ASSET PURCHASE AND SALE AGREEMENT by and between Environmental Science and Technologies, Inc. (“EST”); Remote Aerial Detection Systems, Inc. (“Purchaser”) And Michael R. Rosa (“Seller”) Dated as of June 21, 2013
Exhibit 10.2
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by and between |
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Environmental Science and Technologies, Inc. (“EST”); Remote Aerial Detection Systems, Inc. (“Purchaser”) |
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And |
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Xxxxxxx X. Xxxx (“Seller”) |
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Dated as of June 21, 2013 |
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ASSET PURCHASE AND SALE AGREEMENT
(RADS)
THIS ASSET PURCHASE AND SALE AGREEMENT (this “Agreement”), dated as of June 21, 2013 (“Effective Date”), is by and between Environmental Science and Technologies, Inc., a Delaware Corporation (“EST”), Remote Aerial Detection Systems, Inc., a Delaware Corporation that is a wholly-owned subsidiary of EST (the “Purchaser”), each having its principal place of business at 0 Xxxxxx Xx., #0, Xxxxxxxx, XX 00000, and Xxxxxxx X. Xxxx, an individual with an address c/o Enco Industries, Inc., 0 Xxxxxx Xx., #, 0, Xxxxxxxx, XX 00000 (the “Seller”).
RECITALS
A.
The Seller has intellectual property and a business plan with respect to, among other businesses, a planned business involving systems integration related to intelligence, surveillance and reconnaissance aircraft platforms (the “Business”);
B.
The Purchaser desires to purchase from the Seller, and the Seller desires to sell and transfer to the Purchaser, the business plan related to the Business, together with his right, title and interest in and to (i) any goodwill associated with the Business and (ii) the intellectual property associated with the Business (the “Purchased Assets”).
NOW, THEREFORE, in consideration of the mutual promises and representations and subject to the terms and conditions herein contained, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:
1.
DEFINITIONS
“Agreement” has the meaning set forth in the preamble.
“Xxxx of Sale” has the meaning set forth in Section 3.3.
“Business” has the meaning set forth in the recitals.
“EST” has the meaning set forth in the preamble.
“Governmental Authority” means any government or political subdivision or regulatory body, whether federal, state, local or foreign, or any agency or instrumentality of any such government or political subdivision or regulatory authority, or any federal, state, local or foreign court or arbitrator.
“Indemnified Person” means any person entitled to be indemnified under Section 7.
“Indemnifying Person” means any person obligated to indemnify another person under Section 7.
“Intellectual Property” or “IP” means the know-how, trade secrets, and confidential and proprietary information related to the Business.
“Law” means any law, statute, code, ordinance, regulation or other requirement of any Governmental Authority.
“Lien” means any mortgage, lien, pledge, encumbrance, security interest, claim, charge, and/or defect in title or other restriction.
“Order” means any order, judgment, injunction, award, decree, ruling, charge or writ of any Governmental Authority.
“Permit” means any permit, license, approval, consent, or authorization issued by a Governmental Authority.
“Person” means any individual, sole proprietorship, partnership, corporation, limited liability company, unincorporated society or association, trust, or other entity.
“Proceeding” means any complaint, action, lawsuit, hearing, investigation, charge, audit, claim or demand.
“Purchased Assets” has the meaning set forth in Section 2.
“Purchase Price” has the meaning set forth in Section 3.
“Purchaser” has the meaning set forth in the preamble.
“Seller” has the meaning set forth in the preamble.
“Third Party Action” means any written assertion of a claim, or the commencement of any action, suit, or proceeding, by a third party as to which any person believes it may be an Indemnified Person hereunder.
2.
PURCHASE OF ASSETS.
2.1
The Purchaser hereby purchases from the Seller, and the Seller hereby sells and transfers to the Purchaser, all of the Seller’s right, title and interest in the following assets:
(a)
all Intellectual Property related to the Business
(hereinafter referred to as the “Assets” or “Purchased Assets”).
3.
PURCHASE PRICE
3.1
Purchase Price. In consideration of the transfer of the Business and the Purchased Assets, EST shall issue to the Seller 2 million shares of EST’s restricted common stock.
3.2
Title. Upon receipt of full payment of the Purchase Price, all Seller’s right, title and interest in and to the Purchased Assets, shall, without further action on the part of the Seller, be vested in the Purchaser free and clear of any and all Liens.
3.3
Delivery by the Seller. The Seller shall concurrently with the execution of this Agreement deliver to the Purchaser a xxxx of sale conveying all property included within the Purchased Assets (the “Xxxx of Sale”) in the form attached hereto.
