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EXHIBIT 1
ASSET PURCHASE AGREEMENT
THIS ASSET PURCHASE AGREEMENT (Agreement) is dated as of this 31st day of March
1997 by and between U.S. Filter Corporation, a Delaware corporation ("Seller")
and MPM Technologies Inc., a Washington corporation, ("Buyer") or its assigns.
WHEREAS, Seller owns certain assets and properties used in the conduct of
Seller's engineered systems oxidation business (the "Business").
WHEREAS, Seller and Buyer desire to enter into this Agreement pursuant to which
Seller agrees to sell to Buyer and Buyer agrees to purchase from Seller
substantially all of the assets, rights, and Business of Seller.
NOW THEREFORE, in consideration of their mutual promises, and intending to be
legally bound, Buyer and Seller hereby agree as follows:
1. Definitions Each reference in this Agreement to:
"Assets" shall have the meaning set forth in Section 2.1 hereof, as
modified by Sections 2.2 and 2.3 hereof.
"Authorization" shall mean franchise, license, registration, permit,
consent, approval, variance, permission, waiver, authorization or other similar
items of the Business, whether governmental, regulatory or otherwise.
"Books and Records" shall mean each and all records, original titles,
other original documents relating to Seller's ownership of Units, original
customer contracts (including, without limitation, leases), tax exemption
certificates received from customers, files, customer lists, supplier lists,
credit and collection information, business records and all plans, reports,
correspondence, sales, advertising and promotional literature and other selling
material (including, without limitation, relating to marketing services),
magnetic tapes and computer diskettes containing any of the foregoing items, and
other data and similar materials used or held for use in connection with or
relating to the Business.
"Business" shall mean the business of Oxidation Group as described in
Schedule 1.0 hereto.
"Buyer Group" shall mean Buyer and its parent and other affiliates,
their respective officers, directors, employees, shareholders, agents,
representatives and any person claiming by or through any of them.
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"Closing" shall mean the closing of the transactions contemplated
hereby.
"Closing Date" shall mean the date of Closing.
"Encumbrances" shall mean each and all mortgages, claims, liens,
charges, encumbrances, imperfections of or other matters affecting title and any
rights of third parties whatsoever.
"Environmental Law" shall include, without limitation, any and all past
or present federal, state, local and foreign laws (as applicable), regulations,
standards or requirements relating to health, safety or pollution or protection
of the environment, including, without limitation, those relating to emissions,
discharges, spills or other releases or threatened releases of Hazardous
Substances, as such laws have been and hereafter may be enacted, adopted,
amended or supplemented, and any analogous present or future federal, state,
local or foreign laws, and all rules, orders, regulations and requirements
promulgated pursuant to any such federal, state or local or foreign laws, and
any other cause of action relating to the environment, natural resources safety,
health or management of Hazardous Substances.
"Excluded Assets" shall have the meaning set forth in Section 2.2
hereof.
"Financial Transaction" shall mean any operating or finance lease,
installment sale, secured loan or other transaction with respect to the Business
in which or to which Seller is a lessee, installment purchaser, borrower or
otherwise the party making payments under such transaction.
"Hazardous Substances" shall mean those substances, whether waste
materials, raw materials, finished products, co-products, byproducts or any
other materials or articles which (during use, handling, process, storage,
emission, disposal, spill, release or any other activity) are regulated by, form
the basis of liability under, or are defined as hazardous extremely hazardous or
toxic under, any of the Environmental Laws, including, without limitation,
petroleum or any byproducts or fractions thereof, radioactive substances,
infectious agents, explosives, flammables, pollutants, corrosives or
contaminants or any other material or substance which constitutes a health,
safety or environmental hazard to any person, property or natural resource.
"Indemnitee" shall mean the person seeking indemnification pursuant to
Section 9.3 hereof.
"Indemnitor" shall mean the person from whom indemnification is sought
pursuant to Section 9.3.
"Instruments of Transfer" shall mean authorizations, bills of sale,
approvals, assignments (including, without limitation, certifications, consents,
lock-box assignments or other assignments of mechanisms for receipt of
payments), endorsements and other instruments and documents, satisfactory in
form and substance to Buyer and its counsel.
