially adversely affect the assets, business, products,
properties or prospects of Nametre or the Business taken as a
whole.
9.4. No Casualty. Prior to the Closing, there shall not have
occurred any damage, destruction or loss (whether or not covered
by insurance) materially adversely affecting the assets, products,
properties, business, operations or prospects of Nametre or the
Business.
9.5. No Adverse Change. No material adverse change in the
assets, business, operations, prospects, or condition (financial
or otherwise) of Nametre or the Business shall have occurred
between the execution hereof and the Closing.
9.6. Proceedings and Instruments Satisfactory. All
proceedings, corporate or otherwise, to be taken in connection
with the transactions contemplated by this Agreement and all
documents incident thereto shall be reasonably satisfactory in
form and substance to HOLOMETRIX, and Major Stockholders shall
have furnished HOLOMETRIX with certified copies of such
proceedings and such other instruments and documents as HOLOMETRIX
shall have reasonably requested.
9.7. Certificate of Fulfillment of Conditions. Major
Stockholders shall have delivered to HOLOMETRIX at Closing a
certificate dated as of the Closing and signed by Major
Stockholders and Nametre stating that to the best of their
knowledge and belief matters set forth in Articles 9.1 through 9.6
have been met and complied with.
9.8 Opinion of Counsel. Major Stockholders shall have
delivered to HOLOMETRIX a written opinion of Counsel dated as of
the Closing Date, satisfactory in form and substance to HOLOMETRIX
to the effect that:
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(a). Nametre's corporate existence and good standing are
as stated in Article 5.1.
(b). Nametre's authorized and outstanding capital stock
is as stated in Article 5.2.
(c). Other than as set forth in Article 5.26, the shares
of Nametre common stock being issued to HOLOMETRIX pursuant to
this Agreement are validly issued and are fully paid and non-
assessable and HOLOMETRIX will obtain the entire right, title and
interest in all of said shares free and clear of all claims,
liens, pledges and encumbrances.
(d). This Agreement has been duly executed and delivered
by Nametre and the Major Shareholders and this Agreement is valid
and enforceable, in accordance with its terms, against Nametre and
the Major Shareholders, except as limited by insolvency,
bankruptcy and other laws generally affecting creditors' rights
and subject to general legal and equitable principles with respect
to the availability of particular remedies;
(e). All necessary corporate actions required by or on
behalf of Nametre to carry out this Agreement have been duly
taken;
(f). To the best of such counsel's knowledge, based upon
reasonable investigation, neither the execution and delivery of
this Agreement by Nametre or the Major Stockholders nor compliance
with its terms and provisions by Nametre and by the Major
Stockholders results or will result in a breach by the Major
Stockholders or Nametre of any statutes or regulations of the
United States of America or the State of New Jersey or conflicts
with or results in the breach of any of the terms, conditions or
provisions of any agreement or instrument to which Nametre or the
Major Stockholders are a party or by which it or they may be
bound, or will constitute a default thereunder, or result in the
creation or imposition of any lien, charge, encumbrance, or
restriction of any nature whatsoever upon any of the properties;
contracts or business of Nametre; and
(g). Except as disclosed in this Agreement (including
any exhibit hereto), such counsel, having made reasonable
investigation, has no knowledge of:
(i). Any contingent, threatened, asserted, or
pending claim, suit, proceeding in law or at equity, or
administrative action of any kind (including, but not by way of
limitation, any audit or investigation by any governmental agency
with respect to any obligation of Nametre relating to federal,
state or local taxes or government contract) against Nametre or
any facts that could give rise to any of the foregoing;
- 20 -
(ii). Any governmental investigation or suit
proceeding or administrative action with respect to any of the
transactions contemplated by this Agreement; or
(iii). Any material error, misstatement or omission
in any representation or warranty made by the Major Stockholders
in this Agreement or in any statement, certificate, instrument,
document or opinion furnished by or on behalf of the Major
Stockholders pursuant to this Agreement.
9.9. Consents. HOLOMETRIX shall have received duly executed
consents and approvals from all persons, firms, organizations,
entities or authorities whose consent or approval is required in
order to complete the Acquisition and the transactions
contemplated by this Agreement.