4.
REPRESENTATIONS AND WARRANTIES OF THE SELLER
The Seller hereby represents and warrants to the Purchaser and EST as follows:
4.1
Execution, Delivery and Performance of Agreement. The Seller has the power and authority to execute, deliver and perform fully his obligations under this Agreement.
4.2
Title to Assets. Seller has pursuant to this Agreement transferred to Purchaser good and marketable title to the Purchased Assets, free and clear of any and all Liens.
4.3
Enforceability. The execution, delivery and performance of this Agreement and the consummation of the transactions contemplated hereby have been duly and validly authorized by all necessary action on the part of the Seller and constitute the valid and legally binding obligations of the Seller enforceable against the Seller in accordance with its terms.
4.4
No Conflict. Neither the execution of this Agreement, nor the performance by the Seller of its obligations hereunder will violate or conflict with any agreement by which the Seller is bound, or any applicable Law or Order.
4.5
Consents. No consent of any third party or Governmental Authority is required in connection with the execution and delivery by the Seller of this Agreement and/or the consummation of the transactions contemplated hereby.
4.6
Accredited Investor Status. The Seller is an “accredited investor” within the meaning of Regulation D under the Securities Act of 1933, as amended.
5.
REPRESENTATIONS AND WARRANTIES OF THE PURCHASER
The Purchaser and EST hereby represent and warrant to the Seller as follows:
5.1
Existence and Good Standing. The Purchaser and EST are each a Delaware Corporation, duly formed, validly existing and in good standing under the laws of the state of Delaware.
5.2
Execution, Delivery and Performance of Agreement. The Purchaser and EST each have the power and authority to execute, deliver and perform fully their respective obligations under this Agreement.
5.3
Enforceability. The execution, delivery and performance of this Agreement and the consummation of the transactions contemplated hereby have been duly and validly authorized by all necessary action on the part of the Purchaser and EST and constitute the valid and legally binding obligations of the Purchaser and EST enforceable against them in accordance with its terms.
5.4
No Conflict. Neither the execution of this Agreement, nor the performance by the Purchaser and EST of their respective obligations hereunder or thereunder will violate or conflict with the EST or Purchaser’s entry into or performance under this Agreement or EST or Purchaser’s organizational documents, or any applicable Law or Order.
5.5
Consents. No consent of any third party or Governmental Authority is required in connection with the execution and delivery by the Purchaser or EST of this Agreement and/or the consummation of the transactions contemplated hereby.
6.
COVENANTS AND AGREEMENTS
6.1
Further Assurances. After the date hereof, at the reasonable request of the other party, the Seller and Purchaser/EST shall execute and deliver or cause to be executed and delivered to the other party such bills of sale (or other instruments) as required by this Agreement, in order to implement the transactions contemplated by this Agreement.
6.2
Non-Competition/Non-solicitation. For a period of five (5) years from the date hereof, the Seller shall not directly or indirectly (i) sell products to any current or then existing customer of the Purchaser which compete with any products related to the Business; (ii) have any interest in any company or entity which sells products to any current or then existing customer of the Purchaser which compete with any products related to the Business; and (iii) employ or solicit for employment any employee of the Purchaser who is employed by the Purchaser in the Business.
6.3
NO OTHER WARRANTIES; LIMITATION OF LIABILITY. NEITHER PARTY MAKES ANY OTHER REPRESENTATIONS OR WARRANTIES, EXPRESS, IMPLIED, OR OTHERWISE, EXCEPT FOR THE REPRESENTATIONS AND WARRANTIES SET FORTH IN THIS AGREEMENT.
7.
INDEMNIFICATION
7.1
Survival; Right to Indemnification Not Affected By Knowledge or Materiality.
(a)
All representations, warranties, covenants, and obligations in this Agreement, will survive the execution of this Agreement.
(b)
The right of the Indemnified Party to indemnification for losses or other remedy based on breach of the representations, warranties, and/or covenants set forth in this Agreement will not be affected by the closing of the transaction contemplated by this Agreement, or any information of which the Indemnified Party may have imputed or constructive knowledge prior to the Effective Date, provided that the rights and remedies of the Indemnified Party in respect of any of the foregoing shall not extend to any event or matter which otherwise might have affected such rights and remedies as provided in any specific written waiver or release by the Indemnified Party.
(c)
For the purpose of determining whether there is a claim for losses under this Section and calculation of the amount of such losses, any qualification of any representation or warranty by reference to the materiality of matters stated therein, and any limitations of such representations as being to the knowledge of any person, or words to similar effect, shall be disregarded.
