===============================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 10-K/A
/X/ Annual Report Pursuant to Section 13 or 15(d) of the Securities
Exchange Act of 1934
For the fiscal year ended September 30, 1997
or
/ / Transition Report Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
For the period from __________ to __________
Commission file number 0-6890
MECHANICAL TECHNOLOGY INCORPORATED
------------------------------------------------------
(Exact name of registrant as specified in its charter)
New York 14-1462255
- ------------------------------- -------------------
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
968 Albany-Shaker Rd, Latham, New York 12110
- ---------------------------------------- -------------------
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code: (518)785-2211
Securities Registered Pursuant to Section 12(b) of the Act: NONE
Securities Registered Pursuant to Section 12(g) of the Act
$1.00 Par Value Common Stock
----------------------------
(Title of Class)
Indicate by check mark if disclosure of delinquent filers pursuant to Item
405 of Regulation S-K is not contained herein, and will not be contained,
to the best of registrant's knowledge, in definitive proxy or information
statements incorporated by reference in Part III of this Form 10-K or any
amendment to this form 10-K. [ ]
Indicate by check mark whether the registrant (1) has filed all reports
required to be filed by Section 13 or 15(d) of the Securities Exchange Act
of 1934 during the preceding 12 months (or for such shorter period that
the registrant was required to file such reports), and (2) has been
subject to such filing requirements for the past 90 days.
Yes X No
--- ---
The aggregate market value of the registrant's Common Stock held by
nonaffiliates of the registrant on December 12, 1997 (based on the last
sale price of $5.125 per share for such stock reported by OTC Bulletin
Board for that date) was approximately $16,154,195.
As of August 7,1998, the registrant had 5,989,896 shares of Common
Stock outstanding.
===============================================================================
<PAGE>
PART IV
ITEM 14: EXHIBITS, FINANCIAL STATEMENT SCHEDULES, AND REPORTS ON FORM 8-K
- --------------------------------------------------------------------------
(a) The financial statements filed herewith are set forth on the Index to
Consolidated Financial Statements on page F-1 of the separate financial
section that accompanies this Report, which is incorporated herein by
reference.
The following exhibits are filed as part of this Report:
Exhibit
Number Description
------- -----------
2.1 Purchase Agreement, dated as of November 23,
1994, among the Registrant, ProQuip Inc. and
Phase Metrics.(7)
3.1 Certificate of Incorporation of the registrant,
as amended.(1)
3.2 By-Laws of the registrant, as amended.
4.1 Certificate of Amendment of the Certificate
of Incorporation of the registrant, filed
on March 6, 1986 (setting forth the provisions
of the Certificate of Incorporation, as amended,
relating to the authorized shares of the
registrant's Common Stock) - included in the copy
of the registrant's Certificate of Incorporation,
as amended, filed as Exhibit 3.1 hereto.
4.20 Loan Agreement, dated as of June 1, 1987, between
the registrant and Chase Lincoln First Bank, N.A.
("Chase Lincoln"),relating to a $20,000,000 term
loan to finance the registrant's acquisition of
United Telecontrol Electronics, Inc. (the "UTE Loan
Agreement").(1)
4.21 First Amendment to Loan Agreement, dated as of
September 30, 1988, amending certain provisions of
the UTE Loan Agreement.(1)
4.22 Second Amendment to Loan Agreement, dated as of
February 21, 1990, amending certain provisions of
the UTE Loan Agreement.(1)
4.24 Third Amendment to Loan Agreement, dated as of
January 1, 1991, amending certain provisions of the
UTE Loan Agreement.(2)
4.25 Form of Note, in the amount of $9,181,700, executed
by the registrant on January 1, 1991 to evidence
its indebtedness under the UTE Loan Agreement.(2)
<PAGE>
4.26 Form of Note, in the amount of $2,000,000, executed
by the registrant on January 1, 1991 to evidence
its indebtedness under the UTE Loan Agreement.(2)
4.27 Form of Note, in the amount of $1,000,000,
executed by the registrant on January 1, 1991 to
evidence its indebtedness under the UTE Loan
Agreement.(2)
4.28 Mortgage, dated January 31, 1991, executed by the
registrant in favor of Chase Lincoln and securing
the registrant's obligation to Chase Lincoln,
including those under the UTE and ProQuip Loan
Agreements.(2)
4.30 Loan Agreement, dated as of September 30, 1988,
between the registrant and Chase Lincoln relating
to an $8,000,000 term loan to finance the
registrant's acquisition of ProQuip, Inc. (the
"ProQuip Loan Agreement").(1)
4.31 Negative Pledge Agreement, dated as of September
30, 1988, executed by the registrant in favor of
Chase Lincoln in connection with the ProQuip Loan
Agreement.(1)
4.32 Security Agreement, dated as of September 30, 1988,
executed by the registrant in favor of Chase
Lincoln and securing the registrant's obligation
to Chase Lincoln, including those under the UTE and
ProQuip Loan Agreements (the "Chase Lincoln
Security Agreement").(1)
4.33 First Amendment to Loan Agreement, dated as of
February 21, 1990, amending certain provisions of
the ProQuip Loan Agreement.(1)
4.34 Form of Note, in the amount of $3,375,817.80,
executed by the registrant on February 21, 1990
to evidence its indebtedness under the ProQuip
Loan Agreement.(1)
4.35 Amendment Number One to Security Agreement, executed
by the registrant on February 21, 1990, amending
the Chase Lincoln Security Agreement.(1)
4.36 Mortgage, dated February 21, 1990, executed by the
registrant in favor of Chase Lincoln and securing
the registrant's obligations to Chase Lincoln,
including those under the UTE and ProQuip Loan
Agreements.(1)
4.37 Second Amendment to Loan Agreement, dated as of
January 1, 1991, amending certain provisions of the
ProQuip Loan Agreement.(2)
4.38 Mortgage Modification and Allocation Agreement,
dated January 1, 1991, executed by the registrant
and Chase Lincoln.(2)
<PAGE>
4.40 Form of Payment Guaranty, dated as of September 1,
1988 [as of September 30, 1988, in the case of
ProQuip, Inc.], executed by the subsidiaries of the
registrant in favor of Chase Lincoln and
guaranteeing payment of the registrant's
obligations to Chase Lincoln, including those under
the UTE and ProQuip Loan Agreements.(1)
4.41 Form of Negative Pledge Agreement, dated as of
September 30, 1988, executed by the subsidiaries of
the registrant in favor of Chase Lincoln in
connection with the ProQuip Loan Agreement.(1)
4.42 Form of Security Agreement, dated as of September
30, 1988, executed by the subsidiaries of the
registrant in favor of Chase Lincoln and securing
the registrant's obligations to Chase Lincoln,
including those under the UTE and ProQuip Loan
Agreements.(1)
4.43 Acknowledgment, Confirmation and Further Agreement,
made as of February 21, 1990, executed by the
subsidiaries of the registrant in favor of Chase
Lincoln with respect to the registrants obligations
under the UTE and ProQuip Loan Agreements.(1)
4.50 Debt Restructure Agreement, made as of
February 21, 1990, between the registrant, Chase
Lincoln, and Manufacturers Hanover Trust Company
("Manufacturers Hanover"), providing for a
restructuring of the registrant's indebtedness to
Chase Lincoln under the UTE and ProQuip Loan
Agreements and of the registrant's outstanding
indebtedness to Manufacturers Hanover (the "MHTCo.
Existing Debt"), among other things.(1)
4.55 Second Amendment to Debt Restructure Agreement,
made as of January 1, 1991, between the registrant,
Chase Lincoln, and Manufacturers Hanover, amending
certain provisions of the Debt Restructure
Agreement.(2)
4.56 Second Debt Restructure Agreement, as of July 22,
1992, between the registrant, Chase Lincoln First
Bank, N. A. ("CLFB"), and Chemical Bank
("Chemical"), as successor in interest to
Manufacturers Hanover Trust Company, providing for
a restructuring of the registrant's indebtedness to
CLFB under the UTE and ProQuip Loan Agreements and
of the registrant's outstanding indebtedness to
Chemical, among other things.(3)
4.63 Promissory Note, in the amount of $4,000,000 and
dated July 22, 1992, executed by the registrant to
evidence its indebtedness to Chemical from time to
time with respect to a line of credit in such
amount (The Chemical Line of Credit).(3)
<PAGE>
4.64 Form of Payment Guaranty, dated as of July 24, 1992
executed by Masco Corporation in favor of Chemical and
guaranteeing payment of the registrant's obligations to
Chemical under the Chemical Line of Credit.(3)
4.65 Promissory Note, in the amount of $4,000,000 and
dated October 31, 1994, extending the maturity date
of the Promissory note dated July 22, 1992,
executed by the registrant to evidence its
indebtedness to Chemical under the Chemical
Line of Credit.(8)
4.66 Promissory Note, in the amount of $4,000,000 and
dated October 31, 1995, extending the maturity date
of the Promissory note dated October 31, 1994,
executed by the registrant to evidence its
indebtedness to Chemical under the Chemical Line of
Credit.(9)
4.67 Form of Payment Guaranty, dated October 31, 1995
executed by Masco Corporation in favor of Chemical
and guaranteeing payment of the registrant's
obligations to Chemical under the Chemical Line of
Credit.(9)
4.80 Amended and Restated Loan Agreement, dated as of
July 22, 1992, between the registrant and Chase
Lincoln First Bank, N.A., which amends, restates,
combines, and supersedes in full the UTE and the
ProQuip loan agreements.(3)
4.81 Form of Note, in the amount of $5,000,000, executed
by the registrant on July 24, 1992, the July 22,
1992 Loan Agreement.(3)
4.82 Form of Note, in the amount of $7,984,770,
executed by the registrant on July 24, 1992
to evidence its indebtedness to CLFB under
the July 22, 1992 Loan Agreement.(3)
4.83 Additional Mortgage Note, dated July 24, 1992,
executed by the registrant in favor of CLFB and
securing the registrant's obligation to CLFB under
the Loan Agreement.(3)
4.84 Additional Mortgage and Security Agreement, dated
as of July 22, 1992, executed by the registrant in
favor of CLFB and securing the registrant's
obligations to CLFB.(3)
4.85 Mortgage Consolidation, Spreader, Modification
Extension and Security Agreement, dated July
22, 1992, executed by the registrant and CLFB.(3)
4.86 Confirmation of Guaranties and Security
Agreements, dated July 22, 1992, executed
by subsidiaries of the registrant in favor
of CLFB with respect to the registrant's
obligations to CLFB.(3)
<PAGE>
4.87 Consent and waiver, dated December 21, 1993,
from CLFB to the registrant with respect to the
Amended and Restated Loan Agreement.(5)
4.88 Amendment One to Amended and Restated Loan
Agreement, dated as of August 1, 1994, between the
registrant and Chase Manhattan Bank, N. A. which
amends the Amended and Restated Loan Agreement to
defer the payment due on June 30, 1994.(6)
4.89 Amendment Two to Amended and Restated Loan
Agreement with waiver, dated as of November
22, 1994, between the registrant and Chase Manhattan
Bank, N. A. which amends the Amended and Restated
Loan Agreement and waives any existing defaults.(8)
4.90 Additional Mortgage and Security Consolidation
Agreement, dated as of October 6, 1995 executed
by the registrant in favor of Chase Manhattan
Bank, N.A. and securing the registrant's
obligations to Chase Manhattan Bank, N.A.(9)
4.91 Form of Note, in the amount of $340,000, executed by
the registrant on October 6, 1995 to evidence its
indebtedness to Chase Manhattan Bank, N.A. under
the July 22, 1992 Loan Agreement.(9)
4.92 Amendment Three to Amended and Restated Loan
Agreement with waiver, dated as of November 30,
1995, between the registrant and Chase Manhattan
Bank, N. A. which amends the Amended and Restated
Loan Agreement and waives any existing defaults.(9)
10.1 Mechanical Technology Incorporated Restricted Stock
Incentive Plan-filed as Exhibit 28.1 to the
registrant's Form S-8 Registration Statement No.
33-26326 and incorporated herein by reference.
10.3 MTI Employee 1982 Stock Option Plan.(1)
10.4 Agreement, dated December 21, 1993, between UTE,
First Commercial Credit Corporation ("FCCC") and
the registrant, relating to an advance against
certain receivables.(5)
10.6 Agreement, dated June 2, 1993, between the
registrant and Mr. Harry Apkarian, Director,
regarding his employment.(5)
10.7 Agreement, dated February 22, 1994, between the
registrant and Mr. R. Wayne Diesel, President and
Chief Executive Officer, regarding his
employment.(8)
10.8 Agreement, dated December 14, 1994, between FCCC
and the registrant, modifying the Agreement dated
December 21, 1993 relating to an advance against
certain receivables.(8)
<PAGE>
10.9 Agreement, dated May 30, 1995, between FCCC
and the registrant, extending the maturity of
the Agreement dated December 14, 1994 relating
to an advance against certain receivables.(9)
10.10 Agreement, dated June 28, 1995, between FCCC and
the registrant, extending the maturity of the
Agreement dated December 14, 1994 relating to an
advance against certain receivables.(9)
10.11 Agreement, dated September 21, 1995, between FCCC
and the registrant, extending the maturity of the
Agreement dated December 14,1994 relating to an
advance against certain receivables.(9)
10.12 Agreement, dated October 25, 1995, between FCCC
and the registrant, extending the maturity of
the Agreement dated December 14, 1994 relating
to an advance against certain receivables.(9)
10.13 Agreement, dated December 27, 1995, between FCCC
and the registrant, extending the maturity of the
Agreement dated December 14, 1994 relating to an
advance against certain receivables.(9)
10.14 Mechanical Technology Incorporated Stock Incentive
Plan - included as Appendix A to the registrant's
Proxy Statement, filed pursuant to Regulation 14A,
for its December 20, 1996 Special Meeting of
Shareholders and incorporated herein by reference. (10)
10.15 Agreement, dated December 6, 1996, between the
registrant and Mr. Martin J. Mastroianni, President
and Chief Operating Officer, regarding his
employment. (10)
10.16 Settlement Agreement and Release, dated as of
December 27, 1996, between First Albany Companies
Inc. and the registrant, with respect to the
registrant's indebtedness and obligations under the
Agreement dated December 14, 1994 between FCCC and
the registrant relating to an advance against
certain receivables. (10)
10.17 Agreement, dated March 14, 1997, between the
Registrant and Mr. James Clemens, Vice President
and General Manager of Ling Electronic, Inc.,
regarding his employment. (11)
10.18 Limited Liability Company Agreement of Plug Power,
L.L.C., dated June 27, 1997, between Edison
Development Corporation and Mechanical Technology,
Incorporated. (12) (13)
10.19 Contribution Agreement, dated June 27, 1997,
between Mechanical Technology, Incorporated and
Plug Power, L.L.C. (12) (13)
<PAGE>
10.20 Asset Purchase Agreement, dated as of September 22,
1997, between Mechanical Technology, Incorporated
and Noonan Machine Company. (12)
21 Subsidiaries of the registrant. (12)
27 Financial Data Schedule (12)
______________________
Certain exhibits were previously filed (as indicated below) and are
incorporated herein by reference. All other exhibits for which no other
filing information is given are filed herewith:
(1) Filed as an Exhibit (bearing the same exhibit number) to the
registrant's Form 10-K Report, as amended, for its fiscal year ended
September 30, 1989.
(2) Filed as an Exhibit (bearing the same exhibit number) to the
registrant's Form 10-Q Report for its fiscal quarter ended December 29,
1990.
(3) Filed as an Exhibit (bearing the same exhibit number) to the
registrant's Form 10-Q Report for its fiscal quarter ended June 27,
1992.
(4) Filed as an Exhibit (bearing the same exhibit number) to the
registrant's Form 10-K Report for its fiscal year ended September 30,
1991.
(5) Filed as an Exhibit (bearing the same exhibit number) to the
registrant's Form 10-K Report for its fiscal year ended September 30,
1993.
(6) Filed as an Exhibit (bearing the same exhibit number) to the
registrant's Form 10-Q Report for its fiscal quarter ended July 2, 1994.
(7) Filed as an Exhibit (bearing the same exhibit number) to the
registrant's Form 8-K Report dated November 23, 1994.
(8) Filed as an Exhibit (bearing the same exhibit number) to the
registrant's Form 10-K Report for its fiscal year ended September 30,
1994.
(9) Filed as an Exhibit (bearing the same exhibit number) to the
registrant's Form 10-K Report for its fiscal year ended September 30,
1995.
(10) Filed as an Exhibit (bearing the same exhibit number) to the
registrant's Form 10-K Report for its fiscal year ended September 30,
1996.
(11) Filed as an Exhibit (bearing the same exhibit number) to the
registrant's Form 8-K Report dated May 12, 1997.
(12) Filed as an Exhibit (bearing the same exhibit number) to the
registrant's Form 10-K Report for the fiscal year ended September 30,
1997.
<PAGE>
(13) Refiled herewith after confidential treatment request with respect to
certain schedules and exhibits was denied by the Commission. Confidential
treatment with respect to certain schedules and exhibits was granted.
<PAGE>
SIGNATURES
Pursuant to the requirements of Section 13 or 15(d) of the Securities Exchange
Act of 1934, the registrant has duly caused this report to be signed on its
behalf by the undersigned, thereunto duly authorized.
MECHANICAL TECHNOLOGY INCORPORATED
Date: August 13, 1998 By: /s/ George C. McNamee
------------------ ---------------------------------------
George C. McNamee
Chief Executive Officer
Pursuant to the requirements of the Securities Exchange Act of 1934, this report
has been signed below by the following persons on behalf of the registrant and
in the capacities and on the dates indicated.
SIGNATURE TITLE DATE
- --------- ----- ----
/s/ George C. McNamee Chairman of the Board of Directors 08/13/98
- -------------------------
George C. McNamee
/s/ Cynthia A. Scheuer Chief Financial Officer
- ------------------------- (Principal Financial and Accounting
Cynthia A. Scheuer Officer) "
/s/ Dale W. Church Director "
- -------------------------
Dale W. Church
/s/ Edward A. Dohring Director "
- -------------------------
Edward A. Dohring
/s/ Alan P. Goldberg Director "
- -------------------------
Alan P. Goldberg
/s/ E. Dennis O'Connor Director "
- -------------------------
E. Dennis O'Connor
/s/ Walter L. Robb Director "
- -------------------------
Dr. Walter L. Robb
/s/ Beno Sternlicht Director "
- -------------------------
Dr. Beno Sternlicht
<PAGE>
EXHIBIT A Exhibit 10.18
LIMITED LIABILITY COMPANY AGREEMENT
OF
PLUG POWER, LLC
A DELAWARE LIMITED LIABILITY COMPANY
THIS LIMITED LIABILITY COMPANY AGREEMENT is made as of this 27th day of
June, 1997, by those parties signing this Agreement on the signature page and
all other persons who become members of Plug Power, LLC ("Company") pursuant
to the terms of this Limited Liability Company Agreement.
RECITALS
WHEREAS, Edison Development Corporation, a Michigan corporation ("EDC"),
as the sole Member, formed Plug Power, LLC, a limited liability company, by
filing a certificate of formation ("Certificate") pursuant to the Delaware
Limited Liability Company Act (the "Act") with the Office of the Secretary of
State of the State of Delaware in accordance with the Act on June 11, 1997.
WHEREAS, the purpose of the Company is to develop, manufacture, market and
distribute fuel cell systems capable of delivering electricity or waste heat
and engage in related activities.
WHEREAS, EDC wishes to admit Mechanical Technology Inc., a New York
corporation ("MTI") as a Member of the Company.
WHEREAS, EDC and MTI have agreed to enter into this Limited Liability
Company Agreement to govern the operations and procedures of the Company.
NOW, THEREFORE, in consideration of the mutual covenants, conditions and
agreements set forth in this Limited Liability Company Agreement each Member
agrees as follows:
<PAGE>
ARTICLE I
DEFINITIONS
1. Definitions. For purposes of this Agreement, unless the language or
context clearly indicates that a different meaning is intended, the words,
terms and phrases defined in this section have the following meanings:
1.1 "Act" means the Delaware Limited Liability Company Act, 6 Del. C.
18-101, et seq., as amended from time to time.
1.2 "Adjusted Basis" means the basis of the Company's Property as determined
for federal income tax purposes pursuant to Code Section 1011.
1.3 "Adjusted Capital Account Deficit" means, with respect to any Member,
the deficit balance, if any, in such Member's Capital Account as of the end of
the relevant Taxable Year after giving effect to the following adjustments:
(a) Credit the Capital Account with any amounts such Member is
obligated to restore pursuant to any provisions of this Agreement or is
deemed obligated to restore pursuant to the penultimate sentences of
Regulations Sections 1.704-2(g)(1) and 1.704-2(i)(5); and
(b) Debit the Capital Account with the items described in Regulations
Sections 1.704-1(b)(2)(ii)(d)(4)-(6).
This definition of Adjusted Capital Account Deficit is intended to comply with
the provisions of Regulations Section 1.704-1(b)(2)(ii)(d) and shall be
interpreted consistently therewith.
1.4 "Affiliate" means, with respect to any Member, (i) any Person directly
or indirectly controlling, controlled by, or under common control with the
Member, (ii) any Person owning or controlling ten percent (10%) or more of the
outstanding voting interests of the Member, (iii) any officer, director, member
or general partner of the Member, or (iv) any Person who is an officer,director,
member, general partner, trustee, or holder of ten percent (10%) or more of the
voting interests of any Person described in clauses (i) through (iii) of this
sentence. For purposes of this definition, the term "controls," "is controlled
by," or "is under common control with" shall mean the possession, direct or
indirect, of the power to direct or cause the direction of the management and
policies of a person or entity, whether through the ownership or voting
securities by contract or otherwise.
1.5 "Agreement" means this Limited Liability Company Agreement, as it may
be amended from time to time under Article XVI.
<PAGE>
1.6 "Applicable Federal Rate" means the applicable federal rate as defined
in Code Section 1274.
1.7 "Awarded Contracts" means the Contract Proposals for which the Company
has received written confirmation from the other party to the Contract Proposal
by not later than April 1, 1999 that the Contract Proposal has been awarded to
the Company.
1.8 "Awarded Funds" means the funds received by the Company under the
Awarded Contracts as of April 1, 2001.
1.9 "Capital Account" means the account maintained for each Member in
accordance with Section 4.6.
1.10 "Capital Contributions" means, with respect to any Member, the amount
of money and the initial Gross Asset Value of any Property (other than money)
contributed to the Company under Section 4.1, 4.2, or 4.3, with respect to the
Membership Interest in the Company held by such Member.
1.11 "Certificate" means the Certificate of Formation of the Company to be
filed with the Office of the Secretary of State of the State of Delaware in
accordance with the Act.
1.12 "Class A Member" means any Person listed in Exhibit A, as it may be
amended from time to time.
1.13 "Class A Membership Interest" means all of the interest of a Class A
Member in the Company, including a Class A Member's: (a) right to a share of the
Profits and Losses of, and to receive distributions from, the Company; (b) right
to inspect the Company's books and records; and (c) Voting Rights and right to
participate in the management and affairs of the Company.
1.14 "Class B Member" means any Key Employee to whom the Management
Committee has issued a Class B Membership Interest and is listed in Exhibit B,
as it may be amended from time to time.
1.15 "Class B Membership Interest" means all of the interest of a Class B
Member in the Company, including a Class B Member's right to a share of the
Profits and Losses, and to receive distributions from, the Company, subject to
any vesting schedule which the Management Committee may establish in connection
with the issuance of a Class B Membership Interest to a Key Employee. No Class
B Member shall have any Voting Rights or right to participate in the management
or affairs of the Company. Class B Members shall have only such rights as
prescribed by the Act or this Agreement to inspect the Required Records. All
<PAGE>
Class B Membership Interests will be converted to Class A Membership Interests
on the earlier of the date on which the Company (or its successor) files a
registration statement for the public sale of interests in the Company (or
shares of a successor), under the Securities Act of 1933, upon approval by a
majority of the Class A Shares Issued of (a) a sale, lease, assignment,
transfer, or other conveyance of all or substantially all of the assets of the
Company, or (b) a merger, combination, or dissolution of the Company. The
conversion shall be reflected by amending Exhibit A to reflect the admission of
the Class B Members as Class A Members of the Company and holding the same
number of Class A Shares as the number of Class B Shares previously held by
such Class B. Members.
1.16 "Code" means the Internal Revenue Code of 1986, as amended.
1.17 "Contract Proposals" means the contract proposals set forth on Exhibit
D and which Contract Proposals are subject to the approval of the Management
Committee pursuant to Section 7.3(g). Contract Proposals shall not include
the contracts or contract proposals set forth in Exhibit E.
1.18 "Contribution Agreements" means the EDC Contribution Agreement and the
MTI Contribution Agreement.
1.19 "Company" means Plug Power, LLC, a Delaware limited liability company.
1.20 "Company Liability" means any enforceable debt or obligation for which
the Company is liable or which is secured by any Company Property.
1.21 "Company Minimum Gain" has the meaning set forth in Regulations Sections
1.704-2(b)(2) and 1.704-2(d) for "partnership minimum gain".
1.22 "Company Property" means any Property owned by the Company.
1.23 "Default Rule" means a rule stated in the Act:
(a) which structures, defines, or regulates the finances, governance,
operations, or other aspects of a limited liability company organized under
the Act; and
(b) which applies except to the extent it is modified or overridden
through the provisions of a limited liability company's certificate of
formation or limited liability company.
<PAGE>
1.24 "Depreciation" means (a) an amount equal to the depreciation,
amortization, or other cost recovery deduction allowable with respect to an
item of Company Property for each Taxable Year, or (b), if the Gross Asset
Value of an item of Company Property differs from its Adjusted Basis at the
beginning of a Taxable Year, Depreciation shall equal the amount of the
depreciation, amortization, or other cost recovery deduction for such Taxable
Year determined as if such Property's Adjusted Basis equalled its Gross Asset
Value.
1.25 "Disassociation" means the occurrence of any event which causes a Key
Employee Member to become a Disqualified Person.
1.26 "Disqualified Person" means a Key Employee Member who:
(a) terminates his/her employment with the Company for any reason
prior to age sixty (60);
(b) whose employment is terminated by the Company for any or no
reason at any time; or
(c) who makes an assignment for the benefit of creditors, files a
voluntary petition of bankruptcy, is adjudicated bankrupt or insolvent, or
an order for relief in any bankruptcy or insolvency proceeding is entered
against the Key Employee Member; files a petition seeking any reorganization,
arrangement, composition, readjustment, liquidation, or similar relief under
any statute, law or regulation; seeks, consents to, or acquiesces in the
appointment of a trustee for the Key Employee Member or all or any
substantial part of the Key Employee Member's properties; files an answer
or other pleading admitting or failing to contest the material allegations of
a petition filed against the Key Employee Member in any proceeding described
above; any proceeding filed against the Key Employee Member seeking
reorganization, arrangement, composition, a readjustment, liquidation,
dissolution, or similar relief under any statute, law, or regulation,
continues for one hundred twenty (120) days after the commencement thereof;
or the appointment of a trustee for the Key Employee Member or all or any
substantial part of the Member's properties without the Member's agreement
or acquiescence, which appointment is not vacated or stayed within one
hundred twenty (120) days or, if the appointment is stayed, continues for
one hundred twenty (120) days after the expiration of the stay during which
period the appointment is not vacated.
1.27 "EDC" means Edison Development Corporation, a Michigan corporation.
<PAGE>
1.28 "EDC Contribution Agreement" means the Contribution Agreement dated as
of the date of this Agreement between the Company and EDC.
1.29 "Gross Asset Value" means, with respect to any Property, the Property's
Adjusted Basis, except as follows:
(a) The initial Gross Asset Value of any Property contributed by a
Member shall be the gross fair market value of such Property, as determined
by the contributing Member and the Management Committee;
(b) The Gross Asset Value of all Company Property shall be adjusted to
equal its gross fair market value, as determined by the Management Committee,
at the following times: (i) the acquisition of an additional Membership
Interest by any new or existing Member in exchange for more than a de minimis
Capital Contribution; (ii) the distribution by the Company to a Member of
more than a de minimis amount of the Company Property as consideration for a
Membership Interest in the Company; and (iii) the liquidation of the Company
within the meaning of Regulations Section 1.704-1(b)(2)(ii)(g); provided,that
adjustments under clauses (i) and (ii) above shall be made at the sole
election of the Management Committee;
(c) The Gross Asset Value of Company Property distributed to a Member
shall be adjusted to equal its gross fair market value on the date of
distribution; and
(d) The Gross Asset Value of Company Property shall be adjusted to
reflect any adjustments pursuant to Code Section 734(b) or Code Section 743
(b), but only as required under Regulation Section 1.704-1(b)(2)(iv)(m) and
Section 5.2(g) of this Agreement.
If the Gross Asset Value of any Company Property has been determined or adjusted
pursuant to subsections (a), (b) or (d) of this definition, such Gross Asset
Value shall thereafter be adjusted by the Depreciation computed as provided in
Section 1.24(b).
1.30 "Involuntary Withdrawal" means, with respect to any Class A Member, the
occurrence of any of the following events:
(a) The Member: makes an assignment for the benefit of creditors,
files a voluntary petition of bankruptcy, is adjudicated bankrupt or
insolvent, or an order for relief in any bankruptcy or insolvency proceeding
is entered against the Member; files a petition seeking for the Member any
reorganization, arrangement, composition, readjustment, liquidation,
dissolution, or similar relief under any statute, law or regulation; seeks,
consents to, or acquiesces in the appointment of a trustee for, receiver for,
or liquidation of the Member, or of all or any substantial part of the
<PAGE>
Member's properties; or the Member files an answer or other pleading
admitting or failing to contest the material allegations of a petition filed
against the Member in any proceeding described above;
(b) Any proceeding against the Member seeking reorganization,
arrangement, composition, a readjustment, liquidation, dissolution, or
similar relief under any statute, law, or regulation, continues for one
hundred twenty (120) days after the commencement thereof, or the appointment
of a trustee, receiver, or liquidator for the Member or all or any
substantial part of the Member's properties without the Member's agreement or
acquiescence, which appointment is not vacated or stayed within one hundred
twenty (120) days or, if the appointment is stayed, continues for one hundred
twenty (120) days after the expiration of the stay during which period the
appointment is not vacated;
(c) If the Member is acting as a Member by virtue of being a trustee
of a trust, the termination of the trust;
(d) If the Member is a partnership or limited liability company, the
dissolution and commencement of winding up of the partnership or limited
liability company;
(e) If the Member is a corporation, the dissolution of the corporation
or the revocation of its charter; or
(f) If the Member is an estate, the distribution by the fiduciary of
the estate's entire interest in the Company.
1.31 "Key Employee" means any person designated by the Management Committee
as a Key Employee and as eligible to become a Class B Member.
1.32 "Management Committee" means the committee appointed under Section 7.1.
1.33 "Manager" means any Person appointed to the Management Committee by
a Class A Member. A Manager may sit on the board of directors or management
committee of another Person, even if the business of such Person, or that of any
Affiliate of such Person, is in direct or indirect competition with the fuel
cell business of the Company, provided such Manager refrains from taking any
action that would be in violation of the Manager's duties and obligations to
the Company and Members set forth in the Act or this Agreement, including,
without limitation, the duties and obligations set forth in Section 7.5.
<PAGE>
1.34 "Member" means any Person that is a Class A Member or a Class B
Member.
1.35 "Member Nonrecourse Deductions" has the meaning set forth in
Regulations Sections 1.704-2(i)(1) and (2).
1.36 "Member Nonrecourse Liability" has the meaning set forth in Regulations
Section 1.704-2(b)(4).
1.37 "Member Nonrecourse Liability Minimum Gain" means an amount, with
respect to each Member Nonrecourse Liability, equal to the Company Minimum Gain
that would result if such Member Nonrecourse Liability were treated as a
Nonrecourse Liability, determined in accordance with Regulations Section
1.704-2(i)(3).
1.38 "Membership Interest" means a Class A Membership Interest or a Class B
Membership Interest.
1.39 "MTI" means Mechanical Technology Incorporated, a New York corporation.
1.40 "MTI Contribution Agreement" means the Contribution Agreement dated as
of the date of this Agreement between the Company and MTI.
1.41 "Net Awarded Funds" means the Awarded Funds less any amounts the
Company is required under the terms of the Awarded Contracts to expend under
subcontracts with third parties for the performance of the Company's obligations
under the Awarded Contracts.
1.42 "Net Income" means the net income (or loss) of the Company, for any
applicable period of determination, determined in accordance with generally
accepted accounting principals, but excluding therefrom any gains or losses on
the sale or other disposition, not in the ordinary course of business, of
investments or fixed or capital asset.
1.43 "Net Operating Income" means the Net Income of the Company, for any
applicable period of determination, less the amount used to pay or establish
reserves for all Company expenses, debts, payments, capital improvements,
reinvestments, replacements and contingencies, all as determined by the
Management Committee.
1.45 "Nonrecourse Deductions" has the meaning set forth in Regulations
Section 1.704-2(b)(1).
1.46 "Nonrecourse Liabilities" has the meaning set forth in Regulations
Section 1.704-2(b)(3).
<PAGE>
1.47 "Person" includes a natural person, limited liability company,
corporation, partnership, limited partnership, joint venture, association,
business trust, estate, trust, enterprise, and any other legal entity.