9.10. Consents of Creditors-Cancellation of Obligations.
(a). If required by HOLOMETRIX, each instrument under
which Nametre has incurred or may incur debt or bank borrowings
shall have been amended where necessary to avoid default or
acceleration thereunder, without the assumption by HOLOMETRIX or
Nametre of any additional obligation or cost and in a manner
reasonably satisfactory in form and substance to HOLOMETRIX, so as
to permit the completion of the Acquisition and to provide that
neither one of HOLOMETRIX, or Nametre shall become liable,
contingently or otherwise, by reason of consummation of such
transactions, for acceleration of payment of such long-term debt
or bank borrowings.
(b) (i) Nametre and those Pledgees ("Pledgee") under
that certain Pledge and Security Agreement ("Security Agreement"),
and Nametre and that Payee ("Payee") under that certain Note
("Note"), and Nametre and that Estate and other beneficiaries of
that certain Settlement and Redemption Agreement ("Redemption
Agreement"), all such Security Agreement, Note and Redemption
Agreement being between Nametre and the estate of Xxxx Xxxxxxxxx
Xxxxxxxxxx (or where appropriate, the personal representatives of
said Pledgee or Payee), and all dated January 29, 1996, shall have
entered into agreements, satisfactory to HOLOMETRIX , providing:
(i) for the absolute and general release by said Pledgee, Payee,
Estate and other beneficiaries under the Security Agreement, Note
and Redemption Agreements of all claims of whatever description
against any collateral subject to such agreements as well as all
other claims of whatever kind or description against Nametre, its
officers, directors, employees, successors and agents (ii) for the
reassignment and conveyance to Nametre of all right, title and
interest in any assets, including without limitation all Patents,
subject to any of the above agreements, and (iii) an undertaking
by all of the above Payee, Pledgee, Estate and other beneficiaries
to immediately file, in the appropriate municipal, state and
federal offices notice of such cancellations, reassignments and
conveyances. (I will fill in the details of the settlement with
JVF next week)
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(ii) That certain Agreement among the estate of J.
Xxxxxxx Xxxxxxxxxx ("Estate"), National Metal Refining Company,
and Holometrix, pursuant to which the Estate, in return for
certain undertakings by Nametre and Holometrix, agrees to
subordinate certain of its first priority security interests and
forego certain lien rights shall have been executed by the
parties.
9.11. Resolutions. Major Stockholders shall have delivered
to HOLOMETRIX on the Closing Date certified copies of resolutions
adopted by the Board of Directors of Nametre adopting and
approving this Agreement.
9.12. Certificates of Good Standing. Major Stockholders shall
have delivered to HOLOMETRIX certificates from the appropriate
governmental authorities, dated not more than thirty (30) business
days prior to the Closing Date, to the effect that Nametre is
duly incorporated and in good standing in its jurisdiction of
incorporation and in all other jurisdictions in which it is
qualified to do business.
9.13. No Change in Nametre Capitalization. Except as
otherwise contemplated by this Agreement, Nametre's authorized and
issued and outstanding capital stock shall be as stated in Article
5.3 and Nametre shall not have any agreement, obligation or
commitment of any character to issue shares of its capital stock,
or debentures, bonds, or other evidences or indebtedness
convertible, in whole or in part, into shares of its capital
stock.
9.14. All Authorizations. All authorizations, consents,
approvals and forbearance of governmental entities required for
the completion of the Acquisition and the consummation of the
transactions contemplated by this Agreement which are disclosed on
Exhibit 5.6 to this Agreement or which are otherwise material
shall have been obtained.
9.15. Receipt of the Majority of Nametre Common Stock.
HOLOMETRIX shall have received certificates representing 120,000
shares of Nametre common stock (30,000 of the abovementioned
120,000 shall be delivered at Closing to Xxxxxxx X. Xxxxx, Esq.,
as Escrow Agent, to held in escrow pursuant to the terms of the
Escrow Agreement of even date herewith, between Nametre and
Holometrix). All of said shares will be validly issued, fully paid
and non-assessable.
