EXHIBIT 10.19
ASSET PURCHASE AND SALE AGREEMENT
THIS ASSET PURCHASE AND SALE AGREEMENT ("Agreement"), is made and entered
into this 23rd day of July, 2002, by and between XXXXX CORPORATION, an Ohio
corporation having a principal place of business at 0000 Xxxxxxxx Xxxxxx, Xxxxx
Xxxxxx, Xxxxxxxxx, Xxxx 00000 ("EATON"), and MCLAREN PERFORMANCE TECHNOLOGIES,
INC., a Delaware corporation ("MCLAREN") having a principal place of business at
00000 Xxxx Xxxxx Xxxx Xxxx, Xxxxxxx, Xxxxxxxx 00000.
RECITALS:
WHEREAS, EATON designs, develops, manufactures, markets, sells, and
services limited slip and locking differentials, for both original equipment and
aftermarket applications; and
WHEREAS, MCLAREN is the owner of various assets including patents, patent
applications, trademarks, trademark applications, drawings, know how and various
tangible engineering assets relating to Gerodisc(TM) type differentials and
couplings for vehicle drivelines; and
WHEREAS, MCLAREN desires to sell, transfer and convey to EATON, and EATON
desires to acquire, own and possess all of the assets, comprising the entire
line of business which MCLAREN has, relating to Gerodisc(TM) type devices; and
WHEREAS, EATON and MCLAREN entered into a non-binding Letter of Intent,
dated November 8, 2001, setting forth the intention of the parties to enter into
a sale and transfer by MCLAREN to EATON of the entire line of business relating
to Gerodisc(TM) type devices;
NOW, THEREFORE, in consideration of the payments provided for herein and
the covenants contained herein, the parties hereby agree as follows:
I. DEFINITIONS:
1.01 "Patents" as used herein shall mean those patents and patent
applications, both U.S. and foreign, set forth in Schedule A,
attached hereto and made part of this Agreement.
1.02 "Trademarks" as used herein shall mean the trademark "Gerodisc" in
whatever form or style, and including all rights (common law or
otherwise) thereto and goodwill associated therewith, including
all trademark registrations and applications for registration for
the trademark "Gerodisc", as set forth in Schedule B, attached
hereto and made part of this Agreement.
1.03 "Tangible Assets" as used herein shall mean those items set forth in
Schedule C, attached hereto and made part of this Agreement.
1.04 "Licenses" as used herein shall mean those license agreements set
forth in Schedule D, attached hereto and made part of this Agreement.
1.05 "Assets" as used herein shall mean and include only the Patents, the
Trademarks, the Tangible Assets, and the Licenses, collectively, as
defined in the preceding subsections.
1.06 "Closing Date" as used herein shall mean the date set forth in
sub-section 11.01.
II. SALE AND PURCHASE OF ASSETS:
2.01 On the terms, and subject to the conditions of this Agreement, and
for the consideration set forth in Section IV hereafter, MCLAREN
hereby sells, transfers and conveys to EATON, as of the Closing
Date, free and clear of all liens or encumbrances of any type, all
of MCLAREN's respective rights, title and interest in and to the
Assets, wherever such Assets are located, and whether or not such
Assets have any value for accounting purposes, or are carried or
reflected on or specifically referred to in the books or financial
statements of MCLAREN.
2.02 Notwithstanding the foregoing, MCLAREN shall retain, and there shall
not be included in the Assets to be transferred to EATON, those items
("Excluded Assets") which are set forth in Schedule E, attached
hereto and made part of this Agreement.
2.03 The parties acknowledge and agree that, except as expressly provided
herein, the sale and purchase contemplated hereunder shall include
only the Assets and shall not include any employees or other
personnel, real property or interests therein, cash or cash
equivalents, contracts(other than the Licenses), accounts receivable,
or any other property, real or personal, tangible or intangible.
