Exhibit 10.3
SPLIT-OFF AGREEMENT
SPLIT-OFF AGREEMENT, dated as of this 15th day of May 2006 (this
"Agreement"), by and among MMC Energy, Inc. (f/k/a High Tide Ventures, Inc.), a
Nevada corporation ("Seller"), Xxxxx Xxxxxx ("Xxxxxx"), Xxxxxxx Xxxxx ("Xxxxx")
(Xxxxxx and Xxxxx are collectively referred to as "Buyer"), High Tide Leasco,
Inc., a Nevada corporation ("Leasco"), and MMC Energy North America, LLC, a
Delaware limited liability company ("MMC").
R E C I T A L S:
WHEREAS, Seller is the owner of all of the issued and outstanding capital
stock of Leasco. Leasco is a newly-formed wholly owned subsidiary of Seller
which was organized to acquire, and has so acquired, a mineral lease previously
granted to Seller. Seller has no other businesses or operations;
WHEREAS, prior to the execution of this Agreement, Seller, MMC, and a
newly-formed wholly-owned Delaware subsidiary of Seller, MMC Energy Acquisition
Corp. ("Acquisition Corp."), have entered into an Agreement and Plan of Merger
and Reorganization (the "Merger Agreement") pursuant to which Acquisition Corp.
merged with and into MMC with MMC being the surviving entity (the "Merger"), and
the members of MMC received shares of common stock in Seller in exchange for
their membership interests;
WHEREAS, the execution and delivery of this Agreement was required by MMC
as a condition subsequent to its execution of the Merger Agreement. The
consummation of the purchase and sale transaction contemplated by this Agreement
was also a condition subsequent to the completion of the Merger pursuant to the
Merger Agreement. Seller has represented to MMC in the Merger Agreement that the
purchase and sale transaction contemplated by this Agreement would be
consummated as soon as practicable following the consummation of the Merger, and
MMC relied on such representation in entering into the Merger Agreement;
WHEREAS, Buyer desires to purchase the Shares (as defined in Section 1.1)
from Seller, and to assume, as between Seller and Buyer, all responsibilities
for any debts, obligations and liabilities of Leasco, on the terms and subject
to the conditions specified in this Agreement; and
WHEREAS, Seller desires to sell and transfer the Shares to the Buyer, on
the terms and subject to the conditions specified in this Agreement;
NOW, THEREFORE, in consideration of the premises and the covenants,
promises, and agreements herein set forth and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto, intending legally to be bound, agree as follows.
I. PURCHASE AND SALE OF STOCK.
1.1 Purchased Shares. Subject to the terms and conditions provided below,
Seller shall sell and transfer to Buyer and Buyer shall purchase from Seller, on
the Closing Date (as defined in Section 1.3), all the issued and outstanding
shares of capital stock of Leasco (the "Shares").
1.2 Purchase Price. The purchase price for the Shares shall be the
transfer and delivery by each of Xxxxxx and Xxxxx to Seller of 3,839,870 shares
of common stock of Seller that each of them owns, or an aggregate of 7,679,740
shares (the "Purchase Price Shares"), deliverable as provided in Section 2.2.
1.3 Closing. The closing of the transactions contemplated in this
Agreement (the "Closing") shall take place as soon as practicable following the
execution of this Agreement. The date on which the Closing occurs shall be
referred to herein as the Closing Date (the "Closing Date").
II. CLOSING.
2.1 Transfer of Shares. At the Closing, Seller shall deliver to Buyer
certificates representing the Shares, duly endorsed to Buyer or as directed by
Buyer, which delivery shall vest Buyer with good and marketable title to all of
the issued and outstanding shares of capital stock of Leasco, free and clear of
all liens and encumbrances.
2.2 Payment of Purchase Price. At the Closing, Buyer shall deliver to
Seller a certificate or certificates representing the Purchase Price Shares duly
endorsed to Seller, which delivery shall vest Seller with good and marketable
title to the Purchase Price Shares, free and clear of all liens and
encumbrances.
2.3 Transfer of Records. On or before the Closing, Seller shall arrange
for transfer to Leasco all existing corporate books and records in Seller's
possession relating to Leasco and its business, including but not limited to all
agreements, litigation files, real estate files, mineral leases, personnel files
and filings with governmental agencies; provided, however, when any such
documents relate to both Seller and Leasco, only copies of such documents need
be furnished. On or before the Closing, Buyer and Leasco shall transfer to
Seller all existing corporate books and records in the possession of Buyer or
Leasco relating to Seller, including but not limited to all corporate minute
books, stock ledgers, certificates and corporate seals of Seller and all
agreements, litigation files, real property files, personnel files and filings
with governmental agencies; provided, however, when any such documents relate to
both Seller and Leasco or its business, only copies of such documents need be
furnished.
III. BUYER'S REPRESENTATIONS AND WARRANTIES. Buyer represents and warrants to
Seller and MMC that:
3.1 Capacity and Enforceability. Buyer has the legal capacity to execute
and deliver this Agreement and the documents to be executed and delivered by
Buyer at the Closing pursuant to the transactions contemplated hereby. This
Agreement and all such documents constitute valid and binding agreements of
Buyer, enforceable in accordance with their terms.
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3.2 Compliance. Neither the execution and delivery of this Agreement nor
the consummation of the transactions contemplated hereby by Buyer will result in
the breach of any term or provision of, or constitute a default under, or
violate any agreement, indenture, instrument, order, law or regulation to which
Buyer is a party or by which Buyer is bound.