9.16. Employment Agreements. On the Closing Date, Xxxxx X.
Xxxxxx, Xxxxxx X. Xxxxxxx and Xxxx X. Xxxxxx shall have executed
and delivered to HOLOMETRIX an employment agreement in the form of
Exhibit 9.16 annexed hereto and made a part hereof.
10. Conditions to Obligations of Nametre and Major Stockholders.
The obligations of Nametre and the Major Stockholders under this
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Agreement are subject to the satisfaction on or prior to the
Closing of the following conditions:
10.1. HOLOMETRIX' Representations, Warranties, Covenants and
Agreements True on Closing Date. The representations, warranties,
covenants and agreements of HOLOMETRIX set forth in this
Agreement, shall be true on the date of this Agreement and on and
as of the Closing Date, as though such representations and
warranties were made on and as of the Closing Date, except for
representations, warranties, covenants, agreements, and
undertakings made as of a date specific, which shall be true as of
such date specific, and except for changes which have been
approved in writing by Nametre and Major Stockholders. In the
event that HOLOMETRIX notifies Nametre and Major Stockholders in a
written disclosure of changes in any representations, warranties,
covenants and agreements made by them in this Agreement which
Nametre and Major Stockholders do not approve, it shall have
failed to satisfy the conditions of this Article 10.1 and Nametre
and Major Stockholders shall have the right to terminate this
Agreement in accordance with Article 16.3.
10.2. Compliance with Agreement. HOLOMETRIX shall have
performed and complied in all material respects with all
obligations under this Agreement which are to be performed or
complied with by on or prior to the Closing.
10.3. Proceedings and Instruments Satisfactory. All
proceedings, corporate or otherwise, to be taken in connection
with the transactions contemplated by this Agreement and all
documents incident thereto shall be reasonably satisfactory in
form and substance to Nametre and the Major Stockholders and
HOLOMETRIX shall have furnished Nametre and the Major Stockholders
with certified copies of such proceedings and such other
instruments and documents as Nametre and the Major Stockholders
shall have reasonably requested.
10.4. Certificate of Fulfillment of Conditions. HOLOMETRIX
shall have delivered to Nametre and Major Stockholders at Closing
a certificate dated as of the Closing and signed by HOLOMETRIX
stating that to the best of its knowledge and belief the matters
set forth in 1 Articles 10.1 and 10.2 have been met and complied
with.
10.5. Delivery of Purchase Price: That cash portion of the
Purchase Price that is due on the Closing Date pursuant to Article
2.1, as well as the HOLOMETRIX Note shall have been delivered to
Nametre.
10.6. Opinion of Counsel. HOLOMETRIX shall have delivered to
Nametre and Major Stockholders a written opinion of Counsel, dated
as of the Closing Date, satisfactory in form and substance to
Nametre and Major Stockholders to the effect that:
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(a). This Agreement has been duly executed and delivered
by HOLOMETRIX and this Agreement is valid and enforceable, in
accordance with its terms, against, HOLOMETRIX except as limited
by insolvency, bankruptcy and other laws generally affecting
creditors' rights and subject to general legal and equitable
principles with respect to the availability of particular
remedies;
(b). All necessary corporate actions required by or on
behalf of HOLOMETRIX to carry out this Agreement have been duly
taken;
(c). To the best of such counsel's knowledge, based upon
reasonable investigation, neither the execution and delivery of
this Agreement by HOLOMETRIX nor compliance with its terms and
provisions by HOLOMETRIX results or will result in a breach by
HOLOMETRIX of any statutes or regulations of the United States of
America or the Commonwealth of Massachusetts or conflicts with or
results in the breach of any of the terms, conditions or
provisions of any agreement or instrument to which HOLOMETRIX is a
party or by which it may be bound, or will constitute a default
thereunder, or result in the creation or imposition of any lien,
charge, encumbrance, or restriction of any nature whatsoever upon
any of the properties; contracts or business of HOLOMETRIX; and
(d). Except as disclosed in this Agreement (including
any exhibit hereto), such counsel, having made reasonable
investigation, has no knowledge of any governmental investigation
or suit proceeding or administrative action with respect to any of
the transactions contemplated by this Agreement, or any material
error, misstatement or omission in any representation or warranty
made by HOLOMETRIX in this Agreement or in any statement,
certificate, instrument, document or opinion furnished by or on
behalf of HOLOMETRIX pursuant to this Agreement.