III. LIABILITIES:
3.01 The parties hereto agree that all obligations incurred by each party
to the other under the Purchase Orders (as set forth in Schedule F,
attached hereto and made part of this Agreement) have been fully
performed, discharged or paid, as the case may be, and each party
hereby waives any claim against the other in regard to any obligation
owed to it by the other party under the Purchase Orders.
3.02 EATON will be solely responsible for any and all liabilities and
obligations relating to each of the transferred Assets arising after
the Closing Date, including, without limitation, patent prosecution
charges of any kind, including, without limitation, legal fees for
the preparation, filing and prosecution of any patent application,
and related disbursements and filing fees, incurred after the Closing
Date, and patent maintenance fees and annuities due and payable after
the Closing Date.
3.03 Subject to the foregoing, EATON will not assume or be responsible
for, and MCLAREN agrees that it will remain solely responsible for,
any liability relating to the Assets arising before the Closing Date,
including debts and obligations of MCLAREN, or its predecessors,
including but not limited to:
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(a) any liabilities, obligations, or debts incurred by MCLAREN prior
to the Closing Date in connection with McLAREN's production of,
repair, insurance of, or maintenance of any of the Tangible
Assets;
(b) all product liability and similar claims for injury to person or
property (whether involving injury or death) or economic loss of
any type arising prior to the Closing Date in connection with the
use, or testing of any of the Tangible Assets;
(c) all liabilities or obligations arising out of or relating to
employment by MCLAREN of any person, whether as an employee of
MCLAREN, or as an independent contractor hired by MCLAREN;
(d) any and all taxes, including income taxes on the royalty income
received by MCLAREN from the Licenses, wherein such taxes are
attributable to the ownership of any of the Assets before the
Closing Date, or attributable to the use of any of the Tangible
Assets prior to the Closing Date.
IV. PURCHASE PRICE:
4.01 The total purchase price for all of the Assets to be transferred by
MCLAREN to EATON in accordance with this Agreement shall be, and
include the following components:
(a) $1,500,000, subject to the increase, if any, under sub-section
5.08, due and payable upon the Closing Date by wire transfer of
immediately available funds to a bank account designated by
MCLAREN, and provided in writing to EATON at least three (3)
business days prior to the Closing Date as set forth in Schedule
4.01, attached hereto and made part of this Agreement.
(1) Notwithstanding the foregoing, if MCLAREN does not obtain
the consent of New Venture Gear as of the Closing Date, as
required by sub-section 11.02 , EATON may, as its sole and
exclusive remedy for MCLAREN's inability to obtain such
consent, withhold $300,000 of such $1,500,000. Thereafter,
EATON shall pay the withheld $300,000 to MCLAREN as follows:
(i) $150,000 six (6) months after the Closing Date, or anytime
after such date if all royalties then due from New Venture
Gear for such six (6) month period under the Licenses have
been paid to EATON; and (ii) $150,000 twelve (12) months after
the Closing Date, or anytime after such twelfth month if the
royalties then due from New Venture Gear under the Licenses
for such six (6) month period have been paid to EATON.
Notwithstanding the foregoing sentence, EATON shall promptly
pay to MCLAREN the entire $300,000, or any remaining balance
thereof, upon MCLAREN's obtaining the consent of New Venture
Gear, but shall not be required to pay any portion of the
withheld $300,000 if the royalties which are due and payable
to EATON for the period beginning after the Closing Date are
not paid to EATON.