3.3 Purchase for Investment. Buyer is financially able to bear the
economic risks of acquiring an interest in Leasco and the other transactions
contemplated hereby, and has no need for liquidity in this investment. Buyer has
such knowledge and experience in financial and business matters in general and
with respect to businesses of a nature similar to the business of Leasco so as
to be capable of evaluating the merits and risks of, and making an informed
business decision with regard to, the acquisition of the Shares. Buyer is
acquiring the Shares solely for his own account and not with a view to or for
resale in connection with any distribution or public offering thereof, within
the meaning of any applicable securities laws and regulations, unless such
distribution or offering is registered under the Securities Act of 1933, as
amended (the "Securities Act"), or an exemption from such registration is
available. Buyer has (i) received all the information he has deemed necessary to
make an informed investment decision with respect to the acquisition of the
Shares; (ii) had an opportunity to make such investigation as he has desired
pertaining to Leasco and the acquisition of an interest therein and to verify
the information which is, and has been, made available to him; and (iii) had the
opportunity to ask questions of Seller concerning Leasco. Buyer acknowledges
that Buyer is an officer and director of Seller and Leasco and, as such, has
actual knowledge of the business, operations and financial affairs of Leasco.
Buyer has received no public solicitation or advertisement with respect to the
offer or sale of the Shares. Buyer realizes that the Shares are "restricted
securities" as that term is defined in Rule 144 promulgated by the Securities
and Exchange Commission under the Securities Act, the resale of the Shares is
restricted by federal and state securities laws and, accordingly, the Shares
must be held indefinitely unless their resale is subsequently registered under
the Securities Act or an exemption from such registration is available for their
resale. Buyer understands that any resale of the Shares by him must be
registered under the Securities Act (and any applicable state securities law) or
be effected in circumstances that, in the opinion of counsel for Leasco at the
time, create an exemption or otherwise do not require registration under the
Securities Act (or applicable state securities laws). Buyer acknowledges and
consents that certificates now or hereafter issued for the Shares will bear a
legend substantially as follows:
THE SECURITIES EVIDENCED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR QUALIFIED UNDER
ANY APPLICABLE STATE SECURITIES LAWS (THE "STATE ACTS"), HAVE BEEN ACQUIRED FOR
INVESTMENT AND MAY NOT BE SOLD, PLEDGED, HYPOTHECATED OR OTHERWISE TRANSFERRED
EXCEPT PURSUANT TO A REGISTRATION STATEMENT UNDER THE SECURITIES ACT AND
QUALIFICATION UNDER THE STATE ACTS OR EXEMPTIONS FROM SUCH REGISTRATION OR
QUALIFICATION REQUIREMENTS (INCLUDING, IN THE CASE OF THE SECURITIES ACT, THE
EXEMPTIONS AFFORDED BY SECTION 4(1) OF THE SECURITIES ACT AND RULE 144
THEREUNDER). AS A PRECONDITION TO ANY SUCH TRANSFER, THE ISSUER OF THESE
SECURITIES SHALL BE FURNISHED WITH AN OPINION OF COUNSEL OPINING AS TO THE
AVAILABILITY OF EXEMPTIONS FROM SUCH REGISTRATION AND QUALIFICATION AND/OR SUCH
OTHER EVIDENCE AS MAY BE SATISFACTORY THERETO THAT ANY SUCH TRANSFER WILL NOT
VIOLATE THE SECURITIES LAWS.
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Buyer understands that the Shares are being sold to him pursuant to the
exemption from registration contained in Section 4(1) of the Securities Act and
that the Seller is relying upon the representations made herein as one of the
bases for claiming the Section 4(1) exemption.
3.4 Liabilities. Following the Closing, Seller will have no liability for
any debts, liabilities or obligations of Leasco or its business or activities,
and there are no outstanding guaranties, performance or payment bonds, letters
of credit or other contingent contractual obligations that have been undertaken
by Seller directly or indirectly in relation to Leasco or its business and that
may survive the Closing.
3.5 Title to Purchase Price Shares. Buyer is the sole record and
beneficial owner of the Purchase Price Shares. At Closing, Buyer will have good
and marketable title to the Purchase Price Shares, which Purchase Price Shares
are, and at the Closing will be, free and clear of all options, warrants,
pledges, claims, liens, and encumbrances and any restrictions or limitations
prohibiting or restricting transfer to Seller, except for restrictions on
transfer as contemplated by applicable securities laws.
IV. SELLER'S AND LEASCO'S REPRESENTATIONS AND WARRANTIES. Seller and Leasco,
jointly and severally, represent and warrant to Buyer that:
4.1 Organization and Good Standing. Seller is a corporation duly
incorporated, validly existing, and in good standing under the laws of the State
of Nevada. Leasco is a corporation duly incorporated, validly existing and in
good standing under the laws of the State of Delaware.
4.2 Authority and Enforceability. The execution and delivery of this
Agreement and the documents to be executed and delivered at the Closing pursuant
to the transactions contemplated hereby, and performance in accordance with the
terms hereof and thereof, have been duly authorized by Seller and all such
documents constitute the valid and binding agreements of Seller enforceable in
accordance with their terms.
