PURCHASE AND SALE AGREEMENT
---------------------------
THIS PURCHASE AND SALE AGREEMENT (the "Agreement"), dated as of the 31st
day of December, 1997, is by, between and among the following parties:
(1) Marine Power Holding, L.L.C. ("MPH" or "Buyer"), a
Louisiana Limited Liability Company, with its offices and
place of business at 000 X. Xxxxxxxxxx Xxxxxx, Xxx Xxxxxxx,
Xxxxxxxxx 00000;
(2) Hirel Technologies, Inc. ("Hirel Technologies"), a
corporation organized and existing under the laws of the
State of Florida, with its offices and place of business at
000 X.X. 00xx Xxxxxxx, Xxxxxxx Xxxxx, Xxxxxxx 00000;
(3) Hirel Marketing, Inc. ("Hirel Marketing"), a corporation
organized and existing under the laws of the State of
Florida, with its offices and place of business at 000 X.X.
00xx Xxxxxxx, Xxxxxxx Xxxxx, Xxxxxxx 00000; and
(4) Hirel Holdings, Inc. ("Hirel Holdings"), a corporation
organized and existing under the laws of the State of
Delaware, with its offices and place of business at 000 X.X.
00xx Xxxxxxx, Xxxxxxx Xxxxx, Xxxxxxx 00000.
RECITALS
--------
WHEREAS, on or about December 8, 1997, W.E. Xxxxxxxxx, Jr., as
representative of MPH, and Hirel Holdings entered into that certain letter
agreement setting forth the parties' intent regarding the sale to MPH of certain
assets owned by Hirel's subsidiaries, Hirel Technologies and Hirel Marketing;
and
WHEREAS, in order to carry out the terms and provisions of said letter
agreement MPH desires to buy and Hirel Technologies and Hirel Marketing desire
to sell the below-described assets on the terms and conditions set forth in this
Agreement.
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TERMS OF AGREEMENT
------------------
NOW THEREFORE, in consideration of the mutual covenants, agreements,
representations and warranties contained in this Agreement, MPH, Hirel
Technologies, Hirel Marketing and Hirel Holdings hereby agree as follows:
1. ASSETS TO BE SOLD BY HIREL TECHNOLOGIES.
----------------------------------------
Subject to the terms and conditions set forth in this Agreement and less
and except the Excluded Assets described in paragraph 2, below, at Closing Hirel
Technologies will sell, convey, transfer, assign and deliver to Buyer and Buyer
will purchase, all of the following described assets and properties owned by the
Marine Power Division of Hirel Technologies Inc., held for and pertaining to, or
developed with respect to, the business of the said Marine Power Division and
located at the Marine Power facilities in Riverside, California; Ponchatoula,
Louisiana; and Spokane, Washington (the "Marine Power Locations"), whether
tangible, intangible or mixed or recorded or unrecorded on Hirel Technologies'
books (sometimes referred to herein collectively as the "Marine Power Assets"):
(a) All of the inventory, whether work-in-process, finished goods or parts
inventory, relating to the Marine Power Division's business and
located at the Marine Power Locations, which said inventory shall be
set forth and described on the attached Schedule "1."
(b) All of the accounts receivable relating to Marine Power Division's
business, whether billed or unfilled, arising from sales made by said
Division on or prior to the Closing Date, less and except any
receivable owed by Hirel Holdings and its subsidiaries, including that
certain account receivable owed by Hirel Marketing, Inc. in the
principal amount of $554,469.38 and that certain account receivable
owed by Hirel Technologies, Inc. in the principal amount of $1,530.47.
Buyer shall also receive the right to receive any and all proceeds,
including cash, checks, or notes arising out of or relating to said
accounts receivable.