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"Laws" shall mean each and all federal, state, local, foreign and other
laws, statutes, ordinances, rules and regulations and decrees and orders of each
and all courts, governmental, public and self-regulatory bodies, agencies and
other authorities.
"Litigation" shall mean each and all suits, other actions or legal
proceedings, claims, disputes, arbitrations, investigations and inquiries.
"Losses" shall mean any and all demands, claims, losses, liabilities,
actions or causes of action, assessments, judgments, settlement payments,
damages, fines, penalties, costs and expenses (including, without limitation,
interest which may be imposed in connection therewith, reasonable fees and
disbursements of counsel and other experts, and the costs to the Indemnitee of
any funds expended by reason of any of the events specified herein).
"Material Adverse Effect" shall mean a material adverse effect on the
condition (financial or otherwise), results of operation, assets, properties,
business or prospects of the Business.
"Notice" shall mean the written notice given by an Indemnitee to an
Indemnitor of the assertion or the commencement of any Litigation with respect
to any matter referred to in Section 9.1 or 9.2 hereof.
"Purchase Price" shall mean the purchase price to be paid by Buyer to
the Seller for assets, rights and the business covenants not to compete
contained in Section 6.2 hereof.
"Real Properties" shall mean all real property owned or leased by
Seller and used or held for use in connection with the Business.
"Schedule of Purchased Assets" shall mean Net book value with
supporting supplements as described in Schedule 1.01 hereto.
"Seller Group" shall mean Seller and Seller's affiliates and their
respective officers, directors, employees, stockholders, agents and
representatives and any person claiming by or through any of them.
"Seller Value" shall mean the specific purchase price for each
classification of Assets as set forth in Schedule 1.01. The only reference to
Stated Value in this Agreement appears in Section 2.4 and 7.5 hereof.
"Taxes" shall mean any and all federal, state, local, foreign and other
taxes, assessments, interest, penalties, deficiencies, fees and other
governmental charges or impositions (including, without limitation, all income
tax, unemployment compensation, social security, payroll, sales and use, excise,
privilege, real, personal and other property, ad valorem, franchise, license,
school and any other tax or similar governmental charge or imposition under laws
of the United States or any state or municipal or political subdivision thereof
or any foreign country or political subdivision hereof).
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"Unit" shall mean an over-the-road semi trailer, cartage trailer or
storage trailer used in the Business.
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2. TRANSFER OF ASSETS
2.1 Sales and Purchase of Assets. At the closing, on the terms and
subject to the conditions set forth in this Agreement, Seller shall sell,
transfer, assign, convey and deliver to Buyer, and Buyer shall purchase and
acquire from Seller, all right, title and interest of Seller in and to all the
Assets, properties and business listed on Schedule 1.01 free and clear of all
liens, mortgages, pledges, encumbrances and charges of every kind (except those
which the Buyers have expressly agreed in Section 2.3 hereof to assume), as the
same shall exist at the Closing Date (as herein after defined). Including
without limitation all property tangible and intangible, real, personal and
mixed; cash, securities, bank accounts, receivables, conditional sale contracts,
all of Seller's rights and benefits under Contracts relating to the Business
(including, without limitation, all rights to telephone numbers of the
Business), inventories, fixed assets, claims and rights to tax refunds; all
other claims and rights of every kind, insurance policies, leases, prepayments,
rights to use the name of Seller, trade names, trade secrets, patents, patent
applications, know-how, formulae, designs and drawings, computer software,
slogans, operating rights, other licenses and permits, copyrights, licenses and
all books and records, all Intellectual Properties. Current and historical
customer lists, cash flow streams and other materials and assets related to the
business, wherever located, used or held for use by Seller in connection with
the Business (each and all of the foregoing items being herein referred to as
the "assets"); except for the excluded Assets in Section 2.2 below).