4.3 Title to Shares. Seller is the sole record and beneficial owner of the
Shares. At Closing, Seller will have good and marketable title to the Shares,
which Shares are, and at the Closing will be, free and clear of all options,
warrants, pledges, claims, liens and encumbrances, and any restrictions or
limitations prohibiting or restricting transfer to Buyer, except for
restrictions on transfer as contemplated by Section 3.3 above. The Shares
constitute all of the issued and outstanding shares of capital stock of Leasco.
4.4 WARN Act. Leasco does not have a sufficient number of employees to
make it subject to the Worker Adjustment and Retraining Notification Act ("WARN
Act").
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4.5 Representations in Merger Agreement. Leasco represents and warrants
that all of the representations and warranties by Seller, insofar as they relate
to Leasco, contained in the Merger Agreement are true and correct.
V. OBLIGATIONS OF BUYER PENDING CLOSING. Buyer covenants and agrees that between
the date hereof and the Closing:
5.1 Not Impair Performance. Buyer shall not take any intentional action
that would cause the conditions upon the obligations of the parties hereto to
effect the transactions contemplated hereby not to be fulfilled, including,
without limitation, taking or causing to be taken any action that would cause
the representations and warranties made by any party herein not to be true,
correct and accurate as of the Closing, or in any way impairing the ability of
Seller to satisfy its obligations as provided in Article VI.
5.2 Assist Performance. Buyer shall exercise its reasonable best efforts
to cause to be fulfilled those conditions precedent to Seller's obligations to
consummate the transactions contemplated hereby which are dependent upon actions
of Buyer and to make and/or obtain any necessary filings and consents in order
to consummate the sale transaction contemplated by this Agreement.
VI. OBLIGATIONS OF SELLER PENDING CLOSING. Seller covenants and agrees that
between the date hereof and the Closing:
6.1 Business as Usual. Leasco shall operate and Seller shall cause Leasco
to operate in accordance with past practices and shall use best efforts to
preserve its goodwill and the goodwill of its employees, customers and others
having business dealings with Leasco. Without limiting the generality of the
foregoing, from the date of this Agreement until the Closing Date, Leasco shall
(a) make all normal and customary repairs to its equipment, assets and
facilities, (b) keep in force all insurance, (c) preserve in full force and
effect all material franchises, licenses, contracts and real property interests
and comply in all material respects with all laws and regulations, (d) collect
all accounts receivable and pay all trade creditors in the ordinary course of
business at intervals historically experienced, and (e) preserve and maintain
Leasco's assets in their current operating condition and repair, ordinary wear
and tear excepted. Leasco shall not (i) amend, terminate or surrender any
material franchise, license, contract or real property interest, or (ii) sell or
dispose of any of its assets except in the ordinary course of business. Neither
Leasco nor Buyer shall take or omit to take any action that results in Seller
incurring any liability or obligation prior to or in connection with the
Closing.
6.2 Not Impair Performance. Seller shall not take any intentional action
that would cause the conditions upon the obligations of the parties hereto to
effect the transactions contemplated hereby not to be fulfilled, including,
without limitation, taking or causing to be taken any action which would cause
the representations and warranties made by any party herein not to be materially
true, correct and accurate as of the Closing, or in any way impairing the
ability of Buyer to satisfy his obligations as provided in Article V.
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6.3 Assist Performance. Seller shall exercise its reasonable best efforts
to cause to be fulfilled those conditions precedent to Buyer's obligations to
consummate the transactions contemplated hereby which are dependent upon the
actions of Seller and to work with Buyer to make and/or obtain any necessary
filings and consents. Seller shall cause Leasco to comply with its obligations
under this Agreement.
VII. SELLER'S AND LEASCO'S CONDITIONS PRECEDENT TO CLOSING. The obligations of
Seller and Leasco to close the transactions contemplated by this Agreement are
subject to the satisfaction at or prior to the Closing of each of the following
conditions precedent (any or all of which may be waived by Seller and MMC in
writing):
7.1 Representations and Warranties; Performance. All representations and
warranties of Buyer contained in this Agreement shall have been true and
correct, in all material respects, when made and shall be true and correct, in
all material respects, at and as of the Closing, with the same effect as though
such representations and warranties were made at and as of the Closing. Buyer
shall have performed and complied with all covenants and agreements and
satisfied all conditions, in all material respects, required by this Agreement
to be performed or complied with or satisfied by Buyer at or prior to the
Closing.
7.2 Additional Documents. Buyer shall deliver or cause to be delivered
such additional documents as may be necessary in connection with the
consummation of the transactions contemplated by this Agreement and the
performance of their obligations hereunder.
7.3 Release by Leasco. At the Closing, Leasco shall execute and deliver to
Seller and MMC a general release which in substance and effect releases Seller
and MMC from any and all liabilities and obligations that Seller and MMC may owe
to Leasco in any capacity and from any and all claims that Leasco may have
against Seller, MMC, or their respective managers, members, officers, directors,
stockholders, employees and agents (other than those arising pursuant to this
Agreement or any document delivered in connection with this Agreement).
VIII. BUYER'S CONDITIONS PRECEDENT TO CLOSING. The obligation of Buyer to close
the transactions contemplated by this Agreement is subject to the satisfaction
at or prior to the Closing of each of the following conditions precedent (any
and all of which may be waived by Buyer in writing):
8.1 Representations and Warranties; Performance. All representations and
warranties of Seller and Leasco contained in this Agreement shall have been true
and correct, in all material respects, when made and shall be true and correct,
in all material respects, at and as of the Closing with the same effect as
though such representations and warranties were made at and as of the Closing.
