ASSETS PURCHASE AGREEMENT
THIS AGREEMENT, dated as of March 1, 1995, is by and
among Control Chief Corporation, a Pennsylvania corporation with
its principal offices at 000 Xxxxxxxx Xxxxxx, Xxxxxxxx,
Xxxxxxxxxxxx 00000 ("Buyer"), and NTR Technologies, Inc., a
Pennsylvania corporation with its principal office at 000 Xxxxxxx
Xxxx Xxx, Xxxxxxxxxx, Xxxxxxxxxxxx 00000 ("Seller"), Xxxxxx X.
Xxxxxxx, an individual residing at 000 Xxx Xxxx Xxxxx,
Xxxxxxxxxx, Xxxxxxxxxxxx 00000 who has at times done business as
"Xxxxxxx XX", Xxxxxxx Xxxxxx, an individual residing at 000 00xx
Xxxxxx, Xxxxxxxxxx, Xxxxxxxxxxxx 00000, Xxxxxxx X. Xxxxxxx, an
individual residing at 000 Xxxx Xxxxx Xxxx, Xxxxxxxxxx,
Xxxxxxxxxxxx 00000, Xxxxxx X. Xxxxxx, Xx., an individual
residing at 000 Xxxxx Xxxxx Xxxx, Xxxxxxx, Xxxxxxxxxxxx 00000,
and Xxxxxxxxx X. Xxxxxx, an individual residing at 000 Xxxxx
Xxxxx Xxxx, Xxxxxxx, Xxxxxxxxxxxx 00000. The individual parties
hereto are referred to individually as an "Individual" and
collectively as the "Individuals", and Seller and the Individuals
are referred to collectively as "Seller's Group".
WHEREAS, Seller desires to sell and Buyer desires to
purchase, upon the terms and conditions more fully set forth
below, all assets and properties of Seller, including, but not
limited to, all cash, accounts receivable, inventory, equipment,
contracts, product rights, intellectual property rights, business
records and goodwill; and
WHEREAS, certain of the Individuals desire to sell and
Buyer desires to purchase certain equipment owned by such
Individuals and used in the business of Seller; and
WHEREAS, in connection with the purchase of the assets
of Seller and the Individuals, Buyer has agreed to assume certain
liabilities of Seller and Xxxxxx X. Xxxxxxx; and
WHEREAS, in connection with the transactions
contemplated by this Agreement, the Buyer and each of Xxxxxx X.
Xxxxxxx and Xxxxxxx Xxxxxx desire to enter into employment
agreements;
NOW, THEREFORE, in consideration of the covenants,
agreements, representations and warranties contained herein, the
parties hereto agree as follows:
SECTION 1. PURCHASE OF ASSETS
1.1 Purchased Assets. Seller hereby agrees to sell,
convey, transfer and deliver to Buyer all of Seller's right,
title and interest in and to all of Seller's assets, tangible or
intangible, real or personal, including but not limited to the
assets set forth on Schedule 1.1(a) hereto (the "Assets"). Each
of the Individuals hereby agrees to sell, convey, transfer and
deliver to Buyer all of such person's respective right, title and
interest in and to the assets set forth on Schedule 1.1(b) hereto
which are identified as being owned by each respective Individual
(the "Individual Assets"). The Assets and the Individual Assets
are referred to herein collectively as the "Purchased Assets".
1.2 Purchase Price. The purchase price for the Assets
is One Hundred Thousand Dollars ($100,000) which shall be paid by
Buyer as follows: Twenty Thousand Dollars ($20,000) shall be
paid by the delivery of Buyer's company check in such amount to
Seller on the Closing Date as defined herein, and Eighty Thousand
Dollars ($80,000) shall be paid with interest at the rate of 8%
in twenty-four equal monthly installments of $3,618.18 commencing
on April 1, 1995 and continuing on the 1st day of each month
thereafter until March 1, 1997. The purchase price for the
Individual Assets shall be Eight Thousand Four Hundred Twenty-
Five Dollars ($8,425), which amount shall be paid to the
appropriate Individuals as set forth on Schedule 1.1(b) hereto by
the delivery of Buyer's company checks on the Closing Date.
1.3 Assumption of Liabilities. On the Closing Date,
Buyer shall assume the liabilities of Seller and Xxxxxx X.
Xxxxxxx set forth on Schedule 1.3 attached hereto (the "Assumed
Liabilities"). Buyer does not assume any other obligations or
liabilities of Seller or the Individuals, contingent or
otherwise, specifically including but not limited to any
obligations or liabilities relating to injuries or damage caused
by products manufactured or sold by Seller, sales, payroll,
income or other taxes or any obligations owed to Seller's
employees, customers or vendors.
1.4 Closing. The closing shall occur on the date this
Agreement is executed by all the parties hereto (the "Effective
Date") or on such date thereafter as is agreed by the parties
hereto; provided, however, the closing shall occur no later than
thirty (30) days following the Effective Date. The date on which
the closing actually occurs is referred to herein as the Closing
Date.
(a) On the Closing Date: (1) Seller shall deliver to
Buyer a duly executed Xxxx of Sale for the Assets and the
appropriate Individuals shall deliver duly executed Bills of Sale
to Buyer for the Individual Assets, each in the form attached
hereto as Exhibit A, (2) Seller and Buyer shall each execute an
Assignment and Assumption Agreement in substantially the form
attached hereto as Exhibit B, (3) Seller and Buyer shall each
execute a Lease Assignment and Assumption Agreement in
substantially the form attached hereto as Exhibit C, (4) Buyer
and will enter into employment agreements in substantially the
form of the Employment Agreement attached hereto as Exhibit D
with each of Xxxxxx X. Xxxxxxx and Xxxxxxx Xxxxxx, at an annual
salary of $57,500 and $50,000, respectively, (5) Seller shall
deliver to Buyer an unaudited balance sheet of Seller's financial
position as of the Closing Date (the "Closing Date Balance
Sheet"), (6) if the Closing Date occurs after the Effective Date,
each member of the Seller's Group shall deliver to Buyer, and
Buyer shall deliver to the Seller's Group, certificates stating
that as of the date thereof each of the representations and
warranties of such party is true and correct in all material
respects and that such party has complied with all of its
obligations under this Agreement to be performed on or before
such date, (7) Seller shall deliver to Buyer the Consents, as
hereinafter defined, and (8) Buyer shall pay to the appropriate
members of the Seller's Group the amounts set forth in Section
1.2 hereof and in Section 4.3 hereof, if any.
