EX-2.2 2 dex22.htm EQUITY PURCHASE AGREEMENT Execution Version EQUITY PURCHASE AGREEMENT
Exhibit 2.2
Execution Version
This Equity Purchase Agreement (this “Agreement”), dated September 3, 2010 (the “Effective Date”), is made by and among IMPCO Technologies, Inc., a Delaware corporation (“Buyer”), EvoTek LLC, a Florida limited liability company (the “Company”), Xxxx Xxxxxxxxxx (“Seller”), Xxxxxx Xxxxxxxxxx (“Xx. Xxxxxxxxxx” and, together with the Company and Seller, a “Seller Party” or the “Seller Parties”) and, only with respect to Section 2.2(b), Fuel Systems Solutions, Inc., a Delaware corporation and sole shareholder of Buyer (“Parent”) .
Each of the Buyer, the Company, Seller and Xx. Xxxxxxxxxx are sometimes referred to herein as a “Party” and collectively they are the “Parties”.)
1.1 Definitions. The following terms shall have the following meanings:
“Accounts Receivable” means: (a) all trade accounts receivable and other rights to payment from customers of the Company and the full benefit of all security for such accounts or rights to payment, including all trade accounts receivable representing amounts receivable in respect of goods shipped, products sold or services rendered to customers of the Company; (b) all other accounts or notes receivable of the Company and the full benefit of all security for such accounts or notes; and (c) any claim, remedy or other right related to any of the foregoing.
“Affiliate” means, with respect to a Person, each other Person controlled by, controlling, or under common control, with such Person. As used in this definition, “control” (including the terms “controlled by” and “under common control with”) shall mean the possession, directly or indirectly or as trustee or executor, of the power to direct or cause the direction of the management or policies of a Person, whether through ownership of stock or other equity interest or as trustee or executor, by contract, or credit arrangement or otherwise.
“Agreement” shall have the meaning specified in the opening paragraph.
“Asset Allocation Statement” shall have the meaning specified in Section 2.5.
“Average Closing Price” shall mean the average of the Closing Prices on the five (5) Trading Days immediately preceding the Effective Date.
“Best Efforts” means the efforts that a prudent Person desirous of achieving a result would use in similar circumstances to achieve that result as expeditiously as possible, provided, however, that a Person required to use Best Efforts under this Agreement will not be thereby required to take actions that would result in a material adverse change in the benefits to such Person of this Agreement and the Contemplated Transactions or to dispose of or make any change to its business, expend any material funds or incur any other material burden.
“Buyer” shall have the meaning specified in the opening paragraph.
“Buyer Group” shall have the meaning ascribed to such term in Section 8.1.
“Buyer Indemnity Claims” shall have the meaning ascribed to such term in Section 8.1.
“Calibrations” shall mean a set of data used by the Software that defines operational specifics and adjusts the operation, responses and instructions of the Software.
“CARB” shall mean the California Environmental Protection Agency Air Resource Board.
“Certification” shall mean, with respect to a Product, the necessary certification from the EPA and/or the necessary Executive Order from CARB for unrestricted use within the United States or, as applicable, California.
“Claim” means any claim, demand, cause of action, chose in action, right of recovery or right of set-off of whatever kind or description against any Person.
“Closing” shall have the meaning specified in Section 2.3.
“Closing Date” shall mean the date on which the Closing occurs pursuant to Section 2.3.
“Closing Price” shall mean the closing sale price of Common Stock of Parent on a Trading Day as supplied by the Nasdaq Global Select Market (as reported in The Wall Street Journal or, if not reported thereby, another mutually agreed upon authoritative source).
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“COBRA” means, collectively, Section 4980B of the Code (as well as its predecessor provision, Section 162(k) of the Code) and Sections 601 through 608, inclusive, of ERISA.
“Code” means the Internal Revenue Code of 1986, as amended.
“Company Contract” means any Contract: (a) under which Company has or may acquire any rights or benefits; (b) under which Company has or may become subject to any obligation or Liability; or (c) by which Company or any of the assets owned or used by Company is or may become bound.
“Company Employees” shall have the meaning ascribed to such term in Section 3.23.
“Competing Business” shall have the meaning ascribed to such term in Section 3.30.
“Confidential Information” means all information, belonging or relating to the Buyer (including information belonging or relating to the Company, including the Software and the Calibrations, as to which Buyer directly or indirectly acquires an ownership interest at the Closing) which is not generally known to the public, including, without limitation, business or trade secrets, price lists, methods, formulas, know-how, customer lists, manufacturing processes, product cost, marketing plans, research and development and financial information.
“Contemplated Transactions” means all of the transactions contemplated by this Agreement.
“Contract” means any agreement, contract, lease, note, mortgage, indenture, loan agreement, franchise agreement, covenant, employment agreement, collective bargaining agreement, license, instrument, purchase and sales order, commitment, undertaking, or obligation, whether written or oral, express or implied.
“Control” means the possession, direct or indirect, of the power to direct or cause the direction of the management and policies of an entity, whether through the ownership of voting securities, by contract, or otherwise.
“Effective Date” shall have the meaning specified in the opening paragraph.
“Effective Time” means the time at which the Closing is consummated.
“Employment Documents” shall have the meaning ascribed to such term in Section 2.4(a)(iii).
“Environmental Laws” shall have the meaning ascribed to such term in Section 3.28.
“EPA” shall mean the United States Environmental Protection Agency.
“ERISA” means the Employee Retirement Income Security Act of 1974, as amended.
“ERISA Affiliate” means a corporation, trade or business controlled by, controlling or under common control with the Company (within the meaning of Section 414 of the Code).
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“Escrow Agreement” shall have the meaning ascribed to such term in Section 2.4(a)(i).
“Escrow Agent” means a third party escrow agent agreed upon by the Parties.
“Escrow Fund” shall have the meaning ascribed to the term in Section 2.2(b).
“Exchange Act” means the Securities Exchange Act of 1934, as amended.
“FIRPTA Certificate” shall have the meaning ascribed to such term in Section 2.4(a)(vii).
“GAAP” means generally accepted accounting principles, consistently applied.
“Governing Documents” means with respect to any particular entity: (a) if a corporation, the articles or certificate of incorporation and the bylaws; (b) if a general partnership, the partnership agreement and any statement of partnership; (c) if a limited partnership, the limited partnership agreement and the certificate of limited partnership; (d) if a limited liability company, the articles of organization or certificate of formation and operating agreement; (e) if another type of Person, any other charter or similar document adopted or filed in connection with the creation, formation or organization of the Person; (f) all equity holders’ agreements, voting agreements, voting trust agreements, joint venture agreements, registration rights agreements or other agreements or documents relating to the organization, management or operation of any Person or relating to the rights, duties and obligations of the equity holders of any Person; and (g) any amendment or supplement to any of the foregoing.
“Governmental Authorization” means any consent, license, registration or permit issued, granted, given or otherwise made available by or under the authority of any Governmental Entity or pursuant to any Legal Requirement.