Seller and Leasco shall have performed and complied with all covenants and
agreements and satisfied all conditions, in all material respects, required by
this Agreement to be performed or complied with or satisfied by them at or prior
to the Closing.
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IX. OTHER AGREEMENTS.
9.1 Expenses. Each party hereto shall bear its expenses separately
incurred in connection with this Agreement and with the performance of its
obligations hereunder.
9.2 Confidentiality. The parties hereto shall not make any public
announcements concerning this transaction other than in accordance with mutual
agreement reached prior to any such announcement(s) and other than as may be
required by applicable law or judicial process. If for any reason the
transactions contemplated hereby are not consummated, then Buyer shall return
any information received by Buyer from Seller or Leasco, and Buyer shall cause
all confidential information obtained by Buyer concerning Leasco and its
business to be treated as such.
9.3 Brokers' Fees. No party to this Agreement has employed the services of
a broker and each agrees to indemnify the other against all claims of any third
parties for fees and commissions of any brokers claiming a fee or commission
related to the transactions contemplated hereby.
9.4 Access to Information Post-Closing; Cooperation.
(a) Following the Closing, Buyer and Leasco shall afford to Seller
and its authorized accountants, counsel, and other designated
representatives reasonable access (and including using reasonable efforts
to give access to persons or firms possessing information) and duplicating
rights during normal business hours to allow records, books, contracts,
instruments, computer data and other data and information (collectively,
"Information") within the possession or control of Buyer or Leasco insofar
as such access is reasonably required by Seller. Information may be
requested under this Section 9.4(a) for, without limitation, audit,
accounting, claims, litigation and tax purposes, as well as for purposes
of fulfilling disclosure and reporting obligations and performing this
Agreement and the transactions contemplated hereby. No files, books or
records of Leasco existing at the Closing Date shall be destroyed by Buyer
or Leasco after Closing but prior to the expiration of any period during
which such files, books or records are required to be maintained and
preserved by applicable law without giving the Seller at least 30 days'
prior written notice, during which xxxx Xxxxxx shall have the right to
examine and to remove any such files, books and records prior to their
destruction.
(b) Following the Closing, Seller shall afford to Leasco and its
authorized accountants, counsel and other designated representatives
reasonable access (including using reasonable efforts to give access to
persons or firms possessing information) duplicating rights during normal
business hours to Information within Seller's possession or control
relating to the business of Leasco. Information may be requested under
this Section 9.4(b) for, without limitation, audit, accounting, claims,
litigation and tax purposes as well as for purposes of fulfilling
disclosure and reporting obligations and for performing this Agreement and
the transactions contemplated hereby. No files, books or records of Leasco
existing at the Closing Date shall be destroyed by Seller after Closing
but prior to the expiration of any period during which such files, books
or records are required to be maintained and preserved by applicable law
without giving the Buyer at least 30 days prior written notice, during
which time Buyer shall have the right to examine and to remove any such
files, books and records prior to their destruction.
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(c) At all times following the Closing, Seller, Buyer and Leasco
shall use reasonable efforts to make available to the other party on
written request, the current and former officers, directors, employees and
agents of Seller or Leasco for any of the purposes set forth in Section
9.4(a) or (b) above or as witnesses to the extent that such persons may be
reasonably be required in connection with any legal, administrative or
other proceedings in which Seller or Leasco may from time to be involved.
(d) The party to whom any Information or witnesses are provided
under this Section 9.4 shall reimburse the provider thereof for all
out-of-pocket expenses actually and reasonably incurred in providing such
Information or witnesses.
(e) Seller, Buyer, Leasco and their respective employees and agents
shall each hold in strict confidence all Information concerning the other
party in their possession or furnished by the other or the other's
representative pursuant to this Agreement with the same degree of care as
such party utilizes as to such party's own confidential information
(except to the extent that such Information is (i) in the public domain
through no fault of such party or (ii) later lawfully acquired from any
other source by such party), and each party shall not release or disclose
such Information to any other person, except such party's auditors,
attorneys, financial advisors, bankers, other consultants and advisors or
persons with whom such party has a valid obligation to disclose such
Information, unless compelled to disclose such Information by judicial or
administrative process or, as advised by its counsel, by other
requirements of law.
(f) Seller, Buyer and Leasco shall each use their best efforts to
forward promptly to the other party all notices, claims, correspondence
and other materials which are received and determined to pertain to the
other party.
9.5 Guarantees, Surety Bonds and Letter of Credit Obligations. In the
event that Seller is obligated for any debts, obligations or liabilities of
Leasco by virtue of any outstanding guarantee, performance or surety bond or
letter of credit provided or arranged by Seller on or prior to the Closing Date,
Buyer and Leasco shall use best efforts to cause to be issued replacements of
such bonds, letters of credit and guarantees and to obtain any amendments,
novations, releases and approvals necessary to release and discharge fully
Seller from any liability thereunder following the Closing. Buyer and Leasco,
jointly and severally, shall be responsible for, and shall indemnify, hold
harmless and defend Seller from and against, any costs or losses incurred by
Seller arising from such bonds, letters of credits and guarantees and any
liabilities arising therefrom and shall reimburse Seller for any payments that
Seller may be required to pay pursuant to enforcement of its obligations
relating to such bonds, letters of credit and guarantees.