(b) The obligations of Buyer to perform its
obligations under Section 1.4(a) hereof shall be subject to:
each member of the Seller's Group being willing and able to
perform its obligations under Section 1.4(a), the representations
and warranties of each member of the Seller's Group being true
and correct in all material respects as of the Closing Date, the
performance by each member of the Seller's Group of all of its
obligations under this Agreement to be performed on or before the
Closing Date, and the delivery to Buyer of certified copies of
resolutions, in a form acceptable to Buyer, of the incorporators,
directors and/or shareholders of Seller authorizing the
transactions contemplated by this Agreement.
(c) The obligations of the members of the Seller's
Group to perform their obligations under Section 1.4(a) hereof
shall be subject to: Buyer being willing and able to perform its
obligations under Section 1.4(a), the representations and
warranties of Buyer being true and correct in all material
respects as of the Closing Date, and the performance by Buyer of
all of its obligations under this Agreement to be performed on or
before the Closing Date.
SECTION 2. SELLER'S REPRESENTATIONS AND
WARRANTIES
Each member of the Seller's Group hereby jointly and
severally represents and warrants to Buyer that:
2.1 Corporate Authority. Seller is a corporation duly
organized and validly existing under the laws of the State of
Pennsylvania and has full power and authority to enter into and
to perform its obligations under this Agreement. It is not
required to qualify to do business in any other jurisdiction.
There are no outstanding agreements, assignments, licenses or
encumbrances inconsistent with the provisions of this Agreement
or which may prevent or hinder Seller from consummating the
transactions contemplated by this Agreement.
2.2 Assets Transferred. True copies of all written
leases and other agreements constituting Purchased Assets have
been delivered to Buyer. None of the foregoing leases or
agreements is in default by any party thereto and all of the
foregoing are valid, binding and enforceable in accordance with
the terms thereof. The tangible Purchased Assets are in good
working condition and comply with all applicable laws and
regulations. The inventory identified on the Closing Balance
Sheet is in good and saleable condition in the ordinary course of
Seller's business.
2.3 Title. Seller and the Individuals have good and
transferable title to the Assets and the Individual Assets,
respectively, and the Purchased Assets are free and clear of any
security interest, lien or encumbrance, license, obligation or
liability except that the equipment leased pursuant to the
Hewlett Packard Lease described in Schedule 1.3 is subject to
such lease.
2.4 Trademarks, Trade Names, Etc. Seller owns all
intellectual property rights which relate to the Purchased Assets
or which are necessary to operate its business in the manner in
which it is currently being conducted. Seller has not received
any notice with respect to any alleged infringement or unlawful
or improper use of any intellectual property owned or alleged to
be owned by others. Seller has not at any time transferred or
encumbered, in whole or in part, any interest in any intellectual
property. No person or entity who is not a party to this
Agreement has any interest in any such intellectual property.
2.5 No Conflicts. Neither the execution and delivery
of this Agreement nor the consummation of the transactions
contemplated hereby will: (a) conflict with the charter
documents or by-laws of Seller; (b) violate any order, writ,
injunction or decree applicable to any member of the Seller's
Group; (c) violate any provisions of laws, rules or regulations
to which any member of the Seller's Group is subject;
(d) violate, conflict with or result in any breach of or default
under any mortgage, indenture, contract, agreement, license,
permit, instrument or trust to which any member of the Seller's
Group is a party or by which their properties are bound; or
(e) result in the creation or imposition of any lien, claim,
charge, restriction, security interest or encumbrance of any kind
whatsoever upon, or give to any person other than Buyer any
interest or right in or with respect to, any of the Purchased
Assets.
2.6 Litigation. There is no suit, action, litigation,
investigation, claim, complaint, grievance or proceeding,
including appeals and applications for review, in progress,
pending or, to the best of the knowledge, information and belief
of any member of the Seller's Group, threatened, against or
relating to any member of the Seller's Group, or affecting any of
their properties or business, before any court, governmental
department, commission, board, bureau, agency or instrumentality,
domestic or foreign, or arbitration panel which, if determined
adversely to the member of the Seller's Group, might materially
and adversely affect the properties, business, future prospects
or financial condition of Seller or the Individual Assets; and,
there is not presently outstanding against any member of the
Seller's Group any judgment, decree, injunction, rule or order of
any court, governmental department, commission, agency,
instrumentality or arbitrator.
2.7 Corporate Action of Seller. All corporate actions
required to be taken by Seller to approve the transactions
contemplated by this Agreement and to authorize the execution and
delivery of this Agreement, including the approval of the Board
of Directors and shareholders of Seller, have been properly
taken. This Agreement has been duly and validly executed and
delivered by each member of the Seller's Group and constitutes a
valid and legally binding obligation of each member of the
Seller's Group, enforceable against each of them in accordance
with the terms hereof, subject, however to limitations with
respect to enforcement imposed by laws in connection with
bankruptcy or similar proceedings, and to the extent that
equitable remedies such as specific performance and injunctions
are in the discretion of the court from which they are sought.
2.8 Brokers. There is no broker or finder or other
person who would have any valid claim against Seller for a
commission or brokerage in connection with this Agreement or the
transactions contemplated hereby.
2.9 Third Party Consents. No consents from any third
parties are required in connection with the transfer of the
Purchased Assets to Buyer as contemplated in this Agreement,
except the consents of the other parties to the leases described
in Section 4.5 hereof.
2.10 Financial Statements. Attached hereto as Schedule
2.10 is an unaudited balance sheet of Seller's financial position
as at January 21, 1995 (the "January Balance Sheet"). The
Closing Balance Sheet and the January Balance Sheet fairly
present the financial position of Seller at the times set forth
therein, in each case in accordance with generally accepted
accounting principles applied on a consistent basis except for
the absence of footnote disclosure. Seller has no other
liabilities or obligations other than those set forth in the
Closing Balance Sheet. The accounts receivable shown in the
Closing Balance Sheet arose from bona fide sales of products to
customers of Sellers, and the same are valid and binding
obligations of those customers, enforceable in accordance with
the terms thereof, subject to no offsets, counterclaims, defenses
or recoupment.
2.11 Conduct of Business. Since January 21, 1995
Seller has operated its business in the ordinary course
consistent with its past practices. Except for one distribution
of earnings to shareholders for the period ending December 31,
1994, since January 21, 1995 Seller has (a) made no dividends,
distributions, transfers or other payments to any shareholder,
director or employee other than salary payments at the same rate
as those being paid prior to January 21, 1995, or (b) made no
payments to any other person except for payments on account,
services rendered or property purchased, all in the ordinary
course of Seller's business.