2.2 Excluded Assets. Notwithstanding the provisions of Section 2.1
hereof, the term "Assets" shall not include any of the assets, properties or
rights listed on Schedule 2.2 hereto, which: Schedule may be revised by Buyer,
in accordance with the terms of this Agreement at any time prior to Closing
(each and all of such items being herein referred to as "Excluded Assets")
2.3 Assumption of Liabilities. At the Closing, on the terms and subject
to the conditions set forth in this Agreement, from and after March 31, 1997,
Buyer shall assume and hereby agrees to pay, perform, and discharge all the
obligations and liabilities of Seller, fixed and contingent (as the same shall
exist) as at the Closing Date, except any obligation or liabilities of Seller
prior to March 31, 1997, to include: full responsibility for all projects
initiated prior to March 31, 1997 but not completed as of that date for product
warranty, design error or anyother liability; any obligations or liabilities of
Seller under this Agreement; and any obligations or liabilities of Seller
arising or incurred after Closing Date except and expressly provided for in this
Agreement and listed on Schedule 1.01 hereof.
2.4 Reconciliation and Payment of Purchase Price. At the Closing, Buyer
shall pay the Purchase Price by transmitting to Seller One Million Three Hundred
Twenty Thousand shares (1,320,000) of Buyer's common stock. The common shares
shall be section 144 and all common shares shall be legended accordingly.
Additionally, shall carry Piggyback Registration rights as per schedule 2.1.
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2.5 Allocation of Purchase Price. Buyer and Seller agree that the
Purchase Price shall be allocated among the Assets as Buyer and Seller shall
mutually agree after the Closing. Buyer and Seller each agree to report the sale
and purchase of the Assets for all federal, state, local foreign (as applicable)
and other tax purposes in a manner consistent with such allocation.
3. The Closing.
3.1 Time and Place. The Closing shall take place at the
offices of Xxxxx & Xxxxxxxxx, X.X. at 3:00 p.m., local time,
on April 30, 1997 or at such other time or place as may be
mutually agreed upon by the parties.
3.2 Delivery of Instruments and Payment. At the closing:
(a) Seller shall execute and deliver to Buyer such
Instruments of Transfer as shall be effective to vest
in Buyer on the Closing Date good and marketable
title to the Assets.
(b) Buyer shall pay the Purchase Price in accordance with
Section 2.4 hereof.
(c) Seller shall deliver such limited powers of attorney
as Buyer may reasonably request to enable Buyer to
register title to the Assets and make the
endorsements described in Section 6.1(a) hereof.
(d) Seller shall deliver to Buyer the original Books and
Records of the Business that are pertinent to the
assets or cash flow streams of the Business; and
(e) Buyer and Seller shall each deliver the other
agreements, instruments, certificates, opinions of
counsel and other documents required hereunder,
including, without limitation, those required under
Section 8 and 9 hereof.
(f) Buyer and Seller shall cooperate in notifying all
Accounts that the business share sold and receivables
are now to be paid to Buyer.
4. Representations and Warranties by Seller. Seller represents and
warrants to Buyer as follows:
4.1 Organization, Good Standing, Power, Etc. Seller (a) is a
corporation duly organized, validly existing and in good standing under the laws
of the jurisdiction of its incorporation, (b) is qualified or licensed to do
business in Illinois, (c) has all requisite corporate power and authority (i) to
own or lease and operate the Assets and carry on the Business as presently being
conducted or proposed to be conducted and (ii) to execute, deliver and perform
its obligations under this Agreement and to consummate the transactions
contemplated hereby.
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4.2 Authorization. Seller has taken all necessary corporate action to
authorize (a) its execution and delivery of this Agreement and (b) its
performance of this Agreement and the consummation by it of the transactions
contemplated hereby.
4.3 Effect of Agreement, Etc. The execution, delivery and performance
of this Agreement by Seller, and the consummation by Seller of the transactions
contemplated hereby will not, with or without the giving of notice or the lapse
of time, or both, violate any provision of the certificate of incorporation or
by-laws of the Seller.
4.4 Financial Statement. Seller has furnished Buyer with copies of
segmented unaudited financial information and financial schedules of the
Business Assets to be sold as of March 31, 1997.