“Governmental Entity” shall mean any federal, state, commonwealth, provincial, local or foreign governmental authority, entity, body, branch, agency, department, bureau, board, commission, officer, official, court, adjudicator, tribunal, or other entity, including any agent, division or subdivision thereof, exercising executive, legislative, judicial, regulatory or administrative function of or pertaining to government or law or having jurisdiction over the manufacture, formulation, or sale of any Product or the Company.
“Hypertech Agreement” shall have the meaning ascribed to such term in Section 2.4(a)(v).
“Indemnified Party” shall have the meaning ascribed to such term in Section 8.3.
“Indemnifying Party” shall have the meaning ascribed to such term in Section 8.3.
“Intellectual Property Assets” shall have the meaning ascribed to such term in Section 3.6.
“Intellectual Property Rights” means, collectively, all of the following worldwide intangible legal rights, whether or not filed, perfected, registered or recorded and whether now or hereafter existing, filed, issued or acquired: (a) patents, patent disclosures, patent rights, including
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any and all continuations, continuations-in-part, divisionals, reissues, reexaminations, utility, model and design patents or any extensions thereof; (b) rights associated with works of authorship, including, without limitation, copyrights, copyright applications and copyright registrations; (c) rights in trademarks, trademark registrations and applications therefor, trade names, service marks, service names, logos, or trade dress; (d) rights relating to the protection of trade secrets and Confidential Information; (e) Internet domain names; and (f) all other intellectual, industrial or proprietary rights anywhere in the world.
“Interests” shall have the meaning ascribed to such term in the Recitals.
“Inventories” means all inventories of the Company, wherever located, including all finished goods, work in process, raw materials, spare parts and all other materials and supplies to be used or consumed by the Company in the production of finished goods.
“Know-How” shall mean the Calibrations, manufacturing and assembly processes, specifications, techniques, practices and technical data relating to the manufacture, assembly, operation, use, packaging and performance of the Products; directions and specifications for the proper installation, assembly, packaging of the Products; the methods and procedures of testing the Products; and methods and procedures concerning the marketing, promotion, distribution and sale of the Products.
“Knowledge” means an individual will be deemed to have Knowledge of a particular fact or other matter if: (a) that individual is actually aware of that fact or matter; or (b) a prudent individual could reasonably be expected to discover or otherwise become aware of that fact or matter in the course of conducting a reasonably comprehensive investigation regarding the accuracy of any representation or warranty contained in this Agreement. A Person will be deemed to have Knowledge of a particular fact or other matter if any individual who is serving, or who has at any time served, as a director, officer, partner, executor or trustee of that Person (or in any similar capacity) has, or at any time had, Knowledge of that fact or other matter (as set forth in (a) and (b) above), and any such individual will be deemed to have conducted a reasonably comprehensive investigation regarding the accuracy of the representations and warranties made herein by that Person. Knowledge of each Seller Party shall be attributed to each of Seller, Xx. Xxxxxxxxxx and the Company, such that each inference to Knowledge of Seller, however phrased, shall mean the collective Knowledge of Seller, Xx. Xxxxxxxxxx and the Company.
“Legal Requirements” means any requirement arising under any action, law, proceeding, determination or direction of an arbitrator or Governmental Entity, including any environmental and safety requirement.
“Liability” means with respect to any Person, any liability or obligation of such Person of any kind, character or description, whether known or unknown, absolute or contingent, accrued or unaccrued, disputed or undisputed, liquidated or unliquidated, secured or unsecured, joint or several, due or to become due, vested or unvested, executory, determined, determinable or otherwise, and whether or not the same is required to be accrued on the financial statements of such Person.
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“Lien” means any mortgage, pledge, security interest, encumbrance, easement, restriction, charge, or other lien.
“Material Adverse Effect” means any fact or facts which, individually or collectively, can or may negatively impact: (a) the business, operations, properties, financial condition or results of operations, or prospects of the Company taken as a whole; (b) the Contemplated Transactions; or (c) the ability of any of the Seller Parties to perform their respective obligations under this Agreement.
“OEM” shall mean original equipment manufacturer.
“Order” means any order, injunction, judgment, decree, ruling, assessment or arbitration award of any Governmental Entity or arbitrator.
“Ordinary Course of Business” means an action taken by a Person will be deemed to have been taken in the Ordinary Course of Business only if that action: (a) is consistent in nature, scope and magnitude with the past practices of such Person and is taken in the ordinary course of the normal, day-to-day operations of such Person; (b) does not require authorization by the board of directors or other governing body or equity holders of such Person (or by any Person or group of Persons exercising similar authority) and does not require any other separate or special authorization of any nature; and (c) is similar in nature, scope and magnitude to actions customarily taken, without any separate or special authorization, in the ordinary course of the normal, day-to-day operations of other Persons that are in the same line of business as such Person.
“Parent” shall have the meaning specified in the opening paragraph.
“Party” shall have the meaning specified in the second opening paragraph.
“Parties” shall have the meaning specified in the second opening paragraph.
“Permit” shall mean any application permit, certification (including, without limitation, the Certifications), executive order, authorization, license, approval, registration, franchise, certificate, permission, exemption, consent, or equivalent decision or document of, from, or required or issued by any Governmental Entity or under any applicable law, as amended or supplemented from time to time.
“Permitted Liens” means: (a) any Lien for Taxes or other governmental charges not yet due or delinquent or being contested in good faith by appropriate proceedings for which adequate reserves have been established in accordance with GAAP; (b) any mechanics’, carriers’, workers’, repairers’ or similar statutory Lien arising in the Ordinary Course of Business by operation of law with respect to a liability that is not yet due or delinquent and which statutory Liens are not, individually or in the aggregate, material to the Company; and (c) with respect to assets leased by any Seller Party, any Liens of record which do not materially affect the use by the Company of the asset which is leased.
“Person” shall mean and include, without limitation: (a) any corporation, partnership, limited liability company, joint venture, joint stock company, association, trust, business trust, estate, unincorporated organization, or other business entity recognized under Applicable law, other than the Buyer or any Seller Party; (b) any Governmental Entity; and (c) any individual.
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“Personal Property Lease” shall have the meaning ascribed to such term in Section 3.17(a)(v).
“Plan” shall have the meaning ascribed to such term in Section 3.25.
“Pro Forma Balance Sheet” shall have the meaning ascribed to such term in Section 3.15.
“Pro Forma Balance Sheet Date” shall have the meaning ascribed to such term in Section 3.15.
“Proceeding” means any action, arbitration, audit, Claim, hearing, investigation, litigation or suit (whether civil, criminal, administrative, judicial or investigative, whether formal or informal, whether public or private) commenced, brought, conducted or heard by or before, or otherwise involving, any Governmental Entity or arbitrator.
“Products” shall mean manufactured and assembled conversion kits, platforms, parts and systems, including in each case Software and Calibrations, which work through existing OEM on board computers to enable vehicles with internal combustion engines to be converted to operate on compressed natural gas (“CNG”), liquefied propane gas (“LPG”) and hydrogen fuels.