(2) Notwithstanding the foregoing, if MCLAREN does not execute
the amended license agreement with MAGNA-STEYR as of the
Closing Date as required by sub-section 11.02, EATON may, as
its sole and exclusive remedy, withhold $200,000 of such
$1,500,000. Thereafter, EATON shall pay the withheld $200,000
to MCLAREN as follows: (i) $100,000 six (6) months after the
Closing Date or anytime after such date if all royalties then
due from MAGNA-STEYR for such six
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month period under the Licenses have been paid to EATON; and (ii)
$100,000 twelve (12) months after the Closing Date or anytime
after such date if all royalties then due from MAGNA-STEYR under
the Licenses for such six (6) month period have been paid to
EATON. Notwithstanding the foregoing sentence, EATON shall
promptly pay to MCLAREN the entire $200,000 or any remaining
balance thereof, upon the execution of an amended license
agreement with MAGNA-STEYR, suitable to EATON, but shall not be
required to pay any portion of the withheld $200,000 if the
royalties which are due and payable to EATON for the period
beginning after the Closing Date are not paid to EATON; and
(b) an "Asset Transfer" payment by EATON to MCLAREN of two dollars
($2.00) per unit for all sales by EATON of Gerodisc(TM) units of
the type to which the Assets relate, for sales for, and during,
calendar years 2005 through 2009, such Asset Transfer payments
not to exceed one million dollars ($1,000,000) in aggregate over
such time period .
4.02 The payment of the Asset Transfer payment as set forth in
Subsection 4.01(b) above shall be made by EATON to MCLAREN on a
calendar quarter basis, with each such payment to be accompanied
by a report indicating the number of units sold and the total
Asset Transfer payment being transmitted. Actual payment by EATON
to MCLAREN shall be made by wire transfer in accordance with the
procedure set forth in sub-section 4.01(a) above.
4.03 EATON acknowledges that as of the date hereof MCLAREN has earned
royalties under some or all of the Licenses described below.
Accordingly, the parties shall allocate any royalty payments
received by either of them under such Licenses according to the
apportionment set forth below. Upon receipt of any royalty
payments under any of the Licenses below, each party shall
promptly pay to the other party any royalty payment or portion
thereof to which the other party is entitled, pursuant to the
following:
(a) With respect to the License Agreement dated March 31, 1997
between MCLAREN and Steyr-Powertrain AG & CO KG (the "Steyr
Agreement"): MCLAREN shall be entitled to all of the royalties
due and payable under the Steyr Agreement for the period up to
the Closing Date, and to a portion of all the per unit royalties
described in the Steyr Agreement for the half year beginning July
1, 2002 and ending Dec. 31, 2002, which portion shall be equal to
that amount determined by multiplying the royalty payable under
the Steyr Agreement by a fraction, the denominator of which shall
be 182, and the numerator of which shall be a number equal to the
number of days in the period beginning July 1, 2002 and ending on
the Closing Date. EATON shall be entitled to the remaining
amount.
(b) With respect to the License Agreement dated August 19, 1993, as
amended, between MCLAREN and New Venture Gear, Inc. (the "First
NVG Agreement"), MCLAREN shall be entitled to a portion of all
royalties payable thereunder for the period beginning May 1, 2002
and ending August 31, 2002, which portion shall be equal to that
amount determined by multiplying the royalty payable under the
First NVG Agreement by a fraction, the denominator of which shall
be 123, and the numerator of which shall be a number equal to the
number of days in the period beginning May 1, 2002 and ending on
the Closing Date. EATON shall be entitled to the remaining
amount.
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(c) With respect to the License Agreement dated January 5, 1998
between MCLAREN and New Venture Gear, Inc. (the "Second NVG
Agreement"), MCLAREN shall be entitled to a portion of all
royalties payable thereunder for the period beginning May 1, 2002
and ending August 31, 2002, which portion shall be equal to that
amount determined by multiplying the royalty payable under the
Second NVG Agreement by a fraction, the denominator of which
shall be 123, and the numerator of which shall be a number equal
to the number of days in the period beginning May 1, 2002 and
ending on the Closing Date. EATON shall be entitled to the
remaining amount.
4.04 The total purchase price, as set forth in sub-section 4.01 above,
shall be allocated among the transferred Assets on the following
basis:
(a) attributable to the value of the Patents : $600,000, plus all
payments made by EATON under sub-section 4.01(b) above;
(b) attributable to the royalties expected to be received by EATON
under the Licenses: $500,000; and
(c) attributable to the value of the Tangible Assets: all of the
amount set forth in sub-section 4.01(a) above in excess of
$1,100,000.