4.5 Liabilities. At March 31, 1997, Seller did not have any
liabilities, absolute or contingent, which are not fully shown or provided for
on the above-mentioned statement of financial position as at that date, except
obligations to perform after that date under open sales contracts, supply
contracts, purchase orders and other contracts listed on Schedule 4.5 hereto.
4.6 Documents. Seller has furnished Buyer with a list of certain
contracts and other documents as set forth in Schedule 4.5 hereto, to which
Seller is a party. Except for contracts and documents listed on the Document
List, Seller is not a party to any written or oral (i) contract not made in the
ordinary course of business; (ii) employment contracts; (iii) bonus, pension,
profit sharing, retirement, hospitalization, insurance or other plan providing
employee benefits; (iv) lease with respect to any property, real or personal,
whether as lessor or lessee; (v) continuing contract for the future purchase of
materials, supplies, or equipment in excess of the requirements of its business
now booked or for normal operating inventories; (vi) contract or commitment for
capital expenditures; (vii) contract with any labor union association; or (viii)
contract continuing for more than one year from its date. Seller has in all
material respects performed all obligations required to be performed by it to
date, and is not in default in any material respects under any agreements,
leases, or other documents to which it is a party.
4.7 Title to Personal Properties, Absence of Liens and Encumbrances,
Etc. Except as set forth in Schedule 1.01 hereto, Seller has good and valid
title to the owned personal properties and assets used in the Business
(including, without limitation, the assets listed on Schedule 1.01. As of the
Closing, there will be no Encumbrances relating to any of the Assets).
4.8 Intellectual Properties. Schedule 4.8 hereto sets forth an accurate
and complete list of all Intellectual Properties. Except as disclosed in such
Schedule 4.8 (a) Seller owns or possesses adequate licenses or other valid
rights to use (without the making of any payment to others or the obligation to
grant rights to others in exchange for) all Intellectual Properties reasonably
necessary to the conduct of the Business as presently conducted, and the
consummation of the transactions contemplated hereby will not alter or impair
any of such rights and (b) the validity of such rights and the title thereto of
Seller have not been questioned in any Litigation to which Seller is a party
nor, to the knowledge of Seller, is any such Litigation threatened.
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4.9 Insurance Policies. Schedule 4.9 hereto sets forth a list and brief
description of all policies of fire, liability, life and other forms of
insurance held by Seller. Valid policies for such insurance will be outstanding
and fully in force on the Closing Date.
4.10 Legal Actions and Proceedings. Except as described on Schedule
4.10, there are no actions, suits or proceedings pending, or to the knowledge of
Seller, threatened against or affecting Seller (other than actions, suits or
proceedings where liabilities of Seller are adequately covered by insurance).
4.11 Business Names. Seller has unqualified right to use the names in
Huntington Engineering Systems and Altech Corporation and has full power to
assign such rights to Buyer.
4.12 Identification Number. Seller represents and warrants that its
federal taxpayer identification number is 00-0000000.
5. Representations and Warranties by Buyer.
5.1 Organization and Standing of Buyer. Buyer is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Washington and has all requisite corporate power and authority to execute,
deliver and perform this Agreement and to consummate the transactions
contemplated hereby.
5.2 Authorization. The execution, delivery and performance by Buyer of
this Agreement and the consummation by Buyer of the transactions contemplated
hereby have been duly authorized by all requisite corporate action.
6. Covenants of Parties.
6.1 Mail, Payments.
(a) After the Closing, Buyer shall have the right and
authority to endorse without recourse, by way of a
limited power of attorney which Seller shall deliver to
Buyer at the Closing, the name of the Seller on any
instrument of payment of any other evidence of
indebtedness received by Buyer on account of any of the
Assets or the Business transferred by Seller pursuant to
this Agreement. In addition, any payment received by
Seller after Closing in respect of any of the Assets
(other than the Excluded Assets) or the Business shall
be remitted to Buyer within two (2) days of receipt by
Seller.
(b) Buyer and Seller shall deliver to each other within two
(2) business days the original of any mail or other
communication received by it after Closing pertaining to
the Assets or the Business and any moneys, checks or
other instruments of payment to which Buyer is entitled.