2.12 Taxes. All federal, state and other tax returns,
reports and declarations have been timely filed by Seller and the
same are complete and accurate and disclose all taxes and other
sums required to be paid for the periods covered. All taxes,
including estimated taxes, assessments, penalties and interest
required to be paid by or on behalf of Seller have been paid, and
all taxes, assessments, penalties and interest required to be
withheld and collected by Seller have been withheld and collected
and have been and will be paid to the appropriate governmental
bodies. Buyer shall have no liability as a result of the
transactions contemplated by this Agreement with respect to or
arising from any and all taxes, levies and other assessments
which Seller or any member of the Seller's Group is or was
required by law to pay, to withhold, or to collect and pay over
to the proper governmental authorities.
2.13 Compliance with Laws. Seller has complied with
all applicable laws, rules and regulations of all governmental
and other bodies, including without limitation, those relating to
pollution of the environment and the protection, safety, working
conditions and remuneration of employees.
2.14 Employment Matters. Seller has no contractual
relationship with its employees and Seller is not subject to any
collective bargaining agreement. Seller has no employee or
director fringe benefit plans or contracts.
2.15 Miscellaneous. No representation or warranty of
Seller herein contains any untrue statement of a material fact
necessary in order to make the statement not misleading.
SECTION 3. BUYER'S REPRESENTATIONS AND WARRANTIES
Buyer represents and warrants to each member of the
Seller's Group that:
3.1 Corporate Authority. Buyer is a corporation duly
organized, validly existing and in good standing under the laws
of the State of Pennsylvania and has full power and authority to
enter into and to perform its obligations under this Agreement.
3.2 No Conflicts. Neither the execution and delivery
of this Agreement, nor the consummation of the transactions
contemplated hereby (a) conflict with the articles of
incorporation or by-laws of Buyer; (b) violate any order, writ,
injunction or decree applicable to Buyer; (c) violate any
provisions of laws, rules or regulations to which Buyer is
subject; or (d) violate, conflict with or result in any breach of
or default under any mortgage, indenture, contract, agreement,
license, permit, instrument or trust to which Buyer is a party or
by which Buyer is bound.
3.3 Corporate Action of Buyer. All corporate actions
required to be taken by Buyer to approve the transactions
contemplated by this Agreement and to authorize the execution and
delivery of this Agreement have been properly taken. This
Agreement has been duly and validly executed and delivered by
Buyer and constitutes a valid and legally binding obligation of
Buyer, enforceable against it in accordance with the terms
hereof, subject however to limitations with respect to
enforcement imposed by laws in connection with bankruptcy, or
similar proceedings and to the extent that equitable remedies
such as specific performance and injunctions are in the
discretion of the court from which they are sought.
3.4 Brokers. There is no broker or finder or other
person who would have any valid claim against Buyer for a
commission or brokerage in connection with this Agreement or the
transactions contemplated hereby.
SECTION 4. COVENANTS OF THE PARTIES
4.1 Marketing of Apache 1200. Buyer agrees that it
will not sell or market the "Apache 1200" product for use in
underground mining OEM applications for a period of two years
from the Closing Date without the prior written consent of
Structured Mining Systems, Inc. This provision shall not prevent
Buyer from servicing or providing ancillary products to any
customer of Seller or from selling or marketing the "Apache 1200"
for use in any other application.
4.2 Discontinuance of Business. On the Closing Date
Seller shall immediately discontinue conducting any business
other than the winding up of its affairs, and it shall dissolve
within ninety (90) days of the Closing Date. Immediately
following the Closing Date, Seller shall discharge any
obligations and liabilities not assumed by Buyer, or, to the
extent the same cannot be discharged at that time because of the
terms thereof, as soon as the terms of such obligations permit
discharge.
4.3 Hewlett Packard Lease. In the event that any
member of the Seller's Group shall prepay the obligations of
Xxxxxx X. Xxxxxxx arising after the Closing Date under the
Hewlett Packard lease identified on Schedule 1.3 and satisfy all
the obligations thereunder so that the Assets subject to such
lease are conveyed to Buyer free of any lien of such lease, Buyer
shall pay such member the amount of the prepayment on the Closing
Date by company check.
4.4 Payments to Structured Mining Systems, Inc. Buyer
hereby agrees to pay to Structured Mining Systems, Inc. the
amount of $860.67 on the first day of each month for twelve (12)
months commencing on April 1, 1995 and continuing until March 1,
1996. Seller will satisfy any additional indebtedness that it
owes to Structured Mining Systems, Inc.
4.5 Consents. Prior to the Closing Date, Seller shall
obtain the consents required under the Real Estate Lease and the
Hewlett Packard Lease identified in Schedule 1.3. Seller shall
use its best efforts to obtain the consent of the landlord under
the Real Estate Lease on the form of "Consent of Landlord" which
is attached to the Lease Assignment and Assumption Agreement
attached hereto as Exhibit C.
4.6 Sales and Transfer Taxes. All sales, use or
transfer taxes due as a result of the consummation of the
transactions contemplated by this Agreement, if any, shall be
paid by the member of the Seller's group who receives the
consideration giving rise to such tax. The appropriate member of
the Seller's Group shall file all necessary returns in connection
with such taxes.
4.7 Bulk Sales and Sales Tax Indemnification. Each
member of the Seller's Group agrees to jointly and severally
indemnify Buyer for any liabilities or obligations incurred by
Buyer as a result of a failure to comply with all applicable
provisions of the Pennsylvania Bulk Sales Law and the
Pennsylvania Tax Law; provided, however, that no Individual shall
be obligated to indemnify Buyer for more than the amount received
by such Individual in connection with the transactions
contemplated by this Agreement (whether directly or as a
distribution in any form from Seller).
4.8 Transfer of Intellectual Property Rights. Each
individual hereby assigns to Buyer all of his or her rights and
interests in and to all intellectual property rights relating to
the Assets or the business of Seller being transferred to Buyer
pursuant to this Agreement.
[4.9 Employment of Xxxxxxx X. Xxxxxxx. Upon the
delivery of proof satisfactory to Buyer that the offer of
employment by Buyer to Xxxxxxx X. Xxxxxxx will not conflict with
or constitute a violation of any contract or agreement with
Westinghouse Electric Corporation or the United States of America
through the U.S. Department of Energy, Buyer agrees to offer
employment to Xxxxxxx X. Xxxxxxx under substantially the terms
and conditions set forth in the form of Employment Agreement
attached hereto as Exhibit D at an annual salary of $57,500.]
SECTION 5. SURVIVAL AND INDEMNIFICATION
5.1 Nature and Survival of Representations and
Warranties. All statements, representations, warranties,
covenants and agreements contained herein, or in any certificate
or other document delivered by or on behalf of a party pursuant
to or in connection with the transactions contemplated by this
Agreement, shall be deemed to be made by such party hereunder.