1.48 "Profits and Losses" means an amount equal to the Company's taxable
income or loss for each Taxable Year, determined in accordance with Code Section
703(a) (for this purpose, all items of income, gain, loss, or deduction required
to be stated separately pursuant to Code Section 703(a)(1) shall be included in
taxable income or loss) adjusted as follows:
(a) Income exempt from federal income tax shall be added to such
taxable income or loss;
(b) Expenditures described in or treated as Code Section 705(a)(2)(B)
expenditures (pursuant to Regulations Section 1.704-1(b)(2)(iv)(i)) shall be
subtracted from such taxable income or loss;
(c) Adjustments to the Gross Asset Value of any Company Property
pursuant to subsection (b) or (c) of the "Gross Asset Value" definition shall
be taken into account as gain or loss from the disposition of such Property
for purposes of computing Profits and Losses;
(d) Gain or loss which is recognized for federal income tax purposes as
a result of any disposition of Property shall be computed by reference to the
Gross Asset Value of such Property, notwithstanding that its Adjusted Basis
differs from its Gross Asset Value;
(e) In lieu of the depreciation, amortization, and other cost recovery
deductions taken into account in computing such taxable income or loss, there
shall be taken into account Depreciation computed in accordance with the
provisions of Section 1.24; and
(f) Notwithstanding any other provision of this definition, any items
which are specially allocated pursuant to Section 5.2 or Section 5.3 shall
not be taken into account in computing Profits or Losses.
1.49 "Projected Net Awarded Funds" has the meaning set forth in Section 4.7.
1.50 "Property" means all property whether real or personal, tangible or
intangible (including goodwill), but excluding services and promises to
perform services in the future.
<PAGE>
1.51 "Regulations" means the permanent, temporary, proposed, or proposed and
temporary regulations promulgated under the Code, as such regulations may be
amended from time to time (including corresponding provisions of succeeding
regulations).
1.52 "Required Records" means those records that the Company is required to
maintain under Section 10.1 and under the Act.
1.53 "Share" means a single unit of either a Class A Membership Interest or
Class B Membership Interest.
1.54 "Shares Authorized" means the total number of Shares which may be issued
by the Management Committee or as otherwise provided in this Agreement with the
total number of authorized Shares for a Class A Membership Interest to equal
18,000,000 and the total number of Shares for a Class B Membership Interest to
equal 3,000,000.
1.55 "Shares Issued" means the number of Shares of Class A Membership
Interest issued to a Member as reflected on Exhibit A under the column "Shares"
or the number of Shares of Class B Membership Interest issued to a Member as
reflected on Exhibit B under the column "Shares".
1.56 "Taxable Year" means the taxable year of the Company as determined
pursuant to Code Section 706.
1.57 "Transfer" means, when used as a noun, any voluntary sale,hypothecation,
pledge, assignment, or other transfer, and, when used as a verb, means
voluntarily to sell, hypothecate, pledge, assign or otherwise transfer.
1.58 "Voluntary Withdrawal" means a Class A Member's disassociation with the
Company by means other than by ceasing to be a Member as a result of an
Involuntary Withdrawal.
1.59 "Voting Rights" means each Class A Member's right under the Act, the
Certificate, or this Agreement to cast the number of votes on any matter subject
to a vote or to the consent of Class A Members equal to the number of Shares
owned by the Class A Member.
1.60 "Withdrawn Member" means any Class A Member that is the subject of a
Voluntary or Involuntary Withdrawal.
<PAGE>
ARTICLE II
ORGANIZATION OF LIMITED LIABILITY COMPANY
2.1 Formation. The parties hereby organize a limited liability company
pursuant to the Act and the terms of this Agreement and, for that purpose, will
cause a Certificate of Formation to be filed with the Office of the Secretary
of State of Delaware.
2.2 Name. The name of the Company is Plug Power, LLC The Company may
also conduct its business under one or more assumed names duly approved by a
resolution of the Management Committee.
2.3 Term. The term of the Company will begin upon the acceptance of the
Certificate by the Office of the Secretary of State of Delaware and shall
continue in existence in perpetuity or until the Company shall be sooner
dissolved and its affairs wound up in accordance with the Act or this Agreement.
2.4 Purpose. The purpose of the Company is to plan, develop, finance,
patent, manufacture, market and distribute fuel cell systems capable of
delivering electricity or waste heat and related and ancillary services. The
Company shall have all the powers necessary or convenient to effect any such
purpose, including all powers given to a limited liability company under the
Act.
2.5 Initial Date. This Agreement is made on this 27th day of June, 1997.
2.6 Registered Office and Resident Agent. The registered office and
resident agent of the Company shall be as designated in the Certificate, as it
may be amended from time to time.
2.7 Principal Office. The principal office of the Company shall be located
at 968 Albany - Shaker Road, Latham, New York 12110 or such other location as
determined by the Management Committee.
2.8 Representations, Warranties, and Covenants of Members.
(a) Each non-individual Member represents, warrants and covenants that:
(i) It is validly organized and existing and in good standing
according to the laws of the state of its incorporation or organization,
and it is qualified to do business in every jurisdiction where the
failure to be so qualified would have a material adverse effect on its
ability to perform its obligations under this Agreement;
<PAGE>
(ii) This Agreement is duly authorized, executed and delivered on
behalf of such Member and constitutes the valid and binding obligations
of such Member enforceable in accordance with the terms of such
Agreement;
(iii) Neither the formation of the Company, the execution and delivery
of this Agreement (including all contracts or other agreements necessary
to carry out the purposes of this Agreement), nor the performance of the
obligations undertaken pursuant to this Agreement will contravene any
provision of, or constitute a default under, any indenture, mortgage,
debenture, or other agreement of such Member, any order of any court,
commission, or governmental agency having jurisdiction, or violate any
law or regulation affecting or governing the Member or the business
conducted by the Member; and
(iv) It will not willfully or knowingly violate any law or regulation
regarding the Company or its business.
(b) Each individual member represents , warrants and covenants that:
(i) This Agreement is the valid and binding obligation of such
Member;
(ii) Neither the entering into nor the performance of this Agreement
will violate the terms or conditions of any agreement or order binding
on the Member; and
(iii) He or she will not violate any law or regulation regarding the
Company or its business.
ARTICLE III
BACKGROUND OF THIS AGREEMENT
3.1 Intent of this Agreement. The parties to this Agreement have reached an
understanding concerning: (i) their business relationship with each other in
connection with the purpose of the Company; and (ii) the organization and
operation of the Company and its business. The parties intend this Agreement
to control the business and affairs of the Company, including the Company's
governance structure, the Company's dissolution, winding up, liquidation and
termination, and the relations between the Company's Members.
<PAGE>
3.2 Relationship of Agreement to Default Rules. Whether or not this
Agreement specifically refers to a Default Rule, if any provision of this
Agreement conflicts with a Default Rule, the provision of this Agreement shall
control and the Default Rule shall be modified or overridden accordingly.
3.3 Advice of Counsel. Each person signing this Agreement understands
that this Agreement contains legally binding provisions, has had the opportunity
to and has either consulted a lawyer or purposefully chosen not to consult a
lawyer.
ARTICLE IV
CONTRIBUTIONS AND CAPITAL ACCOUNTS
4.1 Initial Contributions.
(a) The initial Members, EDC and MTI, have entered into their
respective Contribution Agreements and made such Capital Contributions to
the Company as required thereunder each in exchange for the number of Shares
of Class A Membership Interest as set forth on Exhibit A; provided, however,
MTI's Membership Interest is subject to reduction as set forth in Section
4.7. The fair market value of EDC's and MTI's Capital Contributions and the
Adjusted Basis of each Capital Contribution are as set forth on Exhibit A.
(b) Admission of Class A Members. In the event that the Management
Committee decides to admit additional Class A Members, each new Class A
Member shall make as its Capital Contribution the contribution required by
the Management Committee in its written offer to such Person (as required
under Section 11.1) in exchange for the issuance of the number of Shares of
Class A Membership Interest set forth in such offer.
(c) Admission of Class B Members. In the event that the Management
Committee decides to admit Class B Members, each new Class B Member shall
make as its Capital Contribution the contribution required by the Management
Committee in its written offer to such Person (as required under Section
11.2) in exchange for the issuance of the number of Shares of Class B
Membership set forth in such offer.
4.2 Additional Capital Contributions.
(a) Except as provided in this Section 4.2, the Company has no right to
require any Member to make additional capital contributions. This section
<PAGE>
does not release any Member from any obligation or promise of future
performance that the Company has accepted as a Capital Contribution.
(b) EDC agrees that, subject to subsection 4.2(f), the Company may
call upon EDC, from time to time and as required, for additional cash
contributions from EDC in an amount not to exceed, in the aggregate,
$4,250,000.00 (each additional EDC capital contribution is an "EDC
Contribution"); provided, however, EDC shall not be required to make
additional capital contributions under this subsection during the twelve
(12) month period after the date of this Agreement. For each $1.00 of
additional capital contributions made by EDC, EDC shall receive one (1)
Share of Class A Membership Interest.
(c) Upon receipt of each EDC Contribution, the Company shall notify
MTI in writing of such contribution. Such notice shall include the amount
of the EDC Contribution, the date of the EDC Contribution, and the number
of Shares of Class A Membership interest issued to EDC in exchange for the
EDC Contribution. MTI shall have five (5) days after receipt of such notice
to request in writing an option to purchase ("Option") additional Shares of
Class A Membership Interest in an amount not to exceed the number of Shares
of Class A Membership Interest issued to EDC as set forth in the notice for
the option price set forth in the notice. Within five (5) days after receipt
of such request, the Company shall execute and deliver to MTI an option to
purchase Shares of Class A Membership Interest in the form attached as
Exhibit F ("Option Agreement - Contribution Match"). MTI's written request
for the Option shall constitute MTI's agreement to terms and conditions of
the Option Agreement - Contribution Match.
(d) If the Net Awarded Funds exceed $8,000,000.00, MTI shall receive
a credit equal to 18.75% of the amount of Net Awarded Funds in excess of
$8,000,000.00. Such credit shall be applied toward the purchase price
payable for any additional Shares purchased by MTI under any of the Option
Agreements - Contribution Match delivered to MTI under subsection 4.2(c).
If such credit is earned prior to expiration of the term of any such Option
Agreement, MTI may request the return of any cash payments made by MTI under
any such Option Agreement and prior to such expiration date up to the amount
of the credit in accordance with and subject to the terms and conditions of
any such Option Agreement.
(e) In the event MTI's Membership Interest is reduced pursuant to
subsection 4.7(b), MTI shall have until October 6, 1999 to request an option
to repurchase the Returned MTI Shares. Within five (5) days after receipt of
such written request, the Company shall issue to MTI an Option Agreement in
the form attached as Exhibit G ("Option Agreement - Returned Shares"). MTI's
<PAGE>
request for such option shall constitute MTI's agreement to the terms and
conditions of the Option Agreement - Returned Shares.
(f) The obligations of EDC to make additional capital contributions
under this Section 4.2 shall at all times be conditioned upon the Company
achieving the Milestones by the Milestone Dates, as such terms are defined
in and in accordance with the schedule set forth in Exhibit C.
4.3 Additional Capital Financing.
(a) In the event the Management Committee determines that the Company
needs additional financing to meet its working capital or capital investment
requirements, the Management Committee shall determine the structure and the
pricing of the debt and/or equity offering necessary to raise such additional
financing. If the Management Committee cannot agree on the structure and
pricing of such financing, such determination shall be made by a reputable,
nationally recognized investment banking firm, experienced in structuring
and pricing debt and/or equity offerings in similar industries, selected by
the Management Committee.
(b) If equity and/or debt financing is determined to be necessary
pursuant to (a) above and the nature of such transaction is predominantly to
raise capital in the form of cash, such equity and/or debt financing shall
be offered first to the Class A Members as voluntary additional Capital
Contributions. All such calls on the Class A Members for additional Capital
Contributions made pursuant to this Section 4.3 shall be in writing and
shall contain the following information:
(1) The total amount of the additional financing to be raised by the
Company and a description of the debt and/or equity structure and
pricing of such financing, including, but not limited to, the number of
Shares of Class A Membership Interest offered and the price for each
Share so offered;
(2) The amount of such additional financing that the Company
requests each Class A Member provide to the Company, including the
amount requested from the Class A Member to whom the request is
addressed, which amounts shall be in proportion to each Class A Members'
ownership of Shares of Class A Membership Interest;
(3) The purpose for which the funds are to be applied set forth in
reasonable detail; and
<PAGE>
(4) The date, not less than thirty (30) days after the written call,
on which funding of the additional financing shall be made by the Class
A Member, if such Class A Member elects to participate in the additional
financing.
All calls for additional financing made pursuant to this Section 4.3 shall
be voluntary and none of the Class A Members shall be obligated to
participate in any additional financing under this Section 4.3. In the event
a Class A Member elects not to participate in additional financing pursuant
to this Section 4.3, the Management Committee shall notify the remaining
Class A Members within fifteen (15) days after the expiration of the 30-day
period provided in Section 4.3(b)(4), and the remaining Class A Members shall
have the option to provide such non-participating Class A Member's additional
financing, pro rata in proportion to their ownership of Shares of Class A
Membership Interest, within thirty (30) days after receipt of notice from the
Management Committee.
(c) Any such equity and/or debt financing not raised through additional
financing from the Class A Members pursuant to Section 4.3(b) may be offered
to Class B Members or non-Members in accordance with the structure and
pricing determined pursuant to Section 4.3(a).
(d) The preemptive rights of the Class A Members pursuant to Section
4.3(b) shall not prohibit the Management Committee from issuing Shares of
Class A Membership Interest to non-Class A Members (i) in exchange for
services rendered in connection with any debt and/or equity financing
pursuant to this Section 4.3, or (ii) in connection with any transaction
the predominate purpose of which is to acquire all or any part of a Person
or any of its business or assets, whether structured as an asset purchase
or a purchase of stock or other equity.
4.4 No Right to Return of Capital Contributions. Except as otherwise
provided in this Agreement, no Member shall demand or receive a return of its
Capital Contributions or withdraw from the Company without the consent of all
Members. No Member shall be entitled to receive interest on its Capital
Contributions. Under any circumstance that requires a return of all or part
of any Capital Contribution, no Member shall have the right to receive any
Property other than money, except as otherwise provided in this Agreement.
4.5 Loans and Advances by Members.
(a) Interest Bearing Loans. If at any time or times the Company needs
additional funds which, for any reason, the Company does not raise through
an increase in the Company capital or through advances, the funds may be
borrowed from any one or more of the Members, at a rate of interest equal
<PAGE>
to the Applicable Federal Rate and on such payment terms as may be agreed
upon by the lending Member(s) and the Management Committee. These loans
shall be evidenced by promissory notes signed on behalf of the Company.
(b) Non-Interest Bearing Advances. Any Member may advance money
to the Company in excess of the Member's Capital Contribution. The amount
of the advance shall not increase the Member's Membership Interest, Capital
Account, or Shares, but rather the amount of the advance will be a demand
obligation of the Company to that Member and will be fully repaid, without
interest, before distributions, or any withdrawals of capital, are made with
respect to any Member.
4.6 Capital Accounts. The Company shall establish and maintain for each
Member, a Capital Account in accordance with the following provisions:
(a) To each Member's Capital Account there shall be credited such
Member's Capital Contributions, such Member's distributive share of Profits
and any items in the nature of gain which are specially allocated pursuant
to Section 5.2 or Section 5.3, and the amount of any Company Liabilities
assumed by such Member or which are secured by any Property distributed to
such Member;
(b) To each Member's Capital Account there shall be debited the amount
of cash and the Gross Asset Value of any Property distributed to such Member
pursuant to any provision of this Agreement, such Member's distributive
share of Losses and any items in the nature of expenses or losses which are
specifically allocated pursuant to Section 5.2 of Section 5.3, and the amount
of any liabilities of such Member assumed by the Company or which are secured
by any Property contributed by such Member to the Company; and
(c) In the event all or a portion of a Member's Shares are transferred
in accordance with the terms of this Agreement, the assignee shall succeed to
the Capital Account of the transferor to the extent it relates to the
transferred Shares.
The Capital Accounts shall be maintained in accordance with Section 1.704-1b
of the Regulations, and shall be interpreted and applied in a manner consistent
with such Regulations, notwithstanding any provision of this Agreement to the
contrary. In the event the Management Committee shall determine that it is
prudent to modify the manner in which the Capital Accounts, or any debits or
credits thereto are computed in order to comply with such Regulations, the
Management Committee may make such modification, provided that it is not likely
to have a material effect on the amounts distributed to any Member pursuant to
Article XIII hereof upon the dissolution of the Company.
<PAGE>
4.7 Reduction in MTI's Capital Contribution. It is anticipated that the Net
Awarded Funds from the Contract Proposals will be Eight Million Dollars
($8,000,000.00) ("Projected Net Awarded Funds"). If the Net Awarded Funds from
the Contract Proposals are less than the Projected Net Awarded Funds, MTI's
Capital Account shall be reduced by an amount equal to $1,750,000 multiplied by
the percentage determined by dividing the difference between the Projected Net
Awarded Funds and the Net Awarded Funds by the Projected Net Awarded Funds
("Research Debit"). The number of Shares of Class A Membership Interest held
by MTI shall be reduced by one Share for each $1.00 of the Research Debit
("Returned MTI Shares"). Adjustments will be made to MTI's Capital Account and
Shares at the close of business on October 1, 1999 to reflect the Net Awarded
Funds. If greater than one hundred percent (100%) of the Projected Net Awarded
Funds are received by the Company, no adjustments will be made to MTI's Capital
Account or Shares except as provided in subsection 4.2(d).
4.8 Requested Registration. At any time following five (5) years after the
date of this Agreement, upon the request of Class A Members holding not less
than twenty-five (25%) of the Shares of Class A Membership Interest entitled to
vote ("Initiating Members"), the Company shall retain an independent reputable
and nationally recognized investment banking firm ("Advisor") experienced in
advising on the registration of Shares of businesses similar to the Company and
acceptable to the Company and the Initiating Member, to propose to the Company
the optimal time to effect registration of the Shares held by the Company and
the offering price for such Company Shares. The Advisor shall make such proposal
in a writing ("Proposal") delivered to the Company within sixty (60) days after
the Advisor is retained by the Company. The Company shall provide the Class A
Members with copies of the Advisor's Proposal within thirty (30) days after
receipt of the Proposal. If the Advisor's Proposal recommends pursuing
registration at that time, the Initiating Members may require the Company to
effect registration of the Company Shares in accordance with the Advisor's
Proposal. If necessary in order to effect registration of the Company Shares
in accordance with the Advisor's Proposal, the Members authorize the Company to
increase the number of Shares Authorized to an amount sufficient to effect the
registration, and authorize the Company to merge the Company into a Delaware
corporation and exchange their Shares in the Company for an equal number of
Shares in the surviving Delaware corporation.
In the event the advisor's proposal recommends against effecting registration
at that time, the Company shall not be obligated to pursue such registration,
and the Member shall not be entitled request the Company to retain an advisor
again for the purpose set forth above for a period of twelve (12) months after
the date of the advisor's proposal recommending against effecting a registration
at that time.
<PAGE>
ARTICLE V
ALLOCATIONS AND DISTRIBUTIONS
5.1 Allocations of Profits and Losses from Operations.
(a) Profits. After giving effect to the special allocations in Sections
5.2 and 5.3, Profits shall be allocated among the Members in proportion to
the number of Shares owned by each Member and the number of Shares Issued.
(b) Losses. After giving effect to the special allocations in Sections
5.2 and 5.3, Losses shall be allocated among the Members in proportion to the
number of Shares owned by each Member and the number of Shares Issued.
5.2 Special Allocations. The following special allocations shall be made in
the following order:
(a) Minimum Gain Chargeback. To the extent and in the manner provided
in Section 1.704-2(f) of the Regulations, if there is a net decrease in
Company Minimum Gain during any Taxable Year, each Member shall be specially
allocated items of Company income and gain for such fiscal year (and, if
necessary, subsequent fiscal years) in an amount equal to such Member's share
of the net decrease in Company Minimum Gain, determined in accordance with
Section 1.704-2(g) of the Regulations. Allocations pursuant to the previous
sentence shall be made in proportion to the respective amounts required to be
allocated to each Member pursuant thereto. This Section 5.2(a) is intended
to comply with the minimum gain chargeback requirement in Section 1.704-2(f)
of the Regulations and shall be interpreted consistently therewith.
(b) Member Minimum Gain Chargeback. To the extent and in the manner
provided in Section 1.704-2(i)(4) of the Regulations, if there is a net
decrease in Member Minimum Gain attributable to a Member Nonrecourse
Liability during any fiscal year, each Member who has a share of the Member
Minimum Gain attributable to such Member Nonrecourse Liability shall be
specially allocated items of Company income and gain for such fiscal year
(and, if necessary, subsequent fiscal years) in an amount equal to such
Member's share of the net decrease in Member Minimum Gain attributable to
such Member Nonrecourse Liability, determined in accordance with Regulations
Section 1.704-2(i)(4). Allocations pursuant to the previous sentence shall
be made in proportion to the respective amounts required to be allocated to
each Member pursuant thereto. The items to be so allocated shall be
determined in accordance with Sections 1.704-2(i)(4) an 1.704-2(j)(2) of the
Regulations. This Section 5.2(b) is intended to comply with the minimum gain
chargeback requirement in Section 1.704-2(i)(4) of the Regulations and shall
be interpreted consistently therewith.
<PAGE>
(c) Qualified Income Offset. In the event any Member unexpectedly
receives any adjustments, allocations, or distributions described in Treasury
Regulation Sections 1.704(b)(2)(ii)(d)(4), 1.704-1(b)(2)(ii)(d)(5), or 1.704-
1(b)(2)(ii)(d)(6), items of Company income and gain shall be specifically
allocated to each such Member in an amount and manner sufficient to
eliminate, to the extent required by the Treasury Regulations, the Adjusted
Capital Account Deficit of such Member as quickly as possible, provided that
an allocation pursuant to this Section 5.2(c) shall be made only if and to
the extent that such Member would have an Adjusted Capital Account Deficit
after all other allocations provided for in this Section 5 have been
tentatively made as if this Section 5.2(c) were not in this Agreement.
(d) Gross Income Allocation. In the event any Member has an Adjusted
Capital Account Deficit at the end of any fiscal year, each such Member shall
be specially allocated items of Company income and gain in the amount of such
excess as quickly as possible, provided that an allocation pursuant to this
Section 5.2(d) shall be made only if and to the extent that such Member would
have Adjusted Capital Account Deficit after all other allocations provided
for in this Section 5 have been made as if Section 5.2(c) and this Section
5.2(d) were not in the Agreement.
(e) Nonrecourse Deductions. Nonrecourse Deductions shall be allocated
among the Members in proportion to the number of Shares owned by each Member
to the number of Shares Issued.
(f) Member Nonrecourse Deductions. Any Member Nonrecourse Deductions
for any fiscal year shall be specially allocated to the Member who bears the
economic risk of loss with respect to the Member Nonrecourse Liability to
which such Nonrecourse Deductions are attributable in accordance with
Regulations Section 1.704-2(i)(1).
(g) Section 754 Adjustments. If an adjustment to the Adjusted Basis of
any Company Property pursuant to Code Section 734(b) or Code Section 743(b)
is required, pursuant to Regulations Section 1.704-1(b)(2)(iv)(m)(2) or
Regulations Section 1.704-1(b)(2)(iv)(m)(4), to be taken into account in
determining Capital Accounts as the result of a distribution to a Member in
complete liquidation of his or her Membership Interest in the Company, the
amount of such adjustment shall be treated as an item of gain or loss and
shall be specially allocated to the Members in proportion to the number of
Shares owned by each Member and the number of Shares Interest in the event
that Regulations Section 1.704-1(b)(2)(iv)(m)(2) applies, or to the Member
to whom such distribution was made in the event that Regulations Section
1.704-1(b)(2)(iv)(m)(4) applies.
5.3 Curative Allocations. The allocations set forth in Sections 5.2(a)-5.2
(g) hereof (the "Regulatory Allocations") are intended to comply with certain
requirements of the Regulations. It is the intent of the Members that, to the
<PAGE>
extent possible, all Regulatory Allocations shall be offset either with other
Regulatory Allocations or with special allocations of other items of Profits or
Losses pursuant to this Section 5.3. Therefore, notwithstanding any other
provision of this Section 5 (other than the Regulatory Allocations), the
Management Committee shall make such offsetting special allocations of items of
Profit or Loss in whatever manner it determine(s) appropriate so that, after
such offsetting allocations are made, each Member's Capital Account balances,
to the extent possible, are equal to the Capital Account balance such Member
would have had if the Regulatory Allocations were not part of the Agreement
and all items of Profit and Loss were allocated pursuant to Section 5.1.
5.4 Tax Allocations: Code Section 704(c). In accordance with Code Section
704(c) and the Regulations thereunder, Profits and Losses which relate to any
Property contributed by a Member to the Company shall, solely for tax purposes,
be allocated among Members so as to take account of any variation between the
Property's Adjusted Basis and its initial Gross Asset Value.
ARTICLE VI
DISTRIBUTIONS
6.1 Distributions of Net Operating Income. Subject to the limitations of
Section 6.3 and the Act, the Management Committee shall distribute (within
seventy-five (75) days after the end of each fiscal year of the Company) to the
Members in proportion to the number of Shares owned by each Member and the
number of Shares Issued, the lesser of (a) Net Operating Income for the
preceding fiscal year of the Company, or (b) an amount equal to the total
expected federal and Michigan income tax liability (determined at the highest
individual federal and Michigan marginal income tax rates) of all Members on
account of their Membership Interest in the Company during the preceding fiscal
year. If the Net Operating Income for the preceding fiscal year of the Company
exceeds the required distribution amount under this Section 6.1, then, in the
sole discretion of the Management Committee and subject to the limitations of
Section 6.3 and the Act,the Management Committee may make additional
distributions of Net Operating Income to the Members in proportion to the number
of Shares owned by each Member to the number of Shares Issued.
6.2 Amounts Withheld. All amounts required to be withheld pursuant to the
Code or any provision of any state or local tax law with respect to any payment,
distribution, or allocation to the Members, shall be treated as amounts
distributed to the Members pursuant to this Article VI. The Management
Committee is authorized to withhold from distributions, or with respect to
allocations, to the Members and to pay over to any federal, state or local
government any amounts required to be so withheld pursuant to the Code or any
provision of any other federal, state, or local law.
<PAGE>
6.3 Limitation on Distributions. No Member shall be entitled to a
distribution pursuant to this Article VI, if, after giving effect to the
distribution, the Company would not be able to pay its debts as they become
due in the usual course of business, or if the Company's total assets would be
less than the sum of its total liabilities. A determination that a
distribution is not prohibited under this subsection or the Act may be based
either on financial statements prepared on the basis of accounting practices
and principles that are reasonable under the circumstances or on a fair
valuation or other method that is reasonable under the circumstances. Unless
otherwise agreed by the Members, a Member shall only be entitled to the
distributions provided in this Agreement.
ARTICLE VII
POWERS, DUTIES, LIABILITIES, REIMBURSEMENT
AND DECISIONS OF MANAGEMENT COMMITTEE
7.1 Management of Business.
(a) The Company shall be managed by a Management Committee. Except
as provided in subsection 7.1(b), the Management Committee shall be comprised
of six Managers, three (3) Managers appointed by EDC and three (3) Managers
appointed by MTI.
(b) In the event the number of Shares of Class A Membership Interest
held by EDC is greater than (i) the number of Shares of Class A Membership
Interest held by MTI and the MTI Affiliates, in the aggregate, plus (ii) the
number of Shares of Class A Membership Interest for which MTI and the MTI
Affiliates, in the aggregate, hold unexpired options to purchase pursuant to
Section 4.2(c) or (e) ("Option Shares"), EDC shall be entitled to appoint two
(2) additional Managers to the Management Committee. Thereafter, the
Management Committee shall be comprised of eight (8) Managers, five (5)
Managers appointed by EDC and three (3) Managers appointed by MTI. If the
number of Shares and Option Shares of Class A Membership Interest held by
MTI and the MTI Affiliates, in the aggregate, subsequently become equal to
the number of Shares of Class A Membership Interest held by EDC, EDC shall
cause two (2) of the Managers appointed by EDC to resign or be removed, and
thereafter the Management Committee shall be comprised of six (6) Managers,
three (3) appointed by EDC and three (3) appointed by MTI.
(c) The Managers shall serve for a term of three (3) years, unless a
Manager is sooner removed or resigns pursuant to either this Section 7.1 or
Section 7.9. The duties, compensation and benefits, if any, of the Managers
shall be determined by reference to the provisions of this Agreement, the
Act, and, if applicable, resolutions adopted by the Management Committee.
7.2 Authority of Management Committee.
<PAGE>
(a) Subject to the limitations imposed by the Act and this Agreement,
the Management Committee shall have full and exclusive authority to conduct,
manage and control all of the business affairs of the Company and to make
all decisions regarding the business of the Company. In furtherance of such
authority, the Management Committee shall have all of the rights and powers
provided in this Section 7.2, as amended from time to time, and, except as
otherwise provided by law or this Agreement, any action taken by the
Management Committee shall constitute the act of and serve to bind the
Company.
(b) The Management Committee is hereby granted the exclusive right,
power and authority to:
(1) Manage, operate, maintain and develop the business of the
Company;
(2) Approve any loan agreements or instruments evidencing debt
incurred by the Company; the selection of a bank in which Company funds
shall be deposited; the selection of legal counsel; the approval of
Company tax returns; and any other matters which the Management
Committee shall deem to be of fundamental importance to the Company;
(3) Execute any and all agreements, contracts, documents,
certifications, instruments, notes, mortgages, assignments and security
agreements necessary or convenient in connection with the operation of
the business of the Company;
(4) Borrow money and issue evidences of indebtedness in furtherance
of any or all of the purposes of the Company, and to secure the same by
mortgage, pledge or other lien on any Company Property;
(5) Protect and preserve the title and interest of the Company with
respect to the assets at any time owned or acquired by the Company;
(6) Collect all amounts due to the Company, and otherwise to
enforce all rights of the Company, including all of such rights inuring
to the benefit of the Company under any agreement for the management of
its assets, and, in that connection, to retain counsel and institute
such suits or proceedings, in the name and on behalf of the Company, or,
if the Management Committee shall so determine, in the name of the
Members; provided, however, that the Members reserve the right to retain
separate counsel to defend against any lawsuits which name the Members
as separate parties to such proceedings;
(7) Enter into contracts with and pay fees or cause others to pay
fees to any person or entity;
<PAGE>
(8) Enter into agreements for the performance of legal, accounting,
bookkeeping, tax, administrative reporting, receiving and paying of
funds and other management services necessary or appropriate for the
administration of the Company with any Person;
(9) Defend and hold harmless any Members against any claim in
connection with the Company business other than a claim by another
Member for breach of an obligation under this Agreement;
(10) Designate and appoint one or more employees of or agents for
the Company who shall have such authority as may be conferred upon
them by the Management Committee, and who may perform any of the duties
and exercise any of the powers and authority conferred upon the
Management Committee hereunder, including, without being limited to,
the designation of an agent for service of process on the Company and
one or more agents as authorized signatories on any bank accounts
maintained by the Company;
(11) Invest and reinvest Company funds to the extent not currently
required, in its sole discretion, for Company operating capital;
(12) To the extent that funds of the Company are available and the
Management Committee deems it appropriate, make distribution to the
Members in accordance with the provisions of this Agreement;
(13) Perform all normal business functions, and otherwise operate
and manage the business and affairs of the Company, in accordance with
this Agreement;
(14) Engage in any kind of activity and perform and carry out
contracts of any kind necessary to, or in connection with or convenient
or incidental to, the accomplishment of the purposes of the Company, so
long as said activities and contracts may be lawfully carried on or
performed by a limited liability company under the laws of the State of
Delaware;
(15) Offer Shares that are Shares Authorized but unissued for sale
for not less than fair market value to Persons that are identified by
the Management Committee as prospective Members or as Key Employees, to
enter into capital contribution agreements with such Persons in the
name of and on behalf of the Company, to admit such Persons as Members
upon receipt of the agreed upon capital contribution and to amend
Exhibit A or B as applicable, to reflect the admission of such Persons
as Members and the issuance of Shares to such Persons; and
(16) Request additional capital contributions consistent with Section
4.2.
<PAGE>
7.3 Limitations on Management Committee and Managers. Notwithstanding the
foregoing and any other provision contained in this Limited Liability Company
Agreement to the contrary, no act shall be taken, sum expended, decision made,
obligation incurred or power exercised by the Management Committee or any
Manager on behalf of the Company, unless approved by the Class A Members holding
at least seventy percent (70%) of the Shares of Class A Membership Interest
entitled to vote with respect to those decisions set forth below:
(a) Any sale, lease, assignment, transfer, or other conveyance of all or
substantially all of the assets of the Company or any merger,consolidation,
dissolution, divestiture or winding-up of the Company;
(b) Any amendment or restatement of the Certificate or this Limited
Liability Company Agreement;
(c) Any material change in the character of the business and affairs of
the Company;
(d) Any change in the number of Shares Authorized for a Class A
Membership Interest;
(e) The commission of any act which would make it impossible for the
Company to carry on its ordinary business and affairs;
(f) The commission of any act that would contravene any provision of the
Certificate or this Limited Liability Company Agreement or the Act; or
(g) The approval of any Contract Proposal.