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6.2 Covenant Not to Compete, Non-Solicitation.
(a) In all countries which belong to the United Nations as
of the Closing Date (the "Restricted Territory") and for
five (5) years after Closing Date, Seller shall not
unless acting in accordance with the prior written
consent of the Board of Directors of Buyer (i) own,
manage, operate, join, control, finance, participate or
cause participating in the ownership, management,
operation control or financing of, or be connected as a
principal, agent, representative, consultant, investor,
owner, partner, manager, joint venturer or otherwise
with, or permit its or his name to be used by or in
connection with, any business or enterprise related to
the Business being sold hereby, or solicit current or
former customers of the business for placement of such
equipment within the Restricted Territory; (ii) call on
or solicit any person who or which as of the Closing
Date is, or within two years prior thereto had been, a
customer of Seller with respect to prohibited business
covered by clause (i) above; provided that Seller and
the Seller's affiliates shall only be so prohibited if
the subject matter of such call or solicitation relates
to such prohibited business; or, (iii) solicit for
employment any person who is an employee of the Business
on the Closing Date and who accepts employment from
Buyer.
(b) Seller acknowledges that (i) the provisions of this
Section 6.2 are reasonable and necessary to protect the
legitimate interests of Buyer; (ii) the businesses of
Buyer and Seller (including, without limitation, the
Business to be acquired hereby) are conducted throughout
the Restricted Territory; (iii) any violation of this
Section 6.2 will result in irreparable injury to Buyer
and its affiliates for a violation of this Section 6.2;
and (iv) Buyer shall be entitled to have the provisions
of this Section 6.2 specifically enforced by preliminary
and permanent injunctive relief without the necessity of
proving actual damages and without posting bond or other
security. In the event that any of the provisions of
this Section 6.2 should be deemed to exceed the time,
geographic, product or any other limitations permitted
by applicable law, then such provisions shall
automatically be adjusted to conform with the maximum
permitted by applicable law.
(c) Seller agrees that any and all advertising and
promotional materials and activities prepared following
execution hereof will be revised to delete references to
the Business.
(d) Seller shall, for two years following the Closing,
direct all incoming inquiries relating to the Business
to Buyer.
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6.3 Taxes. Seller shall pay, or shall cause to be paid, promptly when
due, all Taxes arising out of or relating to the operations and conduct of, or
assessed on the Assets of the Business before and including March 31, 1997
(including, without limitation, Taxes relating to periods after March 31, 1997
if such Taxes are assessed before on or after March 31, 1997). Buyer shall pay
all, or shall cause to be paid, promptly when due, all Taxes arising out of or
relating to the operations and conduct of, or assessed on the Assets or the
Business after March 31, 1997. Taxes relating to the fiscal tax year 1997 that
are assessed after March 31, 1997, shall be paid by Seller.
6.4 Required Consents and Filings. Further Assistance.
(a) Promptly after the execution hereof, each of Seller and
Buyer shall use its best efforts to obtain all consents,
approvals, transfers, permissions, waivers, orders,
reissuances and authorizations of (and make all
necessary filings or registrations with) all courts,
governmental agencies and bodies and other third parties
which are required to be obtained or made by it in
connection with the consummation of the transactions
contemplated by this Agreement.
(b) At any time and from time to time after the Closing, the
parties agree to ooperation with each other, to execute
and deliver such other documents, instruments of
transfer or assignment, files, books and records
pertaining to the assets and cash flow streams of the
Business and do all such further acts and things as may
be reasonably required to carry out the intent of the
parties hereunder.
6.5 Remittance. Seller will remit to Buyer any receipts of revenues
received subsequent to March 31, 1997. Seller will remit any funds received that
are due to Buyer within two (2) business days.
7. Survival of Representations. Seller and Buyer agree that the
representations and warranties contained in this Agreement shall survive the
Closing unless specifically waived, in writing, by the applicable party hereto.