All representations, warranties, covenants and agreements of the
parties hereto contained herein, or made by the parties
hereunder, shall survive the closing, the execution and delivery
hereunder of any bills of sale, instruments of conveyance,
assignments or other instruments of transfer of title to any of
the Assets and the payment of the consideration therefor, and
shall continue in full force and effect for a period of three
years after the date hereof. If no claim in writing shall, prior
to the expiration of such three year period, have been made
hereunder against a party hereto with respect to any inaccuracy
in or breach of any representation, warranty, covenant or
agreement made herein by such party, such party shall have no
further liability hereunder with respect to such representation,
warranty, covenant or agreement.
5.2 Indemnification.
Each member of the Seller's Group, jointly and
severally, agrees to defend, indemnify and hold Buyer harmless,
and Buyer agrees that it will defend, indemnify and hold each
member of the Seller's Group harmless, in each case from and
against all claims, losses, costs, liabilities and expenses
(including reasonable attorney's fees) ("Loss") arising out of
any breach of any representation, warranty, agreement or covenant
made by the indemnifying party herein or in any certificate or
other document furnished pursuant hereto by the indemnifying
party; provided, however, that no Individual shall be obligated
to indemnify Buyer for more than the amount received by such
Individual in connection with the transactions contemplated by
this Agreement (whether directly or as a distribution in any form
from Seller). Seller shall have the right to off-set any amount
to which it is entitled under this Section against any amount
payable by it pursuant to Section 1.2 hereof.
SECTION 6. MISCELLANEOUS
6.1 Notices. Any and all notices to be delivered in
connection herewith shall be in writing and shall be deemed given
if delivered personally or by facsimile transmission, telexed or
sent by mail or courier service to the other party at the address
set forth above or such other address as any party may furnish by
notice to the others as provided.
6.2 Expenses. Each party shall bear its own expenses
(including, without limitation, legal and accounting fees and
expenses) incurred in connection with this Agreement and the
transactions contemplated herein, whether or not such
transactions are consummated.
6.3 Validity. If any part of this Agreement shall be
found to be invalid or unenforceable, that part shall be deemed
to be severable and the remaining portions of this Agreement
shall remain in full force and effect.
6.4 Assignability. This Agreement shall not be
assignable in whole or in part by any party without the prior
written consent of the other parties hereto.
6.5 Applicable Law. This Agreement and the rights and
obligations of the parties hereunder shall be construed and
interpreted in accordance with the laws of Pennsylvania without
reference to Pennsylvania's choice of law rules.
6.6 Entire Agreement. This Agreement constitutes the
entire agreement of the parties hereto with respect to the
matters contained herein, and no modification, amendment or
waiver of any of the provisions of this Agreement shall be
effective unless in writing and signed by the parties hereto.
6.7 Effect of Waiver. The waiver by any party of a
breach of, or compliance with, any provision of this Agreement
shall not operate as or be construed as a waiver of any
subsequent or other breach thereof.
6.8 Successors and Assigns. This Agreement shall
extend to and be binding upon the parties hereto and their
respective successors and assigns.
6.9 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.
6.10 Section Headings. The section headings contained
in this Agreement are for reference purposes only and shall not
affect in any way the meaning or interpretation of this
Agreement.
6.11 Further Assurances. The parties hereto shall
provide such further documents or instruments required by any
other party hereto as may be reasonably necessary or desirable to
effect the purpose of this Agreement and carry out its
provisions, whether before or after the date hereof.
6.12 Consent to Jurisdiction. All members of the
Seller's Group and Buyer agree that any litigation in connection
with this Agreement or the transactions contemplated hereby shall
be commenced and conducted by any of them only in Pennsylvania in
the County of Allegheny, or in the U.S. District Court whose
jurisdiction includes such county, which courts shall have
exclusive jurisdiction thereof. All members of Seller's Group
and Buyer submit to the venue of such courts and agree that
service of process upon them shall be valid if delivered to the
applicable address specified herein.
IN WITNESS WHEREOF, the parties hereto have duly
executed this Agreement as of the day and year first above
written.
CONTROL CHIEF CORPORATION
By: /S/Xxxxxxx X. Xxxx
Name: Xxxxxxx X. Xxxx
Title: V. President
NTR TECHNOLOGIES, INC.
By: /S/Xxxxxx X. Xxxxxxx
Name: Xxxxxx X. Xxxxxxx
Title: President
/S/Xxxxxx X. Xxxxxxx
/S/Xxxxxxx Xxxxxx
/S/Xxxxxxx X. Xxxxxxx
/S/Xxxxxx X. Xxxxxx, Xx.
/S/Xxxxxxxxx X. Xxxxxx
SCHEDULE 1.1(a)
ASSETS
1. All cash of Seller as of the Closing Date, including deposits.
2. All accounts receivable and prepaid expenses except the
following accounts receivable:
Invoice Invoice Customer Open
Customer Date Number Order # Balance
RSM, Inc. 11/14/94 1015 0125LED $110.00
RSM, Inc. 11/14/94 1014 0119VTX $40.00
RSM, Inc. 1/4/95 1027 0133VTX $550.00
RSM, Inc. 1/6/95 1028 0133VTX $550.00
RSM, Inc. 1/11/95 1034 0133VTX $550.00
RSM, Inc. 1/26/95 1033 0133VTX $5,170.00
RSM, Inc. 1/27/95 1035 0133VTX $309.50
$7,279.50
TRW 1/9/95 1036 03557EC $1,050.00
$8,329.50
3. All inventory, including raw materials and supplies, work in
process and finished goods.
4. All equipment, furniture, fixtures, computers, machinery and
other tangible personal property, including but not limited
to those items listed on Exhibit A hereto.
5. All contracts, including but not limited to (a) all
outstanding purchase orders and commitments issued or made
by customers to Seller as of the Closing Date, (b) all
outstanding purchase orders or commitments made by Seller as
of the Closing Date, (c) the Lease Agreement dated as of
January 1, 1995 between Seller and The University of
Pittsburgh of the Commonwealth System of Higher Education
(the "Real Estate Lease"), and (d) all other contracts to
which Seller is a party.
6. All rights relating to products currently or previously
manufactured and sold by Seller, and all rights relating to
products being developed by Seller.
7. All trademarks, trade names, trade secrets, copyrights,
know-how, designs, formulations, formulae, processes,
drawings, software and other intellectual property of any
kind.
8. All product catalogs, product literature, manuals,
advertising materials, promotional materials, customer
lists, supplier lists and other business records other than
tax and payroll records.