7.4 Compensation; Expenses.
(a) Except as otherwise provided in this Section 7.4, no Manager shall
receive any salary, fee, or draw for services rendered to or on behalf of the
Company, nor shall any Manager be reimbursed for any expenses incurred by
such Manager on behalf of the Company.
(b) Each Manager may charge the Company, and shall be reimbursed,
for any reasonable direct expenses incurred in connection with the Company's
business and in compliance with any procedures and requirements of the
Company relating to such reimbursement.
7.5 Manager Duties.
(a) Except as provided in subsection 7.5(b) and Section 7.6, each
Manager shall devote such time to the Company business as may be necessary
<PAGE>
to adequately and properly manage and supervise the Company business and
affairs in an efficient and workmanlike manner and discharge his or her
duties as a Manager in good faith, with the care an ordinarily prudent
person would exercise in similar circumstances, and in a manner he or she
believes to be in the best interest of the Company. Notwithstanding the
foregoing, the failure of any Manager appointed by EDC to approve a Contract
Proposal pursuant to Section 7.3(g) shall not constitute a breach of any duty
imposed upon such Manager under this Agreement or the Act, and MTI and its
affiliates are forever barred from bringing, and hereby waive any right to
bring, any action or suit against such Manager for failure to approve a
Contract Proposal.
(b) Nothing in this Agreement shall be deemed to restrict in any way the
rights of a Manager, or of any Affiliate of a Manager, to conduct any other
business or activity whatsoever, and no Manager shall be accountable to the
Company or to any Member with respect to that business or activity even if
the business or activity competes with the Company's business. The
organization of the Company shall be without prejudice to their respective
rights (or the rights of their respective Affiliates) to maintain, expand,
or diversify such other interests and activities and to receive and enjoy
profits or compensation therefrom.
(c) (1) Each Manager shall deal in confidence with all matters
involving the Company until such time as there has been a general public
disclosure. Subject to subsection 7.5(c)(2), no Manager shall disclose or
use any Confidential Information, Inventions or Confidential Documents of
the Company (as such terms are defined below) except for the direct or
indirect benefit of the Company.
(2) In the event a Manager receives a discovery request (including,
without limitation, document requests, subpoenas, notices of deposition,
orders to produce documents, information or individuals) in a judicial action
or an arbitration (referred to hereinafter as "Discovery Requests"), each
Manager agrees that:
(A) The Manager will notify the Company of the Manager's
receipt of the Discovery Request within a reasonable time following
such receipt to allow the Company to seek an order preventing or
limiting the disclosure by the Manager of the Confidential
Information from a tribunal having jurisdiction over the Discovery
Request.
(B) The Manager will not take any action, including responding
to the Discovery Requests before the response time, that would
interfere with any efforts by the Company to pursue such legal
remedies preventing or limiting disclosure of the Confidential
Information.
(i) In the event of a Discovery Request other than a
deposition request, this means that the Manager will not
<PAGE>
respond until the date set forth in the Discovery Request,
thus giving the Company full opportunity to obtain an order
modifying the Manager's obligation to respond or to obtain
an agreement from the party making the Discovery Request that
the Manager is not obligated to respond at that time.
(ii) In the event of a deposition in which a question
is posed requiring the disclosure of Confidential Information,
this means that the Manager will not disclose the Confidential
Information as long as the Company immediately requests an
adjournment of the deposition in order to obtain direction
from a tribunal having jurisdiction over the Discovery Request
as to whether and under what circumstances the Manager can
disclose the Confidential Information. If the parties to the
action in which the deposition is taken do not permit the
Company to attend the deposition of the Manager, and a
question requiring the disclosure of Confidential Information
is asked, the Manager agrees that prior to disclosing the
Confidential Information it will request an adjournment of the
deposition in order to inform the Company of the question and
to give the Company an opportunity to seek direction from
such a tribunal.
(C) To the extent the Company fails to request or is unable
to obtain an order from a tribunal having jurisdiction over the
Discovery Request, nothing shall prevent the Manager from
responding to a Discovery Request in the manner it considers
appropriate.
(3) Each Manager acknowledges the disclosure of Confidential
Information by the Managers or a breach of the provisions contained in this
subsection 7.5(c) will give rise to irreparable injury to the Company or to
the Company's clients and customers, which injury could not be adequately
compensated for in damages. Accordingly, the Company or such other party
may seek and obtain injunctive relief against the breach or threatened breach
of the Manager's agreements and undertakings contained in this subsection
7.5(c), in addition to any other legal remedies which may be available to the
Company or such other party.
(4) For purposes of this subsection 7.5(c),the terms defined below
shall have the following meanings:
(A) "Confidential Documents" shall mean any papers,
blueprints, records, notebooks, computer disks, computer tapes, or
other similar repositories containing Confidential Information,
<PAGE>
including copies thereof which have been prepared for the benefit
of the Company or its employees or independent contractors, whether
prepared by, its employees, independent contractors, or outside
parties.
(B) "Confidential Information" shall mean information or
knowledge not readily ascertainable by the general public or the
industry in which the Company is or may become engaged regarding
the Company's products, systems, processes, Inventions, designs,
research, development, manufacture, purchasing, accounting,
engineering, marketing, client or customer lists and information,
merchandising and selling, and Confidential Documents.
(C) "Inventions" shall mean discoveries, concepts, and ideas,
whether patentable or not, including but not limited to the design,
specification and technology of systems, processes, methods,
formulas, and techniques, as well as improvements or modifications
of processes, systems, methods, formulas and techniques which are
not readily ascertainable by the general public or the industry in
which the Company is or may become engaged.
(d) When a Manager, directly or indirectly, has a financial or personal
interest in a contract or transaction to which the Company is to be a party,
the Manager is considered to be "interested" in the matter. An interested
Manager shall disclose that interest and describe to the Management Committee
all material facts concerning the matter with complete accuracy and
inclusiveness. Provided such full and accurate disclosure is made, the
interested Manager shall be allowed to discuss and vote on the matter and any
such contract or transaction authorized by the Management Committee shall not
be later subject to revocation on the basis that the terms of such contract
or transactions were not fair and commercially reasonable.
7.6 Additional Duties and Obligations of Management Committee
(a) The Management Committee shall take all actions which may be
necessary or appropriate for the continuation of the Company's valid
existence as a limited liability company under the laws of the State of
Delaware.
(b) The Management Committee shall use its best efforts to meet all
current and future federal income tax requirements to assure that the
Company will not fail to be classified for federal income tax purposes as a
partnership rather than as an association taxable as a corporation.
(c) The Management Committee shall direct the affairs of the Company
in the best interest of the Company, including the safekeeping and use of
all Company funds and assets and the use thereof for the benefit of the
Company.
<PAGE>
(d) The Management Committee shall, from time to time, prepare and file
any amendment to the Company's Certificate and any other similar documents
which are required by law to be filed and recorded for any reason in such
office or offices as are required under the laws of the State of Delaware.
7.7 Management Committee Meetings and Decisions.
(a) A meeting of the Management Committee shall be held every month,
on the 15th day of each month or on such other day of the month as
determined by the Management Committee.
(b) All decisions made by the Management Committee shall require a vote
of not less than fifty-one percent (51%) of all of the Managers. All actions
shall be taken only at a meeting called at least five (5) days in advance of
the meeting attended by not less than fifty-one percent (51%) of all of the
Managers.
(c) Actions of the Management Committee may also be taken by written
consent of all of the Managers.
(d) A Manager may participate in a meeting with the same effect as being
present in person by a conference telephone or by other similar
communications equipment through which all persons participating in the
meeting may communicate with the other participants.
7.8 Removal or Resignation of Manager.
(a) The Class A Members, by a vote of at least seventy percent (70%),
may remove a Manager for cause. For purposes of this Agreement, "cause"
shall mean the Manager's gross negligence, willful misconduct, or bad faith
in the performance of the material duties and obligations of the Manager
under this Agreement, or the knowing violation of statutory obligations or
fraud by the Manager.
(b) A Manager may be removed only at a meeting called by the Class A
Members in accordance with the procedures required under Article VIII.
Notice of the meeting shall be given to all Class A Members and the Manager.
Further, the notice shall include notice of the specific allegations against
the Manager which form the basis for the proposed removal. At the meeting
called for the removal of the Manager, the Manager shall be given a full
opportunity to be heard and to address the specific allegations against the
Manager.
(c) A Manager may be removed at any time, with or without cause, by
the Class A Member that appointed the Manager under Section 7.1. The Class
A Member taking such action shall provide prompt written notice of such
action to all other Class A Members.
<PAGE>
(d) Except as provided under Section 7.9(a) or 7.9(c), a Manager may not
be removed.
(e) A Manager may resign by providing written notice to all Class A
Members not less than forty-five (45) days prior to the effective date of
such resignation. The resignation shall take effect forty-five (45) days
after the date the Manager gives notice to all Class A Members, or at such
later date stated in the notice of resignation.
7.9 Replacement Manager. A replacement Manager for any Manager that has
been removed or has resigned shall be appointed by the Class A Member that had
appointed the removed or resigning Manager within ten (10) business days of the
date of removal or the effective date of resignation. The Class A Member
appointing the replacement Manager shall provide prompt written notice to all
other Class A Members of the name and address of the replacement Manager.
Once appointed, the replacement Manager will serve the unexpired term of and
will have all of the powers and duties of the Manager that resigned or was
removed.
7.10 Officers of the Company.
(a) Power to Elect Officers. The Management Committee shall select a
president, treasurer, and a secretary, and may select a chairman, one or more
vice presidents, one or more assistant treasurers, and one or more assistant
secretaries, and any other officers that the Management Committee deems in
the best interest of the Company which may be appointed and their duties
prescribed by resolution of the Management Committee.
(b) Removal of Officers and Agents. Any officer or agent may be
removed by the Management Committee whenever, in the judgment of the
Management Committee, the business interests of the Company will be served
thereby.
(c) Delegation of Powers. For any reason deemed sufficient by the
Management Committee, whether occasioned by absence or otherwise, the
Management Committee may delegate all or any of the powers and duties of any
officer to any other officer or Manager.
(d) Powers and Duties of Officers.
(1) Chairman. The Chairman shall be selected by and from the
membership of the Management Committee. He or she shall conduct all
meetings of the Management Committee and shall perform all duties
incident thereto.
<PAGE>
(2) President. The President shall have general and active
management of the business of the Company and shall see that all orders
and resolutions of the Management Committee are carried into effect. He
or she shall be ex-officio, a member of all standing committees, and
shall have the general powers and duties of supervision and management
usually vested in the office of president of a corporation. During the
prolonged absence or disability of the President, or the vacancy of his
or her office, the below listed individuals shall perform the duties and
exercise the power of President, until a successor is appointed, as
follows: Vice President, and if he or she be not available, then
whosoever shall be appointed by the Management Committee.
(3) Vice President. The duties which the Vice Presidents are to
perform shall be designated by the Management Committee.
(4) Secretary. The Secretary shall attend all meetings of the
Members and shall preserve in the books of the Company true minutes of
the proceedings of all such meetings. He or shall safely keep in his or
her custody the seal of the Corporation, and shall have authority to
affix the same to all instruments where its use is required. He or she
shall give all notices required by statute, by-law or resolution. He or
she shall perform such other duties as may be delegated to him or her
by the Management Committee.
(5) Treasurer. The Treasurer shall have custody of all Company
funds and securities, and shall keep in books belonging to the Company
full and accurate accounts of all receipts and disbursements; he or she
shall deposit all monies, securities and other valuable effects in the
name of the Company in such depositories as may be designated for that
purpose by the Management Committee. He or she shall disburse the funds
of the Company as may be ordered by the Management Committee, taking
proper vouchers for such disbursements and shall render to the President
and directors at regular meetings of the Management Committee, and
whenever requested by them, an account of all his or her transactions as
Treasurer, and of the financial condition of the Management Committee.
If required by the Management Committee, he or she shall deliver to the
President of the Company, an shall keep in force, a bond in form,
amount, and with a surety or sureties satisfactory to the Management
Committee, conditioned for faithful performance of the duties of his or
her office, and for restoration to the Company in case of his or her
death, resignation, retirement or removal from office, of all books,
papers, vouchers, money and property of whatever kind in his or her
possession or under his or her control belonging to the Company.
<PAGE>
(6) Assistant Secretary and Assistant Treasurer. The Assistant
Secretary, in the absence or disability of the Secretary, shall perform
the duties and exercise the powers of the Secretary. The Assistant
Treasurer, in the absence or disability of the Treasurer, shall perform
the duties and exercise the powers of the Treasurer.
(e) Each officer of the Company shall discharge his or her duties as an
officer in good faith, with the care an ordinarily prudent person in a like
position would exercise in similar circumstances and in a manner he or she
reasonably believes to be in the best interests of the Company. In
discharging his or her duties, an officer is entitled to rely in good faith
upon the records of the Company and such information, opinions, reports or
statements provided to any such officer by any other person as to matters
the officer reasonably believes are within such other person's professional
or expert competence and who has been selected with reasonable care by or
on behalf of the Company.
7.11 No Authority of Members. No Member is an agent of the Company or has
the authority to make any contracts, enter into any transactions, or make any
commitments on behalf of the Company, except that, prior to the first meeting
of the Management Committee, either Member may execute any agreement, document
or instrument required to be executed by the Company under this Agreement, the
EDC Contribution Agreement or the MTI Contribution Agreement.
7.12 Actions Against Members for Breach of Contract. In the event that
any Manager or Officer of the Company brings to the attention of the Management
Committee any allegation of a breach of a contract between a Member and the
Company, the Management Committee shall evaluate the validity of the allegations
and vote on whether or not to take action against the subject Member. No
Manager appointed by the subject Member shall be entitled to vote on any
resolution to pursue any claim or take any action against the subject Member.
The vote taken at the meeting shall be preliminary and subject to the obligation
of the Management Committee to provide the Company's independent public
accountants with a written report of their evaluation and assessment of the
allegation of a breach by the subject Member of a contract with the Company.
Such report shall be delivered by the Management Committee to such accountants
within five (5) business days of such meeting. The Company's independent public
accountants shall provide the Management Committee with a written report
expressing their views and opinions with respect to the Management Committee's
evaluation and assessment. Such report shall be provided to the Management
Committee within ten (10) business days following such accountants' receipt of
the Management Committee's written report and for the purpose of reviewing the
Company's independent public accountant's written report. The Management
Committee shall then convene a meeting for the specific purpose of determining
what action to take with regard to the alleged breach of contract between the
subject Member and the Company. At such meeting, no Manager appointed by the
subject Member shall be entitled to vote on any resolution regarding whether or
not to pursue a claim or other action against the subject Member.
<PAGE>
ARTICLE VIII
ACTION OF MEMBERS AND MEMBER MEETINGS
8.1 Action of Members. Except to the extent that the Act, the Certificate,
or this Agreement require otherwise, all actions of the Class A Members shall
be taken either (a) by a majority vote of the votes entitled to be cast by all
of the Class A Members at a properly called meeting of the Class A Members,
when a quorum is present; or (b) by written action without a meeting, complying
with Section 8.8.
8.2 Tri-Annual and Special Meetings.
(a) A tri-annual meeting of the Class A Members shall be held every
third year, on the third Tuesday of January of such year, for the appointment
of Managers to the Management Committee.
(b) A special meeting of the Class A Members may be called for any
purpose or purposes at any time by the Management Committee or by one or more
Class A Members having at least fifty-one percent (51%) of all of the votes
entitled to be cast by Class A Members.
(c) For any special meeting not called by the Management Committee, the
Class A Member or Class A Members who are calling the special meeting must
give written notice to the Management Committee specifying the purpose of the
meeting. Within thirty (30) days after the Management Committee receives a
demand under this paragraph, the Management Committee shall call a special
meeting of the Class A Members. If the Management Committee fails to call
the special meeting, the Class A Member or Class A Members calling the
meeting may, at the expense of the Company, call the meeting by giving the
notice described in Section 8.3.
8.3 Notice of Meetings. Written notice of each meeting of the Class A
Members, stating the date, time, place, and the purposes or purposes, must be
given to every Class A Member at least ten (10) days and not more than sixty
(60) days prior to the meeting. The business transacted at any meeting of
Class A Members is limited to the purposes stated in the notice of the meeting.
8.4 Location and Conduct of the Meetings; Adjournments.
(a) The location of each of the meetings of the Class A Members will
alternate each meeting between 2000 Second Avenue, 644 WCB, Detroit, Michigan
and 968 Albany - Shaker Road, Latham, New York, with the first meeting being
held at the Detroit, Michigan location, or at some other suitable location
within the same city, as designated by the Management Committee or the Class
A Member or Class A Members calling the meeting, as applicable.
<PAGE>
(b) A Manager designated by the Management Committee shall preside
at each meeting of the Class A Members.
(c) At each tri-annual and special meeting of the Members, the
Management Committee shall designate a Manager to act as secretary at the
meeting, who shall record the discussions had and actions taken at such
meeting and prepare minutes summarizing such discussions and actions. A
copy of such minutes, certified by the secretary, shall be maintained at
the Company's principal place of business with the records of the Company,
and a copy shall be sent to each of the Members within thirty (30) days
after the date of such meeting.
(d) The Management Committee shall have the power and authority to
establish the rules of order to be followed at the tri-annual and special
meetings of the Members.
(e) Any meeting of the Class A Members may be adjourned from time to
time to another date and time and, subject to Section 8.4(a), to another
place. If at the time of adjournment, the person presiding over the meeting
announces the date, time, and place at which the meeting will be reconvened,
no further notice of the reconvened meeting shall be required.
8.5 Waiver of Notice.
(a) A Class A Member may waive notice of the date, time, place, and
purpose or purposes of a meeting of Class A Members. A waiver may be made
before, at, or after the meeting, in writing, orally, or by attendance.
(b) Attendance by a Class A Member at a meeting is a waiver of notice
of that meeting, unless the Class A Member objects at the beginning of the
meeting to the meeting or the transaction of business at the meeting because
the meeting is not properly called or convened, or objects before a vote on
an item of business because the item may not properly be considered at that
meeting and does not participate in the consideration of the item at that
meeting.
8.6 Proxies.
(a) A Class A Member may cast or authorize the casting of a vote by
filing a written appointment of a revocable proxy given to any other Class
A Member with the Management Committee at or before the meeting at which the
appointment is to be effective. The Class A Member may sign or authorize the
written appointment by telegram, telecopy, cablegram, or other means of
electronic transmission stating, or submitted with information sufficient to
determine, that the Class A Member authorized the transmission. Any copy,
facsimile, telecommunication, or other reproduction of the original of either
<PAGE>
the writing or the transmission may be used in lieu of the original, if it is
a complete and legible reproduction of the entire original.
(b) A Class A Member may not grant or appoint an irrevocable proxy.
8.7 Quorum. For any meeting of the Class A Members, a quorum consists of
Class A Members holding a majority of all of the votes entitled to be cast at
a meeting of the Class A Members. If a quorum is present when a properly
called meeting is convened, the Class A Members present may continue to
transact business until adjournment, even though the departure of Class A
Members originally present leaves less than the number of Class A Members
otherwise required for a quorum.
8.8 Action Without a Meeting. Any action required or permitted to be taken
at a meeting of the Class A Members may be taken without a meeting by written
consent signed by all of the Class A Members who are entitled to vote at a
meeting of the Class A Members. The action taken by unanimous written consent
shall be effective when signed by all Class A Members entitled to vote, unless
a different effective date is provided in the written consent.
8.9 Attendance by Conference Telephone. A Class A Member may participate
in a meeting with the same effect as being present in person by a conference
telephone or by other similar communications equipment through which all persons
participating in the meeting may communicate with the other participants.
ARTICLE IX
MEMBERSHIP OBLIGATIONS AND CONDUCT
9.1 Compliance with Policies. It shall be the duty of each Member to act
at all times consistently with and in compliance with all and each of the
provisions of this Agreement and with all policies, rules, and decisions of the
Company adopted in accordance with any of the provisions of this Agreement.
9.2 Authority to Bind. Only the Manager and agents of the Company authorized
by the Management Committee shall have the authority to bind the Company. No
Member who is not authorized as an agent of the Company by the Management
Committee shall take any action to bind the Company, and each Member shall
indemnify the Company for any costs or damages incurred by the Company as a
result of any such unauthorized action by such Member. Provided, however, that,
prior to the first meeting of the Management Committee, either Member may
execute any agreement, document or instrument required to be executed by the
Company under this Agreement, the EDC Contribution Agreement or the MTI
Contribution Agreement.
9.3 Confidentiality.
<PAGE>
(a) (1) Each Member shall deal in confidence with all matters involving
the Company until such time as there has been a general public disclosure.
Subject to subsection 9.3(a)(2), no Member shall disclose or use any
Confidential Information, Inventions or Confidential Documents of the Company
(as such terms are defined below) except for the direct or indirect benefit
of the Company.
(2) In the event a Member receives a discovery request (including,
without limitation, document requests, subpoenas, notices of deposition,
orders to produce documents, information or individuals) in a judicial action
or an arbitration (referred to hereinafter as "Discovery Requests"), each
Member agrees that:
(A) The Member will notify the Company of the Member's
receipt of the Discovery Request within a reasonable time following
such receipt to allow the Company to seek an order preventing or
limiting the disclosure by the Member of the Confidential
Information from a tribunal having jurisdiction over the Discovery
Request.
(B) The Member will not take any action, including
responding to the Discovery Requests before the response time, that
would interfere with any efforts by the Company to pursue such legal
remedies preventing or limiting disclosure of the Confidential
Information.
(i) In the event of a Discovery Request other than a
deposition request, this means that the Member will not
respond until the date set forth in the Discovery Request, thus
giving the Company full opportunity to obtain an order
modifying the Member's obligation to respond or to obtain an
agreement from the party making the Discovery Request that
the Member is not obligated to respond at that time.
(ii) In the event of a deposition in which a question
is posed requiring the disclosure of Confidential Information,
this means that the Member will not disclose the Confidential
Information as long as the Company immediately requests an
adjournment of the deposition in order to obtain direction from
a tribunal having jurisdiction over the Discovery Request as to
whether and under what circumstances the Member can
disclose the Confidential Information. If the parties to the
action in which the deposition is taken do not permit the
Company to attend the deposition of the Member, and a question
requiring the disclosure of Confidential Information is asked,
the Member agrees that prior to disclosing the Confidential
Information it will request an adjournment of the deposition
in order to inform the Company of the question and to give the
<PAGE>
Company an opportunity to seek direction from such a tribunal.
9.4 Business Opportunities
(a) Except as otherwise expressly provided in Section 9.4(b), nothing
in this Agreement shall be deemed to restrict in any way the rights of any
Member, or of any Affiliate of any Member, to conduct any other business or
activity whatsoever, and no Member shall be accountable to the Company or to
any other Member with respect to that business or activity even if the
business or activity competes with the Company's business. The organization
of the Company shall be without prejudice to their respective rights (or to
the rights of their respective Affiliates) to maintain, expand, or diversify
such other interests and activities and to receive and enjoy profits or
compensation therefrom. Each Member waives any rights the Member might
otherwise have to share or participate in such other interests or activities
of any other Member or the Member's Affiliates.
(b) Each Member understands and acknowledges that the conduct of the
Company's business may involve business dealings and undertakings with
Members and their Affiliates. In any of those cases, those dealings and
undertakings shall be at arm's length and on commercially reasonable terms
as determined by the Management Committee.
ARTICLE X
REQUIRED RECORDS; ACCOUNTING
10.1 Contents and Location of Required Records. The Company will maintain at
its principal place of business the following records:
(a) A current list of the full name and last known address of each
Member and Manager;
(b) A copy of the Certificate, together with any amendments to the
Certificate;
(c) A copy of this Agreement as executed by the Members, together with
all amendments to this Agreement;
(d) Copies of the Company's federal, state, and local income tax returns
and reports, if any, for the three (3) most recent calendar years;
(e) Copies of any financial statements of the Company for the three (3)
most recent calendar years;
<PAGE>
(f) Records (including minutes and written consents) evidencing
authorization of Company action;
(g) Copies of records that would enable a Member to determine the
Member's relative Membership Interest, Voting Rights, and Shares, and, in
the case of Class B Members, any vesting schedule to which their Class B
Membership Interest is subject; and
(h) Such other records as the Company is required to maintain pursuant
to the Act.
10.2 Access to Required Records.
(a) After giving reasonable advance notice to the Company, any Member
may inspect and review the Required Records and may, at the Member's sole
cost and expense, have the Company make copies of any portion or all of the
records.
(b) Unless the Company agrees otherwise, all Member access to the
Required Records must take place during the Company's regular business hours.
The Company may impose additional reasonable conditions and restrictions on
Members' access to the Required Records, including specifying the amount of
advance notice a Member must give and the charges imposed for copying.
10.3 Tax Characterization and Returns.
(a) The Members acknowledge the intention that the Company be treated
as a "partnership" for federal and state tax purposes. All provisions of this
Agreement and the Certificate are to be construed so as to preserve that
tax status.
(b) Within ninety (90) days after the end of each Taxable Year, the
Management Committee will cause to be delivered to each person who was a
Member at any time during such Taxable Year a Form K-1 and such other
information, if any, with respect to the Company as may be necessary for
the preparation of each Member's federal, state or local income tax (or
information) returns.
10.4 Accounting Decisions.
(a) The Management Committee will make all decisions as to accounting
matters; and
(b) The Management Committee may cause the Company to make
whatever elections the Company may make under the Code or the tax laws of
the State of Michigan or any other jurisdiction having taxing authority over
the Company.
<PAGE>
10.5 "Tax Matters Member". EDC is designated to act on behalf of the Company
as the initial "tax matters partner" within the meaning of Section 6231(a)(7)
of the Code. Any subsequent tax matters partner will be designated by EDC.
ARTICLE XI
ADMISSION OF ADDITIONAL MEMBERS
11.1 Admission of Additional Class A Members. Subject to any preemptive
rights of the Class A Members pursuant to Section 4.3 (b), Additional Persons
may be admitted as Class A Members pursuant to a written offer made to a Person
by the Management Committee in connection with an offering of Shares in
accordance with Section 4.3. The offer will establish all of the conditions
for admission of a Person as an additional Class A Member, including the amount
required as a Capital Contribution for such additional Class A Member.
11.2 Admission of Class B Members. The Management Committee may, from
time to time, offer in writing Shares of Class B Membership Interests to Key
Employees under such terms and conditions as the Management Committee shall
determine in its sole discretion. The Management Committee may establish vesting
schedules for individual Key Employees that defer such Key Employee's rights
to full ownership of their respective Shares of Class B Membership Interests.
Exhibit B shall be amended from time to time to reflect the admission of Key
Employees as Class B Members, to reflect the granting of unvested and vested
rights to Key Employees to become or as Class B Members, the vested number of
Shares of Class B Membership of each Class B Member, and the unvested interest
granted to each Key Employee, whether or not admitted as a Class B Member.
11.3 Admission of Substitute Class B Members. Upon the Disassociation of a
Class B Member, the legal successor in interested of the Disassociated Class B
Member shall be admitted as a Substitute Class B Member (as defined below).
The Substitute Class B Member shall have all the rights and powers and shall be
subject to all the restrictions and liabilities of the Disassociated Class B
Member. The admission of a Substitute Class B Member will not release the
Disassociated Class B Member from any liability of the Company that may have
existed prior to the admission of the Substitute Class B Member. For purposes
of this Article XI, "Substitute Class B Member" means the transferee of a Class
B Membership Interest who has been admitted to all rights of Class B Membership
pursuant to this Agreement.
11.4 Conditions to Admission. Notwithstanding the other provisions of this
Agreement, a proposed additional Member or Substitute Class B Member will not be
admitted as a Member until the proposed additional Member or Substitute Class
B Member agrees in writing to be bound by the terms and provisions of the
Certificate and this Agreement.
<PAGE>
ARTICLE XII
TRANSFERS; WITHDRAWAL; DISASSOCIATION
12.1 Restrictions on Transfers.
(a) Except as provided in subsection 12.1(b) and Section 12.6, no
Member shall Transfer all or any portion of his/her/its Membership Interest
or any rights therein without the written consent of all Class A Members
during the first three (3) years after the date of this Agreement and without
the written consent of the Class A Members holding a majority of the
outstanding Shares of Class A Membership Interest which consents may be in
each case withheld by any Class A Member for any or no reason. Any Transfer
or attempted Transfer by any Member in violation of the preceding sentences
shall be null and void ab initio. Each Member acknowledges the reasonableness
of the restrictions on Transfer imposed by this Agreement in view of the
Company's purposes and the relationship of the Members. Accordingly, these
restrictions on Transfer shall be specifically enforceable. Each Member
further agrees to hold the Company wholly and completely harmless from any
cost, liability, or damage (including, without limitation, liabilities for
income taxes and costs of enforcing this indemnity) incurred by the Company
as a result of a Transfer or an attempted Transfer in violation of this
Agreement.
(b) Subject to compliance with all of the provisions of subsection
12.1(d) a Disassociated Class B Member's financial rights under his or her
Class B Membership Interest will transfer to his or her legal successor in
interest as provided under Section 12.5 and such legal successor in interest
shall be admitted as a Substitute Class B Member upon compliance and in
accordance with Sections 11.3 and 11.4.
(c) Any transferee of all or part of a Class B Membership Interest
derives its rights exclusively through the Class B Member/transferor. Any
such transferee takes the transferred Class B Membership Interest subject
to any claims or offsets the Company has or may in the future have against
the Class B Member/transferor.
(d) Notwithstanding anything else contained in this Article XI or
Article XII to the contrary, Class B Membership Interests may not be
transferred, in whole or in part:
(i) If the transfer, alone or taken together with other
transactions, would result in a termination of the Company within the
meaning of Code Section 708;
(ii) If the transferee is a Disqualified Person;
<PAGE>
(iii) Without an opinion of counsel satisfactory to the Company that
the transfer is subject to an effective registration under, or exempt
from the registration requirements of, applicable state and federal
securities laws; and
(iv) Unless and until the Company receives from the assignee the
information and agreements that the Company may reasonably require,
e.g., any taxpayer identification number, the transferee's initial tax
basis in the transferred rights or interest, instruments of transfer,
assignment, and assumption.
12.2 Voluntary Withdrawal. No Class A Member shall have the right to
voluntarily withdraw from the Company. A Voluntary Withdrawal is a violation
of this Agreement, and upon a Voluntary Withdrawal a Class A Member shall cease
to be a Class A Member with no further right to participate in the Company's
business, Profits and Losses, or distributions, and will not be entitled to
receive any distribution pursuant to Section 18-604 of the Act. If the Company
is continued as provided in Section 13.1(c), the Withdrawn Member shall have
the right to receive the distribution provided for under Section 12.4, but
shall not be entitled to receive in liquidation of the Withdrawn Member's
Membership Interest the fair market value of the Withdrawn Member's Membership
Interest, or any other amount on withdrawal pursuant to Section 18-604 of the
Act.
12.3 Involuntary Withdrawal. Immediately upon the occurrence of an
Involuntary Withdrawal, the successor of the Withdrawn Member (if any) shall
become an assignee of the Withdrawn Member that holds all of its Membership
Interest subject to all of the restrictions and limitations that would be
applicable to that Membership Interest if it were still held by the Withdrawn
Member, but shall not become a Member and/or shall cease to be a Member with
no further right to participate in the Company's business, Profits and Losses,
or distributions, and will not be entitled to receive any distribution pursuant
to Section 18-604 of the Act. If the Company is continued as provided in
Section 13.1(c), the Withdrawn Member or the assignee shall have the right to
receive the distribution provided for under Section 12.4, but shall not be
entitled to receive in liquidation of the Withdrawn Member's Membership
Interest the fair market value of the Withdrawn Member's Membership Interest
as of the date of the Involuntary Withdrawal or the date the assignee's
interest is terminated, or any other amount on withdrawal pursuant to Section
18-604 of the Act.
12.4 Distribution on Withdrawal or Attempted Transfer. Upon any attempted
Transfer by a Member of all or part of a Membership Interest or Voluntary
Withdrawal of a Member, the Company may recover by offset or otherwise from
such Member damages for such Member's breach of this Agreement.
Subject to the Act, Section 6.3, and the Company's right of offset under the
preceding paragraph, upon a Member's attempted Transfer of all or part of his/
her/its Membership Interest, a Member's Voluntary Withdrawal, or a Member's
Involuntary Withdrawal, the Company shall, in complete liquidation of such
Member's Membership Interest, make as a liquidating distribution for such
<PAGE>
Membership Interest a Company note in an amount equal to fifty percent (50%) of
the "Net Book Value" (as defined in Section 12.7) of such Member's Membership
Interest calling for payment of the principal amount of the note in ten (10)
equal annual installments, without interest, with the first annual installment
being due on the later of one (1) year after the date of such note or five
years after the date of this Agreement.
12.5 Disassociation. Upon the Disassociation of a Class B Member, the Company
will continue without dissolution, and the Disassociated Class B Member shall
be deemed to have transferred all of the financial rights associated with his/
her/its financial rights to such Class B Member's legal successor in interest
as set forth in Section 10.2(b).