“Purchase Price” shall have the meaning ascribed to such term in Section 2.1(a).
“Recall” shall mean: (a) any removal of a Product from any channel of distribution; or (b) cessation of shipment of a Product from any warehouse or other location where such Product is held, regardless of the reason for such action or whether such action was undertaken at the request or demand of a Governmental Entity by the Company, or at the discretion of any counterparty to a supply agreement with the Company.
“Record” means information that is inscribed in a tangible medium or that is stored in an electronic or other media and is retrievable in readable form.
“Related Person” means with respect to a particular individual: (a) each other member of such individual’s Family; (b) any Person that is directly or indirectly controlled by any one or more members of such individual’s Family; (c) any Person in which members of such individual’s Family hold (individually or in the aggregate) a Material Interest; and (d) any Person with respect to which one or more members of such individual’s Family serves as a director, officer, partner, executor or trustee (or in a similar capacity). With respect to a specified Person other than an individual (i) any Person that directly or indirectly controls, is directly or indirectly controlled by or is directly or indirectly under common control with such specified Person, (ii) any Person that holds a Material Interest in such specified Person, (iii) each Person that serves as a director, officer, partner, executor or trustee of such specified Person (or in a similar capacity), (iv) any Person in which such specified Person holds a Material Interest and (v) any Person with respect to which such specified Person serves as a general partner or a trustee (or in a similar capacity).
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For purposes of this definition, (a) “control” (including “controlling,” “controlled by,” and “under common control with”) means the possession, direct or indirect, of the power to direct or cause the direction of the management and policies of a Person, whether through the ownership of voting securities, by contract or otherwise, and shall be construed as such term is used in the rules promulgated under the Securities Act; (b) the “Family” of an individual includes (i) the individual, (ii) the individual’s spouse and (iii) any other natural Person who is related to the individual or the individual’s spouse in the first degree; and (c) “Material Interest” means direct or indirect beneficial ownership (as defined in Rule 13d-3 under the Exchange Act) of voting securities or other voting interests representing at least ten percent (10%) of the outstanding voting power of a Person or equity securities or other equity interests representing at least ten percent (10%) of the outstanding equity securities or equity interests in a Person.
“Representative” means a Party’s Affiliates and its officers, directors, principals, attorneys, agents, employees and other authorized representatives.
“Required Consents” shall have the meaning ascribed to such term in Section 7.1(f).
“Restricted Affiliate” means, with respect to a Restricted Party, any business, firm, entity or other Person with respect to which such Restricted Party, serves as an officer, director or partner or member, or is employed by, or serves as a consultant with or has any equity or equity-like interest in (other than equity interests that are publicly traded and such ownership does not exceed 3% of the outstanding equity interest of such entity) or otherwise owns, manages, operates or Controls, directly or indirectly.
“Restricted Parties” shall have the meaning ascribed to such term in Section 6.3(a).
“Restricted Party” shall have the meaning ascribed to such term in Section 6.3(a).
“Restricted Period” shall have the meaning ascribed to such term in Section 6.3(a).
“Revised Asset Allocation Statement” shall have the meaning ascribed to such term in Section 2.5.
“Securities Act” means the Securities Act of 1933, as amended through the date hereof, including by the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act.
“Seller” shall have the meaning specified in the opening paragraph.
“Seller Group” shall have the meaning ascribed to such term in Section 8.2.
“Seller Indemnity Claims” shall have the meaning ascribed to such term in Section 8.2.
“Seller’s Knowledge” means all facts and information which are, or could reasonably be expected to be, within the Knowledge of the Seller, Xx. Xxxxxxxxxx and the managers, officers and directors and members, as applicable, of the Company.
“Seller Parties” shall have the meaning specified in the opening paragraph.
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“Shares” shall have the meaning ascribed to such term in Section 2.2(b).
“Software” shall mean computer software, both object and source code, instructions and technology delivered as a component of the Products that works with an OEM’s on-board computer and systems to enable the corresponding engine to operate with a fuel or fuels other than gasoline.
“Tangible Personal Property” means all machinery, equipment, tools, furniture, office equipment, computer hardware, supplies, materials, vehicles and other items of tangible personal property (other than Inventories) of every kind owned or leased by Seller (wherever located and whether or not carried on Seller’s books), together with any express or implied warranty by the manufacturers or sellers or lessors of any item or component part thereof and all maintenance Records and other documents relating thereto. The term “tangible” as used herein is not intended to be construed by reference to the Uniform Commercial Code definition of the term “tangible” thus, Intellectual Property Assets are not included within Tangible Personal Property.
“Tax” (and, with correlative meaning, “Taxes” and “Taxable”) means any net income, alternative or add-on minimum tax, gross income, gross receipts, sales, use, ad valorem, transfer, franchise, profits, license, withholding, payroll, employment, excise, severance, stamp, occupation premium, property, environmental or windfall profit tax, custom, duty or other tax, governmental fee or other like assessment or charge of any kind whatsoever, together with any interest or any penalty, addition to tax or additional amount imposed by any Tax Authority.
“Tax Authority” means any governmental agency, board, bureau, body, department or authority of any United States federal, state or local jurisdiction or any foreign jurisdiction, having or purporting to exercise jurisdiction with respect to any Tax.
“Tax Returns” means any return, report, information return, schedule, certificate, statement, election (including, without limitation, any election to be treated as a Subchapter S corporation) or other document (including any related or supporting information) filed or required to be filed with, or, where none is required to be filed with a Tax Authority, the statement or other document issued by, a Tax Authority in connection with any Tax.
“Trading Day” shall mean a day for which a Closing Price is so supplied.
“Transaction Documents” means, collectively, this Agreement and all other transaction document agreements, instruments, certificates and other documents expressly contemplated by this Agreement.
“Transferred Interest” shall have the meaning ascribed to such term in the Recitals.
“Xxxxxxxxxx Software” means that certain software developed by Xx. Xxxxxxxxxx individually and indicated as being owned by Xx. Xxxxxxxxxx on Schedule 3.6,
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2.2 Purchase Consideration; Payment Thereof.
(a) The purchase price for the Transferred Interests (the “Purchase Price”) shall be an aggregate of (i) Four Million Dollars ($4,000,000.00) (the “Cash Purchase Price”) and (ii) the Shares provided for in Section 2.2(b).
(b) In accordance with Section 2.4(b)(ii), at the Closing, the Buyer shall cause to be deposited with the Escrow Agent three (3) or more legended certificates issued in the name of Seller representing an amount of shares of Common Stock of Parent equal, in the aggregate, to the product of Three Million Dollars ($3,000,000.00) divided by the Average Closing Price, rounded up to the nearest whole number (the “Shares”). The Shares held by the Escrow Agent may hereinafter be referred to as the “Escrow Fund”. The Escrow Fund shall be used to pay the Earnout under the terms specified in Schedule 2.2(b). The Escrow Fund, to the extent earned but not released to Seller, shall be used to satisfy amounts payable to the Buyer Group pursuant to Article 8 as more particularly described in Article 8 and the Escrow Agreement.