11. Major Stockholders' Indemnity Agreement. All representations,
warranties, covenants, agreements, and undertakings made anywhere
in this Agreement by Major Stockholders, are made to and for the
benefit of HOLOMETRIX and its affiliates (including Nametre). It
is the intention of the parties to state herein their specific
agreement that in respect to all representations, warranties,
covenants, agreements, or undertakings made anywhere in this
Agreement by Major Stockholders (and/or in the Exhibits attached
hereto and the documents to be delivered by Major Stockholders, at
the Closing) Major Stockholders shall indemnify and defend
HOLOMETRIX and its affiliates (including Nametre) and hold
HOLOMETRIX and its affiliates (including Nametre) harmless from
any and all claims, actions, suits, liabilities, losses, damages,
and expenses of every nature and character (including, but not by
way of limitation, all reasonable attorneys' fees and all amounts
paid in settlement of any claim, action or suit) (collectively,
"Losses") which constitute or which arise or result directly or
indirectly from any error, misstatement, omission, failure to
perform, or breach in or of any such representation, warranty,
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covenant, agreement or undertaking. Provided however that the
maximum amount for which major stockholders shall be liable
hereunder shall not exceed $125,000, which maximum amount of
liability shall decline by $25,000 on each anniversary of this
agreement and shall be reduced to zero on the fifth anniversary
thereof.
12. HOLOMETRIX' Indemnity Agreement. All representations,
warranties, covenants, agreements, and undertakings made anywhere
in this Agreement by HOLOMETRIX, are made to and for the benefit
of Nametre and Major Stockholders. It is the intention of the
parties to state herein their specific agreement that in respect
to all representations, warranties, covenants, agreements, or
undertakings made anywhere in this Agreement by HOLOMETRIX (and/or
in the Exhibits attached hereto and the documents to be delivered
by HOLOMETRIX at the Closing) HOLOMETRIX shall indemnify and
defend Nametre and Major Stockholders and hold Nametre and Major
Stockholders harmless from any and all claims, actions, suits,
liabilities, losses, damages, and expenses of every nature and
character (including, but not by way of limitation, all reasonable
attorneys' fees and all amounts paid in settlement of any claim,
action or suit) (collectively, "Losses") which constitute or which
arise or result directly or indirectly from any error,
misstatement, omission, failure to perform, or breach in or of any
such representation, warranty, covenant, agreement or undertaking.
Provided however that the maximum amount for which Holometrix
shall be liable hereunder shall not exceed $125,000, which maximum
amount of liability shall decline by $25,000 on each anniversary
of this agreement and shall be reduced to zero on the fifth
anniversary thereof.
13. Survival of Obligations. The representations, warranties,
covenants, and agreements and the obligations of the parties under
the indemnity agreements in Articles 11 and 12 and under all other
provisions of this Agreement shall survive the Closing and
delivery of all required instruments hereunder (including, but not
by way of limitation, the opinions, or letters herein required),
until two years from the Closing Date. Notwithstanding any
examination made by or on behalf of a party of the property,
books, and records of the other or of the Business, HOLOMETRIX
shall not be stopped from asserting, and recovering under, Major
Stockholders' indemnities set forth herein.
14. Claims Procedure. No claim shall be made by a party hereto
by virtue of or arising out of or resulting from or relating to
the breach of any representation, warranty, covenant or agreement
unless written notice of such claim (stating the basis therefor in
reasonable detail) shall have been given on or prior to the date
on which such representation, warranty, covenant or agreement
shall expire (in which event each such representation, warranty,
covenant or agreement shall, solely with respect to such claim,
survive until such claim is resolved and all obligations with
respect thereto are satisfied). Any claim for indemnification
under this Agreement shall be asserted by written notice given by
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one party to the other who shall have a period of thirty (30) days
within which to respond thereto. If a party does not respond
within such thirty (30) day period, it shall be deemed to have
accepted responsibility to make payment, and shall have no further
right to contest the validity of such claim. If a party does
respond within such thirty (30) day period and reject such claim
in whole or in part, it shall be free to pursue the remedies as
may be available to it under applicable law. Major Stockholders
hereby appoint Xxxxx X. Xxxxxx whose address is 000 Xxxxxxx
Xxxxxx, Xxxxxxxx, XX 00000 to give and receive notices pursuant to
this Article.