(c) All of Hirel Technologies' right, title and interest in and to the
following assets:
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(1) Any and all furniture, fixtures, leasehold improvements, tooling,
motor vehicles and movable equipment used in or related to, the
operation of the business of the Marine Power Division as set
forth on the attached Schedule "2" and located at the Marine
Power Locations;
(2) The operating and/or trade names "Marine Power," "ENPAC,"
"Sportpac," "PARPAC," "Airpac," "Jetpac," "X-Stream," "X
Performance Series," "Seawolf Series," "X" Motor; and all trade
marks, copyrights and patents related thereto;
(3) Any and all of the accounting and fixed asset records of the
Marine Power Division and located at the Marine Power Locations,
including all business record systems, inventory and cost
management accounting systems and their related data bases,
inventory data bases, sales invoices and signed packing slips,
sales data base records, employee and personnel records;
(4) Any and all contracts, warranties, claims (whether asserted or
unasserted), causes of action and/or other intangible property
rights relating or pertaining to the Marine Power Assets acquired
by MPH;
(5) Any and all cash, or cash equivalents, in the possession of the
Marine Power Division as of Closing Date, together with any and
all rights or claims relating to any and all prepaid expenses
and/or deposits made or expended in connection with the business
operations of the Marine Power Division;
(6) Any and all promissory notes held or owned by the Marine Power
Division as bearer, holder or payee, including but not limited to
that certain promissory note executed by AA Land, Inc. in the
present principal amount of $18,000.00 and that certain
promissory note executed by Commercial Marine Services with a
present outstanding balance of $202,767; and
(7) Any and all insurance policies issued in favor of the Marine
Power Division, or as to which the Marine Power Division is the
owner, beneficiary or named insured, including but not limited to
any rights to any cash value or prepaid premiums attributable
thereto.
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2. EXCLUDED ASSETS.
----------------
It is expressly acknowledged and agreed by the parties that the "Marine
Power Assets" to be sold to Buyer by Hirel Technologies shall be composed solely
of those categories of assets set forth in paragraph 1(a) through (c),
inclusive, held or utilized in connection with the operations of the Marine
Power Division's facilities at Riverside, California; Ponchatoula, Louisiana;
and Spokane Washington, and it is further acknowledged and agreed by the parties
that there shall be no sale or other conveyance by Hirel Technologies of any
assets of whatever nature or type, whether tangible, intangible, mixed, or
recorded or unrecorded on the books of Hirel Technologies, relating to or
pertaining to that certain fuel injection technology owned and utilized by Hirel
Technologies (collectively the "Excluded Assets").
3. ASSETS TO BE SOLD BY HIREL MARKETING.
-------------------------------------
Subject to the terms and conditions set forth in this Agreement, at
Closing, Hirel Marketing will, sell, convey, transfer, assign and deliver to
Buyer and Buyer will purchase the following described assets and properties
owned by Hirel Marketing in, held for and pertaining to, or developed with
respect to, the business of the Hirel Marine & Industrial Supply ("Hirel
Marine") Division of Hirel Marketing (sometimes referred to herein collectively
as the "Hirel Marine Assets"):
(a) All finished goods new engine inventory and generators of
Hirel Marine and located at Hirel Marine's facility in
Lakewood, New Jersey, which said inventory set forth and
described in Schedule "3" attached hereto. Hirel Marketing
will pay all costs of shipment of any purchased engine
inventory from Lakewood, New Jersey to MPH's facility in
Ponchatoula, Louisiana;
(b) Any and all of the accounts receivable relating to the
business of Hirel Marine's Lakewood, New Jersey facility,
whether billed or unbilled, arising from sales made by said
Lakewood, New Jersey
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facility on or prior to December 31, 1997. MPH shall also
receive the right to receive any and all proceeds, including
cash, checks or notes arising out of or relating to said
accounts receivable;
(c) All engine parts inventory of Hirel Marine and located at
Hirel Marine's Lakewood, New Jersey facility, which said
parts inventory is set forth and described in Schedule "4"
attached hereto. Hirel Marketing will pay all costs of
shipment of the purchased engine parts inventory from
Lakewood, New Jersey to MPH's facility in Ponchatoula,
Louisiana;
(d) Any and all furniture, racks, telephones, computers,
forklifts, improvements, fixtures and other equipment used
in or relating to the operation of the business of Hirel
Marine's facility in Lakewood, New Jersey (the "Fixed
Assets"), which said Fixed Assets are set forth and
described in Schedule "5" attached hereto. Hirel Marketing
will pay all costs of shipment of the purchased Fixed Assets
from Lakewood, New Jersey to MPH's facility in Ponchatoula,
Louisiana; and
(e) Any and all contracts, warranties, claims (whether asserted
or unasserted), causes of action and/or other intangible
property rights relating or pertaining to the Hirel Marine
Assets acquired by MPH.