12.6 Redemption of Class B Membership Interest. A Class B Member may at any
time offer his/her vested Shares of Class B Membership Interest for sale to the
Company and the Company shall be obligated to purchase such Shares upon the
following terms:
(a) The price ("Purchase Price") to be paid for such interest shall be
an amount equal to the "Net Book Value" (as defined in Section 12.7) of such
Class B Member's Membership Interest;
(b) The closing shall occur at the Company's registered office on the
thirtieth (30th) day following the date of the offer to sell; and
(c) At the closing, the selling Class B Member shall assign its Shares
of Class B Membership Interest to the Company and the Company shall deliver
to the selling Class B Member a Company note in an amount equal to the
Purchase Price calling for payment of the principal amount of the note in
five (5) equal annual installments, together with quarterly payments of
interest accruing on the unpaid principal amount of the note at the
Applicable Federal Rate and permitting the Company to prepay such note at
any time without penalty or premium.
12.7 "Net Book Value". For purposes of this Section 12.7 the "Net Book Value"
of a Member's Membership Interest shall be determined as of the last day of the
calendar month immediately preceding the occurrence of the Member's attempted
Transfer, Voluntary or Involuntary Withdrawal, or Disassociation and shall
equal the amount that would be distributed to such Member in liquidation of
the Company pursuant to Article XIII, if (a) the Gross Asset Values of the
Company Property were adjusted as set forth in Section 1.29(b) hereof, (b) all
of the Company's assets were sold for their Gross Asset Values, as so adjusted,
(c) the Company paid its accrued, but unpaid, liabilities and established
reserves pursuant to Article XIII for the payment of reasonably anticipated
contingent or unknown liabilities, and (d) the Company distributed the
remaining proceeds to the Members in liquidation, as of such day.
The Net Book Value of a Member's Membership Interest shall be determined,
without audit or certification, from the books and records of the Company by the
<PAGE>
accounting firm regularly employed by the Company, and the amount of such Net
Book Value shall be disclosed to the Company and each of the Members by written
notice. The Net Book Value determination of such accountants shall be final
and binding in the absence of a showing of gross negligence or willful
misconduct.
ARTICLE XIII
DISSOLUTION, WINDING UP, LIQUIDATING DISTRIBUTIONS
AND TERMINATION
13.1 Events Causing Dissolution. The Company shall dissolve and its business
be wound up upon the occurrence of the first of any of the following events:
(a) By the unanimous written consent of all the Class A Members; or
(b) Disposition of all of or substantially all of the assets of the
Company; or
(c) Upon the occurrence of a Voluntary or Involuntary Withdrawal of a
Class A Member unless within ninety (90) days after the date of such
occurrence, the remaining Class A Members by a majority vote of the Class A
Shares held by the remaining Class A Members consent in writing to continue
the business of the Company.
13.2 Certificate of Dissolution. As soon as practicable following the
occurrence of any of the events specified in Section 13.1 that cause the
dissolution of the Company, the Company shall execute and file a Certificate
of Dissolution, as prescribed by the Act.
13.3 Dissolution Procedure. The Company shall be terminated after the
dissolution described in Section 13.1, in which event the Management Committee
shall promptly wind up the affairs of the Company, liquidate and discharge all
debts and liabilities of the Company and distribute all assets in accordance
with this Agreement and the Act.
13.4 Tax Obligations. Before the assets of the Company are distributed
pursuant to Section 13.5 below, the Company shall file tax returns and pay
tax obligations as required by applicable state tax laws.
13.5 Distributions at Liquidation. Subject to Section 13.10 and subject to
the right of the Management Committee to establish cash reserves as may be
deemed reasonably necessary for any contingent or unforeseen liabilities or
obligations of the Company, the proceeds of the liquidation and any other funds
of the Company shall be distributed as follows:
<PAGE>
(a) First, to the payment and discharge of all Company Liabilities to
creditors other than the Managers or Members;
(b) Second, to the payment and discharge of all Company Liabilities to
the Managers and Members;
(c) Third, to the Members in accordance with their Capital Accounts,
after giving effect to all contributions, distributions, and allocations for
all periods; and
(d) The balance, if any, to the Members in proportion to the number of
Shares held by each Member to the number of Shares Issued.
If any Member has a deficit balance in his/her/its Capital Account
(after giving effect to all contributions, distributions, and allocations
for all Taxable Years, including the Taxable Year during which such
liquidation occurs), such Member shall have no obligation to make any
contribution to the capital of the Company with respect to such deficit,
and such deficit shall not be considered a debt owed to the Company or
to any other Person for any purpose whatsoever.
13.6 Final Report. Within a reasonable time following the completion of the
liquidation of the Company, the Management Committee shall supply to each Member
a statement that states the assets and liabilities of the Company as of the date
of complete liquidation and each Member's portion of payments and distributions
pursuant to Section 13.5.
13.7 Rights of Members. Each Member shall look solely to the Company Property
for all distributions with respect to the Company, to its Capital Contribution,
and to its share of Profits and Losses, and no Member shall have recourse (upon
dissolution or otherwise) against any other Member. No Member shall be entitled
to receive Company Property other than cash upon the dissolution and termination
of the Company.
13.8 Termination. Upon the completion of the liquidation of the Company
and the distribution of all Company Property, the Company shall terminate. The
Management Committee shall have the authority to execute and record a
Certificate of Dissolution as well as any and all other documents required to
effect the dissolution and termination of the Company.
13.9 Deemed Distribution and Recontribution. Notwithstanding any other
provisions of this Article XIII, in the event the Company is liquidated within
the meaning of Regulations Section 1.704-1(b)(2)(ii)(g), but the Class A Members
holding a majority of the Class A Shares entitled to vote have elected to
continue the business of the Company under Section 13.1, the Company Property
shall not be liquidated, the Company's Liabilities shall not be paid or
discharged, and the Company's affairs shall not be wound up.
<PAGE>
13.10 Hire Company Employees. At any time following the dissolution of the
Company, any Member, any Affiliate of any Member, any Manager or any Affiliate
of any Manager shall have the right to solicit for hire, and hire, any Person
who as an employee of the Company at any time.
ARTICLE XIV
INDEMNIFICATION; INSURANCE AND LIABILITY OF MEMBERS
14.1 Indemnity. The Company shall defend, indemnify and hold harmless each
Manager from and against any cost, expense, damage or injury suffered or
sustained by it by reason of any acts, omissions or alleged acts or omissions
arising out of any of its activities on behalf of the Company or in furtherance
of the interests of the Company, including without being limited to any
judgment, award, settlement, reasonable attorneys' fees and other costs or
expenses incurred in connection with the defense of any actual or threatened
action, proceeding or claim, if the acts, omissions or alleged acts or
omission upon which such actual or threatened actions, proceedings or claims
are based did not involve gross negligence, willful misconduct, bad faith, the
knowing violation of statutory obligations or fraud by such Manager. Any such
indemnifications shall only be made from Company Property.
14.2 Disclosure. The amount of any indemnification or advance paid pursuant
to this Article XIV and to whom and on whose behalf it was paid will be
included in the Required Records.
14.3 Discretionary Indemnification. Nothing in this Article XIV limits the
ability of the Management Committee to cause the Company to indemnify any Person
that is not a Manager pursuant to, and to the extent described in, an
agreement authorized by the Management Committee.
14.4 Insurance. The Company may purchase and maintain insurance on behalf
of a Person in that Person's official capacity against any liability asserted
against and incurred by the Person in or arising from that capacity, whether
or not the Company would have been required to indemnify the Person against
the liability under the provisions of this Article XIV.
14.5 Other Insurance. The Management Committee shall use its best efforts
to obtain and maintain in force such insurance as it deems necessary to protect
the Company Property and to protect the Company against liability for claims
of third persons. The Company shall be a named insured on the policies
obtained. Each Member shall be provided with a certificate disclosing the
issuance of the policy and its basic terms. No such policy shall be canceled
by the Management Committee except after it shall have given at least thirty
(30) days prior written notice to the Members to that effect. Except as
<PAGE>
assumed by the Company, each Member shall be responsible for insuring itself
against damages, losses and liabilities relative to its Membership Interest
in the Company.
14.6 Limited Liability of Members. Pursuant to the Act, the Members shall
have no personal liability whatsoever, whether to the Company, to any of the
Members, or to the creditors of the Company, for the debts of the Company or
any of its losses beyond the amounts contributed or committed to be contributed
by that Member to the capital of the Company pursuant to this Agreement; nor
shall the Members have any other obligations or liabilities under this
Agreement other than those specifically set forth in this Agreement.
ARTICLE XV
REMEDIES FOR BREACH
15.1 Specific Enforcement. All breaches of this Agreement are subject to
specific enforcement, without prejudice to the right to seek damages or other
remedies.
15.2 Attorney Fees and Other Litigation Expenses. If the Company resorts to
litigation to remedy a breach of this Agreement by a Member or former Member
and the Company prevails in the litigation, in addition to any other remedies
available to the Company under this Agreement or by law the Company may
collect its actual attorney fees and other costs and expenses of litigation.
ARTICLE XVI
AMENDMENTS
16.1 Amendment of Agreement. This Agreement may only be amended at a
special meeting of Members called for the purpose of amending this Agreement
or by the written consent of Members to a proposed written amendment to this
Agreement.
16.2 Required Vote. Any proposed amendment to this Agreement shall only
become effective upon the vote or written consent of more than fifty (50%) of
all the votes entitled to be cast by the Class A Members; provided, however,
that without the unanimous consent of all Class A Members, this Agreement
shall not be amended to:
(a) Cause the Company to effect any registration of the Shares, except
as provided in Section 4.8;
(b) Except as otherwise provided in Section 4.8, cause the Company to
lose its status as a limited liability company, taxable as a partnership for
federal income tax purposes;
<PAGE>
(c) Amend this Section 16.2 or Sections 4.2, 4.3(b), 4.8, 5.1(a), 5.1(b),
7.1, 7.2, 7.2(b)(15), 7.3, 7.5, 7.6, 7.8, 7.9, 12.1 or 13.1 of this
Agreement; or
(d) Affect any rights of the Class B Members in their Class B Membership
Interests, including, but not limited to, amending any part of the definition
in Section 1.13.
ARTICLE XVII
MISCELLANEOUS
17.1 Governing Law. All questions pertaining to this Agreement shall be
governed by and construed in accordance with the laws of the State of Delaware.
It is further agreed that any and all litigation relating to this Agreement or
the Company shall be brought in a state or federal court located within the
State of Michigan; and each party, for the purpose of all such litigation,
hereby submits to the exclusive jurisdiction and venue of such courts.
17.2 Notices.
(a) Any notice, request, consent, offer or demand required or permitted
to be given under this Agreement shall be in writing and shall either be
delivered in person or mailed by first class mail, postage prepaid, or sent
by telex, telecopy or telegram, addressed to the Party intended as the
recipient as follows:
If to the Company: With a copy to:
Plug Power, LLC DTE Energy, Inc.
968 Albany - Shaker Road 2000 Second Avenue, 644 WCB
Latham, New York 12110 Detroit, Michigan 48226
Attn: Gary Mittleman Attn: Chris C. Nern
Fax No.:(518) 785-2127 Fax No.:(313) 235-8500
If to any Member: at the address shown on Exhibit A and B, unless a
Member shall have requested the Company in writing at least thirty (30) days
before the date of a notice to use a different address.
(b) Any notice, request, consent, offer or demand shall be deemed
received, given or served, if mailed by first class mail, on the 3rd day
after the day of mailing, and, if sent by telex, telecopy or telegram, 24
hours after the time of dispatch.
<PAGE>
17.3 Agreement for Further Execution. As soon as practicable after being
requested by the Management Committee to do so, the Members agree to sign,
swear to or acknowledge the Certificate required by the Act; to sign, swear to,
or acknowledge any amendment or cancellation as required by law; to sign,
swear to or acknowledge similar certificates or affidavits or certificates of
assumed firm name, trade name or the like (and any amendments or cancellations
thereof) required by the laws of Delaware; and to cause the filing of any of
the same for record wherever such filing shall be required by law.
17.4 Entire Agreement. This Agreement contains the entire understanding
between the Members and the Company and supersedes any prior understanding and
agreements between them respecting the subject matter herein. There are no
representations, agreements, arrangements or understandings, oral or written,
between the parties hereto relating to the subject matter of this Agreement
which are not fully expressed or described herein.
17.5 Severability. This Agreement is intended to be performed in accordance
with, and only to the extent permitted by, all applicable laws, ordinances,
rules and regulations of the jurisdictions in which the Company does business.
If any provision of this Agreement or the application thereto to any person or
circumstance shall, for any reason and to any extent, be invalid or
unenforceable, the remainder of this Agreement and the application of such
provision to any other Person or circumstances shall not be affected thereby,
but rather shall be enforced to the greatest extent permitted by law.
17.6 Captions. All Section titles and captions contained in this Agreement
are for convenience only and shall not be deemed part of the context of this
Agreement.
17.7 Number and Gender. All the terms and words used in this Agreement,
regardless of the number and gender in which they are used, shall be deemed
and construed to include any other number, singular or plural, and any other
gender, masculine, feminine or neuter, as the context or sense of this
Agreement or any Section, paragraph or clause herein may require, the same as
if such word had been fully and properly written in such number and gender.
17.8 Binding Effect. Subject to the provisions of this Agreement relating
to transferability, this Agreement will be binding upon and shall inure to the
benefit of the parties, and their respective distributees, heirs, successors
and assigns.
<PAGE>
17.9 Counterparts. This Agreement may be executed in several counterparts,
each of which will be deemed an original but all of which will constitute one
and the same.
EDISON DEVELOPMENT CORPORATION
(a Michigan corporation)
By: /s/ Larry Garberding
______________________________________
Its: Executive Vice-President
_____________________________________
MECHANICAL TECHNOLOGY INCORPORATED
(a New York corporation)
By: /s/ Martin Mastroianni
______________________________________
Its: President
_____________________________________
<PAGE>
EXHIBIT A
CLASS A MEMBERS, CAPITAL CONTRIBUTIONS, AND SHARES
Class A FMV of Capital Adjusted
Members Contributions Basis Shares
- ------- ------------- -------- ------
Edison Development $4,750,000 $4,750,000 4,750,000
Corporation
Mechanical Technology $4,750,000 $ 300,000 4,750,000
Incorporated
<PAGE>
EXHIBIT B
CLASS B MEMBERS, CAPITAL CONTRIBUTIONS, AND SHARES
Class B FMV of Capital Adjusted
Members Contribution Basis Shares
- ------- ------------ -------- ------
<PAGE>
EXHIBIT C
Major Milestones for Plug Power
The following pages describe milestones, mainly technical, that Plug
Power is expected to meet or exceed over the next three years. Milestones have
been broadly defined for each six month period.
I. Six Month Milestones
Plug Power is expected to meet or exceed the following
milestones by December 31, 1997 (within about six months
of Plug Power formation).
Plug Power shall have:
CONFIDENTIAL TREATMENT REQUESTED.
II. Twelve Month Milestones
Plug Power is expected to meet or exceed the following
milestones by June 30, 1998 (within about 12 months of
Plug Power formation).
Plug Power shall have:
CONFIDENTIAL TREATMENT REQUESTED.
III. Eighteen Month Milestones
Plug Power is expected to meet or exceed the following
milestones by December 31, 1998 (within about 18 months
of Plug Power formation).
Plug Power shall have:
CONFIDENTIAL TREATMENT REQUESTED.
IV. Twenty-four Month Period
Plug Power is expected to meet or exceed the following
milestones by June 30, 1999 (within about 24 months of
Plug Power formation).
Plug Power shall have:
CONFIDENTIAL TREATMENT REQUESTED.
V. Thirty Month Period
Plug Power is expected to meet or exceed the following
milestones by December 30, 1999 (within about 30 months
of Plug Power formation).
Plug Power shall have:
CONFIDENTIAL TREATMENT REQUESTED.
VI. Thirty-six Month Plan
Plug Power is expected to meet or exceed the following
milestones by June 30, 2000 (within about 36 months of
Plug Power formation).
Plug Power shall have:
CONFIDENTIAL TREATMENT REQUESTED.
<PAGE>
EXHIBIT D
CONTRACT PROPOSALS
1.) The attached list of active proposals.
2.) Any contracts that Plug Power, LLC agrees are attributable or
were presented to Plug Power, LLC by MTI.
SCHEDULE OF ACTIVE PROPOSALS
No. Title Customer Value Quote Date Est. Award Date Comments
CONFIDENTIAL TREATMENT REQUESTED.
<PAGE>
EXHIBIT E
EXCLUDED CONTRACTS AND PROPOSALS
None
<PAGE>
EXHIBIT F
OPTION AGREEMENT - CONTRIBUTION MATCH
<PAGE>
EXHIBIT G
OPTION AGREEMENT - RETURNED SHARES
Exhibit 10.19
CONTRIBUTION AGREEMENT
BETWEEN
MECHANICAL TECHNOLOGY INCORPORATED,
(a New York corporation)
AND
PLUG POWER, L.L.C.,
(a Delaware limited liability company)
THIS CONTRIBUTION AGREEMENT (this "Agreement") is entered into between
Mechanical Technology Incorporated, a New York corporation, and Plug Power,
L.L.C., a Delaware limited liability company (the "Company"). This Agreement,
the Limited Liability Company Agreement of Plug Power, L.L.C., a Delaware
limited liability company (the "Operating Agreement"), and the Contribution
Agreement between Edison Development Corporation, a Michigan corporation, and
the Company (the "Management Agreement") are entered as of and shall be
effective simultaneously with each other as of the close of business on the
27th day of June, 1997 (the "Contribution Date").
RECITALS
1. MTI conducts a business which is engaged in the research and
development of technology for fuel cells, primarily as a contractor or
subcontractor under government contracts, grants and cooperative agreements
( the "Fuel Cell Business").
2. For the purpose set forth in Section 2.4 of the Operating Agreement,
and as its initial Capital Contribution (as defined in Section 4.1 of the
Operating Agreement), MTI wishes to contribute the Fuel Cell Business (except
the "Excluded Assets", as defined in Section 1.2 of this Agreement) to the
Company and in exchange for MTI's initial Capital Contribution MTI shall
become a Class A Member (as defined in Section 1.12 of the Operating Agreement)
in the Company and shall receive the number of Shares of Class A Membership
Interest in the Company (as set forth on Exhibit A to the Operating Agreement)
(the "MTI Shares").
3. In order to accomplish the foregoing, simultaneously with the
execution of this Agreement and the Operating Agreement, MTI and the Company
shall enter into the agreements identified in Section 4 below (collectively,
the "Other Agreements").
4. The foregoing contribution of assets by MTI and assumption of
liabilities by Company are all subject to the terms and conditions of this
Agreement, the Operating Agreement and the Other Agreements.
<PAGE>
In consideration of the foregoing and the mutual representations,
warranties covenants, and agreements contained in this Agreement, MTI and the
Company agree as follows:
1. Contribution of Assets by MTI.
1.1 Contribution of Assets. Subject to the terms and conditions of
this Agreement, on the Contribution Date, MTI hereby assigns, transfers,
and delivers to the Company, as a contribution to the capital of the
Company, free and clear of all Liens, except Permitted Liens, all of the
assets, properties, and business, (excepting the Excluded Assets) of every
kind and description, wherever located, real, personal, or mixed, tangible
or intangible, owned, leased or held by MTI, which are necessary for the
conduct of the Fuel Cell Business by MTI as the same shall exist on the
Contribution Date including all assets and property shown on the
Contributed FCB Balance Sheet (and not disposed of in the ordinary course
of business) and all assets and property thereafter acquired by MTI in
respect of or necessary for the conduct of and used in the Fuel Cell
Business immediately prior to the Contribution Date (collectively, the
"Assets"), and including, without limitation, all right, title, and
interest of MTI in, to, and under:
(a) The machinery, equipment, furniture, vehicles, and other
tangible property (including, without limitation, maintenance and
operating supplies, fuel, and spare parts for such machinery and
equipment) listed and described in Schedule 1.1(a) (the "Equipment");
(b) The raw materials, finished goods, work-in-process, supplies,
and inventories described in Schedule 1.1(b) (the "Inventory");
(c) All rights of MTI (including, but not limited to, any and all
Intellectual Property Rights) in and to the products sold or leased
and in and to any products or other Intellectual Property Rights under
research or development prior to or on the Contribution Date;
(d) All of the rights of MTI under all contracts, arrangements,
leases and other agreements identified on Schedule 1.1(d), including,
without limitation, any right to receive goods and services, pursuant
to such agreements and to assert claims and take other rightful
actions in respect of breaches, defaults and other violations of
such contracts, arrangements, licenses, leases and other agreements
and otherwise;
(e) All credits, prepaid expenses, deferred charges, advance
payments, security deposits and pre-paid items, listed in Schedule
1.1(e);
(f) [Intentionally Omitted]
<PAGE>
(g) All Intellectual Property Rights and all rights thereunder
or in respect thereof primarily relating to or used or held for use
in connection with the Fuel Cell Business all of which are listed
on Schedule 1.1(g), including, but not limited to, rights to sue
for an injunction, damages, and/or other remedies against past,
present and future infringements thereof and to collect and retain
any damages resulting therefrom for its own use and enjoyment, and
rights of priority and protection of interests therein under the
laws of any jurisdiction worldwide and all tangible embodiments
thereof (together with all Intellectual Property rights included
in the other clauses of this Section 1.1, the "Intellectual Property
Assets");
(h) All of MTI's right, title, and interest in, to, and under
each of the Government Contracts and commercial contracts for research
and development of fuel cells listed in Schedule 1.1(h);
(i) All books, records, manuals and other materials (in any form
or medium), including, without limitation, all records and materials
maintained by MTI regarding any of the Assets and, with respect to the
Assets and Fuel Cell Business, all price lists, correspondence,
mailing lists, lists of customers, photographs, production data,
sales and promotional materials and records, purchasing materials
and records, manufacturing and quality control records and
procedures, blueprints, research and development files, records,
data and laboratory books, Intellectual Property disclosures, media
materials and plates, accounting records, all files regarding any
of the Government Contracts transferred hereunder, and litigation
files;
(j) To the extent their transfer is permitted by law, all
Governmental Approvals, including all applications therefor,
required for the conduct of the Fuel Cell Business or the occupancy
or use of the Licensed Premises;
(k) All rights to causes of action, lawsuits, judgments, claims
and demands of any nature available to or being pursued by MTI with
respect to the Fuel Cell Business or the ownership, use, function or
value of any Asset, whether arising by way of counterclaim or
otherwise;
(l) All rights, title, and interest of MTI under any agreement
with past or present employees or independent contractors of MTI
regarding: (i) confidentiality or non-disclosure with respect to
the Assets or Fuel Cell Business; (ii) the obligation of such
employees or contractors to join in the filing of any patent
application as an inventor and/or the obligation to assign to MTI
any patent application on which such employee or contractor is named
as an inventor; (iii) the obligation to assign and transfer any
interest of such employee or contractor in any of the Intellectual
Property Rights; and (iv) any restriction on the right of such
employee or contractor to use any Intellectual Property Rights or
<PAGE>
to compete with the Fuel Cell Business. Each such agreement is
listed on Schedule 1.1(l); and
(m) All guarantees, warranties, indemnities and similar rights
in favor of MTI with respect to any Asset.
1.2 Excluded Assets. The Company expressly understands and agrees
that there shall be excluded from the Assets those assets and properties
of MTI which are necessary for and used in the conduct of the Fuel Cell
business as listed on Schedule 1.2.
In addition, the Company expressly understand and agrees that there
shall be excluded from the Assets any assets, properties and businesses
of every kind and description; wherever located; real, personal, or mixed;
tangible or intangible; owned, leased or held; or used in the conduct of
any business of MTI (including, but not limited to, assets, properties and
businesses of MTI's Technology Division) other than the Fuel Cell Business,
as the same shall exist on the Contribution Date; any and all intellectual
property owned, held or primarily used by MTI in any business other than
the Fuel Cell Business (including, but not limited to, use of the name
Mechanical Technology Incorporated and all derivatives thereof); any and
all cash, including petty cash, or receivables of MTI as of the close of
business June 27, 1997, including any reflected on the Contributed FCB
Balance Sheet.
1.3 Conveyance Instruments. In order to consummate MTI's contribution
of the Assets, MTI has, or will hereafter, execute and deliver, or cause to
be executed and delivered, all such documents or instruments of assignment,
transfer, or conveyance, in each case dated the Contribution Date
(collectively, the "Conveyance Instruments"), as EDC and MTI and their
respective counsel shall reasonably deem necessary or appropriate to vest
in, confirm title to and/or record the transfer of (in such form as may be
required by any Governmental Authority) the Assets to the Company.
1.4 Assumed Liabilities. Subject to the terms and conditions of this
Agreement and the Operating Agreement, in reliance on the representations,
warranties, covenants, and agreements of the parties contained herein, the
Company assumes and agrees to pay, discharge, or fulfill the liabilities
and obligations relating to the Fuel Cell Business and listed on Schedule
1.4 (the "Assumed Liabilities").
1.5 Excluded Liabilities.The Company shall not assume any liabilities,
obligations or commitments of MTI relating to or arising out of the
operation of the Fuel Cell Business or the ownership of the Assets prior
to the Contribution Date other than the Assumed Liabilities (the "Excluded
Liabilities").
<PAGE>
1.6 Consent of Third Parties. Notwithstanding anything to the
contrary in this Agreement, this Agreement shall not constitute an
agreement to assign or transfer any Governmental Approval, instrument,
contract, lease, permit or other agreement or arrangement or any claim,
right or benefit arising thereunder or resulting therefrom if an
assignment or transfer or an attempt to make such an assignment or
transfer without the consent of a third party would constitute a breach
or violation thereof or affect adversely the rights of the Company or
MTI thereunder; and any transfer or assignment to the Company by MTI of
any interest under any such instrument, contract, lease, permit or other
agreement or arrangement which requires the consent of a third party
shall be made subject to such consent or approval being obtained. In
the event any such consent or approval is not obtained on or prior to the
Contribution Date, MTI shall continue to use all best efforts to obtain
any such approval or consent after the Contribution Date until such time
as such consent or approval has been obtained, and MTI will cooperate
with the Company in any lawful and economically feasible arrangement to
provide that the Company shall receive the interest of MTI in the benefits
under any such instrument, contract, lease or permit or other agreement or
arrangement, including performance by MTI, as agent, if economically
feasible, provided that the Company shall undertake to pay or satisfy the
corresponding liabilities for the enjoyment of such benefit to the extent
such liabilities are described as Assumed Liabilities in Schedule 1.4 and
which the Company would have assumed if such consent or approval had been
obtained. MTI shall cooperate with the Company and shall pay and
discharge, and shall indemnify and hold the Company harmless from and
against, any and all out-of-pocket costs incurred by MTI in seeking to
obtain or obtaining any such consent or approval whether before or after
the Contribution Date. Nothing in this Section 1.6 shall be deemed a
waiver by the Company of its right to have received on or before the
Contribution Date an effective assignment of all of the Assets nor shall
this Section 1.6 be deemed to constitute an agreement to exclude from
the Assets any assets described under Section 1.1.
2. Events Occurring on the Contribution Date.
2.1 Deliveries by MTI. Simultaneously with the execution of this
Agreement, MTI shall execute and agree to be bound by all of the terms and
conditions of the Operating Agreement and shall deliver to the Company the
following:
(a) The Conveyance Instruments to effect the contribution of the
Assets to the Company, such Conveyance Instruments to be those
reasonably deemed necessary by, and to be in form and substance
reasonably satisfactory to counsel for EDC and MTI;
(b) A copy of the resolutions of MTI's Board of Directors,
certified by its Secretary, authorizing or ratifying its execution and
<PAGE>
delivery of this Agreement, the Operating Agreement, and the Other
Agreements, and the consummation of the transactions contemplated
hereby and thereby;
(c) All of the Other Agreements to which MTI is a party, duly
executed by it.
(d) A copy of MTI's certificate of incorporation, a certified
copy of its bylaws and other organizational documents;
(e) A certificate from the Secretary of State of New York as to
MTI's good standing in such state certified as of a date within
thirty (30) days of the Contribution Date;
(f) An employment agreement with Wayne Huang, and an
employment agreement executed by Manmohian Dhar each of which will be
agreements to be entered into with the Company and in the form and
substance of the agreements attached in Schedule 2.1(f);
(g) The executed counterpart copies of all Consents and Govern-
mental Approvals set forth in Schedule 3.1(c);
(h) The opinion of counsel for MTI, dated the Contribution Date,
in form and substance reasonably satisfactory to EDC's counsel;
(i) All other previously undelivered items required to be
delivered by MTI at or prior to the Contribution Date pursuant to the
terms of this Agreement, the Operating Agreement, and the Other
Agreements.
2.2 Deliveries by the Company.
(a) Copy of filed Certificate of Formation of the Company;
(b) Execution copies of the Limited Liability Company Agreement
of Plug Power, LLC, a Delaware limited liability company, dated the
Contribution Date;
(c) Executed copy of the Contribution Agreement between the
Company and EDC;
(d) Execution copies of the Distribution Agreement between EDC
and the Company; and
(e) A transition services agreement between MTI and the
Company.
<PAGE>
2.3 Effect of Contributions. In exchange for its initial Capital
Contribution, as defined in Section 4.1 of the Operating Agreement, (i)
MTI shall become a Class A Member (as defined in Section 1.12 of the
Operating Agreement) in the Company pursuant to the terms of the
Operating Agreement; (ii) MTI will receive the Shares; and (iii) the
Capital Account of MTI will be credited with such amount set forth
beside its name on Exhibit A to the Operating Agreement. Such Class A
Membership Interest and Capital Account shall be subject to adjustment
as provided under Section 4.7 of the Operating Agreement.
3. Representations and Warranties.
3.1 Representations and Warranties of MTI. MTI represents and
warrants to the Company as follows:
(a) Authorization, etc. MTI has the corporate power and
authority to execute and deliver this Agreement and each of the Other
Agreements to which it is a party and to fully perform its obligations
and consummate the transactions contemplated thereby. The execution
and delivery by MTI of this Agreement and the Other Agreements, and
the consummation of the transactions contemplated by this Agreement,
have been duly authorized by all requisite corporate action. This
Agreement, together with all other obligations of MTI hereunder,
constitutes the valid and legally binding obligation of MTI,
enforceable in accordance with its terms.
(b) Corporate Status.
(i) MTI is a corporation duly organized, validly existing
and in good standing under the laws of the State of New York with
full corporate power and authority to carry on the Fuel Cell
Business and to own or lease and operate the properties as and
in the places where such business is conducted and such
properties are owned, leased or operated.
(ii) MTI is duly qualified or licensed to do business and
is in good standing in each of the jurisdictions specified in
Schedule 3.1(b)(ii), which are the only jurisdictions in which
the operation of the Fuel Cell business or the character of the
properties owned, leased or operated by MTI in connection with
the Fuel Cell Business makes such qualification or licensing
necessary.
(iii)MTI has delivered to the Company complete and correct
copies of its certificate of incorporation and by-laws or other
organizational documents, in each case, as amended and in effect
on the date hereof. MTI is not in violation of any of the
<PAGE>
provisions of its certificate of incorporation or by-laws or
other organizational documents.
(c) No Conflicts. The execution, delivery and performance by
MTI of this Agreement and the consummation of the transactions
contemplated hereby, do not and will not conflict with or result in
a violation of or a default under (with or without the giving of
notice of the lapse of time or both) (i) any Applicable Law applicable
to MTI or any of the Assets, (ii) the certificate of incorporation
or by-laws or other organizational documents of MTI or (iii) except
as specifically set forth in Schedule 3.1(c) and except for any
conflict which would cause no material adverse affect on the
Company (any conflict which would affect the transfer of the Assets
shall be deemed material), any Contract or other contract, agreement
or other instrument to which MTI or any of its Affiliates is a party
or by which MTI or any of its properties or assets, including, but
not limited to the Assets, may be bound or affected. Except as
specified in Schedule 3.1(c), no Governmental Approval or other
Consent is required to be obtained or made by MTI in connection with
the execution and delivery of this Agreement or the Other Agreements
or the consummation of the transactions contemplated thereby.
(d) Financial Statements. MTI has delivered to the Company a
pro forma balance sheet for the Fuel Cell Business as of May 23, 1997
(the "Preliminary Contributed FCB Balance Sheet"), a copy of which
is attached as Schedule 3.1(d). Within ten (10) days after the
Contribution Date, MTI will deliver to the Company a pro forma
balance sheet for the Fuel Cell Business (excluding the Excluded
Assets and Excluded Liabilities) as of the Contribution Date (the
"Contributed FCB Balance Sheet"); (the Preliminary Contributed FCB
Balance Sheet and the Contributed FCB Balance Sheet are the
"Financial Statements"). The Financial Statements fairly present
the financial condition and results of operations of the Fuel Cell
Business for the period and as of the dates stated therein. The
Total Liabilities reflected on the Contributed FCB Balance Sheet
shall not exceed by more than $25,000 the total amount of the
Assumed Liabilities shown on Schedule 1.4.