15. Courts of Law and Consent to Jurisdiction. Each party hereto
irrevocably agrees that all disputes arising out of or in
connection with this Agreement or any of the transactions
contemplated hereby shall be determined by litigation in either
the United States Federal or State Courts located within Middlesex
County, Massachusetts. Solely with respect to any suit, action or
other proceeding arising under this Agreement and not for any
other purpose, each of the parties hereto hereby consents and
submits to the jurisdiction of any United States Federal or State
Court located in any of the aforesaid county and hereby
irrevocably waives, to the fullest extent permitted by applicable
law, any right it may have to request or demand trial by jury, to
transfer or change the venue of any suit, action or other
proceeding or to claim that any such suit, action or proceeding
has been brought in an inconvenient forum. Assuming that the
federal court requirements as to jurisdiction over the parties and
subject matter are able to be satisfied in each instance, the
parties agree that suit will be brought in federal court as
opposed to state court. Each of the parties hereto agrees that a
judgment in any such proceeding may be enforced in other
jurisdictions by suit on the judgment or in any other manner
provided by law.
15.1. Service of Process. Each party hereto hereby consents
to process being served by any other party to this Agreement in
any suit, action or proceeding of the nature specified in Article
13 above by the mailing of a copy thereof in accordance with the
provisions of Article 18 of this Agreement.
16. Termination and Abandonment. This Agreement may be terminated
and abandoned at any time prior to the Closing:
16.1. by unanimous consent of HOLOMETRIX, Nametre and Major
Stockholders;
16.2. by HOLOMETRIX if at or prior to the Closing any of the
conditions provided for in Article 9 of this Agreement have not
been satisfied or have not been waived by HOLOMETRIX;
16.3. by Nametre and the Major Stockholders if at or prior to
the Closing any of the conditions provided for in Article 10 of
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this Agreement have not been satisfied or have not been waived by
Nametre and the Major Stockholders.
16.4. by HOLOMETRIX or Nametre and the Major Stockholders if
the Acquisition has not been consummated written one hundred
twenty (120) days of the date of this Agreement.
17. Transaction Expenses. Each party shall pay its own
transaction expenses which are incident to the preparation of this
Agreement and consummating the Acquisition hereunder.
18. Notices. All notices, requests, demands and other
communications hereunder shall be in writing and shall be deemed
to have been duly given when delivered by confirmed telex or
telefax, or when delivered by courier or 72 hours after being
mailed by certified mail, return receipt requested, postage
prepaid, to the other party to the address set forth below or to
such other address as the party may designate in writing:
If to Major Stockholders or Nametre, to:
National Metal Refining Company
000 Xxxxxxx Xxxxxx
Xxxxxxxx, XX 00000
Attn: Xxxxx X. Xxxxxx, President
with copy to: Xxxxxxx X. Xxxxx, Esq.
Hoagland, Longo, Xxxxx, Xxxxx &
Xxxxxx
Post Xxxxxx Xxx 00
00 Xxxxxxxxx Xxxxxx
Xxx Xxxxxxxxx, XX 00000
and
If to HOLOMETRIX, to: HOLOMETRIX, Inc.
00 Xxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxxxxxxx 00000-0000
Attn: Xxxx X. Xxxxx, President
with copy to: Xxxx X. Xxxxxxx, Esq.
Attorney at Law
000 Xxxxx Xxxxx
Xxxxxx, XX 00000
19. Entire Agreement. All representations, warranties, covenants
and agreements made by the parties hereto are contained in this
Agreement (and the Exhibits annexed hereto and the Certificates
furnished pursuant hereto), and no claims shall be made by
HOLOMETRIX, Nametre, or the Major Stockholders upon any
representation, warranty, covenant or agreement not contained
herein, it being the intention of the parties to incorporate into
this Agreement (and the Exhibits annexed hereto and the
Certificates furnished pursuant hereto) their full and complete
- 27 -
understanding. No amendment, modification, or addition hereto
shall have effect or be binding unless in writing and executed by
all of the parties hereto (or their respective duly authorized
representatives).