4. NO ASSUMPTION OF LABILITIES OF HIREL MARKETING.
-----------------------------------------------
Hirel Holdings and Hirel Marketing hereby expressly acknowledge, represent
and warrant that by acquiring the above Hirel Marine Assets, MPH shall not be
deemed in any manner to have assumed or agreed to perform or pay any debts,
accounts payable, liabilities, claims, obligations or contracts of Hirel
Marketing of any nature, whether known or unknown, presently existing, accrued,
absolute, contingent or otherwise. MPH does not assume any product liability for
breach of any warranty, or otherwise, with respect to any inventory sold by
Hirel Marketing prior to the Closing, nor shall MPH have any liability or
responsibility for any disposition by Hirel Marketing of any property which is
not the subject of this Asset Acquisition. Notwithstanding the provisions of
this paragraph, MPH hereby agrees to assume and perform any
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and all warranty obligations (whether arising by contract or by operation of
law) which may be asserted with respect to any of the engines manufactured by
the Marine Power Division of Hirel Technologies, Inc. and sold by Hirel
Marketing.
5. ASSUMPTION OF LIABILITIES OF MARINE POWER DIVISION OF HIREL
-----------------------------------------------------------
TECHNOLOGIES.
-------------
Except as expressly excluded herein, MPH, agrees to assume or perform or
pay the debts, obligations, accounts payable, liabilities, claims or contracts
attributable to, or arising out of, the operation of the Marine Power Division
of Hirel Technologies, as set forth and described in Schedule "6" attached
hereto; however, nothing set forth herein shall be deemed to limit or restrict
in any way the right of MPH, in its sole discretion and as it deems necessary,
to settle, satisfy and/or discharge any obligation of the Marine Power Division
on such terms and under such circumstances acceptable to MPH. Hirel Holdings and
Hirel Technologies hereby expressly acknowledge, represent and warrant that by
acquiring the above Marine Power Assets, MPH shall not be deemed in any manner
to have assumed or agreed to pay any debt, liability, obligation or claim, of
whatsoever nature of kind, owed by the Marine Power Division to Hirel Holdings
or its subsidiaries, including: (1) that certain accounts payable owed by Marine
Power Division to Hirel Marketing in the aggregate principal amount of
$82,525.63; and (2) that certain advance or loan owed by the Marine Power
Division to Hirel Holdings in the total principal amount of $2,915,000.00.
6. PURCHASE PRICE TO BE PAID TO HIREL TECHNOLOGIES AND HIREL MARKETING.
--------------------------------------------------------------------
(a) Purchase Price to Be Paid to Hirel Technologies.
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The consideration to be paid by MPH to Hirel Technologies for the purchase
of the Marine Power Assets shall be the total price and sum of $150,000.00 in
cash to be paid at the Closing.
(b) Purchase Price to Be Paid to Hirel Marketing.
Subject to any adjustment or reduction of the purchase price as a result of
MPH's inspection and evaluation of the Hirel Marine finished engine inventory as
provided below, on or before January 15, 1998, MPH shall pay to Hirel Marketing
the total sum of $150,000.00 in cash for the purchase of the Hirel Marine Assets
pursuant to the following terms and conditions:
(i) Placement of Purchase Price in Trust Account.
At the Closing, MPH shall place or cause to be placed in the
trust account of Deutsch, Xxxxxxxx & Xxxxxx, L.L.P. the total sum
of $150,000.00, which said monies shall remain in said account
pending disbursement to Hirel Marketing as provided in this
Agreement.
(ii) Allocation of Purchase Price.
Subject to any adjustment or reduction of the Purchase Price with
respect to the Hirel Marine finished engine inventory, the total
purchase price for the Hirel Marine Assets shall be allocated as
follows:
finished new engine inventory
and generators - $119,499.15;
accounts receivable, engine parts
inventory, fixed assets and
intangibles - $ 30,500.85.
(iii) Inspection and Acceptance of Finished Engine Inventory.