9.6 Filings and Consents. Buyer, at its risk, shall determine what, if
any, filings and consents must be made and/or obtained prior to Closing to
consummate the purchase and sale of the Shares. Buyer shall indemnify the Seller
Indemnified Parties (as defined in Section 11.1 below) against any Losses (as
defined in Section 11.1 below) incurred by any Seller Indemnified Parties by
virtue of the failure to make and/or obtain any such filings or consents.
Recognizing that the failure to make and/or obtain any filings or consents may
cause Seller to incur Losses or otherwise adversely affect Seller, Buyer and
Leasco confirm that the provisions of this Section 9.6 will not limit Seller's
right to treat such failure as the failure of a condition precedent to Seller's
obligation to close pursuant to Article VII above.
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9.7 Insurance. Buyer acknowledges that on the Closing Date, effective as
of the Closing, all insurance coverage and bonds provided by Seller for Leasco,
and all certificates of insurance evidencing that Leasco maintains any required
insurance by virtue of insurance provided by Seller, will terminate with respect
to any insured damages resulting from matters occurring subsequent to Closing.
9.8 Agreements Regarding Taxes.
(a) Tax Sharing Agreements. Any tax sharing agreement between Seller
and Leasco is terminated as of the Closing Date and will have no further
effect for any taxable year (whether the current year, a future year, or a
past year).
(b) Returns for Periods Through the Closing Date. Seller will
include the income and loss of Leasco (including any deferred income
triggered into income by Reg. ss.1.1502-13 and any excess loss accounts
taken into income under Reg. ss.1.1502-19) on Seller's consolidated
federal income tax returns for all periods through the Closing Date and
pay any federal income taxes attributable to such income. Seller and
Leasco agree to allocate income, gain, loss, deductions and credits
between the period up to Closing (the "Pre-Closing Period") and the period
after Closing (the "Post-Closing Period") based on a closing of the books
of Leasco and both Seller and Leasco agree not to make an election under
Reg. ss.1.1502-76(b)(2)(ii) to ratably allocate the year's items of
income, gain, loss, deduction and credit. Seller, Leasco and Buyer agree
to report all transactions not in the ordinary course of business
occurring on the Closing Date after Buyer's purchase of the Shares on
Leasco's tax returns to the extent permitted by Reg.
ss.1.1502-76(b)(1)(ii)(B). Buyer agrees to indemnify Seller for any
additional tax owed by Seller (including tax owned by Seller due to this
indemnification payment) resulting from any transaction engaged in by
Leasco during the Pre-Closing Period or on the Closing Date after Buyer's
purchase of the Shares. Leasco will furnish tax information to Seller for
inclusion in Seller's consolidated federal income tax return for the
period which includes the Closing Date in accordance with Leasco's past
custom and practice.
(c) Audits. Seller will allow Leasco and its counsel to participate
at Leasco's expense in any audits of Seller's consolidated federal income
tax returns to the extent that such audit raises issues that relate to and
increase the tax liability of Leasco. Seller shall have the absolute
right, in its sole discretion, to engage professionals and direct the
representation of Seller in connection with any such audit and the
resolution thereof, without receiving the consent of Buyer or Leasco or
any other party acting on behalf of Buyer or Leasco, provided that Seller
will not settle any such audit in a manner which would materially
adversely affect Leasco after the Closing Date unless such settlement
would be reasonable in the case of a person that owned Leasco both before
and after the Closing Date. In the event that after Closing any tax
authority informs the Buyer or Leasco of any notice of proposed audit,
claim, assessment, or other dispute concerning an amount of taxes which
pertain to the Seller, or to Leasco during the period prior to Closing,
Buyer or Leasco must promptly notify the Seller of the same within 15
calendar days of the date of the notice from the tax authority. In the
event Buyer or Leasco does not notify the Seller within such 15 day
period, Buyer and Leasco, jointly and severally, will indemnify the Seller
for any incremental interest, penalty or other assessments resulting from
the delay in giving notice. To the extent of any conflict or
inconsistency, the provisions of this Section 9.8 shall control over the
provisions of Section 11.2 below.
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(d) Cooperation on Tax Matters. Buyer, Seller and Leasco shall
cooperate fully, as and to the extent reasonably requested by the other
party, in connection with the filing of tax returns pursuant to this
Section and any audit, litigation or other proceeding with respect to
taxes. Such cooperation shall include the retention and (upon the other
party's request) the provision of records and information which are
reasonably relevant to any such audit, litigation or other proceeding and
making employees available on a mutually convenient basis to provide
additional information and explanation of any material provided hereunder.
Leasco shall (i) retain all books and records with respect to tax matters
pertinent to Leasco relating to any taxable period beginning before the
Closing Date until the expiration of the statute of limitations (and, to
the extent notified by Seller, any extensions thereof) of the respective
taxable periods, and to abide by all record retention agreements entered
into with any taxing authority, and (ii) give Seller reasonable written
notice prior to transferring, destroying or discarding any such books and
records and, if the Seller so requests, Buyer agrees to cause Leasco to
allow Seller to take possession of such books and records.