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failure to consummate the purchase and sale provided for in this Agreement on the date and time and at the place determined pursuant to this Section 2.3 will not result in the termination of this Agreement and will not relieve any party of any obligation under this Agreement. In such a situation, the Closing will occur as soon as practicable, subject to Section 9.1.
(a) Seller shall deliver to Buyer:
(i) an appropriate instrument of transfer to evidence the sale of the Transferred Interests to Buyer;
(ii) an escrow agreement mutually agreeable to Buyer and Seller, executed by Seller (the “Escrow Agreement”);
(iii) employment letters and employee invention and confidential information agreements, substantially in the form of Exhibit 2.4(a)(iii), executed by Xx. Xxxxxxxxxx and Seller in favor of Buyer (the “Employment Documents”);
(iv) a license agreement, in the form of Exhibit 2.4(a)(iv), executed by Xx. Xxxxxxxxxx granting the Company an irrevocable non-exclusive worldwide license to use the Xxxxxxxxxx Software and to exercise all rights to such software as if the Company were the owner thereof, including without limitation, the exclusive right to use the Xxxxxxxxxx Software within the Company’s field of use as defined therein (the “License Agreement”);
(v) a consent to assignment, termination, amendment or other agreement, acceptable in form and substance to the Buyer in its sole discretion, to the Non-Disclosure and Non-competition Agreement by and among Hypertech, Inc., a Tennessee corporation, Seller, Xx. Xxxxxxxxxx and InjectTek LLC, an unsigned true copy of which has been provided to Buyer (the “Hypertech Agreement”).
(vi) a certificate executed by the Company stating that the conditions specified in Sections 7.1(a) through Section 7.1(h), inclusive, have been fully satisfied;
(vii) a recently dated certificate from the Secretary of State of the State of Florida confirming that the Company is in good standing in such State; and
(viii) a duly executed certificate from Seller of non-foreign status in the form and manner that complies with section 1445 of the Code and the Treasury regulations promulgated thereunder (each a “FIRPTA Certificate”); provided, however, that, notwithstanding anything to the contrary contained herein, if Seller fails to deliver a FIRPTA Certificate and Buyer elects to proceed with the Closing, Buyer shall be entitled to withhold the amount required to be withheld pursuant to Section 1445 of the Code from the Purchase Price.
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(b) Buyer shall deliver, as the case may be:
(i) to Seller, by wire transfer to an account specified by Seller in a writing delivered to Buyer at least three (3) business days prior to the Closing Date, the Cash Purchase Price;
(ii) the Escrow Agreement, executed by Buyer and the Escrow Agent together with delivery to the Escrow Agent of three (3) or more certificates representing the Shares issued in the name of Seller;
(iii) the Employment Documents executed by Buyer;
(iv) a certificate executed by Buyer stating that the conditions specified in Sections 7.2(a) through Section 7.2(d), inclusive, have been fully satisfied.
3. REPRESENTATIONS AND WARRANTIES
OF COMPANY AND THE SELLER PARTIES
3.1. Organization; Authority and Qualification.
(a) The Company (i) is a limited liability company duly organized, validly existing, and in good standing under the laws of the State of Florida, (ii) has the power and authority to conduct the business in which it presently is engaged, to enter into this Agreement, and to perform its obligations hereunder and (iii) is qualified to do business in, and is in good standing in, each jurisdiction where the nature of its business in such jurisdiction requires it to be so qualified.
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(a) Seller owns of record all of the outstanding membership interests in the Company.
(b) There are no existing options, warrants, rights, commitments or other agreements of any character to which Seller is a party or, to the knowledge of Seller or Xx. Xxxxxxxxxx, is binding on Seller, requiring, or which upon conversion or exchange would require, the issuance, sale or transfer of any membership interest in the Company or of securities convertible into, exchangeable for or evidencing the right to subscribe for or purchase membership interests in the Company.
(c) There are no existing options, warrants, rights, commitments or other agreements of any character to which the Company is a party or which is binding on the Company requiring, and there are no securities of the Company outstanding which upon conversion or exchange would require, the issuance, sale or transfer of any membership interest in the Company or of securities convertible into, exchangeable for or evidencing the right to subscribe for or purchase membership interests in the Company.
(d) Seller owns the Transferred Interests being sold by Seller free and clear of any and all Liens and Buyer will acquire good and valid title to the Transferred Interests, clear of all Liens.
(e) The Company has no subsidiaries and does not own any interest in any other Person.
3.3 Authorization and Binding Effect.
(a) The execution and delivery of this Agreement by the Company, the performance by the Company of its obligations hereunder and the consummation by the Company of the transactions contemplated hereby have been duly authorized by all requisite action on the part of the Company and its members. This Agreement has been duly executed and delivered by the Company and (assuming due authorization, execution and delivery by Buyer) constitutes a legal, valid and binding obligation of the Company, enforceable against the Company in accordance with its terms, except as enforceability may be limited by bankruptcy, insolvency, and other laws affecting creditors’ rights generally or by general equitable principles.
(b) This Agreement has been duly executed and delivered by each Seller Party and (assuming due authorization, execution and delivery by Buyer) constitutes a legal, valid and binding obligation of each Seller Party, enforceable against each Seller Party in accordance with its terms.
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3.4 Execution, Delivery and Performance.
(a) The execution, delivery, and performance by the Company of this Agreement does not and will not (i) violate or breach the Governing Documents of the Company, (ii) violate or conflict with any applicable law, (iii) violate, conflict with, breach, cause a default under, or otherwise give rise to a right of termination, cancellation, or acceleration with respect to (presently, with the giving of notice, or with the passage of time) any agreement, Contract, or instrument to which the Company is a party or by which any of its assets are bound or (iv) result in the creation or imposition of any Lien upon any assets of the Company.
(b) The execution, delivery and performance by Seller of this Agreement does not and will not (i) violate or conflict with any applicable law or (ii) conflict in any way with any material contract to which Seller is a party or by which Seller is bound.
(c) The execution, delivery and performance by Xx. Xxxxxxxxxx of this Agreement does not and will not (i) violate or conflict with any applicable law or (ii) conflict in any way with any material contract to which Xx. Xxxxxxxxxx is a party or by which Xx. Xxxxxxxxxx is bound.
(a) Except set forth on Schedule 3.7(a), the Company is the sole and exclusive owner of all the Intellectual Property Assets, including, without limitation, with respect to the Software, the Calibrations and the Certifications, which Intellectual Property Assets are held free and clear of any Liens (other than Permitted Liens), and no other Person has or shall have any claim of ownership or other interest, license or rights with respect to such Intellectual Property Assets.