9. All goodwill relating to any of the foregoing.
SCHEDULE 1.1(b)
INDIVIDUAL ASSETS
Items Owned by Xxxxxx X. Xxxxxxx
All of Xxxxxx X. Xxxxxxx (and Xxxxxxx XX) rights under and
interest in the Lease Agreement dated March 17, 1994 between
Xxxxxx X. Xxxxxxx (as Xxxxxxx XX) and Hewlett Packard.
Item # Description Serial # Age Value
1 IBM 486 SX Unknown 7 Months $1,000
2 TEK 7L12 Analyzer B202937 New $2,995
3 TEK Trace AMP B257093 New $0
4 TEK Time Base B189690 New $1,195
5 HP54601A OSC 3227A05609 1 Year Leased
6 Office Desk N/A 2 Years $50
7 Epson Printer 0F00177086 1 Year $100
8 Frequency Counter N/A 1 Year $250
9 Bird Power Meter N/A 4 Years $375
10 Bird Tuning Element N/A 1 Year $100
11 50 OHM RF Load N/A 1 Year $50
12 Tuning Tools N/A New $25
13 12V Power Supply N/A 2 Years $75
Total Purchase Price for Xxxxxx X. Xxxxxxx $6,215
Items Owned by Xxxxxxx Xxxxxx
Item # Description Serial # Age Value
1 Toshiba PC 11447296 New $1,600
2 Epson Printer 1EU0110262 8 Months $250
3 File Cabinet N/A 1 Year $75
4 Book shelves (Qty = 3) N/A 2 Years $60
5 Solder Station N/A 3 Years $25
6 B&W Television N/A New $50
7 5.25 in. Xxxx Xxxxx X/X 0 Years $75
8 85 Meg Hard Drive WT223649179 1 Year $75
Total Purchase Price for Xxxxxxx Xxxxxx $2,210
SCHEDULE 1.3
ASSUMED LIABILITIES
1. The Accounts Payable of Seller as of the Closing Date, as
set forth on the Closing Date Balance Sheet.
2. The obligations of Seller under the Lease Agreement dated as
of January 1, 1995 between Seller and The University of
Pittsburgh of the Commonwealth System of Higher Education
(the " Real Estate Lease") accruing from and after the
Closing Date.
3. The obligations of Xxxxxx X. Xxxxxxx (as Xxxxxxx XX) under
the Lease Agreement dated March 17, 1994 between Xxxxxx X.
Xxxxxxx (as Xxxxxxx XX) and Hewlett Packard (the "Hewlett
Packard Lease") accruing from and after the Closing Date.
4. The obligations of Seller under all outstanding purchase
orders and commitments issued or made by customers to Seller
as of the Closing Date and all outstanding purchase orders
or commitments made by Seller as of the Closing Date, but
only to the extent such purchase orders or commitments were
entered into in the ordinary course of business of Seller.
5. The obligations of Seller for accrued wages and payroll
taxes, but only those accruing in the ordinary course of
business of Seller at the rates in effect prior to January
21, 1995.
SCHEDULE 2.10
NTR TECHNOLIGIES
Balance Sheet
As of January 21, 1995
Jan 21,'95
ASSETS
Current Assets
Checking/Savings
CHECKING 1,346.20
Total Checking/Savings 1,346.20
Accounts Receivable
Receivables 11,190.00
Total Accounts Receivable 11,190.00
Other Current Assets
INVENTORY 8,017.67
Total Other Current Assets 8,017.67
Total Current Assets 20,553.87
TOTAL ASSETS 20,553.87
LIABILITIES & EQUITY
Liabilities
Current Liabilities
Accounts Payable
Payables 2,571.19
Total Accounts Payable 2,571.19
Total Current Liabilities 2,571.19
Long Term Liabilities
LOAN/SMS 10,000.00
Total Long Term Liabilities 10,000.00
Total Liabilities 12,571.19
Equity
XXXX INVESTMENT -100.01
BOB INVESTMENT -266.66
CAPITAL STOCK 1,000.00
XXXXX INVESTMENT -100.01
ED INVESTMENT 358.68
Retained Earnings 6,747.62
Net Income 3,184.72
XXXX INVESTMENT -2,841.66
Total Equity 7,982.68
TOTAL LIABILITIES & EQUITY 20,553.87
EXHIBIT A
XXXX OF SALE
KNOW ALL MEN BY THESE PRESENTS, that ______________________
________________ ("Seller"), for good and valuable consideration
paid to Seller by Control Chief Corporation, a Pennsylvania
corporation with its principal offices at 000 Xxxxxxxx Xxxxxx,
Xxxxxxxx, Xxxxxxxxxxxx 00000 ("Buyer"), the receipt of which is
hereby acknowledged, does hereby assign, transfer and convey to
Buyer, its successors and assigns, all of Seller's right, title
and interest in and to the assets described on Schedule 1 hereto.
This Xxxx of Sale is further documentation of the
assignments, transfers and conveyances contemplated by the Assets
Purchase Agreement dated _______________, 1995 among Seller,
Buyer and affiliates of Seller (the "Assets Purchase Agreement"),
and is subject to all of the terms, provisions and conditions
thereof. To the extent of any conflict between the terms of the
Assets Purchase Agreement and this Xxxx of Sale, the Assets
Purchase Agreement shall be controlling.
From time to time after the date hereof, Seller shall
execute such further documents of transfer, conveyance and
assignment with regard to the Purchased Assets, as Buyer or
Seller deem necessary or desirable in order to document and
confirm the transfer and assignment of the Purchased Assets
conveyed hereunder.
IN WITNESS WHEREOF, Seller has executed this Xxxx of Sale
this ____ day of ______________, 1995.
_______________________________
[Seller]
SCHEDULE 1 TO NTR TECHNOLOGIES, INC. XXXX OF SALE
All of Seller's assets, tangible or intangible, real or personal,
including but not limited to:
1. All cash of Seller as of the Closing Date, including
deposits.
2. All accounts receivable and prepaid expenses except the
following accounts receivable:
Invoice Invoice Customer Open
Customer Date Number Order # Balance
RSM, Inc. 11/14/94 1015 0125LED $110.00
RSM, Inc. 11/14/94 1014 0119VTX $40.00
RSM, Inc. 1/4/95 1027 0133VTX $550.00
RSM, Inc. 1/6/95 1028 0133VTX $550.00
RSM, Inc. 1/11/95 1034 0133VTX $550.00
RSM, Inc. 1/26/95 1033 0133VTX $5,170.00
RSM, Inc. 1/27/95 1035 0133VTX $309.50
$7,279.50
TRW 1/9/95 1036 03557EC $1,050.00
$8,329.50
3. All inventory, including raw materials and supplies, work in
process and finished goods.