From Closing through January 15, 1998, MPH shall have the
absolute right to inspect the finished engine inventory as deemed
necessary by MPH in order to determine that any engines to be
purchased from Hirel Marketing by MPH are in fact new finished
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engine inventory rather than used engine inventory. Upon
conclusion of such inspection and testing, MPH shall promptly
provide Hirel Marketing with written notice detailing which, if
any, of the finished engine inventory are deemed unacceptable to
MPH (the "Rejected Engines"). In the event that a new engine to
be purchased hereunder is found by MPH to be defective as a
result of defective production or materials, such engine will not
be designated as a Rejected Engine by MPH and will instead be
included among the engines purchased and acquired hereunder. The
aggregate purchase price allocable to the finished engine
inventory to be purchased by MPH shall be reduced by the total
value of any Rejected Engines, the value of which shall be
determined in accordance with the respective values therefore
shown on Schedule "3" attached hereto.
(iv) Subject to the adjustment as provided above, the purchase price
shall be paid on the earlier to occur of January 15, 1998 or
shipment of the Hirel Marine Assets FOB Ponchatoula, Louisiana.
7. INSPECTION RIGHTS AND NOTICE OF PURCHASE PRICE FOR HIREL MARINE FINISHED
------------------------------------------------------------------------
ENGINE INVENTORY.
-----------------
MPH shall have the absolute right to inspect and review the books, records,
inventory, sales invoices, signed packing slips, sales reports, commission
reports and other records, documents and properties relating to Marine Power
Division's facilities in Riverside, California; Ponchatoula, Louisiana; and
Spokane, Washington and the Lakewood, New Jersey operations of Hirel Marketing,
the review of which MPH, in its sole discretion, deems necessary for the
purposes of this Asset Acquisition, and MPH shall have unfettered access to such
books, records, inventory or other properties in connection with the performance
of such inspections and reviews. On or before January 15, 1998, MPH shall
provide Hirel Marketing with written notice, as provided in paragraph 6(b)(iii),
above, setting forth any Rejected Engines and the values therefore deemed
unacceptable by MPH due to its inspection and testing of same, together with the
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corresponding reduction, if any, in the total purchase price to be paid by MPH
for the Hirel Marine finished engine inventory.
8. REPRESENTATIONS AND WARRANTIES OF SELLER.
-----------------------------------------
Hirel Technologies and Hirel Marketing (collectively "Seller") hereby
represent and warrant to Buyer as follows:
8.1 Xxxxxxx Xxxxxx as president of Hirel Technologies and as
vice-president of Hirel Marketing, possesses all right, authority
and power to execute and perform this Agreement and the
transactions required hereunder. This Agreement constitutes a
binding obligation of each Seller in accordance with its terms.
8.2 To the knowledge of Seller, with respect to the Marine Power
Assets and the Hirel Marine Assets, neither Hirel Technologies
nor Hirel Marketing are infringing upon, or otherwise violating
any patents, copyrights, trademarks, service marks, trade names,
franchises, rights, certificates, permits or other similar
intangible asset of any third party. No proceedings related to
any such infringement or violation have been instituted or are
pending, or, to the knowledge of Seller, threatened, and no claim
has been received by Seller alleging any such violation.
8.3 To the best of Seller's knowledge, information and belief, and
except as otherwise provided in the public records of the States
of Louisiana, Washington, California or New Jersey, as of the
Closing, Seller has good and marketable title to all the Assets.
As of the Closing, except with respect to certain of the Marine
Power Assets encumbered in favor of Union Planters Bank, to the
best of Seller's knowledge, information and belief, and except as
otherwise provided in the public records of the States of
Louisiana, Washington, California and New Jersey, all the Marine
Power and Hirel Marine Assets are and will be transferred to
Buyer free and clear of any mortgages, liens, pledges, charges,
encumbrances, equities, claims, tax liens or liabilities of any
nature whatsoever.
8.4 Seller has not received any written notice of any complaints,
lawsuits, claims or proceedings, pending or threatened, regarding
ownership, use or possession of the Marine Power and Hirel Marine
Assets, or any portion thereof. To the best of Seller's
knowledge, information and belief, no claims are pending against
Seller as of the Closing of any nature which could attach to the
assets.
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8.5 To the best of Seller's knowledge, information and belief, as of
the Closing, no condition exists with respect to any of the
Marine Power and Hirel Marine Assets which would give rise to any
claim of violation of fire, air or water pollution, health,
environmental or any other laws or regulations affecting the
assets.
8.6 To the best of Seller's knowledge, information and belief, all
documents, books, records or other written information delivered
or provided by Seller to Buyer in connection with this Agreement,
and the transactions contemplated herein, are true and complete
in all material respects and do not contain any untrue statement
of material fact and do not omit to state any material fact
necessary to make the statements contained therein false or
misleading.