4.05 In the event MCLAREN is unable to obtain the required consent to
assignment of any of the Licensees of the Licenses, EATON shall not
attempt, through any claim , action, or proceeding, to enforce any
rights thereunder in XXXXX'x own name. Instead, at XXXXX'x written
request, and only upon XXXXX'x written request, MCLAREN will enforce,
in MCLAREN's own name, but for XXXXX'x benefit, any and all rights
under the Licenses, including the enforcement of grant-back licenses.
All of MCLAREN's costs associated with the foregoing shall be at
XXXXX'x expense, and EATON shall have the sole right to direct and/or
settle or otherwise resolve any such enforcement action.
V. REPRESENTATIONS AND WARRANTIES OF MCLAREN :
As of the Closing Date, MCLAREN makes the following representations and
warranties to EATON:
5.01 MCLAREN is a corporation duly organized and validly existing
under the laws of the State of Delaware and has full corporate
power and authority to own the transferred Assets owned as of the
Closing Date, to carry on the business relating to the Assets, as
it is being conducted by it as of the Closing Date, and to
consummate the transactions contemplated by this Agreement.
5.02 The entering into and the execution and delivery of this
Agreement, and the consummation of the transactions contemplated
hereby and thereby:
(a) have been duly and validly authorized by requisite corporate
action of MCLAREN; and
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(b) constitutes or will constitute the legal, valid, and binding
obligation of MCLAREN, and no additional corporate or shareholder
authorization or consent is or will be required.
5.03 Except as may be set forth on the corresponding Schedule, as of the
Closing Date, MCLAREN has good and marketable title, free and clear
of all liens and encumbrances, to all of the Assets being transferred
to EATON hereunder, and the Assets listed herein constitute all of
the assets within the possession and/or control of MCLAREN relating
to the subject matter of this Agreement.
5.04 Except as may be set forth on the corresponding Schedule, MCLAREN is
not a party to, or bound by, any agreement or contract, whether
written or oral, of the following types, involving any of the Assets,
nor are any such agreements or contracts presently being negotiated
or discussed:
(a) any contract or agreement involving commitments by MCLAREN to
make purchases of raw materials, parts, or services;
(b) any contract or agreement involving commitments by MCLAREN to
make sales of Gerodisc(TM)type units of the type to which the
Assets relate;
(c) any license agreement, either as licensor or licensee relating
to any patent, patent application, trademark, registration for
trademark, know how, trade secret or copyright; and
(d) any contract or agreement which would in any way limit or hinder
XXXXX'x ability to operate a business involving the Assets to be
transferred under this Agreement to EATON.
5.05 Except as may be set forth on the corresponding Schedule, MCLAREN has
not received any written notice from any third party of that party's
intent to terminate any contract or agreement which is any way
material to XXXXX'x ability to operate a business involving the
Assets to be transferred to EATON hereunder.
5.06 The Patents listed in Schedule A comprise all of the patents and
patent applications which are owned or controlled by MCLAREN, or in
which MCLAREN has any right, title, or interest, and which relate to
the Assets and the Gerodisc(TM) type units to which this Agreement
relates.
5.07 Except as may be set forth in Schedule A, no third party has any
right, title, or interest in and to any of the Patents, nor is
MCLAREN required to obtain the consent of any such third party in
order to assign the Patents to EATON, in accordance with the terms of
this Agreement.
5.08 As of the Closing Date, MCLAREN has paid, will have paid, or has
authorized the payment of all patent prosecution fees, all
maintenance fees and annuities for all of the Patents, wherein such
maintenance fee or annuity is due at any time within three (3) months
after the Closing Date, it being understood by and between the
parties that, on the Closing Date, MCLAREN will provide EATON with
appropriate documentation, (within fourteen (14) days of the Closing
Date) of such payments and authorizations to pay, and the total of
all such payments and authorized payments will, at MCLAREN'S option,
be reimbursed by EATON or added to the amount to be paid by EATON in
accordance with
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Subsection 4.01(a) above.