(b) Except set forth on Schedule 3.7(b), Xx. Xxxxxxxxxx is the sole and exclusive owner of the Xxxxxxxxxx Software, which software is held free and clear of any Liens (other than Permitted Liens), and no other Person has or shall have any claim of ownership or other interest, license or rights with respect to such software
(a) Except as set forth on Schedule 3.8(a), the Company has not assigned, transferred, conveyed, or otherwise encumbered to any other Person, any right, title, or interest to or in any Intellectual Property Assets or any of its Know-How, including, without limitation, with respect to the Software, the Calibrations and the Certifications.
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(b) Except as set forth on Schedule 3.8(b), Xx. Xxxxxxxxxx has not assigned, transferred, conveyed, or otherwise encumbered to any other Person, any right, title, or interest to or in the Xxxxxxxxxx Software.
(a) The Intellectual Property Assets and Know-How do not interfere with, violate, or infringe or involve any misappropriation of any Intellectual Property Rights of any Person.
(b) The Xxxxxxxxxx Software does not interfere with, violate, or infringe or involve any misappropriation of any Intellectual Property Rights of any Person.
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(a) Schedule 3.17(a) lists each Company Contract including, without limitation, each of the Company Contracts of the type described in subparagraphs (i) through (x) below:
(i) any licensing agreement for the license of trademarks or service marks to be used in connection with the design, development, manufacture or sale of Products or services;
(ii) any contract or purchase order to license, sell, maintain, or service Products or provide consulting, engineering or other services to and for any customer;
(iii) any contract for the purchase or sale of any assets or property relating to or used or held for use in connection with the conduct of the business of the Company for consideration in excess of $10,000.00;
(iv) any contract for the lease or sublease as lessee, lessor, sublessee or sublessor of personal property used or held for use by the Company requiring payments in excess of $1,000.00 (each, a “Personal Property Lease”);
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(vi) any license or sublicense of computer software, including databases, used by the Company other than end-user licenses of pre-packaged software widely available in the marketplace;
(vi) any contract with or in respect to any director, officer or employee of the Company and any contracts with provisions which would be put into effect and which would otherwise, by their plain meaning, affect the contract as a result of the death, disability or termination of employment or relationship of any director, officer, or employee of the Company;
(vii) any contract or agreement containing non-competition covenants limiting the freedom of the Company to operate or to sell, transfer or otherwise dispose of any assets or property relating to or used or held for use in connection with the business of the Company or which would so limit the freedom of Buyer after the Closing Date, or any exclusive or non-terminable licensing agreement with respect to any Intellectual Property;
(viii) any partnership, joint venture, teaming, consortium, or other similar contract, arrangement or agreement relating to the Company;
(ix) any development contracts relating to the Company; or
(x) any agency, dealer, franchise or similar agreement relating to the Company.
(b) Except as set forth on Schedule 3.17(b) (i) all of the Company Contracts are valid, binding and in full force and effect, and the Company has not been notified in writing by any party of such party’s intention or desire to terminate any such Company Contract or modify it in any material respect, (ii) the Company has not violated or breached, or declared or committed any default under, any Company Contract, (iii) to Seller’s Knowledge, no other Person has violated, breached, declared, or committed any default under any Company Contract and no event has occurred, and no circumstance or condition exists, or will, as a result of the Contemplated Transactions, exist, that will (A) result in a material breach of any of the provisions of any Company Contract, (B) give any Person the right to declare a default under any Company Contract, (C) give any Person the right to accelerate the maturity or performance of any Company Contract, or (D) give any Person the right to cancel or terminate such Company Contract or otherwise prevent the Company or Buyer from continuing to enjoy the full rights and benefits of any Company Contract, (iv) neither the Company nor any Seller Party has received any outstanding written notice regarding any breach of, or default under, any Company Contract and (v) the Company has not waived any right under any Company Contract.
3.18 Receivables. Schedule 3.18 accurately lists the amount and age of the Accounts Receivable of the Company as of the Pro Forma Balance Sheet Date (all subject to the amount of reserves therefor included in the Interim Balance Sheet). Each Account Receivable reflected or required to be reflected on the Interim Balance Sheet and each Account Receivable arising since the date thereof was generated in the Ordinary Course of Business and reflected a bona fide obligation for the payment of goods or services provided by the Company (subject to the
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reserves therefor). Subject to such reserves, each of the Accounts Receivable either has been or will be collected in full, without any set-off, within ninety (90) days after the day on which it first becomes due and payable. There is no contest, claim, or right of set-off under any Company Contract with any obligor of an Accounts Receivable relating to the amount and validity of such Accounts Receivable.
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other proprietary information disclosure or non-competition agreement or any other contract or agreement relating to the right of such employee to be employed by the Company or an Affiliate of the Company and because of the nature of the business conducted by the Company.
3.24 Taxes. Except as set forth on Schedule 3.24:
(a) All Tax Returns required to have been filed prior to the Closing Date by or with respect to the Company have been duly and timely filed (subject to any extensions). Each such Tax Return correctly and completely in all respects reflects the Tax liability and all other information required to be reported thereon and each such Tax Return has been prepared in compliance with all applicable laws and regulations. All Taxes due and payable by the Company, whether or not shown on any Tax Return, have been paid as of the date hereof.
(b) There are no actions, Tax audits or Tax examinations by any Tax Authority in connection with assessing additional Taxes against or in respect of the Company for any past period. There is no dispute or claim concerning any Tax liability of the Company threatened, claimed or raised by any Tax Authority or of which the Company is otherwise aware. There are no Liens for Taxes upon the assets and properties of the Company.
(c) Taxes that the Company was or is required by law to withhold, collect or pay have been duly withheld or collected and, to the extent required, paid to the appropriate Tax Authority.
(d) The Company has not received any written ruling related to Taxes or entered into any agreement with a Tax Authority relating to Taxes that is now in effect.
(e) There are no outstanding waivers or agreements extending the statute of limitations in respect of Taxes of the Company nor have any such waivers or agreements been requested.
(f) No Seller Party is aware of any Claim that has ever been made by any Tax Authority in a jurisdiction where the Company does not file Tax Returns that the Company is or may be subject to Taxes in that jurisdiction.
(g) No Seller Party is aware of the Company being involved in, subject to, or a party to, any joint venture, partnership, contract, agreement, or other arrangement that is treated as a partnership for federal, state, local or foreign Tax purposes.
(h) No Seller Party has filed an affirmative election with any Tax Authority on Form 8832 to have the Company classified as an “association” taxable as a corporation for United States federal tax purposes.
(i) There are no Liens with respect to Taxes other than Permitted Liens.
(j) The Company is, and has since its formation, been treated as a “disregarded entity” for federal income tax purposes.
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(k) Buyer will not be required to deduct and withhold any amount pursuant to Sections 1441 or 1445 of the Code upon the transfer of the Transferred Interests to Buyer.