8.7 As used herein, the phrases "to the best of Seller's knowledge,
information and belief" or "to the knowledge of Seller" shall
refer solely to the specific knowledge of those officers of
Seller located at the Seller's principal place of business in
Pompano Beach, Florida, and such individuals have not conducted,
and are under no obligation to conduct, any independent inquiry
as to any of the matters set forth in this Article 8. Any
reference to "knowledge," "notice" or "claim" shall refer solely
to knowledge, notice or claim received in written communications
addressed to and received by officers of Seller in Pompano Beach,
Florida. Buyer agrees that no knowledge of any facts or
circumstances shall be attributed to Seller solely by virtue of
the knowledge of any employees located at any of the Marine Power
Locations. Seller is not aware of the content of such reports,
representations or warranties as may have been provided to Buyer
by employees of the Marine Power Division, and accordingly Seller
is unable to represent or warrant the accuracy of any such
information received by Buyer. Buyer agrees that it is not
relying upon any representation or warranty of any facts where
Buyer has obtained information in connection with its
investigation of the Marine Power Division contrary to such
representation or warranty.
9. REPRESENTATION AND WARRANTY OF BUYER
------------------------------------
As of the Closing, Buyer warrants and represents that it is a limited
liability company duly organized, validly existing and in good standing under
the laws of the State of Louisiana, and that the execution and delivery of this
Agreement, and the consummation of the transactions contemplated herein, have
been duly authorized by the members of MPH pursuant to the
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Operating Agreement. All other actions of Buyer necessary to authorize the
execution and delivery of this Agreement, and the transactions contemplated
herein, have been, or will be, taken prior to the Closing.
10. CONDITIONS PRECEDENT TO BUYER'S OBLIGATIONS TO CLOSE.
-----------------------------------------------------
The obligation of the Buyer to close this Asset Acquisition is, at the
election of Buyer, subject to satisfaction of each of the following express
conditions:
10.1 All inspections or review of all Marine Power assets have been
completed to Buyer's satisfaction.
10.2 No uncured breach exists with respect to any of Seller's
agreements, representations and warranties contained paragraph 8
in this Agreement.
10.3 As of Closing, Hirel Holdings, Hirel Technologies and Hirel
Marketing have complied with the terms and conditions of this
Agreement.
10.4 Buyer may at any time, or prior to Closing, waive any one or more
of the preceding conditions to Closing by written notice to
Seller.
11. THE CLOSING.
------------
The Closing of the transactions contemplated by this Agreement (the
"Closing") shall take place at Deutsch, Xxxxxxxx & Xxxxxx, L.L.P., 000 Xxxxxxxx
Xxxxxx, Xxx Xxxxxxx, Xxxxxxxxx 00000 and on a date and time specified by Buyer
upon five (5) days notice by Buyer to Seller, or at such other place, time and
date as may be agreed upon in writing by Buyer and Seller. Closing shall occur
by no later than December 31, 1997. In the event that the Closing does not
occur by December 31, 1997, Buyer or Seller shall have the unfettered right in
its sole discretion to terminate this Agreement and the Asset Acquisition with
no liability whatsoever to any other party to this Agreement. The transactions
consummated at Closing, when effected, will be deemed to be effective as of the
closing of business on the date of the Closing, except as otherwise
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provided by Buyer and Seller. All action to be taken at Closing will be
considered as taken simultaneously, and no paper, document or instrument will be
considered to be delivered until all items to be delivered have been provided.
12. SELLER'S OBLIGATIONS AT CLOSING.
--------------------------------
Seller at the Closing will deliver, or cause to be delivered, to Buyer all
documents (of whatever nature) as may be reasonably necessary, expedient or
proper in order to complete any and all transfers and assignments provided for
herein and to convey to Buyer such title to all assets as is contemplated in
this Agreement.