4. All equipment, furniture, fixtures, computers, machinery and
other tangible personal property, including but not limited
to those items listed on Exhibit A hereto.
5. All contracts, including but not limited to (a) all
outstanding purchase orders and commitments issued or made
by customers to Seller as of the Closing Date, (b) all
outstanding purchase orders or commitments made by Buyer as
of the Closing Date, (c) the Lease Agreement dated as of
January 1, 1995 between Seller and The University of
Pittsburgh of the Commonwealth System of Higher Education
(the " Real Estate Lease"), and (d) all other contracts to
which Seller is a party.
6. All rights relating to products currently or previously
manufactured and sold by Seller, and all rights relating to
products being developed by Seller.
7. All trademarks, trade names, trade secrets, copyrights,
know-how, designs, formulations, formulae, processes,
drawings, software and other intellectual property of any
kind.
8. All product catalogs, product literature, manuals,
advertising materials, promotional materials, customer
lists, supplier lists and other business records other than
tax and payroll records.
9. All goodwill relating to any of the foregoing.
SCHEDULE 1 TO XXXXXX X. XXXXXXX XXXX OF SALE
Description Serial #
IBM 486 SX Unknown
TEK 7L12 Analyzer B202937
TEK Trace AMP B257093
TEK Time Base B189690
HP54601A OSC 3227A05609
Office Desk N/A
Epson Printer 0F00177086
Frequency Counter N/A
Bird Power Meter N/A
Bird Tuning Element N/A
50 OHM RF Load N/A
Tuning Tools N/A
12V Power Supply N/A
SCHEDULE 1 TO XXXXXXX XXXXXX XXXX OF SALE
Description Serial #
Toshiba PC 11447296
Epson Printer 1EU0110262
File Cabinet N/A
Book shelves (Qty = 3) N/A
Solder Station N/A
B&W Television N/A
5.25 in. Disk Drive N/A
85 Meg Hard Drive WT223649179
EXHIBIT B
ASSIGNMENT AND ASSUMPTION AGREEMENT
THIS AGREEMENT is made as of the ___ day of ___________,
1995 by and between Control Chief Corporation, a Pennsylvania
corporation with its principal office at 000 Xxxxxxxx Xxxxxx,
Xxxxxxxx, Xxxxxxxxxxxx 00000 ("Buyer"), and
________________________________________ ("Seller") pursuant to
the terms of an Assets Purchase Agreement dated _______________,
1995 among Seller, Buyer and affiliates of Seller (the "Assets
Purchase Agreement").
1. Seller hereby assigns, transfers and conveys to
Buyer all of Seller's right, title and interest in, to and
arising under or relating to the agreements described on Schedule
1 hereto (the "Assigned Contracts").
2. Buyer hereby accepts Seller's assignment set forth
in paragraph 1 above and hereby assumes and agrees to pay,
perform and discharge all of Seller's obligations and liabilities
described on Schedule 2 hereto.
3. Seller shall, from time to time, from and after
the date hereof, upon request of Buyer or at the option of
Seller, execute such further documents of transfer, conveyance
and assignment with regard to the Assigned Contracts as Buyer or
Seller deem necessary or desirable to carry out the transactions
contemplated by this Agreement.
4. This Agreement shall be binding upon and shall
inure to the benefit of
Seller and Buyer and their respective successors and assigns.
5. Other than as is expressly set forth in the Assets
Purchase Agreement, Buyer is not assuming and shall not be liable
for or bound by any liabilities of Seller.
6. This Agreement is made, executed and delivered
pursuant to the Assets Purchase Agreement, and is subject to all
the terms, provisions and conditions thereof. To the extent of
any conflict between the terms of the Assets Purchase Agreement
and this Agreement, the Assets Purchase Agreement shall be
controlling.
IN WITNESS WHEREOF, the parties have executed this
Assignment and Assumption Agreement as of the day and year first
written above.
CONTROL CHIEF CORPORATION
By: ___________________________
Name:___________________________
Title:___________________________
_________________________________
Seller
SCHEDULE 1 TO ASSIGNMENT AND ASSUMPTION AGREEMENT
FOR NTR TECHNOLOGIES, INC.
All contracts of Seller, including but not limited to (a) all
outstanding purchase orders and commitments issued or made by
customers to Seller as of the Closing Date except the purchase
orders relating to the excluded accounts receivable described on
Schedule 1.1(a) to the Assets Purchase Agreement, (b) all
outstanding purchase orders or commitments made by Seller as of
the Closing Date, and (c) all other contracts to which Seller is
a party.
SCHEDULE 2 TO ASSIGNMENT AND ASSUMPTION AGREEMENT
FOR NTR TECHNOLOGIES, INC.
1. The Accounts Payable of Seller as of the Closing Date, as
set forth on the Closing Date Balance Sheet.
2. The obligations of Seller under all outstanding purchase
orders and commitments issued or made by customers to Seller
as of the Closing Date, except the purchase orders relating
to the excluded accounts receivable described on Schedule
1.1(a) to the Assets Purchase Agreement, and all outstanding
purchase orders or commitments made by Seller as of the
Closing Date, but only to the extent such purchase orders or
commitments were entered into in the ordinary course of
business of Seller.
3. The obligations of Seller for accrued wages and payroll
taxes, but only those accruing in the ordinary course of
business of Seller at the rates in effect prior to January
21, 1995.
SCHEDULE 1 TO ASSIGNMENT AND ASSUMPTION AGREEMENT
FOR XXXXXX X. XXXXXXX
The Lease Agreement dated March 17, 1994 between Xxxxxx X.
Xxxxxxx (as Xxxxxxx XX) and Hewlett Packard (the "Hewlett Packard
Lease").
SCHEDULE 2 TO ASSIGNMENT AND ASSUMPTION AGREEMENT
FOR XXXXXX X. XXXXXXX
The obligations of Xxxxxx X. Xxxxxxx (as Xxxxxxx XX) under the
Hewlett Packard Lease accruing from and after the Closing Date.
EXHIBIT C
ASSIGNMENT AND ASSUMPTION OF LEASE
THIS AGREEMENT is made as of the ___ day of
____________, 1995 by and between Control Chief Corporation, a
Pennsylvania corporation with its principal office at 000
Xxxxxxxx Xxxxxx, Xxxxxxxx, Xxxxxxxxxxxx 00000 ("Buyer"), and NTR
Technologies, Inc., a Pennsylvania corporation with its principal
office at 000 Xxxxxxx Xxxx Xxx, Xxxxxxxxxx, Xxxxxxxxxxxx 00000
("Seller") pursuant to the terms of an Assets Purchase Agreement
dated _______________, 1995 among Seller, Buyer and affiliates of
Seller (the "Assets Purchase Agreement").