20. Assignment. Neither this Agreement nor any of the rights,
interests or obligations hereunder shall be assigned by any of the
parties hereto without prior written consent of each of the other
parties, except that HOLOMETRIX may assign its rights hereunder to
any of its wholly-owned subsidiaries.
21. Successors. All of the terms and conditions of this Agreement
shall be binding upon and inure to the benefit of the successors
and permitted assigns of HOLOMETRIX, and Nametre and the heirs and
personal representatives of Major Stockholders.
22. Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original but all of
which together shall constitute one and the same instrument.
23. Applicable Law. This Agreement shall be governed by the laws
of the Commonwealth of Massachusetts in every respect, including
but not limited to, validity, interpretation and performance,
except with respect to conflict of laws.
24. Titles. The marginal headings to the Articles of this
Agreement are for convenience only and are not a part of this
Agreement and shall have no effect upon the construction or
interpretation of any part of this Agreement.
25. Severability. In the event that any provision in this
Agreement be held invalid or unenforceable, by a court of
competent jurisdiction, such provision shall be severable from,
and such invalidity or unenforceability shall not be construed to
have any effect on, the remaining provisions of this Agreement,
unless such provision goes to the essence of this Agreement in
which case the entire agreement may be declared invalid and not
binding upon either party.
26. Public Disclosure. From the date hereof until the Closing
Date, neither Nametre nor HOLOMETRIX shall make, or permit its
affiliates to make, nor shall Major Stockholders make, any public
statement with respect to the transactions contemplated hereby
without the prior consent of the other; provided that such consent
will not be unreasonably withheld in any case and that nothing
herein shall prevent any party from making any such disclosures or
statements as may be required by law, regulation or rule of any
governmental entity or of any stock exchange; provided further,
that any party required by law, regulation or rule of any
governmental entity or of any stock exchange to make any such
disclosure or statement shall make a good faith effort to inform
the other party of such requirement as soon as is practicable
(whether such time is before or after such disclosure or
statement).
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27. Election of Holometrix' Nominee Directors. Immediately
following the Closing Major Stockholders shall call a special
meeting of the Board of Directors of Nametre and at said special
meeting Major Stockholders shall vote for the election to the
Nametre Board three persons to be nominated by HOLOMETRIX.
28. Receipt of information: Disclosure of Conflicts. Prior to
making the decision to enter into this Agreement and sell the
Majority of Nametre Common Stock, each of Nametre and the Major
Stockholders has had the opportunity to ask questions of , and
receive answers from, the directors and officers of HOLOMETRIX
concerning its business and operations and to obtain from
HOLOMETRIX any additional information each required to evaluate
the merits of the transaction contemplated hereunder. Nametre and
each of the Major Stockholders acknowledge that each is aware that
Xxxxxx X. Xxxxxx is a director, advisor and directly or indirectly
a stockholder of Nametre, HOLOMETRIX and Tytronics Incorporated
and that they have each independently evaluated the merits of the
transactions contemplated by this Agreement and have not been
influenced to enter into such transactions by Xx. Xxxxxx.
IN WITNESS WHEREOF, the parties have duly executed this
Agreement as of the day and year first above written.
Attest: Holometrix, Inc.
/s/ Xxxx X. Xxxxxxx /s/ Xxxx X. Xxxxx
By:____________________ By:_______________________
President
Attest: National Metal Refining Company
/s/ Xxxxx X. Xxxxxxx /s/ Xxxxx X. Xxxxxx
By:____________________ By:_________________________
President
/s/ Xxxx X. Xxxxxxx /s/ Xxxxx X. Xxxxxx
_______________________ _____________________________
Witness Xxxxx X. Xxxxxx
/s/ Xxxx X. Xxxxxxx /s/ Xxxxx X. Xxxxxxx
_______________________ ______________________________
Witness Xxxxx X. Xxxxxxx
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