13. BUYER'S OBLIGATIONS AT CLOSING.
-------------------------------
Buyer at Closing will deliver, or cause to be delivered, to Hirel
Technologies, Inc. the entire purchase price of the Marine Power Assets by wire
transfer of funds to a bank account or bank accounts designated by Hirel
Technologies, Inc. in advance of the Closing. Buyer at Closing will place, or
cause to be placed in the trust account of Deutsch, Xxxxxxxx & Xxxxxx, L.L.P.
the sum of $150,000.00 representing the maximum purchase price for the Hirel
Marine Assets. Buyer further agrees that subject to the terms of this Agreement,
it will deliver, or cause to be delivered, to Hirel Marketing, Inc. by on or
prior to January 15, 1998, the purchase price for the Hirel Marine Assets by
wire transfer funds to a bank account or bank accounts designated by Hirel
Marketing, Inc. in advance of such date.
14. TAXES.
------
All transfer or other sales or use taxes which may be due as a result of
the sale and transfer of the assets shall be paid by the party against whom such
taxes are assessed or levied in accordance with the laws, rules and regulations
of the applicable taxing jurisdiction in which
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the assets, or a portion thereof, are physically located. Any property taxes due
or payable with respect to the assets will be the sole responsibility of the
Buyer.
15. SELLER'S OBLIGATIONS POST-CLOSING.
--------------------------------------
Subsequent to Closing, the Seller shall have the following obligations to
Buyer:
15.1 Seller shall at any time, and from time to time after the
Closing, upon the request of Buyer, execute, acknowledge and
deliver and will cause to be executed, acknowledged and delivered
all such further assignments, transfers, conveyances, assurances
and such other instruments as may reasonably be requested by
Buyer and will take such other action consistent with the terms
of this Agreement that may be required to complete or consummate
the transactions contemplated by this Agreement.
15.2 Upon the Closing, or immediately thereafter, Seller shall
instruct, or cooperate with Buyer in instructing, Seller's
customers and account debtors that Buyer has purchased the
accounts receivable and requesting such customers and account
debtors to remit payments to Buyer at the mailing address
specified by Buyer.
16. POST-CLOSING ACCESS TO MARINE POWER RECORDS.
--------------------------------------------
Buyer agrees that upon request, Seller shall have reasonable access to the
books and records of the Marine Power Division for the purpose of preparing tax
returns or other filings. The parties hereto agree that any access of Seller to
the Marine Power books and records shall be at the sole cost and expense of
Seller and shall not interfere with the business operations of MPH.
17. DAMAGE OR DESTRUCTION OF ASSETS.
--------------------------------
If prior to Closing (or if as to the Hirel Marine Assets, prior to January
15, 1998 or shipment of the Hirel Marine Assets to MPH, whichever occurs
earlier), the assets or any portion thereof, suffer or sustain damage or injury
by fire or other casualty, Buyer may, in its sole
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discretion, elect to terminate this Agreement upon written notice to such Seller
without any liability to Hirel Holdings, Hirel Technologies or Hirel Marketing.
18. COSTS AND EXPENSES.
-------------------
Buyer will pay the documentary fees, transfer taxes and the recording costs
of the transfer documents or instruments recorded for the benefit of Buyer. Each
party will pay the fees and expenses incurred by its respective counsel in
negotiating and preparing this Agreement and in closing and carrying out the
transactions contemplated by this Agreement.
19. NO MERGER
---------
The representations, warranties, covenants and other obligations of Hirel
Holdings, Hirel Technologies and/or Hirel Marketing set forth in this Agreement
shall survive the Closing to the full extent necessary for Buyer's enforcement
of same. No examination or inspections by Buyer will modify or diminish the
obligations of any Seller with respect to the representations and warranties of
any Seller contained in this Agreement.
20. ENTIRE AGREEMENT: MODIFICATION: WAIVER ATTORNEYS' FEES.
-------------------------------------------------------
This Agreement constitutes the entire agreement between the parties
pertaining to this Asset Acquisition and supersedes all prior agreement,
representations, and understandings of every kind and nature between the
parties. No change, waiver, modification or amendment of this Agreement shall be
binding unless executed in writing by the party to be bound by such change,
waiver or modification. A waiver of any of the provisions of this Agreement
shall not constitute a waiver of any other provision or subsequent breach of
condition, either of like or different nature; forbearance in prosecuting a
remedy for breach hereof shall not constitute a waiver. In the event either
party hereto brings or files an action for the enforcement or interpretation of
the
14
terms hereof, the losing party shall pay the costs incurred by the prevailing
party, including, without limitation, court costs and attorneys' fees.