1. Seller hereby assigns, transfers and conveys to
Buyer all of Seller's right, title and interest in, to and
arising under or relating to the Lease Agreement dated as of
January 1, 1995, between Seller and The University of Pittsburgh
of the Commonwealth System of Higher Education (the "Lease").
2. Buyer hereby accepts Seller's assignment set forth
in paragraph 1 above and hereby assumes and agrees to pay,
perform and discharge all of Seller's obligations and liabilities
arising under the Lease on and after the date hereof.
3. Seller shall, from time to time, from and after
the date hereof, upon request of Buyer or at the option of
Seller, execute such further documents of transfer, conveyance
and assignment with regard to the Lease as Buyer or Seller deem
necessary or desirable to carry out the transactions contemplated
by this Agreement.
4. This Agreement shall be binding upon and shall
inure to the benefit of
Seller and Buyer and their respective successors and assigns.
5. Other than as is expressly set forth in the Assets
Purchase Agreement, Buyer is not assuming and shall not be liable
for or bound by any liabilities of Seller.
6. This Agreement is made, executed and delivered
pursuant to the Assets Purchase Agreement, and is subject to all
the terms, provisions and conditions thereof. To the extent of
any conflict between the terms of the Assets Purchase Agreement
and this Agreement, the Assets Purchase Agreement shall be
controlling.
IN WITNESS WHEREOF, the parties have executed this
Assignment and Assumption of Lease as of the day and year first
written above.
CONTROL CHIEF CORPORATION
Witness: By: ___________________________
____________________________ Name:___________________________
Title:___________________________
NTR TECHNOLOGIES, INC.
Witness: By: ___________________________
____________________________ Name:___________________________
Title:___________________________
CONSENT OF LANDLORD
The undersigned, the Landlord who is a party to the
Lease as defined in the foregoing Assignment and Assumption of
Lease, hereby (1) confirms that the Lease is in full force and
effect in accordance with its terms and that all amounts to be
paid and obligations to be performed by the tenant under the
Lease through the date hereof have been paid and performed in
accordance with the terms of the Lease, (2) consents to the
foregoing Assignment and Assumption of the Lease and agrees to
look solely to Buyer for performance of the obligations of tenant
under the Lease, and (3) releases Seller from all future
obligations under the Lease.
In witness whereof, the undersigned has executed this
Consent of Landlord this ____ day of __________, 1995.
The University of Pittsburgh of
the Commonwealth System of Higher
Education
Witness:
____________________________ By:_______________________________
__________________________________
Name
__________________________________
Title
EXHIBIT D
EMPLOYMENT AGREEMENT
This Agreement is made this _____ day of _____________, 1995 by
and between CONTROL CHIEF CORPORATION, a Pennsylvania corporation ("Company)
and _________________ ("Employee').
In consideration of the mutual covenants contained in this
Agreement and the purchase by the Company of the assets of NTR Technologies,
Inc, and certain assets of Employee pursuant to the terms of an Asset
Purchase Agreement dated of even date herewith between the Company, NTR
Technologies, Inc., Employee and other affiliates of NTR Technologies, Inc.
(the "Assets Purchase Agreement"), the parties hereto herby agree as follows:
1. Employment. The Company hereby employs the Empoyee as a
_____________________________. Employee hereby accepts such employment and
agrees to report to the management of the Company, to perform any and all
duties prescribed by the management and to abide by the terms and conditions
of this Agreement and the policies of the Company. Employee shall perform
his duties faithfully and to the best of his ability and shall devote his
full time and best efforts to his services to the Company, subject to
reasonable vacations in accordance with Company policy; provided,
however, that such vacation will not unduly interfere with the performance
of his duties herunder.
2. Term of Employment. The term of employment under this
Agreement shall commence on the date set forth above and may be terminated
by either party at any time, with two weeks notice.
3. Compensation. For all services to be rendered by Employee
in any capacity to the Company, the Company shall pay Employee a salary
at the rate of $__________ per annum. The salary shall be payable in
equal installments, in accordance with the general policy of the Company,
subject to such deductions and withholdings as may be required by law
or agreed to by Employee.
4. Benefits. In addition to salary, Employee shall be
entitled to participate in Company's standard non-contributory health
insurance and group term life insurance plans and will be eligible to
participate in the Company 401K plan, subject to the terms of the applicable
plans as the same may be amended from time to time.
5. Expenses. To the extent consistent with Company policy
and upon presentation of vouchers in accordance with the Company's
customary procedures, the Company will reimburse Employee for all
reasonable, ordinary and necessary business expenses (as the Company
reasonably determines to be proper) incurred by him during the term of
this Agreement and in the performance of his duties hereunder.
6. Owernship of Ideas and Confidentiality
(a) Employee shall promptly disclose to the Company
discoveries, designs, inprovements, innovations and inventions
(collectively referred to herein as "inventions"), whether patentable or
not, either relating to the existing or contemplated business, products,
plans, processes, or procedures of the Company, or suggested by or
resulting from Employee's work at the Company, or resulting wholly or in
part from the use of the Company's time, material, facilities or ideas,
which Employee made or conceived or may make or conceive, whether or not
during working hours, alone or with others, at the time during the term
of this Agreement or within one year thereafter, and Employee agrees
that all such inventions shall be the exclusive property of the Company.
(b) Employee hereby assigns to the Company all his
rights and interests in and to such inventions and all patents which may
be obtained on them, in this and all foreign countries. At the Company's
expense, but without charge to it, Employee agrees to execute,
acknowledge and deliver to the Company any specific assignments to any
such inventions or other relevant documents and to take any such
further action as may be considered necessary by the Company at any
time to obtain or defend letters patent in any and all countries or to
obtain documents relating to registration, ownership or transfer of
copyrights, or to vest title in such inventions in the Company or its
assigns or to obtain for the Company any other legal protection for
such inventions.
(c) In consideration of Employee's assignments to
the Company pursuant to this Section 6, the Company will make incentive
payments to Employee pursuant to the Incentive Compensation Arrangement
attached hereto as Exhibit A.