5.09 Except as may be set forth on Schedule A, MCLAREN has not taken any
action, or failed to take any action which is needed, in regard to
any of the Patents, wherein such action, or such failure to take
action, would result in the early expiration or abandonment or
unenforceability of any of the Patents.
5.10 As of the Closing Date, and for the preceding three (3) years, there
is no threatened or pending charge of infringement by any third party
against MCLAREN, or, to McLAREN's knowledge, against any licensee of
MCLAREN listed in Schedule D, based upon an alleged infringement of
any patent of any third party, or of any other intellectual property
right, relating to the design, development, manufacture, use, or sale
of any product to which this Agreement relates, nor is MCLAREN or, to
MCLAREN's knowledge, any of its licensees, obligated to pay any
amount, either as a royalty, license fee, or damage payment to any
third party, in regard to any products to which this Agreement
relates.
5.11 To the best of MCLAREN'S knowledge, none of the Patents set forth in
Schedule A is subject to any pending or threatened challenge, claim,
or dispute, with the exception of routine prosecution in the
respective Patent Offices.
5.12. There is no pending, or to the best of MCLAREN'S knowledge,
threatened, claim, litigation, proceeding or order of any court or
governmental agency or arbitrator relating to Gerodisc(TM) units of
the type to which this Agreement relates.
5.13 MCLAREN has adequately insured all of the Assets to be transferred to
EATON under this Agreement against loss or damage resulting from fire
or other risks typically insured against by extended coverage of a
kind, and in an amount, customarily obtained by similar businesses,
such insurance to continue until EATON takes full possession and
control of all of the Tangible Assets.
VI. REPRESENTATIONS AND WARRANTIES OF EATON:
As of the Closing Date, EATON makes the following representations and
warranties to MCLAREN:
6.01 EATON is a corporation duly organized and validly existing under the
laws of the State of Ohio and has full power and authority to own the
Assets, to carry on a business relating to the Assets, and to
consummate the transactions contemplated by this Agreement.
6.02 The entering into and the execution and delivery of this Agreement
and the consummation of the transactions contemplated hereby and
thereby:
(a) have been duly and validly authorized by requisite corporate
actions; and
(b) constitute the legal, valid and binding obligation of EATON,
and no additional corporate or stockholder authorization or
consent is or will be required.
6.03 There is no pending, or to the best of EATON knowledge, threatened,
claim, litigation, proceeding or order of any court or governmental
agency or arbitrator or governmental investigation relating to
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EATON, its business, or its assets which, if adversely determined,
would individually or in the aggregate, materially impair, hinder or
otherwise adversely affect the ability of EATON to effect the closing
of this Agreement, or to perform any of its obligations under this
Agreement.
VII. COVENANTS OF MCLAREN:
7.01 MCLAREN covenants and agrees with EATON that, from the Closing Date
until EATON takes full possession and control of the Tangible Assets,
MCLAREN will properly protect and maintain the Tangible Assets in
accordance with commercially reasonable practices, and will not sell,
mortgage, or otherwise dispose of or encumber any of the Tangible
Assets without the prior written consent of EATON.
7.02 MCLAREN shall promptly notify EATON, both on the Closing Date and as
appropriate thereafter, at any time within one (1) month after the
Closing Date, of any update of any of the Schedules attached hereto
and made part of this Agreement.
7.03 MCLAREN agrees that it will cooperate with EATON in arranging for and
carrying out, the transfer of all patent, patent application and
prosecution files relating to all of the Patents, such transfer to
occur within one (1) month after the Closing Date.
7.04 MCLAREN agrees that it will, at any time it may be so requested by
EATON, enter into an appropriate, mutually agreeable, royalty-free
sub-license agreement with EATON, whereby EATON will become a
sub-licensee of MCLAREN under MCLAREN's License Agreement with Xxxx
Corporation, dated February 28, 2001. MCLAREN agrees that it will not
enter into any other sub-licenses with any other third party, under
its License Agreement with Xxxx Corporation, dated February 28, 2001.