8. Conditions Precedent to the Obligations of Buyer. The obligations of
Buyer under this Agreement are subject to the satisfaction at or prior to the
Closing of each of the following conditions:
8.1 Accuracy of Representations and Warranties. The representations and
warranties of Seller contained in this shall be true, complete and accurate in
all material respects on and as of the Closing Date with the same effect as if
they were made on and as of the Closing Date.
8.2 All Authorizations Obtained. All Authorizations to be obtained prior
to the Closing in connection with the consummation by Seller of the Transactions
contemplated hereby
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shall have been obtained and shall be in full force and effect, and Buyer shall
have received evidence that these Authorizations have been obtained.
8.3 Due Diligence Review. Buyer shall have completed and be satisfied
with its review of the business, management, assets, properties and financial
conditions of the Business.
9. Conditions Precedent to the Obligations of Seller. The obligations of
Seller under this Agreement are subject to the satisfaction, at or prior to the
Closing, of each of the following conditions:
9.1 Accuracy of Representations and Warranties. The representations and
warranties of Buyer contained in this Agreement shall be true, complete and
accurate in all material respects on and as of the Closing Date with the same
effect as if they were made on and as of the Closing Date.
9.2 Performance of Agreements. Buyer shall have performed all
obligations and agreements and complied with all covenants contained in this
Agreement to be performed and complied with by it on or prior to the Closing
Date.
10. Indemnification.
10.1 Seller's Indemnification Obligation. In addition to any other
indemnification provided for under this Agreement, Seller shall indemnify,
defend, and hold harmless each member of the Buyer Group from and against any
and all Losses incurred or suffered by any member of the Buyer Group arising out
of, resulting from or relating to:
(a) Any breach of any of the representations or warranties
made by Seller in this Agreement.
(b) Any failure to comply with any bulk sales law or other
similar law or any action brought or claim made
(including, without limitation, claims of creditors) or
lien or encumbrance imposed as a result thereof;
(c) Any pre-Closing Litigation and any post-Closing
Litigation based on pre- Closing facts, events,
circumstances or omissions relating to the Assets of the
Business;
(d) Workmen Compensation claims, Labor and Industry
Employment related liability causes.
10.2 Buyer's Indemnification Obligation. In addition to any other
indemnification provided for under this Agreement, Buyer shall indemnify,
defend, and hold harmless each member of the Seller Group from and against any
and all Losses incurred or suffered by any member of the Seller Group arising
out of, resulting from or relating to:
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(a) Any breach of any of the representations or warranties
made by Buyer in this Agreement;
(b) Any failure by Buyer to perform any of its covenants or
agreements contained in this Agreement; or
(c) Any post-Closing Litigation based on post-Closing facts,
events, circumstances or omissions relating to the
Assets or the Business with exception of design
liability.
10.3 Indemnification Procedure.
(a) Promptly after receipt by an Indemnitee or written
notice of the assertion or the commencement of any
Litigation with respect to any matter referred to in
Section 9.1 or 9.2 hereof, the Indemnitee shall give
Notice to the Indemnitor and shall thereafter keep the
Indemnitor reasonably informed with respect thereto,
provided that failure of the Indemnitee to give the
Indemnitor prompt Notice as provided herein shall not
relieve the Indemnitor of any of its obligations
hereunder. In case any such Litigation is brought
against any Indemnitee, the Indemnitor shall assume the
defense thereof, by written notice to the Indemnitee
within thirty (30) days after receipt of the Notice of
its intention to do so, with counsel reasonably
satisfactory to the Indemnitee at the Indemnitor's own
expense. The Indemnitor shall not settle such Litigation
unless such settlement includes an unconditional release
of the Indemnitee, satisfactory to the Indemnitee, from
all liability with respect to such Litigation. The
Indemnitee shall be permitted to join in the defense of
such Litigation and to employ counsel at its own
expense.
(b) If the Indemnitor shall fail to notify the Indemnitee of
its desire to assume the defense of any such Litigation
within the prescribed period of time, or shall notify
the Indemnitee that it will not assume the defense of
any such Litigation, then the Indemnitee may assume the
defense of any such Litigation, in which event it may do
so in such manner as it may deem appropriate, and the
Indemnitor shall be bound by any determinations made in
such Litigation or any settlement thereof effected by
the Indemnitee. The Indemnitor shall be permitted to
join in the defense of such Litigation and to employ
counsel at its own expense.