(e) Absence of Undisclosed Liabilities. MTI has no Knowledge
of any liabilities or obligations of any nature, absolute, accrued,
contingent or otherwise and whether due or to become due, arising
out of or relating to the Fuel Cell Business, except (a) as set
forth in Schedule 3.1(e), (b) as and to the extent disclosed or
reserved against in the Contributed FCB Balance Sheet and (c) for
liabilities and obligations that (i) individually and in the
aggregate are not material to the Fuel Cell Business and have not
had or resulted in, and will not have or result in, a material
adverse effect on the Fuel Cell Business or Assets.
<PAGE>
(f) Taxes.
(i) MTI has duly and timely filed all Tax Returns
affecting the Fuel Cell Business with respect to Taxes
required to be filed on or before the Contribution Date
("Covered Returns"). Except for Taxes set forth on
Schedule 3.1(f)(i), which are being contested in good
faith and by appropriate proceedings, the following Taxes
have been duly and timely paid: (1) all Taxes shown to be
due on the Tax Returns, (2) all deficiencies and assessments
of Taxes of which notice has been received by MTI that are
or may become payable by the Company or chargeable as a
lien upon the Fuel Cell Business, and (3) all other Taxes
due and payable as of the Contribution Date for which
neither filing of Tax Returns nor notice of deficiency or
assessment is required, of which MTI has Knowledge that
may become payable by the Company or chargeable as a lien
upon the Fuel Cell Business. All Taxes required to be
withheld by or on behalf of MTI in connection with amounts
paid or owing to any employee, independent contractor,
creditor or other party with respect to the Fuel Cell
Business ("Withholding Taxes") have been withheld, and
such withheld taxes have either been duly and timely paid
to the proper Governmental Authorities or set aside in
accounts for such purpose.
(ii) Except as set forth on Schedule 3.1(f)(ii), no
agreement or other document extending, or having the effect
of extending, the period of assessment or collection of any
Taxes or Withholding Taxes, and no power of attorney with
respect to any such Taxes, has been filed with the IRS or
any other Governmental Authority.
(iii)Except as set forth on Schedule 3.1(f)(iii), (1)
there are no Taxes or Withholding Taxes asserted in writing
by any Governmental Authority to be due and (2) no issue has
been raised in writing by any Governmental Authority during
the course of any audit with respect to Taxes or Withholding
Taxes. Except as set forth on Schedule 3.1(f)(iii), no Taxes
and no Withholding Taxes are currently under audit by any
Governmental Authority. Except as set forth on Schedule
3.1(f)(iii), neither the IRS nor any other Governmental
Authority is now asserting or, to the best knowledge of MTI,
threatening to assert against MTI any deficiency or claim for
additional Taxes or any adjustment of Taxes that would, if
<PAGE>
paid by the Company, have an adverse effect on the Fuel Cell
Business or the Assets, and there is no reasonable basis for
any such assertion of which MTI is or reasonably should be
aware.
(iv) Except as set forth on Schedule 3.1(f)(iv), there
is no litigation or administrative appeal pending or, to the
best knowledge of MTI, threatened against or relating to MTI
in connection with Covered Taxes.
(g) Absence of Changes. Except as set forth in Schedule
3.1(g), since May 23, 1997, MTI has conducted the Fuel Cell
Business only in the ordinary course consistent with prior
practice and has not, on behalf of, in connection with or relating
to the Fuel Cell Business or the Assets:
(i) suffered any adverse effect;
(ii) to MTI's Knowledge incurred any obligation or
liability, absolute, accrued, contingent or otherwise,
whether due or to become due, except current liabilities
for trade or business obligations incurred in connection
with the purchase of goods or services in the ordinary
course of business consistent with prior practice;
(iii)discharged or satisfied any Lien other than those
then required to be discharged or satisfied, or paid any
obligation or liability, absolute, accrued, contingent or
otherwise, whether due or to become due, other than current
liabilities incurred since the date thereof in the ordinary
course of business consistent with prior practice;
(iv) mortgaged, pledged or subjected to Lien, any
property, business or assets, tangible or intangible, held
in connection with the Fuel Cell Business;
(v) sold, transferred, leased to others or otherwise
disposed of any of the Assets (except in the ordinary course
of business), or cancelled or compromised any debt or claim,
or waived or released any right of substantial value;
(vi) received any notice of termination of any
contract, lease or other agreement or suffered any damage,
destruction or loss (whether or not covered by insurance);
<PAGE>
(vii)transferred or granted any rights under, or
entered into any settlement regarding the breach or
infringement of, any Intellectual Property, or modified
any existing rights with respect thereto, other than as
set forth in this Agreement;
(viii)made any change in the rate of compensation,
commission, bonus or other direct or indirect remuneration
payable, or paid or agreed or orally promised to pay,
conditionally or otherwise, any bonus, incentive, retention
or other compensation, retirement, welfare, fringe or
severance benefit or vacation pay, to or in respect of any
shareholder, director, officer, employee, salesman,
distributor or agent of MTI relating to the Fuel Cell
Business;
(ix) encountered any labor union organizing activity,
had any actual or threatened employee strikes, work
stoppages, slowdowns or lockouts, or had any material
change in its relations with its employees, agents,
customers or suppliers;
(x) made any purchase commitment in excess of the
normal, ordinary and usual requirements of the Fuel Cell
Business or at any price in excess of the then current
market price or upon terms and conditions more onerous
than those usual and customary in the industry, or made
any change in its selling, pricing, advertising or
personnel practices inconsistent with its prior practice
and prudent business practices prevailing in the industry;
(xi) made any capital expenditures or capital additions
or improvements in excess of an aggregate of $10,000;
(xii)instituted, settled or agreed to settle any litiga-
tion, action or proceeding before any court or governmental
body which may affect the Fuel Cell Business or the Assets
other than in the ordinary course of business consistent with
past practices but not in any case involving amounts in
excess of $10,000;
(xiii)entered into any transaction, contract or
commitment in the ordinary course of business or paid or
agreed to pay any legal, accounting, brokerage, finder's
fee, Taxes or other expenses in connection with, or
incurred any severance pay obligations by reason of this
<PAGE>
Agreement or the transactions contemplated hereby, except
as otherwise provided in this Agreement; or
(ix) to MTI's Knowledge, taken any action or omitted
to take any action that would result in the occurrence of
any of the foregoing.
(h) Litigation. Except as set forth on Schedule 3.1(h),
there is no action, claim, demand, suit, proceeding, arbitration,
grievance, citation, summons, subpoena, inquiry or investigation
of any nature, civil, criminal, regulatory or otherwise, in law
or in equity pending or threatened against or relating to the
Assets or the Fuel Cell Business or against or relating to the
transactions contemplated by this Agreement, and MTI does not
have Knowledge of any basis for the same. Except as set forth in
such Schedule 3.1(h), no citations, fines or penalties have been
asserted against MTI with respect to the Division under any
Environmental Law or any federal, state or local law relating
to occupational health or safety.
(i) Compliance with Laws; Governmental Approvals and
Consents; Governmental Contracts.
(i) Except as disclosed in Schedule 3.1(i)(i), MTI
has complied in all material respects with all Applicable
Laws applicable to the Fuel Cell Business or the Assets,
and MTI has not received any notice alleging any such
conflict, violation, breach or default.
(ii) Schedule 3.1(i)(ii) sets forth all Governmental
Approvals and other Consents necessary for, or otherwise
material to, the conduct of the Fuel Cell Business. Except
as set forth in Schedule 3.1(i)(ii), all such Governmental
Approvals and Consents have been duly obtained and are in
full force and effect, and MTI is in compliance with each
of such Governmental Approvals and Consents held by it with
respect to the Assets and the Fuel Cell Business.
(iii)Schedule 3.1(i)(iii) sets forth all Government
Contracts.
(iv) Except as set forth in Schedule 3.1(iv)(iv), to
MTI's Knowledge as of the Contribution Date, there are no
proposed laws, rules, regulations, ordinances, orders, judg-
ments, decrees, governmental takings, condemnations or other
<PAGE>
proceedings which would be applicable to the business,
operations or properties of the Fuel Cell Business and
which might adversely affect the properties, assets,
liabilities, operations or prospects of the Fuel Cell
Business, either before or after the Contribution Date.
(j) Operation of the Fuel Cell Business. Except as set
forth in Schedule 3.1(j), (i) MTI has conducted the Fuel Cell
Business only through MTI and not through any direct or indirect
subsidiary or affiliate of MTI and (ii) no part of the Fuel Cell
Business is operated by MTI through any entity other than MTI.
(k) Assets. Except as disclosed in Schedule 3.1(k), MTI
has good title to all the Assets free and clear of any and all
Liens other than Permitted Liens. The Assets, together with the
services and arrangements described in Section 4, comprise all
assets and services necessary for the continued conduct of the
Fuel Cell Business by the Company as now being conducted. The
Assets, taken as a whole, constitute all the properties and
assets relating to or used or held for use in connection with
the Fuel Cell Business during the past twelve months (except
cash disposed of, accounts receivable collected, prepaid expenses
realized, Contracts fully performed, properties or assets
replaced by equivalent or superior properties or assets, in
each case in the ordinary course of business, employees not
hired by the Company, the Excluded Assets, and those services
which the Company has the right to receive from MTI under the
Services Agreement). Except for Excluded Assets, there are no
assets or properties used in the operation of the Fuel Cell
Business and owned by any Person other than MTI that will not
be leased or licensed to the Company under valid, current
leases or license arrangements. The Assets are in all material
respects adequate for the purposes for which such assets are
currently used or are held for use, and are in reasonably good
repair and operating condition (subject to normal wear and tear)
and, to the Knowledge of MTI, there are no facts or conditions
affecting the Fuel Cell Business or the Assets which could,
individually or in the aggregate, interfere in any material
respect with the conduct of the Fuel Cell Business.
(l) Contracts.
(i) Schedule 3.1(l)(i) contains a complete and correct
list of all agreements, contracts, commitments and other
instruments and arrangements (whether written or oral) of the
types described below (1) by which any of the Assets are
<PAGE>
bound or affected or (2) to which MTI is a party or by
which it is bound that affects the Fuel Cell Business or
the Assets (the "Contracts"):
(1) licenses, permits, Governmental Approvals,
and other contracts concerning or relating to
the Licensed Premises;
(2) employment, consulting, agency, collective
bargaining or other similar contracts, agreements,
and other instruments and arrangements relating to or
for the benefit of current, future or former employees
or inventors, officers, directors, sales
representatives, distributors, dealers, agents,
independent contractors or consultants;
(3) loan agreements, indentures, letters of
credit, mortgages, security agreements, pledge
agreements, deeds of trust and instruments relating to
the borrowing of money or obtaining of or extension of
credit;
(4) licenses, licensing arrangements and other
contracts providing in whole or in part for the use of,
or limiting the use of, any of the Intellectual Property
Rights;
(5) notifications, requests for bid, proposals,
awards, contracts, and grants under which MTI has or
may have rights to obligations;
(6) joint venture, partnership and similar
contracts involving a sharing of profits or expenses
(including, but not limited to, joint research and de-
velopment and joint marketing contracts);
(7) asset purchase agreements and other
acquisition or divestiture agreements, including, but
not limited to, any agreements relating to the sale,
lease or disposal of any Assets (other than sale of
inventory in the ordinary course of business) or
involving continuing indemnity or other obligations;
<PAGE>
(8) orders and other contracts for the purchase
or sale of materials, supplies, products or services,
each of which involves aggregate payments in excess of
$10,000 in the case of purchases or $10,000 in the case
of sales;
(9) contracts with respect to which the
aggregate amount that could reasonably expected to be
paid or received thereunder in the future exceeds
$10,000 per annum or $30,000 in the aggregate;
(10)sales agency, manufacturer's representa-
tive, marketing or distributorship agreements;
(11)contracts, agreements or arrangements
with respect to the representation of the Fuel Cell
Business in foreign countries; and
(12)master lease agreements providing for the
leasing of personal property primarily used in, or held
for use primarily in connection with, the Fuel Cell
Business.
(ii) MTI has delivered to the Company complete and
correct copies of all written Contracts, together with all
amendments thereto, and accurate descriptions of all material
terms of all oral Contracts, set forth or required to be set
forth in Schedule 3.1(l)(i).
(iii)All Contracts are in full force and effect and
enforceable against each party thereto. There does not exist
under any Contract any event of default or event or condition
that, after notice or lapse of time or both, would constitute
a violation, breach or event of default thereunder on the
part of MTI or, to the Knowledge of MTI, any other party
thereto except as set forth in Schedule 3.1(l)(iii).
Except as set forth in Schedule 3.1(l)(iii), no consent of
any third party is required under any Contract as a result
of or in connection with, and the enforceability of any
Contract will not be affected in any manner by, the
execution, delivery and performance of this Agreement or
any of the Other Agreements or the consummation of the
transactions contemplated thereby.
<PAGE>
(iv) MTI has no outstanding power of attorney
relating to the Fuel Cell Business.
(m) Territorial Restrictions. Except as set forth in
Schedule 1.1(m), MTI is not restricted by any written agreement
or understanding with any other Person from carrying on the Fuel
Cell Business anywhere in the world. The Company, solely as a
result of its receipt of MTI's contribution of the Fuel Cell
Business pursuant to this Agreement or by its assumption of the
Assumed Liabilities, will not become restricted in carrying on
any business anywhere in the world.
(n) Inventories. All Inventories are of good, usable and
merchantable quality.
(o) Suppliers; Raw Materials. Schedule 3.1(o) sets forth
(i) the names and addresses of all suppliers from which the Fuel
Cell Business ordered raw materials, supplies, merchandise and
other goods and services with an aggregate purchase price for
each such supplier of $100 or more during the twelve month period
ended May 31, 1997 and (ii) the amount for which each such
supplier invoiced the Fuel Cell Business during such period. MTI
has not received any notice or has any reason to believe that
there has been any material adverse change in the price of such
raw materials, supplies, merchandise or other goods or services,
or that any such supplier will not sell raw materials, supplies,
merchandise and other goods to the Company at any time after the
Contribution Date on the terms and conditions similar to those
used in its current sales to the Fuel Cell Business, subject to
general and customary price increases. To the best knowledge of
MTI, no supplier of the Fuel Cell Business described in clause
(i) of the first sentence of this Section 3.1(o) has otherwise
threatened to take any action described in the preceding sentence
as a result of the consummation of the transactions contemplated
by this Agreement or the Other Agreements.
(p) Government Contracts.
(i) Government Contracts. Schedule 3.1(i)(iii)
identifies all contracts, grants, cooperative agreements,
awards, proposals, requests to bid, notification of
opportunity to bid, or other arrangements in which MTI is
either a prime contractor, subcontractor, grantee, awardee,
bidder, or prospective bidder or any such arrangement
between MTI and its subcontractors for any Government
Contract relating to the Fuel Cell Business ("Government
<PAGE>
Contracts"). Except for explicit references to
sections of the applicable agency acquisition regulations, or
Federal Acquisition Regulations, none of the Government
Contracts is subject to any "implied" clauses or other
understandings which modify, extend or limit the contract
in any way.
(ii) Patent Rights. MTI has or will, upon the receipt
of the Consents, have the authority and ability to assign to
the Company all patent rights accrued as a result of its
performance under the Government Contracts ("MTI Patent
Rights").
(iii)Exceptions to Patent Rights. Except as noted on
Schedule 3.1(p)(ii), MTI has complied with all applicable
agency policies and contract procedures necessary to secure
in itself the right to file patent applications for the MTI
Patent Rights. MTI shall, within sixty (60) days of the
date of this Agreement, secure in itself the right to file
patent applications for MTI Patent Rights which it has not
yet secured in itself. MTI shall assign such patent rights
solely to the Company within ten (10) days of securing such
rights.
(iv) Third Party and Government Rights. Except in
the case of the Government Contracts set out on Schedule
3.1(p)(iv), no other party has a license, whether express or
implied, to use the MTI Patent Rights. In the case of the
Government Contracts set out on Schedule 3.1(p)(iv), the
parties to each such contract, including the United States
government, have only a non-exclusive, perpetual, non-
assignable, license to use the MTI Patent Rights, as of the
date of this Agreement.
(v) March In Rights. MTI has complied with its
obligations set out in the Government Contracts and otherwise
required by 35 U.S.C. 203, to prevent the relevant Federal
agency from requiring the assignment of the MTI Patent Rights
to any other party, including a signatory to the applicable
Government Contract.
(q) Absence of Certain Fuel Cell Business Practices. To
MTI's Knowledge, neither MTI, nor any officer, employee or agent
of MTI, or any other person acting on MTI's behalf, has, directly
or indirectly, within the past five years given or agreed to give
any gift or similar benefit to any customer, supplier,
<PAGE>
governmental employee
or other person who is or may be in a position to help or hinder
the Fuel Cell Business (or assist MTI in connection with any
actual or proposed transaction relating to the Fuel Cell Business)
(i) which subjected or might have subjected MTI to any damage or
penalty in any civil, criminal or governmental litigation or
proceeding, (ii) which if not given in the past, might have had
an adverse effect on the Fuel Cell Business or MTI, (iii) which
if not continued in the future, might have an adverse effect on
the Fuel Cell Business or the Assets or subject the Fuel Cell
Business or the Company to suit or penalty in any private or
governmental litigation or proceeding, (iv) for any of the
purposes described in Section 162(c) of the Code or (v) for the
purpose of establishing or maintaining any concealed fund or
concealed bank account.
(r) Intellectual Property Rights.
(i) MTI owns, or is licensed or otherwise possesses
legally enforceable and sufficient rights to use the
Intellectual Property Rights. Schedule 3.1(r)(i) lists all
current and past (lapsed, expired, abandoned or cancelled)
patents, registered and material unregistered copyrights,
trade marks, service marks, trade names and any applications
therefor that are necessary for the conduct of the Fuel Cell
Business and specifies the jurisdictions in which each such
Intellectual Property Right has been issued or registered or
in which an application for such issuance and registration
has been filed, including the respective registration or
application numbers and the names of all registered owners.
Schedule 3.1(r)(i) lists (1) any requests MTI has received
to make any registration of the type referred to in the
immediately preceding sentence, including the identity of the
requestor and the item requested to be so registered, and the
jurisdiction for which such request has been made; (2) all
licenses, sublicenses and other agreements (written or oral)
as to which MTI is a party and pursuant to which any person
is authorized to use any Intellectual Property Right, or any
trade secret material of the Fuel Cell Business, and includes
the identity of all parties thereof, a description of the
nature and subject matter thereof, the applicable royalty and
the term thereof; and (3) all licenses, sublicenses, and
other agreements (written or oral) as to which MTI is a party
and pursuant to which MTI is authorized to use any
intellectual property rights in MTI's conduct of the Fuel
Cell Business ("Third Party Intellectual Property Rights"),or
<PAGE>
other trade secret of a third party in or as to any product,
and includes the identity of all parties thereto, a
description of the nature and subject matter thereof, the
applicable royalty and the term thereof. MTI is not party
to any oral license, sublicense or agreement which, if
reduced to written form, would be required to be listed in
Schedule 3.1(r)(i).
(ii) Except as otherwise provided in this Agreement
or as set forth in Schedule 3.1(r)(ii), MTI is not, nor will
it be as a result of the execution and delivery of this
Agreement or the performance of its obligations hereunder,
in violation of any license, sublicense, or agreement
described in Schedule 3.1(r)(i). No claims with respect
to the Intellectual Property Rights, or Third Party
Intellectual Property Rights, to the extent arising out of
any use, reproduction or distribution of such Third Party
Intellectual Property Rights by or through MTI, are
currently pending or, to the Knowledge of MTI are
threatened by any Person, nor does MTI have Knowledge of
any valid grounds for any such claims that are bona fide
(1) to the effect that the manufacture, sale, licensing or
use of any product as now used, sold or licensed or proposed
for use, sale or license by MTI infringes on any copyright,
patent, trademark, service mark or trade secret; (2) against
the use by MTI of any of the Intellectual Property Rights;
(3) challenging the ownership, validity or effectiveness of
any of the Intellectual Property Rights or other trade
secret material to the Fuel Cell Business; or (4) challenging
the license or legally enforceable right to use any of the
Third Party Intellectual Property Rights. To the Knowledge
of MTI, all patents, registered trademarks, trade names
and copyrights held by MTI are valid and subsisting.
Except as set forth in Schedule 3.1(r)(ii), to the
Knowledge of MTI, there is no material unauthorized use,
infringement or misappropriation of any of the Intellectual
Property Rights by any third party, including any employee
or former employee of MTI.
(iii)Except as set forth in Schedule 3.1(r)(iii), MTI
(1) has not been sued, charged in writing, or otherwise
notified of any claim that any of the Intellectual Property
Rights infringe any other Person's trade secrets, patents,
trademarks, service marks, trade names or copyrights and
which has not been finally terminated prior to the date
hereof, nor has MTI been informed or notified by any third
party that MTI's use of any of the Intellectual Property
Rights and/or operation of the Fuel Cell business may
<PAGE>
constitute such an infringement and (2) has no Knowledge
of any infringement liability with respect to, or
infringement by MTI in its conduct of the Fuel Cell Business
of any trade secret, patent, trademark, service mark, trade
names or copyright of another.
(iv) Employee Restrictions. To MTI's Knowledge
none of MTI's employees (past or present, full or part-time)
involved in MTI's conduct of the Fuel Cell Business is
obligated under any contract or contracts ((including
licenses, agreements, covenants and other commitments of any
nature), or is subject to any order, writ, judgment,
injunction, decree, determination or award of any court,
administrative agency or other tribunal, that restricts
the employee's activities on behalf of MTI's conduct of
the Fuel Cell Business or interferes with the use of such
employee's best efforts to promote the interests of MTI
in the conduct of the Fuel Cell Business.
(v) Confidential Information. MTI has not disclosed
any information of a proprietary or confidential nature
relating to its business, products, technology or financial
condition to any person or entity, except as described in
Schedule 3.1(r)(v).
(s) Insurance. Schedule 3.1(s) contains a complete and
correct list and summary description of all insurance policies
maintained by MTI for the benefit of or in connection with the
Assets or the Fuel Cell Business. MTI has delivered to the
Company complete and correct copies of all such policies together
with all riders and amendments thereto. Such policies are in
full force and effect, and all premiums due thereon have been
paid. MTI has complied in all material respects with the terms
and provisions of such policies. The insurance overage provided
by such policies is adequate and customary for the Fuel Cell
Business. Schedule 3.1(s) sets out all claims made by MTI under
any policy of insurance during the past two years with respect
to the Fuel Cell Business and in the opinion of MTI reasonably
formed and held, there is no basis on which a claim should or
could be made under any such policy with respect to it.
(t) Licensed Premises. MTI is the owner of the real
property in which the Licensed Premises are located (the
"Property"). MTI's license under the Services Agreement to the
Company of the Licensed Premises does not violate or conflict
with any instrument of record or agreement affecting the
Property. MTI has no Knowledge of any eminent domain or
<PAGE>
similar proceedings against the Property which could adversely
affect the Company's use or occupancy of the Licensed Premises
during the term of the license. There are no defaults by MTI
under any mortgage on the Property which could give rise to the
mortgagee's foreclosure on the Property or give rights to any
mortgagee to disturb the Company's use or occupancy of the
Licensed Premises during the term of the license.
(u) Environmental Matters.
(i) Permits. All Environmental Permits necessary
for the conduct of the Fuel Cell Business are identified
Schedule 3.1(u)(i), and MTI currently holds all such En-
vironmental Permits, and all such Environmental Permits to
the extent permitted by law shall be validly transferred to
the Company on the Contribution Date. MTI has not been
notified by any relevant Governmental Authority that any
such Environmental Permit will be modified, suspended,
cancelled or revoked, or cannot be renewed in the ordinary
course of business.
(ii) No Violations. MTI has complied in all material
respects with all Environmental Permits and all applicable
Environmental Laws pertaining to the Licensed Premises and
MTI's conduct of the Fuel Cell Business. No Person has
alleged any violation by MTI of any such Environmental
Permits or any applicable Environmental Law relating to MTI's
conduct of the Fuel Cell Business.
(iii)No Actions. Except as set forth in Schedule
3.1(u)(iii), MTI has not caused or taken any action that has
resulted or may result in any liability or obligation
relating to (1) the environmental conditions on, under, or
about the Licensed Premises, the Assets or other properties
or assets owned, leased or used by MTI in connection with
and necessary for the conduct of the Fuel Cell Business, or
(2) the past or present use, management, handling, transport,
treatment, generation, storage or Release of any Hazardous
Substances, except for any such liabilities and obligations
that, individually and in the aggregate, are not material to
the Fuel Cell Business and have not had or resulted in, and
will not have or result in, any material adverse effect on
the Fuel Cell Business.
<PAGE>
(iv) Other. Except as set forth in Schedule 3.1(u)(iv):
(1) MTI has not transported or arranged for transportation
(directly or indirectly) of any Hazardous Substances relating
to the Fuel Cell Business to any location that is, listed or
proposed for listing under CERCLA, or on any similar state
list, or the subject of federal, state or local enforcement
actions or investigations or Remedial Action; and (2) no
work, repair, construction or capital expenditure is
required or planned in respect of the Assets or the Licensed
Premises pursuant to or to comply with any Environmental Law,
nor has MTI received any notice of any such requirement,
except for such work, repair, construction or capital
expenditure as is not material to the Fuel Cell Business and
is in the ordinary course of business.
(v) Full Disclosure. MTI has disclosed and made
available to the Company, all information, including, without
limitation, all studies, analyses and test results, in the
possession, custody or control of MTI relating to Hazardous
Substances used, managed, handled, transported, treated,
generated, stored or Released by MTI or any other Person at
any time on the Licensed Premises, or otherwise in connection
with the use or operation of the properties or assets used in
or held for use in connection with the Fuel Cell Business.
(v) Employees, Labor Matters, etc. MTI is not a party to
or bound by any collective bargaining agreement and there are no
labor unions or other organizations representing, purporting to
represent or attempting to represent any employees employed in the
operation of the Fuel Cell Business. Schedule 3.1(v) contains a
list of all employees of MTI that work for or in the Fuel Cell
Business, along with the position and the annual rate of
compensation of each such person. Each such employee, as well as
any other person who was involved in the development or creation
of MTI's Intellectual property Rights, has entered into a
confidentiality and assignment of inventions agreement with MTI,
a copy of which has previously been delivered to the Company.
Except as set forth in Schedule 3.1(v), to the Knowledge of MTI,
no key employee or group of employees employed by MTI in the Fuel
Cell Business has any plans to terminate employment with MTI.
MTI has complied in all material respects with all provisions of
Applicable Law pertaining to the employment of the employees of
the Fuel Cell Business, including, without limitation, all such
Laws relating to labor relations, equal employment, fair
employment practices, entitlements, prohibited discrimination or
<PAGE>
other similar employment practices or acts, except for
any failure or failures to comply that, individually or together
with all such other failures, has not and will not result in a
material liability or obligation on the part of the Fuel Cell
Business, and has not had or resulted in, and will not have or
result in, an adverse effect on the Fuel Cell Business.
(w) Employee Benefit Plans. Schedule 3.1(w) lists each
pension, retirement , profit sharing, deferred compensation, bonus
or other incentive plan, or other employee benefit program,
arrangement, agreement or understanding, or medical, vision,
dental or other health plan, or life insurance or disability plan,
or any other employee benefit plan, including, without limitation,
any "employee benefit plan" as defined in Section 3(3) of the
Employee Retirement Income Security Act of 1974, as amended
("ERISA"), to which MTI contributes or is a party or is bound or
under which it may have liability and under which employees or
former employees of the Fuel Cell Business (or their
beneficiaries) are eligible to participate or derive a benefit
("Employee Benefit Plans'). MTI has delivered to the Company
true, correct and complete copies of all Employee Benefit Plans.
(x) Confidentiality. Except as set forth on Schedule 3.1(x),
MTI has taken all steps necessary to preserve the confidential
nature of all material confidential information (including,
without limitation, any proprietary information) with respect to
the Fuel Cell Business, including, but not limited to, the
manufacturing or marketing of any of the Fuel Cell Business
products or services.
(y) No Guarantees. Except as set forth on Schedule 3.1(y),
none of the obligations or liabilities of the Fuel Cell Business
or of MTI incurred in connection with the operation of the Fuel
Cell Business is guaranteed by or subject to a similar contingent
obligation of any other Person. MTI has not guaranteed or become
subject to a similar contingent obligation in respect of the
obligations or liabilities of any other Person. There are no
outstanding letters of credit, surety bonds or similar
instruments of MTI or any of its Affiliates in connection with
the Fuel Cell Business or the Assets.
(z) Disclosure. No representation or warranty made by
MTI in this Agreement nor any statement or certificate furnished
or to be furnished by MTI to the Company or its representatives
in connection with or pursuant to this Agreement contains or will
contain any untrue statement of a material fact, or omits or will
omit to state any material fact required to make the statements
<PAGE>
not misleading. There is no fact (other than matters of a
general economic or political nature which do not affect the
Fuel Cell Business uniquely) known to MTI that has not been
disclosed by MTI to the Company that might reasonably be
expected to have or result in a material adverse effect
on the Fuel Cell Business.
(aa) Contract Payments. MTI has not received any prepay-
ments or advances under any Contract or Government Contract.
4. Related Transactions.
4.1 Other Agreements. Contemporaneously with the execution of this
Agreement and the Operating Agreement, MTI and the Company shall enter
into the following agreements:
(a) A Distribution Agreement in the form attached as Schedule
4.1(a).
(b) A Services Agreement in the form attached as Schedule 4.1(b).
5. Covenants of MTI.
5.1 Information Retention. Other than the books and records of MTI
and the Fuel Cell Business contributed to the Company hereunder, MTI will
retain all books and records relating to the Fuel Cell Business in
accordance with MTI's record retention policies as presently in effect.
During the three (3) year period beginning on the Contribution Date, MTI
shall not dispose of or permit the disposal of any such books and records
not required to be retained under such policies without first giving 60
days' prior written notice to the Company offering to surrender the same
to the Company at the Company's expense.
5.2 [Intentionally Omitted.]
5.3 Liability for Transfer Taxes. MTI shall be responsible for the
timely payment of, and shall indemnify and hold harmless the Company
against, all sales, use, value added, documentary, stamp, gross receipts,
registration, transfer, conveyance, excise, recording, license and other
similar Taxes and fees ("Transfer Taxes"), arising out of or in connection
with or attributable to the transactions effected pursuant to this
Agreement. MTI shall prepare and timely file all Tax Returns required to
be filed in respect of Transfer Taxes, provided that the Company shall be
permitted to prepare any such Tax Returns that are the primary
responsibility of the Company under applicable law. The Company's
<PAGE>
preparation of any such Tax Returns shall be subject to MTI's approval,
which approval shall not be withheld unreasonably.
5.4 Certificates of Tax Authorities. MTI shall provide to the
Company copies of certificate from the appropriate taxing authority for
which the Company could have liability to withhold or pay Taxes with
respect to the transfer of the Assets or the Fuel Cell Business within
_______ days following the Contribution Date.
5.5 Confidentiality. MTI will treat and hold as such all of the
Confidential Information, refrain from using any of the Confidential
Information except in connection with this Agreement, and deliver
promptly to the Company or destroy, at the request and option of the
Company, all tangible embodiments (and all copies) of the Confidential
Information which are in its possession. In the event that MTI is
requested or required (by oral question or request for information or
documents in any legal proceeding, interrogatory, subpoena, civil
investigative demand, or similar process) to disclose any Confidential
Information, MTI will notify the Company promptly of the request or
requirement so that the Company may seek an appropriate protective order
or waive compliance with the provisions of this Section 5.5. If in the
absence of a protective order or the receipt of a waiver hereunder, MTI
is, on the advice of counsel, compelled to disclose any Confidential
Information to any tribunal, MTI may disclose the Confidential
Information to the tribunal.
5.6 Covenant Not to Compete. For a period of three (3) years from
and after the Contribution Date, MTI will not engage directly or indirectly
in any business previously or presently (as of the Contribution Date)
conducted by the Fuel Cell Business in the United States; provided,
however, that no owner of less than 5% of the outstanding stock of any
publicly traded corporation shall be deemed to engage solely by reason
thereof in any of such publicly trade company's businesses. If the final
judgment of a court of competent jurisdiction declares that any term or
provision of this Section 5.6 is invalid or unenforceable, the Parties
agree that the court making the determination of invalidity or
unenforceability shall have the power to reduce the scope, duration, or
area of the term or provision, to delete specific words or phrases, or
to replace any invalid or unenforceable term or provision that is valid
and enforceable and that comes closest to expressing the intention of the
invalid or unenforceable term or provision, and this Agreement shall be
enforceable as so modified after the expiration of the time within which
the judgment may be appealed. This covenant shall not prevent MTI from
performance under the Distribution Agreement described in Section 2.2(d)
or conduct of any further research and development under the NYSERDA
contract regarding the hybrid electrical vehicle, an Excluded Asset.