VIII. CONFIDENTIALITY:
8.01 All information and data known by MCLAREN or any of its respective
affiliates, employees, officers, directors, or agents as of the
Closing Date that relates to this transaction or to the Assets,
including, but not limited to, know-how, compilations, formulae,
processes, plans, blueprints, formulations, technical information,
business practices and strategies, R&D, new product information,
product samples, specifications, accounting and financial records,
sales reports, invoices, purchase orders, shipping documents and
reports, customer, vendor and supplier names, supplier/vendor orders,
price guides, product pricing, payable and receivable agings, sales,
marketing and merchandise catalogs, marketing information and
scientific, commercial information or any other information relating
in any way to the Gerodisc technology, whether communicated in
writing, orally, by observation or other sensory detection, shall be
considered Confidential Information.
8.02 For a period of five (5) years from the Closing Date, MCLAREN will
hold Confidential Information in confidence and not disclose it to
any third-party. MCLAREN shall restrict dissemination of Confidential
Information to those of its employees, advisors and agents who have
an actual need to know and who have a legal obligation to protect the
confidentiality of the Confidential Information. The
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obligation with regard to confidentiality and nonuse hereunder shall
not extend to any Confidential Information which (a) at the time of
disclosure is, through no fault of MCLAREN, in the public domain or
thereafter becomes part of the public domain by publication or
otherwise through no fault of the MCLAREN, its affiliates, employees
or agents; (b) MCLAREN can establish was properly in its possession
prior to the time of disclosure to it; (c) is independently made
available to MCLAREN by a third party who has not violated a
confidential relationship with the Disclosing Party; or (d) is
required to be disclosed by legal process; provided that MCLAREN uses
its best efforts to timely inform EATON and permit EATON to attempt
by appropriate legal means to limit such disclosure. The exclusions
enumerated above shall not apply to any specific information merely
because it is included in more general nonproprietary information nor
to any specific combination of information merely because individual
elements, but not the combination, are included in nonproprietary
information.
8.03 Because an award of money damages (whether pursuant to the foregoing
sentence or otherwise) may be inadequate for any breach of this
Agreement by either party, or their respective agents, attorneys,
authorized employees or advisors, and any such breach may cause the
non-breaching party irreparable harm, the parties also agree that, in
the event of any breach or threatened breach of this Agreement, the
non-breaching party will also be entitled, without the requirement of
posting a bond or other security, to equitable relief, including
injunctive relief and specific performance. Such remedies will not be
the exclusive remedies for any breach of this Agreement but will be
in addition to all other remedies available at law or equity to the
non-breaching party.
8.04 In the event that any paragraph or portion of any paragraph of this
Agreement shall be determined to be invalid or unenforceable for any
reason, such invalidity or unenforceability shall not affect the
validity or enforceability of the remaining and enforceable
paragraphs or portions thereof, which shall be construed as if such
invalid or unenforceable paragraph or paragraphs had not been
inserted and any such paragraph or portion thereof shall be deemed to
be modified to make it valid and enforceable to the fullest extent
provided by law, consistent with the intent of this Agreement.
8.05 The parties hereto have drafted and negotiated a Public Announcement,
which is set forth in Schedule G, which is attached hereto and made
part of this Agreement, and the parties hereby agree that the Public
Announcement will comprise the only permissible external
communication (outside EATON and MCLAREN) in regard to this
Agreement, and the transactions covered by this Agreement.
IX. COVENANT NOT TO COMPETE:
9.01 MCLAREN agrees that for a period of ten (10) years after the Closing
Date, neither it nor any Affiliate, nor any of its individual owners,
who own at least ten (10) percent of the equity of MCLAREN under
MCLAREN's Form 14A filed with the Securities and Exchange Commission
on January 17, 2002, shall, directly or indirectly, own, manage,
control, operate, or participate in the ownership, management,
control, or operation of, any business in any form which is involved
in the design, development, manufacturing or marketing of any
products directly competitive with the Gerodisc(TM) units and which
are of the type to which this Agreement relates, without the express,
written consent of EATON. Nothing contained hereinabove is intended
to prevent or hinder the manufacture and sale by MCLAREN of
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Gerodisc(TM) units, in the aftermarket, in cooperation with EATON,
and in accordance with an agreement to be entered into subsequently
by and between EATON and MCLAREN.