9.9 ERISA. Effective as of the Closing Date, Leasco shall terminate its
participation in, and withdraw from, all employee benefit plans sponsored by
Seller, and Seller and Buyer shall cooperate fully in such termination and
withdrawal. Without limitation, Leasco shall be solely responsible for (i) all
liabilities under those employee benefit plans notwithstanding any status as an
employee benefit plan sponsored by Seller, and (ii) all liabilities for the
payment of vacation pay, severance benefits, and similar obligations, including,
without limitation, amounts which are accrued but unpaid as of the Closing Date
with respect thereto. Buyer and Leasco acknowledge that Leasco is solely
responsible for providing continuation health coverage, as required under the
Consolidated Omnibus Reconciliation Act of 1985, as amended ("COBRA"), to each
person, if any, participating in an employee benefit plan subject to COBRA with
respect to such employee benefit plan as of the Closing Date, including, without
limitation, any person whose employment with Leasco is terminated after the
Closing Date.
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X. TERMINATION. This Agreement may be terminated at, or at any time prior to,
the Closing by mutual written consent of Seller, Buyer and MMC.
If this Agreement is terminated as provided herein, it shall become wholly
void and of no further force and effect and there shall be no further liability
or obligation on the part of any party except to pay such expenses as are
required of such party.
XI. INDEMNIFICATION.
11.1 Indemnification by Buyer. Buyer covenants and agrees to indemnify,
defend, protect and hold harmless Seller, and its officers, directors,
employees, stockholders, agents, representatives and affiliates (collectively,
together with Seller, the "Seller Indemnified Parties") at all times from and
after the date of this Agreement from and against all losses, liabilities,
damages, claims, actions, suits, proceedings, demands, assessments, adjustments,
costs and expenses (including specifically, but without limitation, reasonable
attorneys' fees and expenses of investigation), whether or not involving a third
party claim and regardless of any negligence of any Seller Indemnified Party
(collectively, "Losses"), incurred by any Seller Indemnified Party as a result
of or arising from (i) any breach of the representations and warranties of Buyer
set forth herein or in certificates delivered in connection herewith, (ii) any
breach or nonfulfillment of any covenant or agreement (including any other
agreement of Buyer to indemnify Seller set forth in this Agreement) on the part
of Buyer under this Agreement, (iii) any debt, liability or obligation of
Leasco, (iv) the conduct and operations of the business of Leasco whether before
or after Closing, (v) claims asserted against Leasco whether before or after
Closing, or (vi) any federal or state income tax payable by Seller and
attributable to the transaction contemplated by this Agreement.
11.2 Third Party Claims.
(a) Defense. If any claim or liability (a "Third-Party Claim")
should be asserted against any of the Seller Indemnified Parties
(the "Indemnitee") by a third party after the Closing for which
Buyer has and Leasco (the "Indemnitor") within 20 days after the
Third-Party Claim is asserted by a third party (said notification
being referred to as a "Claim Notice") and give the Indemnitor a
reasonable opportunity to take part in any examination of the books
and records of the Indemnitee relating to such Third-Party Claim and
to assume the defense of such Third-Party Claim and in connection
therewith and to conduct any proceedings or negotiations relating
thereto and necessary or appropriate to defend the Indemnitee and/or
settle the Claim. The expenses (including reasonable attorneys'
fees) of all negotiations, proceedings, contests, lawsuits or
settlements with respect to any Third-Party Claim shall be borne by
the Indemnitor. If the Indemnitor agrees to assume the defense of
any Third-Party Claim in writing within 20 days after the Claim
Notice of such Third-Party Claim has been delivered, through counsel
reasonably satisfactory to Indemnitee, then the Indemnitor shall be
entitled to control the conduct of such defense, and any decision to
settle such Third-Party Claim, and shall be responsible for any
expenses of the Indemnitee in connection with the defense of such
Third-Party Claim so long as the Indemnitor continues such defense
until the final resolution of such Third-Party Claim. The Indemnitor
shall be responsible for paying all settlements made or judgments
entered with respect to any Third-Party Claim the defense of which
has been assumed by the Indemnitor. Except as provided on subsection
(b) below, both the Indemnitor and the Indemnitee must approve any
settlement of a Third Party Claim. A failure by the Indemnitee to
timely give the Claim Notice shall not excuse Indemnitor from any
indemnification liability except only to the extent that the
Indemnitor is materially and adversely prejudiced by such failure.
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(b) Failure to Defend. If the Indemnitor shall not agree to
assume the defense of any Third-Party Claim in writing within 20
days after the Claim Notice of such Third-Party Claim has been
delivered, or shall fail to continue such defense until the final
resolution of such Third-Party Claim, then the Indemnitee may defend
against such Third-Party Claim in such manner as it may deem
appropriate and the Indemnitee may settle such Third-Party Claim on
such terms as it may deem appropriate. The Indemnitor shall promptly
reimburse the Indemnitee for the amount of all settlement payments
and expenses, legal and otherwise, incurred by the Indemnitee in
connection with the defense or settlement of such Third-Party Claim.
If no settlement of such Third-Party Claim is made, then the
Indemnitor shall satisfy any judgment rendered with respect to such
Third-Party Claim before the Indemnitee is required to do so, and
pay all expenses, legal or otherwise, incurred by the Indemnitee in
the defense against such Third-Party Claim.