<PAGE>
6. Indemnification.
6.1 By MTI.
(a) MTI - Indemnity for Breach of Representations, Warranties,
Covenants and Agreements. MTI agrees to indemnify, defend and hold
harmless the Company from and against all Losses which may be
incurred by the Company arising out of any breach by MTI of any of
MTI's representations warranties, covenants or agreements made in
this Agreement, the Schedules attached hereto or any document or
instrument delivered in connection with the transactions contemplated
hereby. The maximum liability of MTI to the Company under this
Section 6.1 for breaches of MTI's representations and warranties in
Section 3 shall be limited to the total amount of Capital
Contributions made by EDC to the Company under Article 4 of the
Operating Agreement.
(b) MTI - Indemnity for Excluded Liabilities. MTI agrees to
indemnify, defend and hold harmless the Company from and against all
Losses which may be incurred by the Company with respect to or arising
out of any of the Excluded Liabilities. There shall be no limitation
of either time or amount on MTI's obligation to indemnify, defend and
hold harmless the Company under this Section 6.1(b).
6.2 By Company. The Company agrees to indemnify MTI with respect
to any and all claims, losses, liabilities, costs and expenses (including
attorneys' fees and reimbursable expenses) which may be reasonably incurred
by MTI arising out of any breach by the Company of any of its
representations, warranties, covenants or agreements made in this
Agreement, the Schedules hereto or any document or instrument delivered
in connection with the transactions contemplated hereby or arising out
of any of the Assumed Liabilities.
6.3 Notice and Defense of Claims. A party claiming indemnification
under this Section 6 (the "Asserting Party") must promptly notify in
writing the party from which indemnification is sought (the "Defending
Party") of the nature and basis of such claim for indemnification. If
such claim relates to a claim, litigation or other action by a third
party against the Asserting Party, or any fixed or contingent liability
to a third party (a "Third Party Claim"), the Defending Party may elect
to assume the defense of the Third Party claim at its own expense with
counsel selected by the Defending Party. The Defending Party may not
assume the defense if the named parties to the Third Party Claim
(including any impleaded parties) include both the Defending Party and
the Asserting Party and representation of both parties by the same
counsel would be inappropriate due to actual or potential differing
interests between them, in which case the Asserting Party shall have the
right to defend the Third Party Claim and to employ counsel approved by the
<PAGE>
Defending Party at the expense of the Defending Party. If the Defending
Party assumes the defense of the Third Party Claim, the Defending Party
shall be liable for any fees and expenses of counsel for the Asserting
party incurred thereafter in connection with the Third Party Claim
(except in the case of actual or potential differing interests, as provided
in the preceding sentence). If the Defending Party does not assume the
defense of the Third Party Claim, the Asserting Party shall have the right
to assume the defense of and settle the Third Party Claim (at the Defending
Party's expense), if such Asserting Party shall notify the Defending Party
of the Asserting Party's intention to settle the Third Party Claim (at the
Defending Party's expense), unless the Defending Party shall notify
Asserting Party in writing within five (5) days after receipt of such
notice of intention to settle of the Defending Party's election to assume
(at its expense) the defense of the Third Party Claim and promptly
thereafter takes appropriate action to implement such defense. The
Asserting Party and the Defending shall use all reasonable efforts to
cooperate fully with respect to the defense of any claim, action or
proceeding covered by this Section 6.
6.4 Remedies. Except as otherwise provided herein, none of the
remedies provided in this Agreement for either party, including specific
performance, are the exclusive remedy of either party for a breach of
this Agreement. Except as otherwise provided herein, the parties shall
have the right to seek any other remedy in law or equity in lieu of or
in addition to any remedies provided in this Agreement, including an
action for damages for breach of contract.
7. Public Announcements. Any and all press releases and other public
announcements or communications concerning this Agreement and the transactions
hereunder shall be made only with the Company's prior written approval or as
otherwise required by law.
8. Brokers.
8.1 For MTI. MTI represents and warrants that it has not engaged any
broker or finder or incurred any liability for brokerage fees, commissions
or finder's fees in connection with the transactions contemplated by this
Agreement. MTI agrees to indemnify and hold harmless the Company against
any claims or liabilities asserted against it by any person acting or
claiming to act as a broker or finder on behalf of MTI.
8.2 For the Company. The Company represents and warrants that it has
not engaged any broker or finder or incurred any liability for brokerage
fees, commissions or finder's fees in connection with the transactions
contemplated by this Agreement. The Company agrees to indemnify and hold
harmless MTI against any claims or liabilities asserted against it by any
person acting or claiming to act as a broker or finder on behalf of the
Company.
<PAGE>
9. Definition of Certain Terms.
The terms defined in this Section 9, whenever used in this Agreement
(including in the Schedules), shall have the respective meanings indicated
below for all purposes of this Agreement. All references herein to a Section
or Schedule are to a Section or Schedule of or to this Agreement, unless
otherwise indicated.
"Affiliate" of a Person means a Person that directly or indirectly
through one or more intermediaries, controls, is controlled by, or is
under common control with, the first Person. "Control" (including the
terms "controlled by" and "under common control with") means the
possession, directly or indirectly, of the power to direct or cause the
direction of the management policies of a person, whether through the
ownership of voting securities, by contract or credit arrangement, as
trustee or executor, or otherwise.
"Agreement" means this Contribution Agreement, including the Schedules
hereto.
"Applicable Law" means all applicable provisions of all (i)
constitutions, treaties, statutes, laws (including the common law), rules,
regulations, ordinances, codes or orders of any Governmental Authority,
(ii) Governmental Approvals and (iii) orders, decisions, injunctions,
judgments, awards and decrees of or agreements with any Governmental
Authority.
"Assets" is defined in Section 1.1.
"Assumed Liabilities" is defined in Section 1.4.
"Business Day" shall mean a day other than a Saturday, Sunday or other
day on which commercial banks in Detroit or New York are authorized or
required to close.
"Code" means the Internal Revenue Code of 1986, as amended.
"Confidential Information" means any information concerning the
businesses and affairs of the Fuel Cell Business that is not already
generally available to the public.
"Consent" means any consent, approval, authorization, waiver,
permit, grant, franchise, concession, agreement, license, exemption or
order of, registration, certificate, declaration or filing with, or
report or notice to, any Person, including, but not limited to, any
Governmental Authority.
"Contracts" is defined in Section 3.1(l)(i).
<PAGE>
"Contributed FCB Balance Sheet" is defined in Section 3.1(d).
"Contribution Date" is defined in the introductory paragraph of this
Agreement.
"Copyrights" shall mean the copyrights registered with the U.S.
Copyright Office, as further described on Schedule 9 - Copyrights,
attached, which lists all federally registered copyrights now held or at
anytime held by MTI and used in the Fuel Cell Business, together with all
other copyrighted or copyrightable works used in the Fuel Cell Business
(as described on Schedule 9 - Copyrights, the "Works") and any derivative
works of the Works and any "Moral Rights" MTI may have in the Works,
including the Works described in any registered copyrights listed on
Schedule 9 - Copyrights.
"Covered Returns" is defined in Section 3.1(f)(i).
"$ or dollars" means lawful money of the United States.
"EDC" means Edison Development Corporation, a Michigan corporation,
whose address is 2000 Second Avenue, Detroit, Michigan 48226-1279.
"Environmental Laws" means all Applicable Laws relating to the
protection of the environment, to human health and safety, or to any
emission, discharge, generation, processing, storage, holding, abatement,
existence, Release, threatened Release or transportation of any Hazardous
Substances, including, without limitation, (i) CERCLA, the Resource
Conservation and Recovery Act, and the Occupational Safety and Health Act,
(ii) all other requirements pertaining to reporting, licensing, permitting,
investigation or remediation of emissions, discharges, releases or
threatened releases of Hazardous Materials into the air, surface water,
groundwater or land, or relating to the manufacture, processing,
distribution, use, sale, treatment, receipt, storage, disposal, transport
or handling of Hazardous Substances, and (iii) all other requirements
pertaining to the protection of the health and safety of employees or the
public.
"Environmental Liabilities and Costs" means all Losses, whether direct
or indirect, known or unknown, current or potential, past, present or
future, imposed by, under or pursuant to Environmental Laws, including,
without limitation, all Losses related to Remedial Actions, and all fees,
disbursements and expenses of counsel, experts, personnel and consultants
based on, arising out of or otherwise in respect of: (i) the ownership or
operation of the Fuel Cell Business or the Assets; and (ii) expenditures
necessary to cause the Licensed Premises or any aspect of the Fuel Cell
Business to be in compliance with any and all requirements of Environmental
Laws as of the Contribution Date.
<PAGE>
"Environmental Permits" means any federal, state and local permit,
license, registration, consent, order, administrative consent order,
certificate, approval or other authorization with respect to MTI
necessary for the conduct of the Fuel Cell Business as currently
conducted or previously conducted under any Environmental Law.
"ERISA" means the Employee Retirement Income Security Act of 1974,
as amended.
"Excluded Assets" is defined in Section 1.2.
"Excluded Liabilities" is defined in Section 1.5.
"Financial Statements" means each of the financial statements required
to be provided by MTI under Section 3.1(d).
"Fuel Cell Business" means the business acquired or to be acquired
by the Company pursuant to this Agreement, consisting of the Assets and
the Assumed Liabilities, but not including the Excluded Assets or
Excluded Liabilities.
"Governmental Approval" means any Consent of, with, from or to any
Governmental Authority.
"Governmental Authority" means any nation or government, any state or
other political subdivision thereof, any entity exercising executive,
legislative, judicial, regulatory or administrative functions of or
pertaining to government, including, without limitation, any government
authority, agency, department, board, commission or instrumentality of
the United States, any State of the United States or any political
subdivision thereof, and any tribunal or arbitrator(s) of competent
jurisdiction, and any self-regulatory organization.
"Hazardous Substances" means any substance that: (i) is or contains
asbestos, urea formaldehyde foam insulation, polychlorinated biphenyls,
petroleum or petroleum derived substances or wastes, radon gas or related
materials; (ii) requires investigation, removal or remediation under any
Environmental Law, or is defined, listed or identified as a "hazardous
waste" or "hazardous substance" thereunder; or (iii) is toxic, explosive,
corrosive, flammable, infectious, radioactive, carcinogenic, mutagenic,
or otherwise hazardous and is regulated by any Governmental Authority
or Environmental Law.
"Intellectual Property Assets" is defined in Section 1.1(h).
"Intellectual Property Rights" shall refer collectively and singularly
to Patent Rights, Copyrights, Trademark Rights, Trade Secrets and Know
<PAGE>
How, except to the extent that MTI expressly indicates on the attached
schedules that it has transferred such Intellectual Property Rights.
"Inventories" is defined in Section 3.1(n).
"IRS" means the Internal Revenue Service.
"Know How" shall mean all drawings, prototypes, computer files (in
object and source code) and other such tangible materials.
"Knowledge" means actual knowledge after due inquiry and
investigation.
"Licensed Premises" is [to be provided by MTI].
"Lien" means any mortgage, pledge, hypothecation, right of others,
claim, security interest, encumbrance, lease, sublease, license,
occupancy agreement, adverse claim or interest, easement, covenant,
encroachment, burden, title defect, title retention agreement, voting
trust agreement, interest, equity option, lien, right of first refusal,
charge or other restrictions or limitations of any nature whatsoever,
including, but not limited to, such as may arise under any Contracts.
"Losses" is defined as any and all claims, liabilities, obligations,
losses, fines, costs, royalties, proceedings, deficiencies or damages
(whether absolute, accrued, conditional or otherwise and whether or not
resulting from third party claims), including out-of-pocket expenses and
reasonable attorneys' and accountants' fees incurred in the investigation
or defense of any of the same or in asserting any of their respective
rights.
"MTI" means Mechanical Technology Corporation, a New York corporation.
"Moral Rights" shall mean all rights of paternity or integrity
relating to each Work including, without limitation, all rights to be
identified as the author of the Work(s), to object to the modification
of any of the Work, and any similar rights existing under the judicial
or statutory laws of any country in the world or any treaty, regardless
of whether such right is denominated or generally referred to as
moral rights.
"Other Agreements" means the agreements and other documents and
instruments described in Section 4.
"Patent Rights" shall mean all Letters Patent, together with all
foreign Letters Patent corresponding thereto listed on Schedule 9 - Patent
Rights, further together with, foreign or domestic patent applications
corresponding thereto, excluding those listed on Schedule 9 - Patent Rights
and related thereto; patentable rights, excluding those listed on
<PAGE>
Schedule 9 - Patent Rights and related thereto, whether or not such
rights are registered, or applications for registration have been filed
with any Governmental Authority, and all proprietary: drawings, plans;
designs; quality control; machine and mechanical specifications;
engineering data; production techniques; installation data; application
data; flow charts; logic diagrams relating to the Patent, and any other
foreign or domestic patentable rights that may be obtained in respect
thereof; and any foreign or domestic reissues, reexaminations certificates,
extensions, substitutions, confirmations, divisions, and continuations or
continuations-in-part of any of the foregoing.
"Permitted Liens" means (i) Liens for Taxes not yet due and payable or
which are being contested in good faith and by appropriate proceedings if
adequate reserves with respect thereto are maintained on MTI's books in
accordance with GAAP; or (ii) Liens that, individually and in the
aggregate, do not and would not materially detract from the value of any
of the Assets or interfere with the conduct of the Fuel Cell Business by
MTI or the Company or as listed in Schedule 9 - Permitted Liens.
"Person" means any natural person, firm, partnership, association,
corporation, company, trust, business trust, Governmental Authority or
other entity.
"Release" means any releasing, disposing, discharging, injecting,
spilling, leaking, leaching, pumping, dumping, emitting, escaping,
emptying, seeping, dispersal, migration, transporting, placing and the
like, including without limitation, the moving of any materials through,
into or upon, any land, soil, surface water, ground water or air, or
otherwise entering into the environment.
"Remedial Action" means all actions required to (i) clean up, remove,
treat or in any other way remediate any Hazardous Substances; (ii) prevent
the release of Hazardous Substances so that they do not migrate or
endanger or threaten to endanger public health or welfare or the
environment; or (iii) perform studies, investigations and care related to
any such Hazardous Substances.
"Tax" means any federal, state, provincial, local, foreign or other
income, alternative, minimum, accumulated earnings, personal holding
company, franchise, capital stock, net worth, capital, profits, windfall
profits, gross receipts, value added, sales, use, goods and serves, excise,
customs duties, transfer, conveyance, mortgage, registration, stamp,
documentary, recording, premium, severance, environmental (including taxes
under Section 59A of the Code), real property, personal property, ad
valorem, intangibles, rent, occupancy, license, occupational, employment,
unemployment insurance, social security, disability, workers' compensation,
payroll, health care, withholding, estimated or assessment or deficiencies
thereof (including all interest and penalties thereon and additions thereto
whether dispute or not).
<PAGE>
"Tax Return" means any return, report, declarations, form, claim for
refund or information return or statement relating to Taxes, including any
schedule or attachment thereto, and including any amendment thereof.
"Trade Secrets" shall mean methods, processes, know how and all other
proprietary data and information relating to MTI's conduct of the Fuel Cell
Business, products and/or services, including customer lists and business
methods.
"Trademark Rights" shall mean the foreign or domestically registered
trademarks described on Schedule 9 - Trademark Rights, which is attached
hereto and made a part hereof and constitutes all of the foreign or
domestically registered trademarks now held or at any time held by MTI and
used in the Fuel Cell Business, any trademark applications (state of
federal), common law trademark rights, and all other trademarks or service
marks now owned or ever owned by MTI and used at any time in connection
with its Fuel Cell Business, including the sale and promotion of its goods
and services, together with the goodwill of the business relating to such
trademarks or service marks.
"Transfer Taxes" is defined in Section 5.3.
"Treasury Regulations" means the regulations prescribed pursuant to
the Code.
"Withholding Taxes" is defined in Section 3.1(f)(i).
10. Miscellaneous.
10.1 Survival of Representations and Warranties, etc. The
representations and warranties contained in this Agreement shall survive
the execution and delivery of this Agreement, any examination by or on
behalf of the parties hereto and the completion of the transactions
contemplated herein, but only to the extent of the time periods specified
below:
(a) Except as set forth in clause (b) below, the representations
and warranties contained in Section 3.1 shall survive until the
earlier of (i) an initial public offering of equity interests in the
Company and in accordance with the requirements of the Securities Act
of 1933 or (ii) for a period of five (5) years following the
Contribution Date.
(b) The representations and warranties of MTI contained in
Section 3.1(f) shall survive as to any Tax covered by such
representations and warranties for so long as any statute of
limitations for such Tax remains open, in whole or in part, including
without limitation by reason of waiver of such statute of
limitations.
<PAGE>
All other agreements, covenants and obligations of the parties hereunder
shall survive the execution and delivery of this Agreement and the
completion of the transactions hereunder.
10.2 Expenses. Except as otherwise expressly provided herein, the
Company and MTI shall each pay their own expenses in connection with this
Agreement and the transactions contemplated hereby.
10.3 Severability. If any provision of this Agreement, including any
phrase, sentence, clause, Section or subsection is inoperative or
unenforceable for any reason, such circumstances shall not have the effect
of rendering the provision in question inoperative or unenforceable in any
other case or circumstance, or of rendering any other provision or
provisions herein contained invalid, inoperative, or unenforceable to any
extent whatsoever.
10.4 Notices. All notices, requests, demands, waivers and other
communications required or permitted to be given under this Agreement shall
be in writing and shall be deemed to have been duly given if (a) delivered
personally, (b) mailed by first-class, registered or certified mail, return
receipt requested, postage prepaid, or (c) sent by next-day or overnight
mail or delivery:
(i) if to the Company to,
Gary Mittleman
968 Albany-Shaker Road
Latham, New York 12110
with a copy to:
Chris Nern
2000 Second Avenue
Detroit, Michigan 48226
Ananth G. Ananthasubramaniam
2000 Second Avenue
Detroit, Michigan 48226
Cathy Hill
Whiteman Osterman & Hanna
One Commerce Plaza
Albany, New York 12260
<PAGE>
(ii) if to MTI,
Marty Mastriani
Mechanical Technology Inc.
968 Albany-Shaker Road
Latham, New York 12110
with a copy to:
Cathy Hill
Whiteman Osterman & Hanna
One Commerce Plaza
Albany, New York 12260
or, in each case, at such other address as may be specified in writing to
the other parties hereto.
Such notices or other communications shall be deemed received (a) on
the date delivered, if delivered personally, (b) three business days after
being deposited with the U.S. Post Office, if sent by registered or
certified mail, or (c) on the next business day, if sent by Federal
Express or similar overnight courier.
10.5 Entire Agreement. This Agreement (including the Schedules) and
the Other Agreements (when executed and delivered) constitute the entire
agreement and supersede all prior agreements and understandings, both
written and oral, between the parties with respect to the subject matter
hereof.
10.6 Counterparts. This Agreement may be executed in several
counterparts, each of which shall be deemed an original and all of which
shall together constitute one and the same instrument.
10.7 Governing Law, etc. This Agreement shall be governed in all
respects, including as to validity, interpretation and effect, by the
internal laws of the State of Michigan, without giving effect to the
conflict of laws rules thereof. The Company and MTI hereby irrevocably
submit to the jurisdiction of the courts of the State of Michigan and the
Federal courts of the United States of America located in the State of
Michigan in respect of the interpretation and enforcement of the provisions
of this Agreement and of the documents referred to in this Agreement, and
hereby waive, and agree not to assert, as a defense in any action, suit or
proceeding for the interpretation or enforcement hereof or of any such
document, that it is not subject thereto or that such action, suite or
proceeding may not be brought or is not maintainable in said courts or that
the venue thereof or that such action, suit or proceeding may not be
brought or is not maintainable in said courts or that the venue thereof may
not be appropriate or that this Agreement or any of such document may not
<PAGE>
be enforced in or by said courts, and the parties hereto irrevocably agree
that all claims with respect to such action or proceeding shall be heard
and determined in such a Michigan or Federal court. The Company and MTI
hereby consent to and grant any such court jurisdiction over the person of
such parties and over the subject matter of any such dispute and agree that
mailing of process or other papers in connection with any such action or
proceeding in the manner provided in Section 8.4 or in such other manner
as may be permitted by law, shall be valid and sufficient service thereof.
10.8 Binding Effect. This Agreement shall be binding upon and inure
to the benefit of the parties hereto and their respect heirs, successors
and permitted assigns.
10.9 No Third Party Beneficiaries. Nothing in this Agreement shall
confer any rights upon any person or entity other than the parties hereto
and their respective heirs, successors and permitted assigns.
10.10 Amendment; Waivers, etc. No amendment, modification or discharge
of this Agreement, and no waiver hereunder, shall be valid or binding
unless set forth in writing and duly executed by the party against whom
enforcement of the amendment, modification, discharge or waiver is sought.
Any such waiver shall constitute a waiver only with respect to the specific
matter described in such writing and shall in no way impair the rights of
the party granting such waiver in any other respect or at any other time.
Neither the waiver by any of the parties hereto of a breach of or a default
under any of the provisions of this Agreement, nor the failure by any of
the parties, on one or more occasions, to enforce any of the provisions
of this Agreement or to exercise any right or privilege hereunder, shall be
construed as a waiver of any other breach or default of a similar nature,
or as a waiver of any of such provisions, rights or privileges hereunder.
The rights and remedies herein provided are cumulative and are not
exclusive of any rights or remedies that any party may otherwise have at
law or in equity.
10.11 Further Assurances. In addition to MTI's obligations under
Section 1.3, each of the parties shall execute such documents and other
papers and perform such further acts as may be reasonably required or
desireable to carry out the provisions hereof and the transactions
contemplated hereby.
<PAGE>
IN WITNESS WHEREOF, the parties hereto have executed the foregoing documents
as of the date and year first above written.
MECHANICAL TECHNOLOGY INCORPORATED
(a New York corporation)
By: /s/ Martin Mastroianni
__________________________________
Its: President
_________________________________
"MTI"
PLUG POWER, L.L.C.
(a Delaware limited liability company)
By: /s/ Larry Garberding
__________________________________
Its: Executive Vice-President
_________________________________
"Company"
<PAGE>
SCHEDULE 1.1(a) - Assets
Attached is a list of all machinery, equipment, furniture, vehicles and other
tangible property to be transferred to Plug Power LLC. Included herein are:
1. Preliminary list of office equipment.
2. An inventory list of laboratory equipment and supplies.
3. Copies of MTI Plant Appropriations for Fuel Cell Laboratory facilities
and equipment. (There may be some crossover between #2 and 3)
4. Government-owned property purchased by MTI under our contracts with the
Ford Motor Company. This material is split into three segments: (1) Expendable
material purchased under Ford Phase I which is no longer separately
identifiable; (2) Expendable material which is no longer separately
identifiable; and (3) Material currently locked in a secure government property
room at MTI.
5. See Schedule 3.1(o).
6. MTI-Owned Manufacturing Equipment (see attached "Inventory of MTI
Fabrication Equipment") which may be available to Plug Power on a shared basis.
(If a qualified technician performs the work and the equipment is available
for use.)
7. General Purpose Control Device (GPCD) as defined in Purchase Order and
Subcontract No. 47-2-R31153.
<PAGE>
<TABLE>
<CAPTION>
OFFICE EQUIPMENT
MTI Fuel Cell
Office Equipment
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
Employee Tag Number Description First Cost Accum. Sep.-96 FY-97 May-97 Book
Degree Book Acq. FY 97
Degree
10/1/95 FY 96 Acq
All Total 60,457.34 11,634.96 47,925.13 24,167.17 2,520.00 4,898.68 21,788.49
Antonelli 29502 Computer:G'way
486/33 4,260.00 4,260.00 0.00 0.00
Antonelli 7436 Cabinet - 2 Drawer NL NL
Antonelli None Cabinet - 2 Drawer
Antonelli None Cabinet - 2 Drawer
Antonelli Bookcase - 3 Drawer
Antonelli Bookcase - 3 Drawer
Antonelli Table
Antonelli Table
Antonelli Cabinet - 5 Drawer
Antonelli Desk
Antonelli 9848 Chair on Rollers NL NL
Antonelli 9849 Chair on Rollers NL NL
Antonelli Chair
Antonelli Chair - Leather Swivel
Antonelli Blackboard
Buesing 22186 Desk 181.15 181.15 0.00 0.00
Buesing 28054 Computer 3,617.40 3,617.40 0.00 0.00
Buesing 8972 Chair NL
Buesing Table 0.00 0.00
Cusack 28405 Monitor 712.00 142.40 569.60 94.94 474.66
Cusack 9802 Cabinet - 5 Drawer NL NL
Cusack 28396 Computer 3,278.00 655.60 2,622.40 437.06 2,185.34
Cusack Table
Cusack Desk
Cusack Desk
Cusack Blackboard
Cusack Corkboard
Cusack 7793 Chair on Rollers NL NL
Cusack Chair on Rollers
Dhar 29676 Computer 2,134.00 0.00 2,134.00 256.08 1,877.92
Dhar 7500 Chair NL
Dhar Table 0.00 0.00
Dhar 7936 Chair 79.26 79.26 0.00 0.00
Dhar 8798 Chair NL
Dhar 1222 Desk NL
Dhar 1239 Cabinet - 5 Drawer 81.87 81.87 0.00 0.00
Ernst 29666 Computer 2,134.00 0.00 2,134.00 256.08 1,877.92
Ernst 29667 Monitor 595.00 0.00 595.00 71.40 523.60
Ernst 396 Cabinet - 2 Drawer 48.26 48.26 0.00
Ernst Cabinet - 2 Drawer
Ernst 8775 Cabinet - 5 Drawer NL NL
Ernst 8271 Cabinet - 5 Drawer NL NL
Ernst 7411 Cabinet - 2 Drawer
Horizontal NL NL
Ernst 7420 Cabinet - 2 Drawer
Horizontal NL NL
Ernst Cabinet - 2 Drawer
Horizontal
Ernst Cabinet - 2 Drawer
Horizontal
Ernst 10065 Table - Circular 100.02 100.02 0.00 0.00
Ernst Chair
Ernst Chair
Ernst Chair
Ernst Chair
Ernst 8977 Desk 832.46 832.46 0.00 0.00
Ernst 8591 Chair on Roller NL NL
Ernst Cabinet Tops
Ernst Cabinet Tops
Ernst Credenza
Harmen 29584 Monitor NL NL
Harmen 29581 Computer NL NL
Harmen Bookcase - 3 Drawer
Harmen 1181 Chair 39.80 39.80 0.00 0.00
Harmen 22277 File - 5 Drawer 93.56 93.56 0.00 0.00
Harmen File - 5 Drawer
Harmen 896 Desk 152.00 152.00 0.00 0.00
Harmen File - 2 Drawer
Harmen 22217 Table 99.00 99.00 0.00 0.00
Harmen Table
Harmen 8543 Chair on Rollers NL NL
Harmen Corkboard
Harmen Corkboard
Heroth 8360 Chair NL NL
Heroth 919 Desk 152.00 152.00 0.00 0.00
Heroth 9775 Chair on Rollers NL NL
Heroth 9236 Cabinet - 5 Drawer
Horizontal NL NL
Hicks Monitor 0.00 0.00
Hicks Computer - Laptop 2,186.96 0.00 2,186.96 262.43 1,924.53
Hicks 22263 Cabinet - 3 Shelf 58.80 58.80 0.00 0.00
Hicks Blackboard
Hicks Corkboard
Hicks File - 5 Drawer
Hicks 7788 Chair NL NL
Hicks 7986 Chair NL NL
Hicks Table
Hicks Credenza
Hicks Table - Computer
Hicks Desk
Hicks 7335 Chair on roller NL NL
Huang 28922 Laptop 2,218.00 887.20 1,330.80 295.74 1,035.06
Huang 29671 Monitor 595.00 0.00 595.50 71.40 523.60
Huang 7652 Cabinet - 5 Drawer NL NL
Huang Table
Huang 25879 Cabinet - 2 Drawer
Horizontal NL NL
Huang Chair
Huang Chair
Huang Cabinet - 3 Drawer
Horizontal
Huang Cabinet - 3 Drawer
Horizontal
Huang Corkboard
Huang 9482 Desk NL NL
Huang 9871 Chair on Rollers NL NL
Huang 731 File - 2 Drawer 48.26 48.26 0.00 0.00
Jones 29218 Computer - 386 1,978.34 1,978.35 (0.01) (0.01)
Jones 29691 Computer - New NL NL 1,256.00 150.72 1,105.28
Jones 25839 Chair NL NL
Jones 25864 Chair on Rollers NL NL
Jones 8772 Chair on Rollers NL NL
Jones Blackboard
Jones 9996 Cabinet - 3 Shelf NL NL
Jones Cabinet - 3 Shelf
Jones 28019 Monitor 386 0.00 0.00 0.00 0.00
Jones File -2 Drawer
Jones Table
Jones 7258 Cabinet - 5 Drawer
Horizontal NL NL
Jones Cabinet - 2 Drawer
Horizontal
Jones Cabinet - 2 Drawer
Horizontal
Jones 202 Desk 0.00 0.00 0.00 0.00
Jones Corkboard
Knapp 19715 Computer NL NL 1,264.00 140.45 1,123.55
Knapp Table
Knapp 22191 Desk 181.15 181.15 0.00 0.00
Knapp 22203 Chair 100.85 100.85 0.00 0.00
Knapp Light
Leonard Desk
Leonard Credenza
Leonard 21494 Computer Table NL
Leonard Chair
Leonard Chair
Leonard 12007 Chair on Rollers 137.04 137.04 0.00 0.00
Leonard Files - 5 Drawer
Leonard File - 5 Drawer
Leonard File - 5 Drawer
Leonard Computer 8,802.61 5,281.56 3,521.05 1,173.68 2,347.37
MacCue Cabinet - 2 Drawer
Horizontal
MacCue Bookcase - 2 Drawer
MacCue 784 Credenza 150.00 150.00 0.00 0.00
MacCue 8760 Cabinet - 5 Drawer
Horizontal NL NL
MacCue 22057 Desk NL NL
MacCue 8540 Chair on Rollers NL NL
MacCue Table - Computer
MacCue Table - Computer
MacCue 29505 Computer - G'way 486/33 NL NL
MacCue Cabinet - 5 Drawer
Horizontal
Maddaloni 7046 Desk NL
Maddaloni 8637 Table NL
Maddaloni 7065 Chair 89.28 89.28 0.00 0.00
Maddaloni 9479 Cabinet - 2 Drawer NL
Maddaloni 9315 Cabinet - 2 Drawer NL
Maddaloni Cabinet - 2 Drawer
Maddaloni 7990 Chair 100.80 100.80 0.00 0.00
Maddaloni 7988 Chair 100.80 100.80 0.00 0.00
Maddaloni Chair
Maddaloni White Board
Maynard 717 Desk 102.85 102.85 0.00 0.00
Maynard 714 Cabinet 179 179 0.00 0.00
Maynard 7797 Chair NL
Maynard Chair
Meacher 29524 Computer 4,577.00 2,288.50 2,288.50 305.12 1,983.38
Meacher 24460 File -5 Drawer 26.78 26.78 0.00 0.00
Meacher 22112 Bookcase 3 - Shelf 59.24 59.24 0.00 0.00
Meacher 7194 Chair NL NL
Meacher 22025 Chair on Rollers NL NL
Meacher 4032 Table 102.85 102.85 0.00 0.00
Meacher Table - Computer
Meacher 7350 Desk 160.32 160.32 0.00 0.00
Meacher Chair on Rollers
Migirditch Desk
Migirditch Table
Migirditch Table
Migirditch 22198 Chair 51.10 51.10 0.00 0.00
Migirditch 22220 Chair 51.25 51.25 0.00 0.00
Migirditch 22347 Chair on Rollers 140.56 140.56 0.00 0.00
Migirditch 9317 Bookcase - 3 Shelf NL
Migirditch 10036 Cabinet - 5 Drawer
Horizontal 235.02 235.02 0.00 0.00
Migirditch 28465 Computer 1,724.92 689.96 1,034.96 230.00 804.96
Migirditch File - 2 Drawer
Nestler 29583 Monitor - 17" NL NL
Nestler 28128 Computer:
G'way PS100XL 3,706.31 1,482.52 2,223.79 494.16 1,729.63
Nestler 29507 Computer Monitor-14" NL NL
Nestler 8564 Cabinet - 3 Shelf NL NL
Nestler Drawing Table
Nestler 1285 File - 5 Drawer 81.87 81.87 0.00 0.00
Nestler 1195 Desk 139.30 139.30 0.00 0.00
Nestler 8352 Desk NL NL
Nestler 8747 File - 2 Drawer NL NL
Nestler File - 2 Drawer
Nestler File -2 Drawer
Nestler Table
Nestler 29580 Printer - Calcomp 625.00 250.00 375.00 83.34 291.66
Nestler 25070 Printer - Epson 286c 559.00 559.00 0.00 0.00
Nestler Table
Nestler 28882 Plotter - HP 7,376.00 7,376.00 0.00 0.00
Nestler 28885 Computer-
Plotter Driver 3,959.90 3,959.00 0.00 0.00
Nestler 29152 Monitor for
Plotter Computer 198.00 198.00 0.00 0.00
Nestler 8517 Bookcase - 3 Drawer NL NL
Sobolewski 1036 Desk 139.30 139.30 0.00 0.00
Sobolewski 74 Table 84.80 84.80 0.00 0.00
Sobolewski 9812 Bookshelf NL
Sobolewski Chair on Rollers
Sobolewski Chair
Sobolewski White Board
Sobolewski 28344 Computer 2,820.00 846.00 1,974.00 188.00 1,786.00
Sumigray 28462 Computer 2,910.60 2,328.48 582.12 388.08 194.04
Sumigray 28881 Computer Table 0.00 0.00 0.00 0.00
Sumigray 9768 Book Case NL
Sumigray 9766 Book Case NL
Sumigray 818 File - 2 Drawer 48.26 48.26 0.00 0.00
Sumigray Table
Sumigray Table
Sumigray 12015 Chair NL
Sumigray 7787 Chair NL
Sumigray 7679 Chair 40.00 40.00 0.00 0.00
Sumigray 9422 File - 5 Drawer NL
Sumigray 9894 File - 5 Drawer NL
Sumigray 9757 Legal File NL
Sumigray 847 Desk 152.00 152.00 0.00 0.00;
VanHoertum Desk
VanHoertum 7064 Chair 89.28 89.28 0.00
VanHoertum 7681 Chair 79.26 79.26 0.00
VanHoertum Table
VanHoertum 29150 Computer 6,334.86 6,334.86 0.00
Walsh 28636 Printer - HP NL NL
Walsh Computer - MAC IIex
Walsh Cabinet-2 Drawer Horizontal
Walsh Credenza
Walsh 9275 Chair NL NL
Walsh 7196 Chair NL NL
Walsh Table
Walsh Desk
Walsh Chair on Rollers
Walsh Magnifying Glass
Walsh Blackboard
</TABLE>
<PAGE>
LABORATORY EQUIPMENT & SUPPLIES
<TABLE>
<CAPTION>
<S> <C> <C> <C> <C>
Item # Description S/N MTI tag Location
1 486 computer with 15"