7.2
Indemnification by the Seller
Subject to the limitations in Section 7.3 below, and in consideration of the payment of the Purchase Price, the Seller shall defend, indemnify and hold Purchaser and EST harmless from and against any losses, liabilities or expenses, including reasonable attorney’s fees, directly incurred by Purchaser/EST resulting from any Third Party Action that is instituted against either of them, resulting from or arising out of any breach of any of the representations or warranties made by the Seller in or pursuant to this Agreement.
7.3
Limitations on Indemnification by the Seller.
The right to indemnification under Section 7.2 is subject to the following limitations:
(a)
The Seller shall have no liability under Section 7.2 unless Purchaser or EST as the case may be gives prompt written notice to the Seller asserting a claim for losses, including reasonably detailed facts and circumstances pertaining thereto, before the expiration of a period of three (3) years after the date hereof for all claims of any type or nature whatsoever.
(b)
The aggregate liability for indemnification under this Section 7 shall not under any circumstances exceed the Purchase Price.
7.4
Defense of Third Party Actions.
(a)
Promptly after receipt of notice of any Third Party Action, any person who believes he, she or it may be an Indemnified Person will give prompt written notice to the potential Indemnifying Person of such action.
(b)
Upon receipt of a written notice of a Third Party Action, the Indemnifying Person shall control the defense and settlement of such Third Party Action. The Indemnified Person shall render all assistance as shall be reasonable and shall have the right to participate in and appoint its own counsel (at its own cost) and be present at the defense of such Third Party Action, but not to control the defense, negotiation or settlement thereof, which control shall remain with the Indemnifying Person.
(c)
Each Indemnifying Person hereby consents to the non-exclusive jurisdiction of any court in which a Proceeding is brought against any Indemnified Person for purposes of any claim that an Indemnified Person may have under this Agreement with respect to such Proceeding or the matters alleged therein, and agree that process may be served on them with respect to such a claim anywhere in the world.
7.5
Payment of Indemnification.
Subject to Section 7 above, claims for indemnification under this Section shall be paid or otherwise satisfied by Indemnifying Persons within thirty (30) days after receipt of written notice thereof given by the Indemnified Person in writing.
8.
REMEDIES
8.1
Survival. The provisions contained in Sections 6.2, 6.3, 7, 8.1, 9.1, 9.2, 9.3, 9.8 and 9.9 shall survive any termination of this Agreement.
9.
MISCELLANEOUS
9.1
Confidentiality. In the event that the transactions contemplated hereby are not consummated, each party will keep confidential, not disclose and not use for its own benefit (and will cause its subsidiaries, employees, officers and directors to keep confidential, not disclose, and not use for their own benefit) any information, whether written, oral or in electronic format and whether or not identified as “confidential” at the time of its disclosure, obtained with respect to the other party or its subsidiaries, employees, officers and directors as a result of the transaction contemplated hereby or Purchaser’s due diligence process in connection herewith (“Confidential Information”). The obligation set forth in the preceding sentence will not apply to Confidential Information which (i) is in the public domain on the date hereof, (ii) enters the public domain after the date hereof (other than by reason of the breach of any confidentiality obligation), (iii) was known to the receiving party prior to receipt from the disclosing party, (iv) is independently developed by the receiving party after the date hereof, (v) is disclosed to the receiving party by a third party not in violation of the proprietary or other rights of the other party or (vi) is disclosed pursuant to a requirement of law or judicial process.
9.2
Expenses. Each of the parties hereto shall bear its respective expenses incurred or to be incurred in connection with the execution and delivery of this Agreement and the consummation of the transactions contemplated hereby.
9.3
No Assignment. The rights and obligations of the parties hereunder may not be assigned without the prior written consent of the other party hereto, except that Purchaser may assign its rights and obligations hereunder to any wholly-owned subsidiary formed for the purpose of making the acquisition contemplated hereby.
9.4
Headings. The headings contained in this Agreement are included for purposes of convenience only, and will not affect the meaning or interpretation of this Agreement.
9.5
Integration, Modification and Waiver. This Agreement, together with the Schedules or other instruments as may be delivered hereunder, constitutes the entire agreement between the parties hereto with respect to the subject matter hereof and supersedes all prior agreements, representations, understandings, communications, whether written or verbal between the parties in relation thereto. No supplement, modification or amendment of this Agreement will be binding unless executed in writing by each of the parties’ duly authorized representatives hereto. No waiver of any of the provisions of this Agreement will be deemed to be or will constitute a continuing waiver. No waiver will be binding unless executed in writing by the party making the waiver. The recitals shall form part of this Agreement.