X. MUTUAL COVENANTS:
10.01 Except as set forth in the list of Personnel, which is set forth in
Schedule H, attached hereto and made part of this Agreement, the
parties agree that for a period of two (2) years after the Closing
Date, they will not, without first obtaining the written consent of
the other party, which consent may be withheld for any reason,
directly or indirectly solicit or attempt to solicit any person who
is employed by the other party to leave the employment of such other
party, and to become an employee of the soliciting party. The
foregoing shall not prohibit either party from soliciting or
employing any individual who has received notice of termination from,
the other party, or prohibit either party from employing an
individual who responds to a general solicitation of employment by
such party.
XI. CLOSING:
11.01 The Closing shall take place at the offices of McLaren Performance
Technologies, Inc. at 2:00 p.m. on July 23, 2002, which shall
constitute the Closing Date.
11.02 Subject to the terms and conditions of this Agreement, at the
Closing, MCLAREN shall deliver or cause to be delivered to EATON:
(a) a fully executed Consent To Assignment Of Agreement between
MCLAREN and New Venture Gear, substantially as set forth in
Schedule I, attached hereto and made part of this Agreement,
except that if MCLAREN does not deliver such consent, it shall
not be a breach of this Agreement and XXXXX'x sole remedy shall
be as set forth in sub-section 4.01(a);
(b) a fully executed assignment document for each of the Patents,
substantially as set forth in Schedule J, attached hereto and
made part of this Agreement;
(c) a fully executed assignment document for each of the Trademarks,
substantially as set forth in Schedule K attached hereto and made
part of this Agreement; and
(d) a fully executed amended, license agreement between MCLAREN
and MAGNA-STEYR, substantially as set forth in Schedule L,
providing specifically for the assignment of the agreement to
EATON, as is attached hereto and made part of this Agreement,
except that if MCLAREN does not deliver such an executed, amended
license agreement, it shall not be a breach of this Agreement and
XXXXX'x sole remedy shall be as set forth in sub-section 4.01(a).
11.03 Subject to the terms and conditions of this Agreement, at the
Closing, EATON shall deliver or cause to be delivered to MCLAREN that
portion of the purchase price required in accordance with sub-section
4.01(a) hereinabove.
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XII. SURVIVAL OF REPRESENTATIONS, WARRANTIES AND COVENANTS:
12.01 The representations, warranties, and covenants of the parties as set
forth herein, and all unasserted claims and causes of action with
respect thereto shall terminate upon the expiration of three (3)
years following the Closing Date.
XIII. INDEMNIFICATION
13.01 For a period of three (3) years from the Closing Date, each of
MCLAREN and EATON agrees to protect, defend, indemnify, and hold
harmless the other, its agents, employees, officers, directors,
shareholders, successors and assigns, from and against any and all
liabilities, obligations, liens, shareholder losses, damages,
injuries, claims, demands, penalties, actions, costs and expenses,
including reasonable attorneys' fees and settlement costs of every
kind and nature (collectively, "Losses"), arising out of or related
to any breach by such party of its warranties, covenants, agreements
or obligations hereunder; provided, however, that MCLAREN shall have
no obligation to indemnify or otherwise pay or reimburse EATON for
Losses resulting, directly or indirectly, from a third-party claim of
infringement arising after the Closing Date that relates to the
Assets.
13.02 To the fullest extent permitted by applicable law, the foregoing
indemnification provision of this Section XIII shall be the exclusive
remedy between the parties for any breach of any representation,
warranty or covenant contained in this Agreement or otherwise arising
under or resulting from this Agreement. The parties shall have no
other or further right or remedy under any theory whatsoever, whether
in contract, tort, equity or otherwise, all of which both parties
hereby expressly and irrevocably waive and relinquish.