11.3 Non-Third-Party Claims. Upon discovery of any claim for which Buyer
has an indemnification obligation under the terms of Section 11.3 which does not
involve a claim by a third party against the Indemnitee, the Indemnitee shall
give prompt notice to Buyer of such claim and, in any case, shall give Buyer
such notice within 30 days of such discovery. A failure by Indemnitee to timely
give the foregoing notice to Buyer shall not excuse Buyer from any
indemnification liability except to the extent that Buyer is materially and
adversely prejudiced by such failure.
11.4 Survival. Except as otherwise provided in this Section 11.4, all
representations and warranties made by Buyer, Leasco and Seller in connection
with this Agreement shall survive the Closing. Anything in this Agreement to the
contrary notwithstanding, the liability of all Indemnitors under this Article XI
shall terminate on the third (3rd) anniversary of the Closing Date, except with
respect to (a) liability for any item as to which, prior to the third (3rd)
anniversary of the Closing Date, any Indemnitee shall have asserted a Claim in
writing, which Claim shall identify its basis with reasonable specificity, in
which case the liability for such Claim shall continue until it shall have been
finally settled, decided or adjudicated, (b) liability of any party for Losses
for which such party has an indemnification obligation, incurred as a result of
such party's breach of any covenant or agreement to be performed by such party
after the Closing, (c) liability of Buyer for Losses incurred by a Seller
Indemnified Party due to breaches of their representations and warranties in
Article III of this Agreement, and (d) liability of Buyer for Losses arising out
of Third-Party Claims for which Buyer has an indemnification obligation, which
liability shall survive until the statute of limitation applicable to any third
party's right to assert a Third-Party Claim bars assertion of such claim.
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XII. MISCELLANEOUS.
12.1 Notices. All notices and communications required or permitted
hereunder shall be in writing and deemed given when received by means of the
United States mail, addressed to the party to be notified, postage prepaid and
registered or certified with return receipt requested, or personal delivery, or
overnight courier, as follows:
(a) If to Seller, addressed to:
00 Xxxxxxxx, Xxxxx 000
Xxx Xxxx, XX 00000
Attn: Xxxx X. Xxxxxx, Chief Executive Officer
Facsimile: (000) 000-0000
With a copy to (which shall not constitute notice hereunder):
McGuireWoods LLP
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxx X. Xxxxx, Esq.
Facsimile: (000) 000-0000
(b) If to Buyer or Leasco, addressed to:
Xxxxx Xxxxxx
000 00xx Xxxxxx, Xxxxx 000
Xxxx Xxxxxxxxx. X.X., Xxxxxx X0X 0X0
Facsimile: (000) 000-0000
With a copy to (which shall not constitute notice hereunder):
Gottbetter & Partners, LLP
000 Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx X. Xxxxxxxxxx, Esq.
(c) If to MMC, addressed to:
MMC Energy North America, LLC
00 Xxxxxxxx, Xxxxx 000
Xxx Xxxx, XX 00000
Attn: Xxxx X. Xxxxxx, Chief Executive Officer
Facsimile: (000) 000-0000
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With a copy to (which shall not constitute notice hereunder):
McGuireWoods LLP
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxx X. Xxxxx, Esq.
Facsimile: (000) 000-0000
or to such other address as any party hereto shall specify pursuant to this
Section 12.1 from time to time.
12.2 Exercise of Rights and Remedies. Except as otherwise provided herein,
no delay of or omission in the exercise of any right, power or remedy accruing
to any party as a result of any breach or default by any other party under this
Agreement shall impair any such right, power or remedy, nor shall it be
construed as a waiver of or acquiescence in any such breach or default, or of
any similar breach or default occurring later; nor shall any waiver of any
single breach or default be deemed a waiver of any other breach or default
occurring before or after that waiver.
12.3 Time. Time is of the essence with respect to this Agreement.
12.4 Reformation and Severability. In case any provision of this Agreement
shall be invalid, illegal or unenforceable, it shall, to the extent possible, be
modified in such manner as to be valid, legal and enforceable but so as to most
nearly retain the intent of the parties, and if such modification is not
possible, such provision shall be severed from this Agreement, and in either
case the validity, legality and enforceability of the remaining provisions of
this Agreement shall not in any way be affected or impaired thereby.
12.5 Further Acts. Seller, Buyer and Leasco shall execute any and all
documents and perform such other acts which may be reasonably necessary to
effectuate the purposes of this Agreement.
12.6 Entire Agreement; Amendments. This Agreement contains the entire
understanding of the parties relating to the subject matter contained herein.
This Agreement cannot be amended or changed except through a written instrument
signed by all of the parties hereto, including MMC. No provisions of this
Agreement or any rights hereunder may be waived by any party without the prior
written consent of MMC.
12.7 Assignment. No party may assign his or its rights or obligations
hereunder, in whole or in part, without the prior written consent of the other
parties.
12.8 Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York, without giving effect to
principles of conflicts or choice of laws thereof.
12.9 Counterparts. This Agreement may be executed in one or more
counterparts, with the same effect as if all parties had signed the same
document. Each such counterpart shall be an original, but all such counterparts
taken together shall constitute a single agreement. In the event that any
signature is delivered by facsimile transmission, such signature shall create a
valid and binding obligation of the party executing (or on whose behalf such
signature is executed) the same with the same force and effect as if such
facsimile signature page was an original thereof.
-14-
12.10 Section Headings and Gender. The Section headings used herein are
inserted for reference purposes only and shall not in any way affect the meaning
or interpretation of this Agreement. All personal pronouns used in this
Agreement shall include the other genders, whether used in the masculine,
feminine or neuter, and the singular shall include the plural, and vice versa,
whenever and as often as may be appropriate.