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3.30 Relationships with Related Persons. Except as disclosed in Schedule 3.30, neither the Company nor to Seller’s Knowledge, any Affiliate or Related Person of the Company has, or since January 1, 2010 has had, any interest in any property (whether real, personal or mixed and whether tangible or intangible) used in or pertaining to the Company’s business. Neither the Company nor, to Seller’s Knowledge, any Affiliate or Related Person of the Company owns, or since January 1, 2010 has owned, of record or as a beneficial owner, an equity interest or any other financial or profit interest in any Person that has: (a) had business dealings or a material financial interest in any transaction with the Company other than business dealings or transactions disclosed in Schedule 3.30, each of which has been conducted in the Ordinary Course of Business with the Company at substantially prevailing market prices and on substantially prevailing market terms; or (b) engaged in competition with the Company with respect to any line of the Products or services of the Company (a “Competing Business”) in any market presently served by the Company, except for ownership of less than one percent (1%) of the outstanding capital stock of any Competing Business that is publicly traded on any recognized exchange or in the over-the-counter market. Except as set forth in Schedule 3.30, no Affiliate or Related Person of the Company is a party to any Contract with, or has any claim or right against, the Company.
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obligations of the Company. The cash available to the Company, after taking into account all other anticipated uses of the cash, will be sufficient to pay all such debts and judgments promptly in accordance with their terms.
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4. REPRESENTATIONS AND WARRANTIES OF BUYER
Buyer makes the following representations and warranties to Seller:
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5. COVENANTS REGARDING INTERIM PERIOD
During the period from the date hereof until the Closing Date or the earlier termination of this Agreement in accordance with Section 9.1:
(a) operate in the Ordinary Course of Business;
(b) maintain the assets of the Company in good operating condition and repair and continue normal maintenance;
(c) not make any contract or commitment for, or incur, capital expenditures such that the total capital expenditures of the Company from January 1, 2010 through the Closing Date would exceed $10,000 in the aggregate;
(d) not sell, lease, assign, grant an exclusive or non-terminable license, transfer, mortgage, encumber, alienate or dispose of any assets of the Company;
(e) not lend or agree to lend any funds;
(f) not increase salaries or wages, declare bonuses, increase benefits, or institute any new benefit plan or program, except as specifically set forth on Schedule 5.2(f);
(g) comply in all material respects with all laws applicable to the Company;
(h) except as set forth in Schedule 5.2(h), not amend or in any way modify in a material respect any Company Contract identified or required to be identified on Schedule 3.17(a) or Schedule 3.17(b);
(i) not enter into any contract which obligates it to pay a sum greater than $10,000 in any one instance or $40,000 in the aggregate to any one Person, or obligates it for a period ending one year after the date of this Agreement (except for purchases from suppliers in the Ordinary Course of Business);
(j) not introduce any material change with respect to the operation of the Company, including any method, principle or practice of accounting;
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(k) not declare or pay any dividends or other similar distributions;
(l) not merge into or with or consolidate with, any other Person or acquire the business or assets of any Person;
(m) promptly notify Buyer of any event or condition of which a Seller has Knowledge and which would or may cause any condition precedent in Article 7 hereof not to be fulfilled;
(n) take no action to implement any layoff of employees; and
(o) not agree to or make any commitment to take any actions prohibited by this Section 5.2.
5.3 Notices of Certain Events. The Company and each Seller Party shall promptly notify Buyer of:
(a) any notice or communication from any Person alleging that the consent of such Person is or may be required in connection with the Contemplated Transactions;
(b) any notice or communication from any Governmental Entity in connection with the Contemplated Transactions;
(c) any Proceedings commenced or, to Seller’s Knowledge, threatened against (i) the Company or any Seller Party or (ii) the consummation of the Contemplated Transactions;
(d) the damage or destruction by fire or other casualty of any asset of the Company or any material part thereof, or in the event that any asset of the Company or part thereof becomes the subject of any proceeding or, to Seller’s Knowledge, threatened proceeding for the purpose of taking all or any part thereof or right relating thereto by condemnation, eminent domain or other similar governmental action;
(e) any notice from a customer whose purchases from the Company exceeded $40,000 during either of 2009 or 2010, stating such customer’s intention to terminate or substantially curtail, or amend in a material respect which would be adverse to the Company or its relationship with the Company;
(f) any notice from a Person from whom the Company purchased in excess of $40,000 during either of 2009 or 2010, stating such Person’s intention to terminate or substantially curtail its relationship with the Company; and
(g) the occurrence of any event that causes any of the representations and warranties of any of the Seller Parties in this Agreement to be or become untrue or inaccurate in any material respect.
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6.3 Noncompetition; Non-Solicitation.
(a) Subject to the provisions of Section 6.3(b), as a part of the inducement to Buyer to enter into this Agreement, each of Seller and Xx. Xxxxxxxxxx (each, a “Restricted Party” and together the “Restricted Parties”) hereby agrees that for a period of four (4) years from and after the Closing Date (the “Restricted Period”), the Restricted Party shall not, and shall cause each Restricted Affiliate not to, without the prior written consent of Buyer, directly or indirectly, serve as an officer, director, or partner or member of, or be employed by or serve as a consultant with, or have an equity or equity-like interest in, or otherwise own, manage, operate or control, directly or indirectly, any business, firm, entity or other Person which is engaged anywhere in the world in providing consulting and/or engineering services to customers in the United States related to the conversion of motor vehicle engines to alternative fuels or in any other business that the Company was engaged in at any time during the twelve (12) months preceding the Closing Date or which the Company has or had under design, development or consideration during such twelve (12)-month period; provided, however, Restricted Parties shall not be prohibited from engaging in activities involving high performance racing applications with 85% or greater ethanol engines.
(b) During the Restricted Period, each Restricted Party shall not, directly or indirectly, and shall cause each Restricted Affiliate not to (i) induce or attempt to induce any employee of the Company on the Closing Date who is hired by Buyer or any Buyer Affiliate to leave the employ of Buyer or such Buyer Affiliate, or in any way interfere with the relationship between any such employee and the Buyer or such Buyer Affiliate, (ii) hire directly or through an entity any Person who was an employee of the Company on the Closing Date (except, in the case of clauses (i) and (ii) of this Section 6.3(b), any employee who was involuntarily discharged by Buyer or any Buyer Affiliate on or after the Closing Date for any reason other than for the violation of any non-competition, non-disclosure or other restrictive covenants with Buyer or a Buyer Affiliate).
(c) During the Restricted Period, the Restricted Party agrees that it will not, and it will cause the Restricted Affiliates not to, induce or attempt to induce any customer or supplier of the Company on the Closing Date to cease doing business with the Company and/or Buyer, or in any way interfere with the relationship between any such customer or supplier and the Company and/or Buyer.
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(d) Each of the Restricted Parties agrees not to disclose any Confidential Information to any Person or use any Confidential Information in any manner; provided, however, it shall not be a breach of this subsection (d) for a Restricted Party to provide a copy of this Section 6.3 and of the definitions of the terms referred to in this Section 6.3 to such Restricted Party’s attorneys, accountants, financial advisors or prospective employers.