Magitronic monitor
and GPIB board 29615 Test Room
2 Pentium computer, with
GPIB,AT B72M10-16,&
network card 29911 Test Room
3 Gateway 2000 17" monitor 29910 Test Room
4 MSA Model 516 gas monitor 516-N-202 Test Room
5 Wilton vise Test Room
6 H2 main inlet tank
pressure gauge, Ashcroft Test Room
7 H2 main inlet delivery
pressure gauge, Ashcroft Test Room
8 H2 delivery safety system
pressure switches (4x) Test Room
9 H2 delivery safety system
solenoid valves (4x) Test Room
10 Station #1 1193 Test Room
11 Station #1 HP 6060B load 3326A-00849 Test Room
12 Station #2 109501 Test Room
13 Station #2 HP 6051A load 3436A-00512 Test Room
14 Station #2 MFC Test Room
15 Station #3 28929 Test Room
16 Station #3 HP 6050A load 2940A-01002 28122 Test Room
17 Station #3 A/D terminal
board Test Room
18 Station #1-3 inlet air filter
system (3 cartridges) Test Room
19 Low/no air pressure control
unit for station #1-3 Test Room
20 Station #1-3 exhaust H20
separator tank (2x) Test Room
21 H20 pump for station #1-3
exhaust H20 separator tank AC8799913 Test Room
22 Station #1-3 air inlet
solenoid S67504 Test Room
23 Station #1-3 air inlet
pressure control Test Room
24 Station #4 Test Room
25 Station #4, CN 76000 Omega
temperature controller Test Room
26 Station #4, Omega model 199
temperature reader 10846 Test Room
27 Station #4, isolation amplifier Test Room
28 Station #4, cool/heat pump
controller ref.106302202 Test Room
29 Station #4, cool/heat pump
motor ref.46606352543-
1A/7-22230500 Test Room
30 Station #4 air rotometer 95W037174 Test Room
31 Station #4 air water
rotometer 9511HC090840/2 Test Room
32 Station #4 Omega mode
FL-1214 water flow meter Test Room
33 Station #4 cooling water
pressure gauge (4x) Test Room
34 Station #4 water/gas separator Test Room
35 Station #4 H2 humidification
water flow meter Test Room
36 Station #4 air humidification
water flow meter Test Room
37 Station #4 humidification H20
tanks (2x) Test Room
38 Station #4 exhaust H20
separator tank (2x) Test Room
39 H20 pump for station #4 exhaust
H20 separator tank AB6891211 Test Room
40 Station #4 inlet air filter
system (3 cartridges) Test Room
41 Low/no air pressure control unit
for station #4 Test Room
42 Alloy Product Corp. stainless
steel water reservoir tank 47034-015 Test Room
43 Fluke 2280B data logging
system 3265037 Test Room
44 FMI lab pump. model QVG50
w/RH1 pumphead 89470 Test Room
45 FMI lab pump model QVG50 w/RH1
and RH00 pumpheads 89471 Test Room
46 FMI lab pump model Q2V w/
(2) Rh00 pumpheads 82002 Test Room
47 FMI lab pump model QD q/Q2 and
RH1 pumpheads Test Room
48 FMI lab pump. model QD w/Q2 Test Room
49 Teel model 2P672B air
expansion tank Test Room
50 Stainless steel water refill
pressurized bottle (2x) Test Room
51 Misc. beakers, cylinders,
glassware Test Room
52 ARO main inlet air regulator Test Room
52 Ashcroft main air inlet
pressure gauge (3x) Test Room
53 MSA Instrument calibration test
system model R Test Room
54 Ion Science LTD model 8500
gas leak kit Test Room
56 Fairbank scale Test Room
57 Pelouze model MT90 timer Test Room
58 Heated vacuum plate control Test Room
59 Tylan MFC 2900V AT9611039 Test Room
60 Tylan RO-28 readout box FO9611014 Test Room
61 HP milliohm meter Test Room
62 Lab DC power supply 28927 Test Room
63 Lambda 400A Lfs-50-5 DC power
supply Test Room
64 Small air compressor and
receiver tank Test Room
65 FiberLite series 180 high
intensity light source Test Room
66 HP 3478 multimeter 2619A42195 Test Room
67 Torque wrench 28130 Test Room
68 Torque wrench Test Room
69 Analog caliber Test Room
70 Micrometer 0-1" @ 0.0001
resolution Test Room
71 Fluke 77 digital multimeter 28443 Test Room
72 Goldstar DM-311 digital
Multimeter 311020392 Test Room
73 Torque wrench in N-M Test Room
74 Boehm hollow punch set Test Room
75 Lab bench (6x) Test Room
76 Lab bench with drawer (2x) Test Room
77 Misc. Swagelok fittings Test Room
78 Misc. valves Test Room
79 Misc. hand tools Test Room
80 File cabinet (1x) Test Room
81 Lab bench (3x) Assembly room
82 Tables (1x) Assembly room
83 Misc. die boards Assembly room
84 Loomis press 29916 Assembly room
85 Lighted air chamber Assembly room
86 Humidifier Assembly room
87 Honeywell 350i Enviracaire Assembly room
88 Lab bench (3x) Manuf. room
89 Tables (3x) Manuf. room
90 Cabinet A - misc. electrical Manuf. room
91 Cabinet B - misc. lab supplies Manuf. room
92 Cabinet C - misc. plumbing Manuf. room
93 Granite block Manuf. room
94 Automatic hot press 1076 Manuf. room
95 Radiator for station #4 Manuf. room
96 Textron carbon cloth Manuf. room
97 Manual press cylinder Manuf. room
98 HustRite acid cabinet Manuf. room
99 Misc. acids Manuf. room
100 Extra copper press plate Manuf. room
101 Weight 22# and 50# Manuf. room
102 Compaq monitor 84514544R752 Manuf. room
103 CompuAdd monitor 91015743
104 Compaq 386 computer for XY
Machine 29130 Manuf. room
105 XY machine and associated
plumbing and hardware 910445 Manuf. room
106 Corning magnetic stir plates 70496086909 Manuf. room
107 Corning magnetic stir plates 70496086836 Manuf. room
108 Fisher model 220T magnetic
Stirrer 117 Manuf. room
109 Thermolyne HP-A1915B hot
plate Manuf. room
110 Fishek 310M hot plates 105 Manuf. Room
111 Betty cooker table top
electric range (2x) Manuf. room
112 Branson E Module ultrasonic
Generator F93984 Manuf. room
113 Ultrasonic bath Z-6-2018-79 Manuf. room
114 Chemical storage cabinet Manuf. room
115 Misc. chemicals Manuf. room
116 Summit refrigerator for
chemicals Manuf. room
117 Psycho-dyne wet/dry bulb
instrument humidity meter Manuf. room
118 Denver A-250 Balance 28113 Manuf. room
119 Accu-Lab draw down table Manuf. room
120 Spray Systems spray head (2x) Manuf. room
121 Peristaltic pump for ink
circulation 14967CP Manuf. room
122 Despatch LFD-2-11-3
convection oven 159015 Manuf. room
123 E-pure water system 28625 Manuf. room
124 Lab hood with sinks (Fisher) Manuf. room
125 Hood for ink coating Manuf. room
126 Hood for decal preparation Manuf. room
127 Caframo mixer, RZR-2000 29599 Manuf. room
128 HQ oil less air compressor
Model STD050341, 80 gallon 022896L-0786445 Boiler room
129 Speedaire oil less air
Compressor 29609 Boiler room
130 Safety shower Outside Hallway
131 MSDS station Outside Hallway
132 Brown cabinet - misc.
glassware Outside Hallway
133 Grey cabinet - misc. fuel
cell plates tag: 1350 Outside Hallway
134 Miscroscope-Nikon 40X Assy Room
135 Spotwelder Unitek Model
1-163 01 681145 Assy Room
136 Hygrometer-Taylor #5565 Assy Room
137 Liebert Environmental Control
Unit 43703 Assy Room
138 Airco Pressure Regulator 11-03-8105 Assy Room
139 N2 Pressure Regulator,
Oxweld #9701 150-580 Test Room
140 6-bottle H2 Manifold-Rexarc Outside test room
141 H2 pressure regulator,
Victor VTS452 DB38132 Outside test room
142 H2 pressure switch-
Barksdale (2x) Outside test room
143 H2 Solenoid valve
Asco (4x) Test room
144 Chain link fence enclosure
with gates for H2 bottles
(3 sets) Outside test room
145 Hand truck (bottle cart)-
Harper trucks Outside test room
146 Oven-Boekal 1180 Manf. Area
147 Oven-Lindburg 28357 Manf. Area
148 Loadcell 10257 Manf. Area
149 HP X-Y Recorder (2x) 10757/4837 Manf. Area
150 Function Generator-Wavetek 6240166 Manf. Area
151 Oscilloscope, Phillips
PM 3207 DQ-04 01273 Manf. Area
152 10kw Load-Bank-Ohmweave Outside Test Room
153 SSRs for station 4 load
bank-Crydom, on heat sink Test Room
154 Cables for 10kw load bank Test Room
155 Roll-around tool box
and contents Test Room
156 Air supply tubing, 1/2" dia
x 200' long, Thermoguard Boiler room to test area
157 Air supply tubing, 3/4"dia x
200' long, Nylon Boiler room to test area
</TABLE>
<PAGE>
List of Engineering and Office Software Used
<TABLE>
<CAPTION>
<S> <C> <C>
Item # Title S/N
1 Ansys
2 Labview, Ver 3.1 + Analysis functions 34492B70
3 Labview PID Control Toolkit G10X50601
4 Autocad (5 copies)
5 Origin-3D
6 Ansoft Electromagnetic Peekago
7 Matlab
8 Mathcard
9 Fuel cell element analysis code
10 Fuel cell plate analysis code
11 Fuel cell humidification analysis code
12 MS Office
13 MS Project
14 Internet
15 E-mail
16 Anti-virus
<PAGE>
MTI PLANT APPROPRIATIONS
</TABLE>
<TABLE>
<CAPTION>
Plug Power
Status of Plant Appropriations - Laboratory
5/23/97
<S> <C> <C> <C> <C> <C> <C> <C>
Number Description Authorized & Committed Expended
To Date Prior Year Current Year To Date Prior Year Current Year
0390-86493 Fuel Cell Power
System 98,799 98,799 149,556 88,886 60,670
501-6576 Renovate Space for
PEM Fuel Cell 9,000 9,000 4,427 4,427
0501-86681 Retort Replace-
ment 2,050 2,050 2,027 2,027
0501-88571 Test Equipment for
PEM Fuel Cell 33,000 33,000 31,835 31,835
0501-88628 Acid Storage
Cabinet 689 689 746 746
0501-88647 Convection Drying
Oven for FC MEAs 9,045 9,045 9,254 9,254
0595-86656 Test Facility for
Hydrogen-Fueled
FC's 148,943 148,943 118,209 118,209
0595-86673 Inking Machine
Parts 27,725 27,725 14,223 14,223
0595-86651 FC MEA Manufactu-
ring 46,250 46,250 40,839 40,839
0595-88657 FC Stack Assembly
Facility 1,250 1,250 1,544 1,544
0595-88663 Upgrade FC Test
Station Power
Capability 2,500 2,500 2,488 2,488
0595-88668 FC Assembly Press 8,000 8,000 6,953 6,953
0595-89672 MEA/GDL Manufactu-
ring Facility 28,400 28,400 4,319 4,319
0509-86674 FC Assm'y Room
Climate Control
Unit 15,000 15,000 2,500 2,500
Total $430.651 $141,488 $289,163 $388,920 $125,894 $263,026
</TABLE>
<PAGE>
FIXED ASSETS LISTING
Acct Within Division
Period Ending: 1997-03-28
<TABLE>
<CAPTION>
<S> <C> <C> <C>
Div/Sec P/A Number Catalog Number Asset Description
05.05 05PAXX.86493.0 0U2839 ENGINEERING-FUEL CELL POWER
05.01 05PAXX.86493.0 002974 BEAKER SS STRAIGHT 3100ML
05.01 05PAXX.86493.0 002975 LAB STIRRER AND STIRRER PADDL
05.01 05PAXX.86493.0 003054 LOCKNUT S/S TRAIN RELIEF
05.01 05PAXX.86493.0 003055 2 BOLT COP LUG
05.01 05PAXX.86493.0 003056 CONNECTORS/OVERLOAD HEATER
05.01 05PAXX.86493.0 003057 VUTRON WELD CABLES
05.01 05PAXX.86493.0 00359 OIL LESS COMPRESSOR
05.01 05PAXX.86493.0 003060 METAL HIT ANCHORS
05.01 05PAXX.86493.0 003061 CHAIN LINK FENCE INSTALLATION
05.01 05PAXX.86493.0 003062 GALVANIZED STEEL
05.01 05PAXX.86493.0 003063 PUMP HEAD MODULE
05.01 05PAXX.86493.0 003073 TOGGLE SWITCHES
05.01 05PAXX.86493.0 003074 LAMPHOLDER/ELECTRICAL BOX
05.01 05PAXX.86493.0 003079 LABOR SUPPORT
05.01 05PAXX.86493.0 003080 LABOR SUPPORT
05.01 05PAXX.86493.0 003083 LABOR SUPPORT
05.01 05PAXX.86493.0 003086 LABOR/MATERIAL SUPPORT
05.01 05PAXX.86493.0 003087 LABOR/MATERIAL SUPPORT
05.01 05PAXX.86493.0 003093 LABOR SUPPORT
05.01 05PAXX.86493.0 003106 LABOR SUPPORT
05.01 05PAXX.86493.0 003117 PARTS & LABOR SUPPORT
05.01 05PAXX.86493.0 003916 TEE/NIPPLE/HOSE
05.01 05PAXX.86493.0 003917 HEATERS/HOSE/SINK
05.01 05PAXX.86493.0 003920 LABOR SUPPORT
05.01 05PAXX.86493.0 003931 MISC. PARTS
05.01 05PAXX.86493.0 003933 LABOR SUPPORT FOR 05PAXX..8645
05.01 05PAXX.86493.0 003954 LABOR SUPPORT
05.01 05PAXX.86493.0 003966 MISC. PARTS
05.01 05PAXX.86493.0 003968 LABOR SUPPORT
05.01 05PAXX.86493.0 003974 FEDERAL EXPRESS CHARGES
********PA Total*********;;;
*PA Adjustment 003953 Miscellaneous Parts
003953 Miscellaneous Parts
Adjustment 003944 Miscellaneous Parts and Labor
05.01 05AXX.86576.0 003041 SENSORS & POWER SUPPLY
05.01 05AXX.86576.0 003042 PAINT & PRIMER
05.01 05AXX.86576.0 003043 CIRCUIT BREAKER/BANANA JACK
05.01 05AXX.86576.0 003044 1/8" BROWN VINYL COVER BASE
05.01 05AXX.86576.0 003045 FABRICATION MATERIAL
05.01 05AXX.86576.0 003046 A/D CARD/TERMINATION BOARD
05.01 05AXX.86576.0 003047 WALL ANGLE/CROSS TEES
05.01 05AXX.86576.0 003048 FLOWMETER MODEL 150
05.01 05AXX.86576.0 003049 BALL & CHECK VALVES
05.01 05AXX.86576.0 003050 BLOWER W/MOTOR
05.01 05AXX.86576.0 003051 PRESSURE TRANSDUCER
05.01 05AXX.86576.0 003052 SCREWS/KNIFE/HAWK/VINYL BEAD
05.01 05AXX.86576.0 003053 GALVANIZED HOODS (2)
05.01 05AXX.86576.0 003081 FEDERAL EXPRESS FREIGHT
******** PA Total*******
05.01 05PAXX..88571.0 029615 486DX2 66MHZ COMPUTER SYSTEM
05.01 05PAXX..88571.0 002986 PRESSURE GAUGE & MANIFOLD
05.01 05PAXX..88571.0 002994 PRESSURE REG, FASTENERS, LABO
05.01 05PAXX..88571.0 003066 FUEL CELL TEST STATION
05.01 05PAXX..88571.0 003068 BLOWER/MOTOR/DIFFUSER/SWITCH
05.01 05PAXX..88571.0 003076 DISPENSING TANKS (3)
05.01 05PAXX..88571.0 003084 LABOR SUPPORT
05.01 05PAXX..88571.0 003085 LABOR SUPPORT
05.01 05PAXX..88571.0 003912 CANVAS TARP/GROMMET/LABOR
********PA Total********
05.01 05PAXX.88628.0 029687 JUSTRITE ACID STORAGE CABINET
********PA Total********
05.01 05PAXX.88647.0 029698 CLASS A OVEN
********PA Total********
*PA Adjustment 003955 Class A Oven;;;
05.95 05PAXX.86656.0 029778 BRONZE BODY CONTROL VALVE
05.95 05PAXX.86656.0 029910 VIVTRON 700 MONITOR
05.95 05PAXX.86656.0 029911 P5-133 PENTIUM PC
05.95 05PAXX.86656.0 029912 INLINE THERMAL MASS FLOWMETE
05.95 05PAXX.86656.0 029917 INLINE THERMAL MASS FLOWMETE
05.95 05PAXX.86656.0 029918 INLINE THERMAL MASS FLOWMETE
05.95 05PAXX.86656.0 029920 VIVITRON 1100 MONITOR
05.95 05PAXX.86656.0 029921 EPSON STYLUS 200
05.95 05PAXX.86656.0 029922 P5-133 PENTIUM PC
05.95 05PAXX.86656.0 029923 CENTRIFUGAL PUMP
05.95 05PAXX.86656.0 029960 LOAD BANK
05.95 05PAXX.86656.0 029961 YOUNG RADIATOR
05.95 05PAXX.86656.0 003975 BUD PANAL
05.95 05PAXX.86656.0 003976 AIR RECEIVER & REGULATOR
05.95 05PAXX.86656.0 003977 DIAPRAGM SWITCH
05.95 05PAXX.86656.0 003978 MISC PARTS
05.95 05PAXX.86656.0 003980 LABOR SUPPORT
05.95 05PAXX.86656.0 003986 TRANSDUCER
05.95 05PAXX.86656.0 003987 TRANSDUCER
********PA Total********;;;
*PA Adjustment 003979 Misc Parts
*PA Adjustment 003953A Misc Parts
*New Invoices To Be Added 6/97:
Controller (Liftech)
Misc. Parts (Delphian)
05.95 05PAXX.86673.0 003967 MISC PARTS
*******PA Total*******
*PA Adjustment 003979 Misc. Parts
05.95 05PAXX.88651.0 029762 OVEN
05.95 05PAXX.88651.0 029762 ELECTRIC INFRARED OVEN
05.95 05PAXX.88651.0 003969 LABOR SUPPORT
05.95 05PAXX.88651.0 003981 FEDERAL EXPRESS CHARGES
05.95 05PAXX.88657.0 029913 WORK BENCH
05.95 05PAXX.88657.0 029914 WORK BENCH
05.95 05PAXX.88657.0 022915 WORK BENCH
05.95 05PAXX.88657.0 003970 LABOR SUPPORT
05.95 05PAXX.88657.0 003982 MISC. PARTS
*******PA Total********
*PA Adjustment 003990 Federal Express Chgs
05.95 05PAXX..88663.0 029696 LOAD MODULE
*******PA Total********
*PA Adjustment 003990 Federal Express Chgs
05.95 05PAXX.88668.0 029916 PLATEN PRESS
05.95 05PAXX.88668.0 003971 LABOR SUPPORT
05.95 05PAXX.88668.0 003992 MISC. PARTS
05.95 05PAXX.89672.0 003972 LABOR SUPPORT
05.95 05PAXX.89672.0 003984 LABOR SUPPORT
</TABLE>
<PAGE>
MAT-DIPSID M.T.I. MATERIAL ABSTRACT
<TABLE>
<CAPTION>
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
Proj Sec Dash Contract Po No Invoice Vendor Description ID Mat $$ GA $$ W/E Date
06 43122 50 411 5C3256 T859MC MASTER M3 33.10 11.59 8/12/95
5C3256 T859MC MASTER M3 22.40 7.84 8/12/95
5C3256 T859MC MASTER M3 50.63 17.72 8/12/95
5C3256 0507697 11558 XTO INVITATION
5C3256 0507697 11558 XTO #NSILICONE RUBBE M1 48.05 16.82 8/19/95
5C3256 0507697 11558 XTO #NSILICONE RUBBE M1 101.54 35.54 8/19/95
5C3256 0507697 11558 XTO #NSILICONE RUBBE M1 76.86 26.90 8/19/95
5C3256 0502773 60280 MCMAST #N#6072T33 M1 26.66 9.33 9/2/95
5C3256 60280 MCMAST #FRT M1 3.11 1.09 9/2/95
5C3256 F0922 FEDERAL EXPRESS M1 26.65 7.57 9/30/95
5C3256 F0922 FEDERAL EXPRESS M1 34.65 9.84 9/30/95
5C3256 5C3256FY M3 0.00 -30.90 9/30/95
411 $529.36 $150.34
05 43122 50 449 5C3256 T8595FRT M3 2.62 0.92 8/12/95
5C3256 T859FRT M3 2.62 0.92 8/12/95
5C3256 T8595FRT M3 2.62 0.92 8/12/95
5C3256 5C3256FY M3 0.00 -0.53 9/30/95
449 $7.86 $ 2.23
05 43122 60 499 5C3256 L3795 CASH M1 9.46 3.31 7/01/95
5C3256 5C3256FY M3 0.00 -0.62 9/30/95
499 $9.46 $2.69
05 43122 60 917 5C3256 00407 WHUANG 285900850 M1 148.50 51.98 4/29/95
5C3256 5C3256FY M3 0.00 -9.81 9/30/95
917 $148.50 $42.17
06 43122 60 927 5C3256 00407 WHUANG 285900850 M1 5.36 1.88 4/29/95
5C3256 5C3256FY M3 0.00 -0.36 9/30/95
927 $5.36 $1.52
06 43122 60 947 5C3256 00407 WHUANG 285900850 M1 14.00 4.90 4/29/95
5C3256 5C3256FY M3 0.00 -0.92 9/30/95
947 $14.00 -$3.98
06 43122 60 957 5C3256 00407 WHUANG 285900850 M1 79.00 27.65 4/29/95
5C3256 5C3256FY M3 0.00 -5.21 9/30/95
957 $79.00 $22.44
06 43122 60 999 5C3256 L3695 CASH M1 4.27 1.49 6/24/95
5C3256 5C3256FY M3 0.00 -0.28 9/30/95
999 $4.27 $1.21
60 $810.46 $230.17
43122 $810.46 $230.17
05 05 $810.46 $230.17
Grand Total
810.46 230.17
5C3256 46357 SOUTHE #FRT M3 .33 2.17 11/17/95
5C3256 0602039 46357 SOUTHE #NANODE PLATE M1 352.74 177.08 11/17/95
5C3256 0602039 46357 SOUTHE #NCATHODE PLATE M1 352.74 177.08 11/17/95
411 $709.81 $374.07
05 43122 60 449 5C3256 F1208 FEDERAL EXPRESS M1 10.75 5.40 12/29/95
5C3256 5C3256FY M3 0.00 0.27 9/30/96
449 $10.75 $5.67
5C3256 0502223 10200 MCMAST #N#5239K16 M1 70.00 35.14 1/19/96
5C3256 0502228 22282 ALBANY #N#SS-IRS8-A M1 74.20 37.25 1/9/96
5C3256 0502229 25019 OMEGA E #N#FL-1214 M1 496.00 248.99 1/19/96
5C3256 0502228 22282 ALBANY #N#B-1610-61 M1 28.70 14.41 1/19/96
5C3256 0502228 22282 ALBANY #N#B-1610-1.8 M1 12.40 6.22 1/19/96
05 43122 50 611 5C3256 37262 NEWARK #FRT M1 2.93 1.47 2/16/96
5C3256 T8592ALBANY VAL M3 496.00 248.99 2/16/96
5C3256 0507151 37262 NEWARK #NCAPACITOR 47 M1 68.60 34.44 2/16/98
5C3256 0507232 88513 UNITED S #NTANK 14 GAL M1 63.63 31.94 2/23/96
5C3256 0507232 88513 UNITED S #NTANK, 30 CAL.W/ M1 66.88 33.57 2/23/96
5C3256 0507232 88513 UNITED S #NBUSHING,REDU M1 2.66 1.34 2/23/96
5C3256 05C7232 88513 UNITED S #NFITTING,3/4" FPT M1 4.61 2.31 2/23/96
5C3256 05C7232 88513 UNITED S #NFITTING,1/4" FPT M1 11.10 5.57 2/23/96
5C3256 05C7232 88513 UNITED S #NTUBING, POLYET M1 40.67 20.42 2/23/96
5C3256 05C7232 88513 UNITED S #NBUSHING,REDU M1 23.20 11.65 2/23/96
5C3256 88513 UNITED S #FRT M1 33.08 16.61 2/23/96
5C3256 l2096 CASH M1 22.83 11.46 2/23/96
5C3256 0507232 88513 UNITED S #NBUSHING,REDU M1 8.62 4.33 2/23/96
5C3256 0502392 01670 W.W.GR #N#4P177 M1 3.89 1.95 3/1/96
5C3256 0502392 01670 W.W.GR. #N#4P579 M1 4.22 2.12 3/1/96
5C3256 0502392 01670 W.W.GR. #N#6XC44 M1 9.52 4.78 3/1/96
5C3256 0507235 07775 FLUID ME #NADAPTOR M1 40.00 20.08 3/1/96
5C3256 0507251 88936 UNITED S #NBUSHING,REDU M1 8.62 4.33 3/1/96
5C3256 0502392 81697 W.W.GR. #N#2P351 M1 52.20 26.20 3/1/96
5C3256 0507251 88936 UNITED S #NFITTING, PVC M1 8.64 4.34 3/1/96
5C3256 0507238 05707 U.S.FILT #NCARTRIDGE REP M1 348.00 174.70 3/1/96
5C3256 0507235 07775 FLUID ME #NPUMP, METERIN M1 550.00 276.10 3/1/96
5C3256 0507235 07775 FLUID ME #NSEAL, LIP M1 20.00 10.04 3/1/96
5C3256 0507213 86911 WOLBER #NTERMINALS M1 94.71 47.54 3/1/96
5C3256 0507213 87019 WOLBER #NTERMINALS M1 145.56 73.07 3/1/96
5C3256 00447 MODULA CREDIT FOR #FRT M1 -521.15 -261.62 3/1/96
5C3256 0507235 07775 FLUID ME #NDRIVE, HIGH SPE M1 720.00 361.44 3/1/96
5C3256 18391 WHATMA #FRT M1 2.65 1.33 3/1/96
5C3256 0502392 01670 W.W.GR. #N#1Z782 M1 62.10 31.17 3/1/96
5C3256 88936 UNITED S #FRT M1 6.85 3.44 3/1/96
5C3256 0507251 88936 UNITED S #NFITTING, PVC M1 9.18 4.51 3/1/96
5C3296 18369 WHATMA #FRT M1 2.90 1.46 3/1/96
5C3256 07775 FLUID ME #FRT M1 8.85 4.44 3/1/96
5C3256 01670 W.W.GR. #FRT M1 5.18 2.60 3/1/96
5C3256 81697 W.W.GR. #FRT M1 3.89 1.95 3/1/96
5C3256 01670 W.W.GR. #FRT M1 4.69 2.35 3/1/96
5C3256 0502401 18391 WHATMA #N#A917A-000 M1 196.46 98.62 3/1/96
5C3256 0502401 18369 WHATMA #N#A915A-BX M1 152.88 76.75 3/1/96
5C3256 0502401 18369 WHATMA #N#A915A-DX M1 152.88 76.75 3/1/96
05 43122 50 611 5C3256 0502392 01670 W.W.CR. #N#1P641 M1 15.72 7.89 3/1/96
5C3256 05707 U.S. FILT #FRT M1 21.28 10.68 3/1/96
5C3256 0502423 03059 C & K PU #NPUNCH 7/16" DIA M1 3.48 1.75 3/8/96
5C3256 F0126 FEDERAL EXPRESS M1 15.20 7.63 3/8/96
5C3256 F0126 FEDERAL EXPRESS M1 25.30 12.70 3/8/96
5C3256 0502423 03059 C & K PU #NPUNCH, 13/16" DI M1 8.84 4.44 3/8/96
5C3256 0502423 03059 C & K PU #NPUNCH, 13/16" DI M1 4.42 2.22 3/8/96
5C3256 03059 C & K PU #FRT M1 20.25 10.17 3/8/96
5C3256 0502324 03059 C & K PU #NPUNCH, 7/16" DIA M1 6.96 3.49 3/8/96
5C3256 0502404 22377 ALBANY #N#SS-8P8T M1 75.20 37.75 3/15/96
5C3256 0502404 22377 ALBANY #N#SS-600-1-4 M1 13.40 6.73 3/15/96
5C3256 0502404 22377 ALBANY #N#SS-810-1-6 M1 61.20 30.72 3/15/96
5C3256 0502404 22377 ALBANY #N#SS-400-1-1 M1 9.80 4.92 3/15/96
5C3256 0502404 22377 ALBANY #N#SS-8CPA2-50 M1 75.30 37.80 3/15/96
5C3256 0502404 22377 ALBANY #N#SS-8-HN M1 18.00 9.04 3/15/96
5C3256 0502404 22377 ALBANY #N#SS-810-3-8TMT M1 66.60 33.43 3/15/96
5C3256 0502404 22377 ALBANY #N#SS-1211-PC-8 M1 25.20 12.65 3/15/96
5C3256 03/14 CASH M1 9.77 4.90 3/15/96
5C3256 0502404 22377 ALBANY #N#SS-811-PC M1 34.40 17.27 3/15/96
5C3256 0502404 22377 ALBANY #N#SS-1611-PC M1 29.80 14.96 3/15/96
5C3256 0502404 22377 ALBANY #N#SS-400-1-12 M1 66.50 33.38 3/15/96
5C3256 0502404 22377 ALBANY #N#8-600-2-6 M1 9.20 4.62 3/15/96
5C3256 22377 ALBANY #FRT M1 3.50 1.76 3/15/96
5C3256 0502404 22377 ALBANY #N#SS-8-TA-7-4RT M1 19.40 9.74 3/15/96
5C3256 0502404 22377 ALBANY #N#8-1610-9 M1 49.00 24.60 3/15/96
5C3256 0507257 76186 NEWARK #NTRANSFORMER, M1 38.73 9.44 3/22/96