XIV. MISCELLANEOUS
14.01 Any notice required or permitted to be given under this Agreement must
be in writing and may be delivered in person, by registered mail,
facsimile or by overnight courier addressed to the respective party at
the address set forth above or such changed address as may be given by a
party to the other by such written notice. Any such notice will be
considered to have been given when personally delivered or five (5)
business days after the date of mailing or one (1) business day after
the date of forwarding if sent by overnight courier.
14.02 This Agreement will be binding upon, inure to the benefit of and be
enforceable by, the successors, assigns, heirs, legatees, executors,
personal representatives, guardians, custodians, administrators and
conservators of the parties hereto; provided, however, that no
assignment of this Agreement will be effective without the express
written consent of the other party.
14.03 The Section headings herein are for reference purposes only and will not
affect in any way the meaning or interpretation of this Agreement, nor
are they deemed to constitute part of this Agreement.
14.04 This Agreement is a contract made under, and will be governed by and
construed in accordance with, the laws of the State of Michigan
applicable to contracts made and to be performed entirely within such
State and without giving effect to choice of law principles of such
State. Each of the parties hereto agrees that any legal or equitable
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action or proceeding with respect to this Agreement shall be brought or
maintained only in any court of the State of Michigan, or in any court
of the United States of America sitting in Michigan, and each of the
parties hereto hereby submits to and accepts generally and
unconditionally the jurisdiction of those courts with respect to such
party's person and property, and irrevocably consents to the service of
process in connection with any such action or proceeding by the mailing
thereof by registered or certified mail, postage prepaid, to such party
at such party's address set forth above. Nothing in this section shall
affect the right of any party hereto to serve process in any other
manner permitted by law. Each party hereby irrevocably waives any
objection to the laying of venue of any such action or proceeding in the
above-described courts.
14.05 The failure of a party to exercise or enforce any right or remedy
conferred upon it hereunder will not be deemed to be a waiver of any
such right or remedy or operate to bar the exercise or enforcement
thereof at any time hereafter.
14.06 This Agreement, including the Schedules referred to herein, constitutes
the complete agreement between the parties and supersedes all prior
negotiations and agreements. There are no representations, warranties,
covenants, conditions, terms, agreements, promises, understandings,
commitments or other arrangements other than those expressly set forth
or incorporated herein or made in writing on or after the date of this
Agreement.
14.07 This Agreement may be amended only by a written agreement signed by each
of the parties hereto.
14.08 This Agreement may be executed in one or more counterparts, each of
which will be deemed to be an original, but all of which together will
constitute one and the same instrument.
IN WITNESS WHEREOF, each of the parties has caused this Agreement to be
duly and delivered by its duly authorized representatives as of the date first
written above.
XXXXX CORPORATION ("EATON")
By: /s/ Xxxxx X. Xxxxx
------------------------------------
Name Xxxxx X. Xxxxx
---------------------------------
Title Vice President - Gen. Mor.
--------------------------
Date 7/23/02
-------
MCLAREN PERFORMANCE
TECHNOLOGIES, INC. ("MCLAREN ")
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By: /s/ Xxxxxx Xxxxx
-------------------------------------
Name Xxxxxx Xxxxx
------------------------------------
Title President & CEO
---------------
Date 7/23/02
-------
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A list of schedules that were omitted is as follows and will be provided to the
Commission upon request:
Schedule A Patents and Patent Applications
Schedule B Trademarks
Schedule C Tangible Assets
Schedule D Licenses
Schedule E Excluded Assets
Schedule F Purchase Orders
Schedule 4.01 Wire transfer instructions
Schedule G Public Announcement
Schedule H Personnel
Schedule I Consent To Assignment Of Agreement between MCLAREN and New
Venture Gear
Schedule J Patent Assignment Documents
Schedule K Trademark Assignment Documents
Schedule L Amended License Agreement