(e) Each Restricted Party acknowledges that any breach of the provisions of this Section 6.3 by any Restricted Party will result in irreparable injury to Buyer and the Company (following the consummation of the Contemplated Transactions), and that Buyer’s remedies at law would be inadequate and insufficient. Accordingly, in the event of any such breach of any of the provisions of this Section 6.3, Buyer shall be entitled to preliminary and/or permanent injunctive relief, in addition to all such other legal and equitable remedies as may be available to Buyer therefor. In the event any of the provisions of this Section 6.3 are determined by a court of competent jurisdiction to be contrary to any applicable law, or for any reason to be unenforceable or invalid as written, the parties acknowledge that such court, if permitted by applicable law, shall modify any of such provisions so as to permit enforcement thereof as so modified. If a Restricted Party is finally determined by any court of competent jurisdiction to have violated any of its obligations under this Section 6.3, then the time period hereunder shall be extended with respect to that Restricted Party by the period of time equal to that period beginning when the activities constituting such violation commenced and ending when the activities constituting such violation terminated.
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(c) Cooperation on Tax Matters.
(i) Buyer and Seller shall furnish or cause to be furnished to each other, as promptly as practicable, such information and assistance relating to the Transferred Interests as is reasonably necessary for the preparation and filing of any Tax Return, claim for refund or other required or optional filings relating to Tax matters, for the preparation for any Tax audit, for the preparation for any Tax protest, for the prosecution or defense of any suit or other proceeding relating to Tax matters.
(ii) Seller shall deliver to Buyer, and Buyer shall retain possession of, copies of all accounting, business, financial and Tax records and information relating to the Transferred Interests that are in existence on the Closing Date and transferred to Buyer hereunder for a period of at least three (3) years from the Closing Date. Buyer shall give Seller notice and an opportunity to retain any such records in the event that Buyer determines to destroy or dispose of them after such period. In addition, from and after the Closing Date, Buyer shall provide access to Seller (after prior notice and during normal business hours), to the books, records, documents and other information relating to the Transferred Interests as is reasonably necessary for Seller to properly prepare for, file, prove, answer, prosecute and/or defend any Tax Return, claim, filing, tax audit, tax protest, suit, proceeding or answer.
(d) The Seller Parties shall be liable for, and shall indemnify and hold Buyer and Parent harmless against (without taking into account any of the limitations elsewhere in this Agreement) (i) Taxes imposed on the Company (including, but not limited to, as a transferee, successor, by contract, or otherwise) with respect to taxable periods ending on or before the Closing Date; (ii) any breach of or inaccuracy in any representation or warranty of Seller Parties in Section 3.24 and (iii) all fees, costs and expenses incurred by Buyer or Parent in connection with the determination or resolution of any Taxes that are the responsibility of Seller or Xx. Xxxxxxxxxx under this Section 6.5, including without limitation, for attorneys, accountants and experts.
(e) Buyer, Seller and Xx. Xxxxxxxxxx will work together in good faith to resolve any dispute as to any matter covered by this Section 6.5.
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(i) the documents listed in Section 2.4(a)(i) through (viii); and
(ii) such other documents relating to the Contemplated Transactions as the Buyer reasonably requests from the Seller Parties and which are customary in similar transactions.
All limited liability company and other proceedings or actions taken or required to be taken by the Company in connection with the Contemplated Transactions, and all documents incident thereto, must be reasonably satisfactory in form and substance to Buyer and its legal counsel. Any condition set forth in this Section 7.1 may be waived only in a writing executed by Buyer.
(e) Buyer Closing Documents. Buyer will have delivered:
(i) the cash contemplated by Section 2.4(b)(i) to Seller;
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(ii) the documents listed in Section 2.4(b)(ii) through (iv) to Seller or Escrow Agent, as the case may be; and
(iii) such other documents relating to the Contemplated Transactions to be consummated at the Closing to Seller or the Seller Parties as any Seller Party may reasonably request from Buyer and which are customary in similar transactions.
All corporate and other proceedings or actions taken or required to be taken by Buyer in connection with the Contemplated Transactions, and all documents incident thereto, must be reasonably satisfactory in form and substance to the Seller Parties and their legal counsel. Any condition set forth in this Section 7.2 may be waived only in a writing executed by the Seller.
(a) any breach of any warranty or any misrepresentation by the Seller Parties of any of the representations or warranties made in or pursuant to this Agreement;
(b) any breach of any covenant made by the Seller Parties in or pursuant to this Agreement;
(c) all undisclosed, contingent and unknown Liabilities of the Company;
(d) any Buyer Indemnity Claim arising from a violation of law by the Company which violation occurred at any time prior to the Closing or which arises from facts or circumstances occurring prior to the Closing, including, without limitation, any law, rule, or regulation relating to employee safety, prevailing wages, discrimination and/or benefits; and
(e) any and all reasonable costs, fees and expenses (including reasonable attorneys’ fees) incident to any of the foregoing or incurred in investigating or attempting to avoid the same or to oppose the imposition thereof, or in successfully enforcing the indemnity under this Section 8.1.
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legal fees incurred in enforcing this indemnity) (collectively, “Seller Indemnity Claims”) asserted against, resulting to, imposed upon or incurred by any member of the Seller Group, directly or indirectly, arising out of, because of or resulting from, in whole or in part:
(a) any breach of any warranty or any misrepresentation by Buyer of any of Buyer’s representations or warranties made in or pursuant to this Agreement;
(b) any breach of any covenant made by Buyer in or pursuant to this Agreement; and
(c) any and all reasonable costs, fees and expenses (including reasonable attorneys’ fees) incident to any of the foregoing or incurred in investigating or attempting to avoid the same or to oppose the imposition thereof, or in successfully enforcing the indemnity under this Section 8.2.
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above provided, the Indemnified Party shall have the full right to defend against any such claim or demand and shall be entitled to settle or agree to pay in full such claim or demand. In any event, the Indemnifying Party and the Indemnified Party shall cooperate in the defense of any claim or litigation subject to this Article 8 and the records of each shall be available to the other with respect to such defense. Notwithstanding the foregoing, the Indemnifying Party shall still provide indemnification to the Indemnified Party.
8.4 Limitations on Indemnification Payments From Escrow Fund.
(a) The obligations of the Seller Parties to indemnify under Section 8.1 shall terminate on the eighteen (18) month anniversary of the Closing Date. Notwithstanding anything to the contrary contained in this Agreement, no indemnification under Section 8.1 or Section 8.2 shall be made by any Indemnifying Party, and an Indemnifying Party shall not have any liability under such Section with respect to any Claim, unless the aggregate amount of Claims subject to indemnification pursuant thereto and due the party or parties being indemnified shall exceed Twenty-Five Thousand Dollars ($25,000) (the “Deductible”), and once the Deductible is exceeded the Indemnifying Party shall indemnify the Indemnified Party, and shall be liable, for the amount of all Claims exceeding the Deductible up to a maximum aggregate indemnification by any Indemnifying Party under this Article 8 of One Million Dollars ($1,000,000).