(c) Amounts payable by an Indemnitor to an Indemnitee in
respect of any Losses under 9.1 or 9.2 hereof shall be
promptly paid as incurred. If there should be a dispute
as to the amount or manner of determination or any
indemnity obligation owed under this Section 10, the
Indemnitor shall nevertheless pay when due such portion,
if any, of the obligation as shall not be subject to
dispute. The difference, if any, between the amount of
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obligation ultimately determined as properly payable
under this Section 10 and the portion, if any,
theretofore paid shall bear interest for the period from
the date the amount was demanded until payment in full,
payable on demand, at the fluctuating rate per annum
which at all times shall be two percentage points in
excess of the Prime Rate. Any payment by Seller in
indemnification hereunder shall be treated as a
reduction in the Purchase Price.
(d) Nothing in this Agreement shall limit or restrict in any
manner any rights or remedies which any Indemnitee has,
or might have, at law, in equity or otherwise, against
any Indemnitor based on any willful misrepresentation,
willful breach of warranty or willful failure to fulfill
any agreement or covenant. Any Indemnitee's right to
indemnification under Section 10.1 or 10.2 hereof shall
not be subject to set-off for any claim by the
Indemnitor against such Indemnitee.
11. Board Representation. It is understood and agreed by Buyer that
Seller may designate one member of Buyer's Board of Directors, with Buyer's
approval, approval which will not be unreasonably withheld. Seller shall be free
to substitute any qualified person for such Board of Director's seat at its
discretion, with Buyer's approval, approval which will not be unreasonably
withheld for the customary life of the Board of Directors' position.
12. General.
12.1 Survival of Representations. Warranties and Indemnification. The
representations and warranties given or made by Buyer and Seller in this
Agreement or in any Ancillary Document and all rights to indemnification
pursuant to Section 10.1 or 10.2 hereof shall survive the Closing for a period
of one (1) year.
12.2 Notices. All notices, requests, demands, applications, services
of process and other communications which are required to be or may be given
under this Agreement shall be deemed to have been duly given if sent by telefax
(with confirming telefax receipt) or delivered by recognized courier services
(with receipt acknowledged to the parties hereto at the following addresses:
To Seller: Xxx Xxxxx
USF/HPD
00 Xxxxxx Xxxx.
Xxxxxxxxxx, XX 00000
With a copy to: Xxxxxxxxx Xxxxxx
Via Fax: 000-000-0000
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To Buyer: Xxxxxx X. Xxxxxx
000 Xxxx Xxxxxxx Xxxxx 00
Xxxxxxx, XX 00000
With a copy to: X. Xxxxx Xxxx Xxxxx
0000 Xxxx Xxxxxxxx
Xxxxxxx, XX 00000
or to such other address as any party shall furnish to the other by notice given
in accordance with this Section 12.2. Each such notice, request, demand,
application, service of process and other communication shall be deemed to have
been given as of the date so telefaxed or delivered or, if given by any other
means, shall be deemed given only when actually received by the addressee.
12.3 Entire Agreement. Amendments. This Agreement (which includes
the Schedules hereto) embodies the entire agreement between the parties hereto
with respect to the subject matter hereof and supersedes all prior agreements
and understandings, oral or written, with respect thereof. This Agreement may
not be changed orally, but only by an agreement in writing signed by the party
or parties against whom any waiver, change, amendment, modification or discharge
may be sought.
12.4 Binding Effect, Benefits. This Agreement shall inure to the
benefit of and shall be binding upon the parties hereto and their successors and
assigns; provided that prior to the Closing neither this Agreement nor any of
the rights hereunder may be assigned by any of the parties hereto without the
written consent of the other party, except that (a) Buyer may, at its election,
assign its rights to purchase any of the Assets under this Agreement to one or
more direct or indirect wholly-owned subsidiaries or any affiliated company,
provided that no such assignment shall relieve Buyer from any of its obligations
under this Agreement; and (b) Seller may, at its election, assign its rights and
obligations hereunder solely for the purpose of an IRS Section 1031 exchange,
provided that Seller shall remain principally liable for all obligations of
Seller hereunder.