7. Nondisclosure Agreement. Employee shall not, either
during the term of this Agreement or at any time thereafter, disclose
or authorize anyone else to disclose or use or make known for his or
another's benefit any confidential information, knowledge, or data of
the Company, whether or not patentable or copyrightable, in any way
acquired during employment by the Company or assigned to the Company
pursuant to this Agreement. Confidential information, knowledge or
data of the Company shall, for purposes of this Agreement, include
but not be limited to matters not readily avaiable to the public which
are:
(a) of a technical nature such as but not limited to
methods, know-how, compositions, drawings, blueprints, processes,
discoveries, machines, inventions, computer programs and similar items;
(b) of a business nature such as but not limited to
information about sales or lists of customers, prices, costs, purchasing,
profits, markets or product strengths and weaknesses; or
(c) pertaining to future developments such as but not
limited to research and development, or future marketing or
merchandising plans or ideas.
8. Covenant Not To Compete. Employee agrees that so long
as he receives compensation from the Company under Section 3 of this
Agreement and for a period of eighteen (18) months thereafter, he shall
not, directly or indirectly, whether as principal, agent, consultant,
employee, partner or in any other capacity, engage in or assist another
to engage in any work or activity in any way connected with the
development, manufacture or sale of any product or service which in any
way competes any with product or service of the Company, or any successor or
assign of the Company, where Employee participated in the development,
modification or sale of, or research relating to, such product or
service (whether such participation occurred at the Company or at NTR
Technologies, Inc.). If Employee in any way breach his obligations
specified in this section, as determined by the remedies available to
it, to terminate the further payment of any amounts or benefits due
under Sections 3 and 4 above. Employee agrees that any breach or
threatened breached of any of the provisions of this Section or Section
7 cannot be remedied soley by the recovery of damages, and the Company
shall be entitled to an injunction against such breach or threatened
breach without posting any bond or other security. Nothing herein,
however, shall be construed as prohibiting the Company from pursuing,
in conjuntion with an injunction or otherwise, any other remedies
available at law or in equity for any such breach or threatened breach,
including the recovery of damages. If any provision hereof is found
to be unreasonably broad, it shall nevertheless be enforceable to the
extent reasonably necessary for the protection of the Company, and
shall be deemed to have been amended to include any restrictions,
limitations or provisions necessary to make it enforceable.
9. Termination of Employment.
(a) In any of the following events:
(i) Employee shall voluntarily leave his employment
with the Company prior to the expiration of this Agreement
under Section 2; or
(ii) Employee shall die or be prevented from
performing his duties under this Agreement because of
disability or illness for a continuous period of one
hundred eighty (180) days; or
(iii) Employee's employment is terminated by the
Company for cause prior to the expiration of this
Agreement under Section 2;
then Employee shall not be entitled to further compensation under
Section 3 or benefits under Section 4, except as is otherwise required
by applicable law.
(b) If, at any time, the Company terminates
Employee's employment for other than cause, Employee shall be entitled
to the compensation and benefits provided for under Sections 3 and 4 to
the expiration date set forth in Section 2, subject, however, to the
fullfillment of his obligations under Sections 7 and 8.
10. Transferability. The rights and benefits of the
Company under this Agreement shall be transferable and all covenants
and agreements hereunder shall inure to the benefit of and be enforceable
by or against its successors and assigns. The rights and benefits of
Employee under this Agreement shall not be transferable.
11. Waiver. Any waiver of a breach of any of the terms
of this Agreement shall not operate as a waiver of any other breach
of such terms or any other terms, nor shall failure to enforce any
term hereof operate as a waiver of any such term or any other term.
12. Severability. If any term of this Agreement or the
application thereof is held invalid or unenforceable, the invalidity
or unenforceability shall not affect any other terms of this Agreement
which can be given effect without the invalid or unenforceable term.
13. Survival. The provisions of Sections 7 and 8 of this
Agreement shall survive any termination of Employee's employment
hereunder and the expiration of this Agreement under Section 2.
14. Entire Agreement. This Agreement contains the entire
agreement between the parties with respect to the subject matter
hereof. This Agreement may not be amended or changed except by a
writing signed by both parties.
15. Governing Law. This Agreement shall be governed and
enforced in accordance with the law of the State of Pennsylvania,
without regard to its rules regarding conflict of laws.
IN WITNESS WHEREOF, the parties have executed this
Agreement as of the date set forth above.
CONTROL CHIEF CORPORATION
By:______________________
Its:_____________________
_________________________
Employee
EXHIBIT A
INCENTIVE COMPENSATION ARRANGEMENT
The Company shall establish an incentive pool which will be
credited with 3.0% of Net Sales (as hereinafter defined) received by
the Company during the two-year period starting on the date of this
Agreement which are derived from products currently being manufactured
and sold by NTR Technologies, Inc. In addition, 3.0% of Net Sales
received by the Company with respect to each new product designed
exclusively by Xxxxxx X. Xxxxxxx and Xxxxxxx Xxxxxx, or any one or
more of them (the "Group"), will be credited to the incentive pool for
a period of two years from the first date such product is offered for
sale to the Company's customers or potential customers, which date
shall be determined by the Company.
The Company may make additional contributions to the
Incentive Pool, to be determined by the Company on a case-by-case
basis in its reasonable discretion, if it determines that the Group
is instrumental in the development of substantial modifications or
design changes to existing products of the Company.
For purposes of this Agreement, "Net Sales" shall mean the
invoice price to customes of products covered by this Agreement, net
of sales commissions, returns, allowances, taxes and freight. Net
sales shall be credited to the incentive pool within fifteen (15)
days after payment is received from the customer, and, if partial
payments are received, the amount contributed to the incentive pool
will be determined based on the amount of such partial payment.
The amount in the incentive pool at the end of each quarter
shall be paid to the Group on the next regular pay date subject to
withholding as described in Section 3 of the Agreement. Such payments
shall initially be allocated ____% to Xxxxxx X. Xxxxxxx and ____% to
Xxxxxxx Xxxxxx. The Group can modify these allocations at any time
by providing the Company with new instructions signed by each member
of the Group. The Company shall continue to make payments in
accordance with the instructions most recently delivered to it until
new instructions meeting the requirements of this paragraph are
received.
In the event of the termination of any member of the
Group's employment with the Company for any reason or the addition of
any new member to the Group upon the written consent of all members
then in the Group and the Company (each, a "Change"), the percentage
or amount of Net Sales then being contributed to the incentive pool
for each product shall be adjusted so that it is equal to the percentage
or amount being contributed prior to such Change multiplied by the
number of members in the Group after the Change and then divided by
the number of the members in the Group prior to the Change. Unless
otherwise agreed, such new percentage or amount shall apply to all
new products or modifications which become subject to this Agreement.
No payments from the incentive pool will be paid to a
member whose employment has terminated for any reason, and, unless
the Company is otherwise directed, the payments from the incentive
pool will be allocated between the remaining members of the Group in
proportion to the payments being made to each of them immediately
prior to the termination.