12.11 Specific Performance; Remedies. Each of Seller, Buyer and Leasco
acknowledges and agrees that MMC would be damaged irreparably if any provision
of this Agreement is not performed in accordance with its specific terms or is
otherwise breached. Accordingly, each of Seller, Buyer and Leasco agrees that
MMC will be entitled to seek an injunction or injunctions to prevent breaches of
the provisions of this Agreement and to enforce specifically this Agreement and
its terms and provisions in any action instituted in any court of the United
States or any state thereof having jurisdiction over the parties and the matter,
subject to Section 12.8, in addition to any other remedy to which they may be
entitled, at law or in equity. Except as expressly provided herein, the rights,
obligations and remedies created by this Agreement are cumulative and in
addition to any other rights, obligations or remedies otherwise available at law
or in equity, and nothing herein will be considered an election of remedies.
12.12 Submission to Jurisdiction; Process Agent; No Jury Trial.
(a) Each party to the Agreement hereby submits to the jurisdiction
of any state or federal court sitting in the State of New York, in any
action arising out of or relating to this Agreement and agrees that all
claims in respect of the action may be heard and determined in any such
court. Each party to the Agreement also agrees not to bring any action
arising out of or relating to this Agreement in any other court. Each
party to the Agreement agrees that a final judgment in any action so
brought will be conclusive and may be enforced by action on the judgment
or in any other manner provided at law or in equity. Each party to the
Agreement waives any defense of inconvenient forum to the maintenance of
any action so brought and waives any bond, surety, or other security that
might be required of any other Party with respect thereto.
(b) EACH PARTY TO THE AGREEMENT HEREBY AGREES TO WAIVE HIS OR HER
RIGHTS TO JURY TRIAL OF ANY DISPUTE BASED UPON OR ARISING OUT OF THIS
AGREEMENT OR ANY OTHER AGREEMENTS RELATING TO THE SUBJECT MATTER OF THIS
AGREEMENT OR ANY DEALINGS AMONG THEM RELATING TO THE TRANSACTIONS
CONTEMPLATED HEREBY. The scope of this waiver is intended to be all
encompassing of any and all actions that may be filed in any court and
that relate to the subject matter of the transactions, including, contract
claims, tort claims, breach of duty claims, and all other common law and
statutory claims. Each party to the Agreement hereby acknowledges that
this waiver is a material inducement to enter into a business relationship
and that they will continue to rely on the waiver in their related future
dealings. Each party to the Agreement further represents and warrants that
it has reviewed this waiver with its legal counsel, and that each
knowingly and voluntarily waives its jury trial rights following
consultation with legal counsel. NOTWITHSTANDING ANYTHING TO THE CONTRARY
HEREIN, THIS WAIVER IS IRREVOCABLE, MEANING THAT IT MAY NOT BE MODIFIED
ORALLY OR IN WRITING, AND THE WAIVER WILL APPLY TO ANY AMENDMENTS,
RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO THIS AGREEMENT OR TO ANY OTHER
DOCUMENTS OR AGREEMENTS RELATING HERETO. In the event of commencement of
any action, this Agreement may be filed as a written consent to trial by a
court.
-15-
12.13 Construction. The parties hereto have participated jointly in the
negotiation and drafting of this Agreement. If an ambiguity or question of
intent or interpretation arises, this Agreement will be construed as if drafted
jointly by the parties hereto and no presumption or burden of proof will arise
favoring or disfavoring any party because of the authorship of any provision of
this Agreement. Any reference to any federal, state, local, or foreign law will
be deemed also to refer to law as amended and all rules and regulations
promulgated thereunder, unless the context requires otherwise. The words
"include," "includes," and "including" will be deemed to be followed by "without
limitation." The words "this Agreement," "herein," "hereof," "hereby,"
"hereunder," and words of similar import refer to this Agreement as a whole and
not to any particular subdivision unless expressly so limited. The parties
hereto intend that each representation, warranty, and covenant contained herein
will have independent significance. If any party hereto has breached any
representation, warranty, or covenant contained herein in any respect, the fact
that there exists another representation, warranty or covenant relating to the
same subject matter (regardless of the relative levels of specificity) which
that party has not breached will not detract from or mitigate the fact that such
party is in breach of the first representation, warranty, or covenant.
[Signature page follows this page.]
-16-
IN WITNESS WHEREOF, the parties hereto have hereunto set their hands as of
the day and year first above written.
MMC ENERGY, INC.
By: /s/ Xxxxx Xxxxxx
--------------------------------------
Name: Xxxxx Xxxxxx
Title: Chief Executive Officer
HIGH TIDE LEASCO, INC.
By: /s/ Xxxxx Xxxxxx
--------------------------------------
Name: Xxxxx Xxxxxx
Title Chief Executive Officer
BUYERS
/s/ Xxxxxxx Xxxxx
-----------------------------------------
Xxxxxxx Xxxxx
/s/ Xxxxx Xxxxxx
-----------------------------------------
Xxxxx Xxxxxx
MMC ENERGY NORTH AMERICA, LLC
By: /s/ Xxxx X. Xxxxxx
--------------------------------------
Name: Xxxx X. Xxxxxx
Title: Chief Executive Officer
-17-