(b) In the event that (i) the Seller or Xx. Xxxxxxxxxx are required to make a payment to any Indemnified Party pursuant to the terms of this Article 8 and (ii) at such time, Seller is entitled to payment from the Escrow Fund pursuant to Schedule 2.2(b), such payment pursuant to the terms of this Article 8 shall be satisfied first, by withdrawal from the Escrow Fund of that number of Shares which, when valued at the average of the Closing Prices on the five (5) Trading Days immediately preceding the payment, equal the amount due pursuant to the terms of this Article 8 (which Seller, on the one hand, and Buyer on the other hand, agree to jointly instruct the Escrow Agent, in writing, to do, in accordance with the terms and conditions of the Escrow Agreement), and second, if the Shares in the Escrow Funds have been exhausted, or if no Shares are then owing to Seller and Xx. Xxxxxxxxxx pursuant to the terms of the Escrow Agreement, by the Seller and Xx. Xxxxxxxxxx directly. Buyer may setoff against amounts otherwise due to Seller under Schedule 2.2(b) by reason of any claim Buyer may have against the Seller or Xx. Xxxxxxxxxx under this Article 8 or otherwise.
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amount is known and uncontested). Subject to Section 8.4, any amount owed by the Indemnifying Party hereunder with respect to any such claim may be set-off by the Indemnified Party against any amounts owed by the Indemnified Party to the Indemnifying Party pursuant to this Agreement or otherwise.
8.8 Calculation of Losses. Payment by Indemnified Party of amounts for which Indemnified Party is entitled to be indemnified under this Agreement shall not be a condition precedent to recovery.
9.1 Termination. This Agreement may be terminated at any time prior to Closing:
(a) by mutual written consent of Buyer and Seller;
(b) by Buyer or Seller if the Closing shall not have occurred on or before October 29, 2010; provided, however, that this provision shall not be available to Buyer if and so long as Seller has the right to terminate this Agreement under Section 9.1(d), and this provision shall not be available to Seller if and so long as Buyer has the right to terminate this Agreement under Section 9.1(c);
(c) by Buyer if there is a misrepresentation in or a material breach of any representation or warranty of Seller set forth in Article 3 or any covenant or agreement to be complied with or performed by Seller pursuant to the terms of this Agreement, or the occurrence of any event which results or would result in the failure of a condition in Section 7.1 to be satisfied on or prior to the Closing Date; provided, however, that Buyer may not terminate this Agreement prior to the Closing unless Seller has been provided notice of such breach or failure and, if curable, shall have failed to cure the same within thirty (30) days of such notice; or
(d) by Seller if there is a misrepresentation in or a material breach of any representation or warranty set forth in Article 4 or of any covenant or agreement to be complied with or performed by Buyer pursuant to the terms of this Agreement, or the occurrence of any event which results or would result in the failure of a condition set forth in Section 7.2 to be satisfied on or prior to the Closing Date; provided, however, that the Seller may not terminate this Agreement prior to the Closing Date unless Buyer has been provided notice of such breach or failure and, if curable, shall have failed to cure the same within thirty (30) days of such notice.
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10.2 Governing Law; Jurisdiction and Venue; Waiver of Jury Trial. THIS AGREEMENT SHALL BE CONSTRUED, INTERPRETED AND THE RIGHTS OF THE PARTIES DETERMINED IN ACCORDANCE WITH THE LAWS, BOTH SUBSTANTIVE AND PROCEDURAL OF THE STATE OF FLORIDA (WITHOUT REFERENCE TO THE CHOICE OF LAW PROVISIONS OF FLORIDA LAW). Except as otherwise expressly provided for in this Agreement, each Party hereby irrevocably submits to the non-exclusive jurisdiction of the Federal District Court of Florida or the courts of the State of Florida located in Seminole County, Florida, for the adjudication of any dispute hereunder or in connection herewith or with any Contemplated Transactions, and hereby irrevocably waives, and agrees not to assert in any Proceeding, any claim that it is not personally subject to the jurisdiction of any such court, that such Proceeding is brought in an inconvenient forum or that the venue of such Proceeding is improper. Each of the Parties waives any rights to trial by jury it may have, whether the action is before a court of any judicial district in the State of Florida, the United States of America or otherwise.
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If to Buyer, to:
IMPCO Technologies, Inc.
0000 Xxxxx Xxxxx Xxxxxx
Xxxxx Xxx, XX 00000
Attention: Xxxxxxx Xxxxxxx, General Manager
Fax: (000) 000-0000
with a copy, which shall not constitute notice, to:
Xxx Xxxxxx LLP
By Mail
0 Xxxxx Xxxxxx
Xxxxxxxx between 00xx xxx 00xx Xxxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxx X Xxxxx, Esq.
Facsimile: (000) 000-0000
If to a Seller Party or, prior to Closing, the Company, to:
Xxxxxx Xxxxxxxxxx
0000 Xxxxxx Xxxxx
Xxxxxxxx, XX 00000
Attention: Xxxxxx Xxxxxxxxxx
Facsimile: (000) 000-0000
with a copy, which shall not constitute notice, to:
Holland & Knight
000 Xxxxx Xxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx XX 00000
Attention: Xxxxx X. Xxxxx, Esq.
Facsimile: (000) 000-0000
Either Party may change its address at any time by giving written notice to the other Party in the manner specified above.
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and expenses of attorneys, investment bankers, finders, brokers, accountants and other professionals. Notwithstanding the foregoing, Seller and Xx. Xxxxxxxxxx shall pay all such costs and expenses of the Company prior to Closing.
10.8 Survival. Articles 2, 3, 4, 5, 6, 7, 8, Section 9.2 and Article 10 will survive the Closing.
[Signature page follows]
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IN WITNESS WHEREOF, the Parties have executed this Agreement as of the date first above written.
SELLER: | ||||
/s/ Xxxx Xxxxxxxxxx | ||||
Xxxx Xxxxxxxxxx, individually | ||||
COMPANY: | ||||
EVOTEK LLC | ||||
By: | /s/ Xxxx Xxxxxxxxxx | |||
Name: | Xxxx Xxxxxxxxxx | |||
Title: | Manager | |||
/s/ Xxxxxx Xxxxxxxxxx | ||||
Xxxxxx Xxxxxxxxxx, individually | ||||
BUYER: | ||||
IMPCO TECHNOLOGIES, INC. | ||||
By: | /s/ Xxxxxxx Xxxxx | |||
Name: | Xxxxxxx Xxxxx | |||
Title: | Executive Vice President and Secretary | |||
And, with respect only to Section 2.2(b), | ||||
FUEL SYSTEMS SOLUTIONS, INC., | ||||
By: | /s/ Xxxxxxx Xxxxx | |||
Name: | Xxxxxxx Xxxxx | |||
Title: | President, Chief Financial Officer and Secretary |
[Signature Page to Equity Purchase Agreement]