21. PARTIES IN INTEREST.
--------------------
Nothing in this Agreement, whether express or implied, is intended to
confer any rights or remedies under or by reason of this Agreement on any person
or entity other than Hirel Holdings, Hirel Technologies, Hirel Marketing and
Buyer and their respective successors and assigns. In particular, no agreement
on the part of MPH to assume or perform any obligation or liability of the
Marine Power Division shall be construed as intended to confer any rights or
remedies on any person or entity who is not a party to this Agreement. This
Agreement will be binding upon and inure to the benefit of the parties to it and
their respective heirs, legal representatives and successors, but will not be
assignable by any of the parties hereto except with the prior written consent of
the other party,
22. RIGHT TO TERMINATE.
-------------------
In addition to any other right of termination specifically granted to Buyer
herein, Buyer shall have the absolute right to terminate this Agreement, and the
Asset Acquisition contemplated herein, for any reason, or no reason, upon
written notice to Hirel Holdings on or before the Closing, and upon the
provision of such notice, the parties hereto will thereupon be relieved of all
further obligations under this Agreement.
23. GOVERNING LAW.
--------------
This Agreement shall be governed by and construed in accordance with the
laws of the State of Louisiana without giving effect to its conflict of laws
rules. Hirel Holdings, Hirel Technologies and Hirel Marketing consent to the
jurisdiction of the courts of the State of
15
Louisiana and agree that any litigation with respect to this Agreement shall be
brought in the United States District Court for the Eastern District of
Louisiana and that said court shall be the sole and exclusive forum for purposes
of venue and personal jurisdiction over the parties.
24. SECTION AND OTHER HEADINGS.
---------------------------
The section and other headings contained in this Agreement are for
reference purposes only and will not in any way affect the meaning or
interpretation of the text of this Agreement.
25. NOTICES.
--------
All notices, requests, demands, and other communications under this
Agreement shall be deemed to have been duly given on the date of service, if
served personally on the party to whom notice is to be given, or upon delivery
if mailed to the party to whom notice is to be given (refusal or failure to
claim the communication within five (5) days shall constitute delivery), by
registered or certified mail, return receipt requested, postage prepaid and
properly addressed as follows:
To Seller:
Hirel Holdings, Inc.
Hirel Technologies, Inc.
Hirel Marketing, Inc.
000 X.X. 00xx Xxxxxxx
Xxxxxxx Xxxxx, Xxxxxxx
Attn: Xxxxxxx Xxxxxx
With a copy to:
Xxxxxx X. Xxxx, Esq.
Xxxxx, McCloskey, Smith, Xxxxxxxx & Xxxxxxx, P.A.
000 Xxxx Xxxxxxx Xxxx.
00xx Xxxxx
Xxxx Xxxxxxxxxx, Xxxxxxx 00000
To Buyer:
Marine Power Holding, L.L.C.
000 X. Xxxxxxxxxx Xxxxxx
Xxx Xxxxxxx, Xxxxxxxxx 00000
Attn: Mr. Xxxx Xxxxxx Smallpage, Jr.
Manager
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With a copy to:
Xxxxx X. Xxxxxxxxx, Esq.
Deutsch Xxxxxxxx & Xxxxxx, L.L.P.
000 Xxxxxxxx Xxxxxx
Xxx Xxxxxxx, Xxxxxxxxx 00000
26. NOTICE OF CLAIM.
----------------
It shall be a precondition to any claim asserted by any party hereto of a
breach or violation on the part of the other party that written notice thereof
be given by the party asserting such breach or default to the other party as
soon as practicable.
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27. EXECUTION IN COUNTERPARTS.
--------------------------
This Agreement, and any documents or instruments executed in connection
therewith, may be executed in one or more counterparts, each of which shall be
deemed to be an original, but all of which shall constitute a single instrument.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
day, month and year set forth above.
Hirel Holdings, Inc.
By:
------------------------------------------
Xxxxxxx Xxxxxx, its President
Hirel Technologies, Inc.
By:
------------------------------------------
Xxxxxxx Xxxxxx, its President
Hirel Marketing, Inc.
By:
------------------------------------------
Xxxxxxx Xxxxxx, its Vice-President
Marine Power Holding, L.L.C.
By:
------------------------------------------
Xxxx Xxxxxx Xxxxxxxxx, Jr., its Manager
18