9.6
Construction. The parties have participated jointly in the negotiation and drafting of this Agreement. In the event an ambiguity or question of intent or interpretation arises, this Agreement will be construed as if drafted jointly by the parties and no presumption or burden of proof will arise favoring or disfavoring any party by virtue of the authorship of any of the provisions of this Agreement. Any reference to any federal, state, local or foreign statute or law will be deemed also to refer to all rules and regulations promulgated thereunder, unless the context requires otherwise. The word “including” means including without limitation. Any reference to the singular in this Agreement also includes the plural and vice versa.
9.7
Severability. If any provision of this Agreement or the application of any provision hereof to any party or circumstance is, to any extent, adjudged invalid or unenforceable by a court of competent jurisdiction, the application of the remainder of such provision to such party or circumstance, the application of such provision to other parties or circumstances, and the application of the remainder of this Agreement will not be affected thereby.
9.8
Notices. All notices and other communications required or permitted hereunder must be in writing and will be deemed to have been duly given when delivered in person, or when dispatched by electronic mail or facsimile transmission (provided there is confirmation of such facsimile transmission), or the next business day after having been dispatched by an internationally recognized courier service to the appropriate party at the address specified below:
If to the Seller:
Xxxxxxx X. Xxxx
c/o Enco Industries, Inc.
0 Xxxxxx Xx., #0
Xxxxxxxx, XX 00000
Fax: 000-000-0000
Email: xxxxx@xxxxxxx.xxx
If to the Purchaser:
Xxxxxxx X. Xxxxx, COO
Environmental Science and Technologies, Inc.
0 Xxxxxx Xx., #0
Xxxxxxxx, XX 00000
Fax: 000-000-0000
Email: xxxxxx@xxxxxxx.xxx
Any party hereto may change its address or facsimile number for the purposes of this Section 9.8 by giving notice as provided herein.
9.9
Governing Law. This Agreement is to be governed by and construed and enforced in accordance with the laws of the State of Delaware without regard to principles of conflicts of law.
9.10
Counterparts. This Agreement may be executed in one or more counterparts, each of which will be deemed an original, but all of which together will constitute one and the same instrument. The exchange of a fully executed Agreement (in counterparts or otherwise) by fax or electronic transmission is sufficient to bind the parties to the terms and conditions of this Agreement.
[INTENTIONALLY LEFT BLANK]
IN WITNESS WHEREOF, the parties have executed this Agreement as of the day and year first above written.
| Environmental Science and Technologies, Inc. By: /s/ Xxxxxxx X. Xxxxx Name: Xxxxxxx X. Xxxxx Title: Chief Operating Officer |
| Remote Aerial Detection Systems, Inc. By: /s/ Xxxxxxx X. Xxxxx Name: Xxxxxxx X. Xxxxx Title: Director Seller: /s/ Xxxxxxx X. Xxxx Name: Xxxxxxx X. Xxxx |
XXXX OF SALE
This Xxxx of Sale dated as of June 21, 2013, is made by Xxxxxxx X. Xxxx (“Seller”) and Remote Aerial Detection Systems, Inc., a Delaware Corporation (“Purchaser”). All capitalized words and terms used in this Xxxx of Sale and not defined herein shall have the respective meanings ascribed to them in the Asset Purchase and Sale Agreement dated the date hereof between Seller and Purchaser (the “Agreement”).
WHEREAS, pursuant to the Agreement, Seller has agreed to sell, transfer, convey, and assign to Purchaser certain assets of Seller, and Purchaser;
NOW, THEREFORE for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Seller hereby agrees as follows:
1.
Seller hereby sells, transfers, conveys, and assigns to Purchaser all of the Purchased Assets.
2.
This sale, transfer, conveyance and assignment has been executed and delivered by Seller in accordance with the Agreement.
3.
Seller, by its execution of this Xxxx of Sale, and Purchaser, by its acceptance of this Xxxx of Sale, each hereby acknowledges and agrees that neither the representations and warranties nor the rights and remedies of any party under the Agreement shall be deemed to be enlarged, modified or altered in any way by this instrument.
IN WITNESS WHEREOF, Seller and Purchaser have caused this instrument to be duly executed as of and on the date first above written.
SELLER:
/s/ Xxxxxxx X. Xxxx
Xxxxxxx X. Xxxx, individually
ACCEPTED:
PURCHASER:
REMOTE AERIAL DETECTION SYSTEMS, INC.
a Delaware Corporation
By: /s/ Xxxxxxx X. Xxxxx
Name: Xxxxxxx X. Xxxxx
Title: COO