12.5 Headings. The section and other headings contained in this
Agreement are for reference purposes only and shall not effect the meaning or
interpretation of this Agreement.
12.6 Counterpart. This Agreement may be executed in any number of
counterparts, each of which, when executed, shall be deemed to be an original
and all of which together shall be deemed to be one and the same instrument.
12.7 Governing Law, Jurisdiction. The validity, performance and
enforcement of this Agreement shall be governed by the laws of the State of
Illinois. The parties hereby agree that any civil claim or claim for arbitration
shall be filed in a court or before an arbitration panel located in the State of
Illinois.
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CUSIP No. 553358 10 2 Page 26 of 41 pages
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12.8 Arbitration: Equitable Remedies.
(a) Except as provided in 12.8(b) hereof, any dispute,
controversy or claim arising out of or relating to this
Agreement or to a breach hereof, including, without
limitation, its interpretation, performance or
termination, shall be finally resolved by arbitration.
The arbitration shall be in accordance with the rules of
the American Arbitration Association which shall
administer the arbitration, act as appointing authority
and be the exclusive forum for resolving such dispute,
controversy or claim. The decision of the arbitrators
shall be final and binding upon the parties to this
Agreement and the expense of the arbitration (including,
without limitation, the award of attorney's fees to the
prevailing party) shall be paid as the arbitrators
determine. The decision of the arbitrators shall be
executory, and judgment thereon may be entered by any
court of competent jurisdiction. Notwithstanding the
foregoing, judgment upon the award of the arbitration
may be entered by any court where the arbitration takes
place or any court having jurisdiction thereof and
application may be made to any court for a judicial
acceptance of the award or order of enforcement.
(b) Notwithstanding any other provision of this Agreement,
each party shall have the right to institute judicial
proceedings against the other party or anyone acting by,
through or under such other party in order to enforce
the instituting party's rights hereunder through
specific performance, injunction or similar equitable
relief (including, without limitation, as provided in
Section 6.2). For this purpose, each of the parties
hereto irrevocably and unconditionally (i) agrees that
any Litigation arising out of this Agreement may be
brought and adjudicated in the U.S. District Court for
the district in the jurisdiction set forth in Section
10.7 or, if such court will not accept jurisdiction, in
any court of competent civil jurisdiction sitting in
such district; (ii) submits to the non-exclusive
jurisdiction of any such court for the purposes of any
such Litigation; and (iii) waives and agrees not to
assert by way of motion, as a defense or otherwise in
any such Litigation, any claim that it is not subject to
the jurisdiction of the above courts, that such
Litigation is brought in an inconvenient forum or that
the venue of such Litigation is improper. Each of the
parties hereto also irrevocably and unconditionally
consents to the service of any process, pleadings,
notices or other papers in a manner permitted by the
notice provisions of Section 12.2 hereof.
12.9 Separability. If any provision of this Agreement or the
application thereof to any person or circumstance is held invalid or
unenforceable in any jurisdiction, the remainder hereof shall not be affected
thereby and to this end the provisions of this Agreement shall be severable.
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CUSIP No. 553358 10 2 Page 27 of 41 pages
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12.10 Public Announcements. Non-Disclosure. Until closing, neither
Buyer nor Seller shall make any public statements, including without limitation
any press release, with respect to this Agreement and the transactions
contemplated hereby without the proper written consent of the other party hereto
(which consent shall not be unreasonably withheld) except as may be required by
law.
IN WITNESS WHEREOF, each of the parties hereto has caused this
Agreement to be executed on its behalf as of the day and date first written
above.
MPM TECHNOLOGIES, INC.
By: /s/ Xxxxxxx X . Xxxxxxx
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Its: President
U.S. FILTER CORPORATION
By: /s/ Xxxxx X. Xxxxxxx
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Its: Comptroller
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