5C3256 0502442 89556 UNITED S #N#06254 RECTANG M1 33.49 16.81 3/22/96
5C3256 0502419 01671 W.W.GR. #N#6A662 M1 25.47 12.79 3/22/96
5C3256 0502442 89556 UNITED S #N#95034 LITTLE GI M1 98.55 49.47 3/22/96
5C3256 0507275 01671 W.W.GR. #NCONDENSATE P M1 52.20 26.20 3/22/96
5C3256 0507269 Y8550 KAMAN I #NINSULATION VAR M1 78.72 39.52 3/22/96
5C3256 0507257 76186 NEWARK #NRELAY, CURRENT M1 74.80 37.55 3/22/96
5C3256 0507264 872-11 WOLBER #NSO CORD M1 23.50 11.80 3/22/96
5C3256 0507257 76186 NEWARK #NSOCKET, RELAY M1 8.28 4.16 3/22/96
5C3256 02299 NEWAGE #FRT M1 3.72 1.87 3/22/96
5C3256 0507264 87241 WOLBER. #NSTRAIN RELIEF M1 12.00 6.02 3/22/96
5C3256 0507407 18340 KENTROL #NASIICROFT #25-1 M1 222.00 111.44 3/22/96
5C3256 0507275 01670 W.W.GR. #NTUBING, POLYET M1 12.20 6.12 3/22/96
5C3256 0507236 02299 NEWAGE #NTUBIN, NYLON M1 192.38 96.57 3/22/96
05 43122 50 611 5C3256 0507278 91481 ASSOCIA #NWASHERS.BELL M1 271.00 136.04 3/22/96
5C3256 0507277 30444 MCMAST #NWASHERHI-STR M1 3.67 1.84 3/22/96
5C3256 L3496 CASH FITTINGS M1 6.81 3.42 3/22/96
5C3256 0507263 78435 NEWARK #NSONAL.ERT M1 30.24 15.18 3/22/96
5C3256 01671 WW.GR #FRT M1 7.56 3.80 3/22/96
5C3256 76186 NEWARK #FRT M1 7.75 3.89 3/22/96
5C3256 76186 NEWARK #FRT M1 6.75 3.39 3/22/96
5C3256 Y8550 KAMAN 1 #FRT M1 38.00 19.08 3/22/96
5C3256 18340 KENTROL #FRT M1 6.57 3.30 3/22/96
5C3256 78435 NEWARK #FRT M1 3.03 1.52 3/22/96
5C3256 0507259 97360 W W.GR #NFUSE,250V. 40A M1 365.26 183.36 3/22/96
5C3256 30444 MCMAST #FRT M1 2.70 1.36 3/22/96
5C3256 01671 W W.GR #FRT M1 3.27 1.64 3/22/96
5C3256 91481 ASSOCIA #FRT M1 3.55 1.78 3/22/96
5C3256 89556 UNITED S #FRT M1 11.64 5.84 3/22/96
5C3256 0507289 60328 OAKES E #NCOUPLING 3/4"E M1 2.65 1.33 3/29/96
5C3256 0507289 60328 OAKES E #NCONNECTOR E M1 0.86 0.43 3/29/96
5C3256 0507289 60328 OAKES E #NCONDUIT 3/4" M1 19.84 9.95 3/29/96
5C3256 0507289 60328 OAKES E #NCLAMPS, 3/4" M1 2.03 1.02 3/29/96
5C3256 0502472 18338 KENTROL #NASHCROFT #25-1 M1 97.96 49.18 3/29/96
5C3256 0507276 89067 UNITED S #NCUTTER, TUBING M1 9.82 4.93 3/29/96
5C3256 0507276 89607 UNITED S #NADAPTER #5815 M1 9.36 4.70 3/29/96
5C3256 0507289 60328 OAKES E #NSWITCH, DISCON M1 84.16 42.25 3/29/96
5C3256 0507282 02621 NEWAGE ##NTUBING, NYLOTU M1 384.76 193.15 3/29/96
5C3256 0507276 89607 UNITED S #NADAPTER #5815 M1 10.50 5.27 3/29/96
5C3256 0507276 89607 UNITED S #INT-CLIPS #59032 M1 7.60 3.82 3/29/96
5C3256 0507276 89607 UNITED S #NFITTING #16401 M1 14.80 7.43 3/29/96
5C3256 0507276 89607 UNITED S #NFITTING #16402 M1 24.62 12.36 3/29/96
5C3256 0507289 60328 OAKES E #NFUSE 20 AMP M1 15.66 7.85 3/29/96
5C3256 0507276 89607 UNITED S #NT-CLIPS #59035 M1 9.20 4.62 3/29/96
5C3256 0507291 34302 SAGER S #NSOLENOID VALV M1 179.00 89.86 3/29/96
5C3256 0507285 54708 MSC IND #NSAND PAPER 40 M1 31.51 15.82 3/29/96
5C3256 0507284 01672 W W.GR #NPUMP, UTILITY KI M1 88.97 44.65 3/29/96
5C3256 0507279 14636 THRUWA #NNUT, REDUCED M1 42.00 21.08 3/29/96
5C3256 0507269 Y8554 KAMAN 1 #NINSULATION VAR M1 62.64 31.45 3/29/96
5C3256 0502462 31991 MCMAST #N#9811K37 M1 130.76 65.64 3/29/96
5C3256 0507276 89607 UNITED S #NADAPTER #5815 M1 10.86 5.45 3/29/96
5C3256 0507276 89607 UNITED S #NT-CLIPS #59034 M1 7.80 3.92 3/29/96
5C3256 02621 NEWAGE #FRT M1 6.73 3.38 3/29/96
05 43122 60 611 5C3256 0502462 31991 MCMAST #N#6826K91 M1 3.94 1.98 3/29/96
5C3256 0507276 89607 UNITED S #NADAPTER #5815 M1 14.64 7.35 3/29/96
5C3256 89607 UNITED S #FRT M1 28.10 14.11 3/29/96
5C3256 18338 KENTROL #FRT M1 6.57 3.30 3/29/96
5C3256 01672 W. W.GR #FRT M1 4.01 2.01 3/29/96
5C3256 Y8554 KAMAN 1 #FRT M1 7.23 3.63 3/29/96
5C3256 34302 SAGER S #FRT M1 16.85 8.46 3/29/96
5C3256 54708 MSC IND #FRT M1 5.01 2.52 3/29/96
5C3256 31991 MCMAST #FRT M1 3.04 1.53 3/29/96
5C3256 31991 MCMAST #FRT M1 2.70 1.35 3/29/96
5C3256 14636 THRUWA #FRT M1 4.57 2.29 3/29/96
5C3256 0502462 31991 MCMAST #N#4745K3 M1 97.76 49.08 3/29/96
5C3256 0502462 31991 MCMAST #N#6826k62 M1 14.46 7.26 3/29/96
5C3256 89607 UNITED S M1 100.03 50.22 3/29/96
5C3256 18400 KENTROL #FRT M1 6.70 3.36 4/5/96
5C3256 0502472 18400 KENTROL #NPRESSURE GAU M1 56.25 28.24 4/5/96
5C3256 0502429 14553 SEALING #NGRAFOIL GASKE M1 124.30 62.40 4/12/96
5C3256 0502429 14536 SEALING #NDIE M1 115.00 57.73 4/12/96
5C3256 0502429 14536 SEALING #NDIE M1 130.00 65.26 4/12/96
5C3256 0502429 14536 SEALING #NDIMENSIONAL IN M1 90.00 45.18 4/12/96
5C3256 0502429 14553 SEALING #NDIE M1 264.00 132.53 4/12/96
5C3256 0502429 14553 SEALING #NGASKET GRAFO M1 145.20 72.89 4/12/96
5C3256 0502429 14536 SEALING #NDIE M1 125.00 62.75 4/12/96
5C3256 0502429 14536 SEALING #NHUMIDIFIER PAD M1 18.64 9.36 4/12/96
5C3256 0502429 14536 SEALING #NHUMIDIFIER PAD M1 136.00 68.27 4/12/96
5C3256 0502429 14536 SEALING #NHUMIDIFIER PAD M1 32.01 16.07 4/12/96
5C3256 0502429 14553 SEALING #NWINDOW GASKE M1 243.00 121.99 4/12/96
5C3256 F0301 UPS M1 3.61 1.81 4/12/96
5C3256 F0405 UPS M1 3.77 1.89 4/12/96
5C3256 0502471 35993 DIAMOND #NDISTILLED WATE M1 155.76 78.19 4/12/96
5C3256 0502401 18628 WHATMA #NALUMINUM HEAD M1 32.41 16.27 4/12/96
5C3256 14553 SEALING M1 270.00 135.54 4/12/96
5C3256 89556 UNITED S M1 -98.55 -19.47 4/12/96
5C3256 6752 PAR MFG #FRT M1 21.25 10.67 4/12/96
5C3256 18628 WHATMA #FRT M1 17.50 8.79 4/12/96
5C3256 0502449 6752 PAR MFG #N#875B027-REV A M1 1,215.00 609.93 4/12/96
5C3256 0502429 14553 SEALING #NDIE M1 182.00 91.35 4/12/96
5C3256 0502471 35993 DIAMOND #NDEPOSIT, $600E M1 288.00 144.58 4/12/96
5C3256 14536 SEALING #FRT M1 3.76 1.89 4/12/96
05 43122 50 611 5C3256 08941 W. WGR #FRT M1 2.65 1.33 4/26/96
5C3256 F0202 UPS M1 2.48 1.24 4/26/96
5C3256 F0202 UPS M1 2.48 1.24 4/26/96
5C3256 0502414 08941 W WGR #N#2A251 STRAIN R M1 35.40 17.77 4/26/96
5C3256 FO426 FED EX M1 15.00 7.53 5/3/96
5C3256 0517 APA TRANSPORT M1 81.14 40.73 5/24/96
5C3256 14895 SEALING #FRT M1 51.25 25.73 5/24/96
5C3256 35993 DIAMOND M1 -83.02 -41.68 5/24/96
05 43122 50 617 5C3256 L1996 CASH M1 5.94 2.98 2/16/96
5C3256 00306 GANTON 119402188 M1 43.20 21.69 3/15/96
5C3256FY M3 0.00 1.23 9/30/96
617 $49.14 $25.90
05 43122 50 627 5C3256 00306 GANTON 119402188 M1 10.00 5.02 3/15/96
5C3256 5C3256FY M3 0.00 0.25 9/30/96
627 $10.00 $5.27
05 43122 50 647 5C3256 00306 GANTON 119402188 M1 4.50 2.26 3/15/96
5C3256 5C3256FY M3 0.00 0.11 9/30/96
647 $4.50 $2.37
05 43122 50 649 5C3256 F0220 FEDERAL EXPRESS M1 10.50 5.27 3/8/96
5C3256 F0220 FEDERAL EXPRESS M1 12.50 6.28 3/8/96
5C3256 F0220 FEDERAL EXPRESS M1 29.00 14.56 3/8/96
5C3256 F0220 FEDERAL EXPRESS M1 10.50 5.27 3/8/96
5C3256 F0315 UPS M1 4.80 2.41 4/12/96
5C3256 F0412 FEDERAL EXPRESS M1 8.00 4.02 4/26/96
5C3256 5C3256FY M3 0.00 1.87 9/30/96
649 $76.30 $39.68
5C3256 0594073 11725 FUEL CELL M1 169.82 85.25 4/19/96
5C3256 0594073 11760 FUEL CELL M1 4.68 2.35 5/24/96
5C3256 0594075 11961 MFG INVOICE #285 M1 15.90 8.38 9/30/96
5C3256 5C3256FY M3 0.00 13.57 9/30/96
5C3256 0594073 11961 MFG INVOICE #285 M1 30.96 16.32 9/30/96
661 $589.80 $310.83
05 43122 60 699 5C3256 L1996 CASH M1 1.79 0.90 2/16/96
05 43122 60 699 5C3256 L2396 CASH M1 30.00 15.06 3/15/96
5C3256 L3496 CASH CHANGE M1 -3.21 -1.61 3/22/96
5C3256 5C3256FY M3 0.00 0.71 9/30/96
699 $28.58 $15.06
05 43122 60 711 5C3256 0502464 22429 ALBANY #N#SS-600-1-2 M1 12.00 6.02 3/29/96
5C3256 0502464 22429 ALBANY #N#SS-602-1 M1 23.16 11.63 3/29/96
5C3256 0502464 22429 ALBANY #N#SS-601-PC M1 19.10 9.64 3/29/96
5C3256 0502464 22429 ALBANY #N#SS-1210-6 M1 52.80 26.51 3/29/96
5C3256 0502464 22429 ALBANY #N#SS-12-HRN-4 M1 13.10 6.58 3/29/98
5C3256 0502464 22429 ALBANY #N#SS-600-3TTM M1 20.50 10.29 3/29/96
5C3256 0502464 22429 ALBANY #N#SS-4-CS M1 29.40 14.76 3/29/96
5C3256 0502464 22429 ALBANY #N#SS-4-HN M1 13.20 6.63 3/29/96
5C3256 0502470 32378 MCMAST #N#4636K43 M1 565.28 283.77 3/29/96
5C3256 0502464 22430 ALBANY #N#SS-4-HN M1 4.40 2.21 3/29/96
5C3256 0502464 22429 ALBANY #N#SS-400-1-4 M1 29.40 14.76 3/29/96
5C3256 0502464 22429 ALBANY #N#SS-12-HRN-8 M1 13.00 6.53 3/29/96
5C3256 0502464 22429 ALBANY #N#SS-1210-1-8 M1 16.50 8.28 3/29/96
5C3256 0502464 22429 ALBANY #N#SS-4-TA-1-4 M1 8.60 4.32 3/29/96
5C3256 0502464 22429 ALBANY #N#SS-6-TA-7-4 M1 7.30 3.66 3/29/96
5C3256 32378 MCMAST #FRT M1 3.42 1.72 3/29/96
5C3256 22430 ALBANY #FRT M1 2.52 1.27 3/29/96
5C3256 L2596 CASH M1 6.75 3.39 3/29/96
5C3256 L2596 CASH M1 4.05 2.03 3/29/96
5C3256 L2596 CASH M1 11.53 5.79 3/29/96
5C3256 0502464 22429 ALBANY #N#SS-1210-2-12 M1 25.20 12.65 3/29/96
5C3256 0502464 22429 ALBANY #N#SS-4-ST M1 54.60 27.41 3/29/96
5C3256 T8599AWESCO M3 5.76 2.89 4/5/96
5C3256 L2696 CASH M1 15.29 7.68 4/5/96
5C3256 T8599FEDERAL EXP M3 10.75 5.40 4/5/96
5C3256 0502488 01672 W.W.GR. #N#5t982 M1 51.69 25.95 4/5/96
5C3256 T8699FEDERAL EXP M3 13.00 6.53 4/5/96
5C3256 0507295 93224 W.W.GR. #NGLOVES, LATEX, M1 65.52 32.89 4/5/96
5C3256 T8599FEDERAL EXP M3 11.40 5.72 4/5/96
5C3256 0507304 60331 OAKES E #NCONDUIT UNION M1 36.50 18.32 4/12/96
5C3256 12537 XTO #FRT M1 4.70 2.36 4/12/96
5C3256 0507304 60331 OAKES E #NSEALING CEMENT M1 5.08 2.55 4/12/96
5C3256 63205 W.W.GR. #FRT M1 3.89 1.95 4/12/96
5C3256 0502485 12537 XTO #NCHR#6TB TEMP M1 64.40 32.33 4/12/96
5C3256 0502485 12537 XTO #NCHR#A2008, TEM M1 145.20 72.89 4/12/96
05 43122 60 711 5C3256 0507304 60331 OAKES E #NCONDUIT BOX 1/ M1 75.68 37.99 4/12/96
5C3256 0507304 60331 OAKES E #NCONDUIT UNION M1 41.00 20.58 4/12/96
5C3256 0507304 60331 OAKES E #NFIBER FILLER M1 64.08 32.17 4/12/96
5C3256 0507318 63205 W.W.GR. #NGLOVES, LATEX, M1 98.28 49.34 4/12/96
5C3256 0502476 73189 AWESCO #NHYDROGEN, UHP M1 4,750.00 2,384.50 4/12/96
5C3256 0507304 60331 OAKES E #NCONDUIT TEE 1/ M1 117.20 58.83 4/12/96
5C3256 55824 MSC IND #FRT M1 16.00 8.03 4/26/96
5C3256 0502496 14828 SEALING #N#875C026-P3-REV M1 18.64 9.36 4/26/96
5C3256 0502496 14828 SEALING #N#875C026-P2-REV M1 16.80 8.43 4/26/96
5C3256 0502496 14828 SEALING #N#875C026-PI-REV M1 42.80 21.49 4/26/96
5C3256 0502525 37899 MCMAST #N#47225K63 M1 16.37 8.22 4/26/96
5C3256 0502510 55824 MSC IND #N#08904187 M1 7.68 3.86 4/26/96
5C3256 0502510 55824 MSC IND #N#08790412 M1 26.60 13.35 4/26/96
5C3256 14828 SEALING #FRT M1 3.70 1.86 4/26/96
5C3256 0502496 14828 SEALING #NINSPECTION REP M1 90.00 45.18 4/26/96
5C3256 0502476 73389 AWESCO #NHYDROGEN, UHP M1 1,900.00 953.80 5/10/96
5C3256 0502476 73402 AWESCO #NHYDROGEN, UHP M1 2,850.00 1,430.70 5/10/96
5C3256 0502476 73931 AWESCO #N ULTRA HIGH PU M1 75.00 37.65 5/17/96
5C3256 0502476 73931 AWESCO #NHYDROGEN, UHP M1 1,140.00 572.28 5/17/96
5C3256 73629 AWESCO M1 6.00 3.01 5/24/96
5C3256 0502516 11365 GALBRAI #NPLATINUM ANAL M1 35.00 17.57 5/24/96
5C3256 73629 AWESCO M1 219.48 110.18 5/24/96
5C3256 72930 AWESCO M1 12.00 6.02 5/24/96
5C3256 0502557 35993 DIAMOND #NREVERSE OSMO M1 52.44 26.32 6/14/96
5C3256 0604 FEDERAL EXPRESS MI 15.20 7.63 6/14/96
5C3256 74271 AWESCO M1 151.44 76.02 6/14/96
5C3256 0502557 35993 DIAMOND #NREVERSE OSMO M1 -52.44 -26.32 7/12/96
5C3256 5C3256FY M3 0.00 328.93 9/30/96
711 $13,158.04 $6,934.29
5C3256 00320 GANTON 119402188 M1 139.05 69.80 3/29/96
5C3256 00320 WKUSAY 071467846 M1 193.05 96.91 3/29/96
5C3256 00318 GANTON 119402188 M1 44.01 22.09 3/29/96
5C3256 L2696 CASH M1 2.70 1.36 4/5/96
5C3256 5C3256FY M3 0.00 9.47 9/30/96
717 $ 378.81 $199.63
05 43122 50 727 5C3256 00318 GANTON 119402188 M1 6.00 3.01 3/29/96
5C3256 00320 WKUSAY 071467846 M1 27.03 13.57 3/29/96
5C3256 00320 GANTON 119402188 M1 58.84 29.54 3/29/96
5C3256 5C3256FY M3 0.00 2.30 9/30/96
727 $91.87 $48.42
05 43122 50 747 5C3256 00320 WKUSAY 071467846 M1 17.20 8.63 3/29/96
5C3256 00320 GANTON 119-102188 M1 12.15 6.10 3/29/96
5C3256 00318 GANTON 119-102188 M1 4.05 2.03 3/29/96
5C3256 5C3256FY M3 0.00 0.84 9/30/96
747 $33.40 $17.60
05 43122 50 749 5C3256 F0412 UPS M1 3.03 1.52 4/26/96
5C3256 F0412 FEDERAL EXPRESS M1 10.75 5.40 4/26/96
5C3256 5C3256FY M3 0.00 0.34 9/30/96
749 $13.78 $7.26
06 43122 60 799 5C3256 L2596 CASH M1 45.17 22.68 3/29/96
5C3256 L2596 CASH M1 8.64 4.34 3/29/96
5C3256 L2596 CASH M1 42.78 21.48 3/29/96
5C3256 L2596 CASH M1 17.63 8.85 3/29/96
5C3256 L2596 CASH M1 39.70 19.93 3/29/96
5C3256 L2596 CASH M1 47.70 23.95 4/5/96
5C3256 L2596 CASH M1 10.16 5.10 4/5/96
5C3256 L2596 CASH M1 10.69 5.37 4/5/96
5C3256 5C3256FY M3 0.00 5.54 9/30/96
799 $222.47 $117.24
50 $26,203.00 $13,808.99
43122 $26,203.00 $13,808.99
05 $26,203.00 $13,808.99
Grand Total $26,203.00 $13,808.99
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
Div. Proj. Sec. Dash Contract Po No. Invoice Vendor Description ID Mat $S GA $$ W/E Date
05 46160 50 208 5C6513 1037 ENGI-NUI M1 1,134.00 569.27 8/9/96
5C6513 1040 ENGI-NUI M1 1,777.50 892.31 9/20/95
5C6513 5C6513FY M3 0.00 127.06 9/30/96
5C6513 1042 ENGI-NUI M1 1,721.25 864.07 9/30/96
5C6513 1043 ENGI-NUI M1 450.00 225.90 9/30/96
208 $5,082.75 $2,678.61
05 46150 50 211 5C6513 1038 ENGI-NUI M1 2,385.00 1,197.27 8/16/96
5C6513 1039 ENGI-NUI M1 1,867.50 937.49 9/13/96
5C6513 5C6513FY M3 0.00 156.65 9/30/96
5C6513 1041 ENGI-NUI M1 2,013.75 1,010.90 9/30/96
211 $6,266.25 $3,302.31
05 46160 50 217 5C6513 72596 N. VITALE 051329453 M1 764.00 383.53 8/2/96
5C6513 00913 GANTON 119402188 M1 150.66 75.63 9/20/96
5C6513 5C6513FY M3 0.00 22.87 9/30/96
217 $914.66 $482.03
05 46150 50 227 5C6513 72596 N. VITALE 051329453 M1 15.00 7.53 8/2/96
5C6513 00913 GANTON 119402188 M1 12.50 6.28 9/20/96
5C6513 5C6513FY M3 0.00 0.68 9/30/96
227 $27.50 $14.49
05 46150 50 247 5C6513 72596 N. VITALE 051329453 M1 44.33 22.25 8/2/96
5C6513 00913 GANTON 119402188 M1 18.00 9.04 9/20/96
5C6513 5C6513FY M3 0.00 1.56 9/30/96
247 $62.33 $32.85
05 46150 50 257 5C6513 72596 N. VITALE;051329453 M1 79.00 39.66 8/2/96
5C6513 5C6513FY M3 0.00 1.97 9/30/96
257 $79.00 $ 41.63
05 46150 50 299 5C6513 L4996 CASH M1 21.60 10.84 9/30/96
5C6513 5C6513FY M3 0.00 0.54 9/30/96
299 $21.60 $ 11.38
05 46150 50 311 5C6513 11941 ACCR TURBOTECH M1 5,400.00 2,710.80 9/30/96
5C6513 11941 ACCR TURBOTECH M1 5,400.00 2,710.80 9/30/96
5C6513 0502785 30890 TURBOT #NPERFORM AERO M1 3,600.00 1,807.20 9/30/96
5C6513 5C6513FY M3 0.00 60.00 9/30/96
311 $14,400.00 $7,588.80
05 46150 50 611 5C6513 5C6513FY M3 0.00 14.35 9/30/96
05 46150 50 611 5C6513 0502815 00589 DWYER 1 #NMD.#4100B M1 574.00 288.15 9/30/96
611 $574.00 $302.50
05 46150 50 711 5C6513 L4096 CASH M1 9.45 4.74 8/9/96
5C6513 L4196 CASH M1 17.09 8.58 8/9/96
5C6513 08089 NEWMET #FRT M1 24.05 12.07 8/9/96
5C6513 24462 FISHER S #FRT M1 11.24 5.64 8/9/96
5C6513 T9114 SPRAYIN #FRT M1 19.50 9.79 8/9/96
5C6513 0502717 T9114 SPRAYIN #N#CP7717-
2/007-V1 M1 55.28 27.75 8/9/96
5C6513 0502718 24462 FISHER S #N#12-876-2 M1 141.70 71.13 8/9/96
5C6513 0502717 H2978 SPRAYIN #N1/8VAU-
SS-SUV6 M1 584.56 293.45 8/9/96
5C6513 0502733 08080 NEWMET #NPOROUS
SINTER M1 350.00 175.70 8/9/96
5C6513 0502710 75500 AWESCO #NCOMPRSSED O M1 134.42 67.48 8/9/96
5C6513 0502717 T9114 SPRAYIN #N#14392-16-
711 M1 22.74 11.42 8/9/96
5C6513 H2978 SPRAYIN #FRT M1 17.75 8.91 8/9/96
5C6513 08269 CASH M1 10.26 5.15 8/30/96
5C6513 08269 CASH M1 10.13 5.09 8/30/96
5C6513 937 SOLUTIO #FRT M1 20.00 10.04 9/6/95
5C6513 0502759 41547 UNCLES #N316L
STN.STL.S M1 36.80 18.47 9/6/96
5C6513 0502759 41547 UNCLES #N316L
STN.STL.S M1 17.00 8.53 9/6/96
5C6513 0502757 05797 ACI CON #NPARKER
#F4MC2 M1 11.10 5.57 9/6/96
5C6513 0502757 05797 ACI CON #NPARKER
#LC-4 M1 5.40 2.71 9/6/96
5C6513 0502714 55384 R.D. SPE #N#10 WIRE
COATI M1 12.75 6.40 9/6/96
5C6513 0507487 96144 E-TEK, IN #NCATALYST,
20% M1 287.00 144.07 9/6/96
5C6513 0502714 55384 R.D. SPE #N#90 WIRE
COATI M1 15.75 7.91 9/6/96
5C6513 0502714 55384 R.D. SPE #N#80 WIRE
COATI M1 15.75 7.91 9/6/96
5C6513 0502714 55384 R.D. SPE #N#30 WIRE
COATI M1 12.75 6.40 9/6/96
5C6513 0502714 55384 R.D. SPE #N#3 WIRE
COATIN M1 12.75 6.40 9/6/96
5C6513 0502758 27920 FISHER S #N#14-169-15A M1 17.50 8.79 9/6/96
5C6513 0502758 27920 FISHER S #FRT M1 20.56 10.32 9/6/96
5C6513 55384 R.D. SPE #FRT M1 3.19 1.60 9/6/96
5C6513 L4496 CASH M1 3.86 1.94 9/6/96
5C6513 0507488 937 SOLUTIO #NNAFION
SOLUTIO M1 650.00 326.30 9/6/96
5C6513 05797 ACI CON #FRT M1 5.52 2.77 9/6/96
5C6513 0502769 01085 BERTRA #N#2R4-316 M1 48.00 24.10 9/13/96
5C6513 0502769 01085 BERTRA #N#4CM2-316 M1 14.72 7.39 9/13/96
5C6513 0502769 01085 BERTRA #N#2SCNF-316 M1 29.12 14.62 9/13/96
5C6513 0502769 01085 BERTRA #N#2PC-316 M1 43.80 21.99 9/13/96
5C6513 0502769 01085 BERTRA #N#2CM2-316 M1 16.12 8.09 9/13/96
05 46150 50 711 5C6513 01085 BERTRA #FRT M1 18.20 9.14 9/13/96
5C6513 01085 BERTRA #FRT M1 4.89 2.45 9/13/96
5C6513 09119 METALS #FRT M1 26.00 13.05 9/13/96
5C6513 0502769 01085 BERTRA #N#4CM4-316 M1 23.70 11.93 9/13/96
5C6513 0502769 01085 BERTRA #N#4PC2-316 M1 73.50 36.90 9/13/96
5C6513 0502769 01085 BERTRA #N#4RU2-316 M1 62.00 31.12 9/13/96
5C6513 0502769 01085 BERTRA #N#4R2-316 M1 68.60 34.44 9/13/96
5C6513 0502769 01085 BERTRA #N#4SCNF-316 M1 74.76 37.53 9/13/96
5C6513 0502787 09119 METALS #N316STN.
STLFOI M1 97.00 48.69 9/13/96
5C6513 0502769 01085 BERTRA #N#4PC-316 M1 32.60 16.37 9/13/96
5C6513 0502769 01085 BERTRA #N#4TTT-316 M1 125.30 62.90 9/13/96
5C6513 96144 E-TEK,IN #FRT M1 3.22 1.62 9/20/96
5C6513 0502790 96144 E-TEK, IN #N20% PLATINUM M1 287.00 144.07 9/20/96
5C6513 0502757 05936 ACICON #NPARKER #F4U4 M1 18.90 9.49 9/30/96
5C6513 74918 AWESCO M1 7.20 3.61 9/30/96
5C6513 74918 AWESCO M1 14.40 7.23 9/30/96
5C6513 7495578 AWESCO M1 100.41 50.42 9/30/96
5C6513 74918 AWESCO M1 111.72 56.08 9/30/96
5C6513 0502764 14615 BROOKFI #NBROOKFIELD
VIS M1 188.00 94.38 9/30/96
5C6513 76225 AWESCO M1 7.44 3.73 9/30/96
5C6513 0502757 05936 ACICON #PARKER #4MC4 M1 11.10 5.57 9/30/96
5C6513 74918 AWESCO M1 10.80 5/42 9/30/98
5C6513 67128 MSC IND #FRT M1 4.77 2.39 9/30/96
5C6513 0502819 67128 MSC IND #N#71915078 M1 37.24 18.69 9/30/96
5C6513 5C65I3FY M3 0.00 109.57 9/30/96
5C6513 0502757 05936 ACICON #NPARKER
#F4TU4 M1 24.20 12.15 9/30/96
5C6513 76225 AWESCO M1 1.08 7.47 9/30/96
5C6513 76225 AWESCO M1 11.16 5.60 9/30/96
5C6513 76225 AWESCO M1 100.44 50.42 9/30/96
5C6513 75578 AWESCO M1 0.12 0.06 9/30/96
5C6513 75578 AWESCO M1 7.44 3.73 9/30/96
5C6513 75578 AWESCO M1 14.88 7.47 9/30/96
5C6513 75578 AWESCO M1 11.10 5.60 9/30/96
5C6513 05936 ACICON #FRT M1 5.57 2.80 9/30/96
5C6513 76225 AWESCO M1 3.72 1.87 9/30/96
5C6513 711 $4,381.68 $2,309.15
05 46150 50 717 5C6513 00912 GHEROT 067661779 M1 82.49 41.41 9/20/96
5C6513 5C6513FY M3 0.00 2.06 9/30/96
717 $82.49 $43.47
05 46150 60 727 5C6513 00912 GHEROT 067664779 M1 10.82 5.43 9/20/96
5C6513 00912 WHUANG 285900850 M1 16.87 8.47 9/20/96
5C6513 5C6513FY M3 0.00 0.69 9/30/96
727 $27.69 $14.59
05 46150 60 747 5C6513 00912 GHEROT 67664779 M1 29.00 14.56 9/20/96
5C6513 5C6513FY M3 0.00 0.72 9/30/96
747 $29.00 $15.28
05 46150 50 749 5C6513 F0830 UPS M1 2.57 1.29 9/20/96
5C6513 F0913 UPS M1 3.03 1.52 9/20/96
5C6513 5C6513FY M3 0.00 0.14 9/20/96
49 $5.60 $2.95
05 46150 60 761 5C6513 0594162 1861 FUEL CELL M1 66.84 33.55 8/23/96
5C6513 0594162 11861 FUEL CELL M1 369.02 185.25 8/23/96
5C6513 5C6513FY M3 0.00 23.45 9/30/96
5C6513 0594162 11877 FUEL CELL M1 87.24 43.79 9/30/96
5C6513 0594162 11877 FUEL CELL FORD M1 414.49 208.07 9/30/96
761 $937.59 $494.11
05 46150 50 761 5C6513 0594162 11961 MFG INVOICE
#285 M1 81.00 42.69 9/30/96
761 $81.00 $42.69
50 $32,973.14$17,376.84
46150 $32,973.14$17,376.84
05 46151 50 217 5C6513 72396 J. MEACH 268268969 M1 399.75 200.67 8/2/96
5C6513 5C6513FY M3 0.00 10.00 9/30/96
217 $399.76 $210.67
05 46151 60 227 5C6513 72396 J. MEACH 268268969 M1 4.32 2.17 8/2/96
5C6513 5C6513FY M3 0.00 0.11 9/30/96
227 $4.32 $2.28
05 46151 60 247 5C6513 72396 J. MEACH 268268969 M1 7.00 3.51 8/2/96
5C6513 5C6513FY M3 0.00 0.18 9/30/96
247 $7.00 $3.69
05 46151 50 257 5C6513 72396 J. MEACH 268268969 M1 39.50 19.83 8/2/96
5C6513 5C6513FY M3 0.00 0.99 9/30/96
257 $39,50 $20.82
50 $450,57 $237.46
46151$450,57 $237.46
05 $33,423.71$17,614.30
Grand Total: $33,423.71$17,614.30
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
<S> <C> <C> <C> <C> <C> <C> <C> <C>
Div/
Sec Account Project Invoice/PO Name Transaction Description Amount Period SubPd
Number
05.50 00031-000 5C6513 056-00217- Customer Receivable Account -121707.95 2 4
056-07963- Customer Receivable Account -203335.86 3 3
057-00035- Proj Prod Bill Posting 319524.90 3 4
057-00055- Proj Prod Bill Posting 160570.64 4 3
057-00086- Proj Prod Bill Posting 261828.60 5 2
057-00035- Customer Receivable Account -319524.90 5 4
057-00055- Customer Receivable Account -160570.64 5 4
057-00086- Customer Receivable Account -261828.60 6 2
057-00119- Proj Prod Bill Posting 236208.91 6 2
057-00119- Customer Receivable Account -236208.91 7 1
057-00142- FORD MOTOR CO Proj Prod Bill Posting 157372.37 7 3
057-00167- FORD MOTOR CO Proj Prod Bill Posting 123551.85 8 2
057-00142- Customer Receivable Account -157372.37 8 4
Account Total -201491.96
00037-000 OCT SALES 129626.19 1 4
Revenue Posting 189898.71 2 4
057-00035- Proj Prod Bill Posting -319524.90 3 4
Revenue Posting 160570.64 3 5
057-00055- Proj Prod Bill Posting -160570.64 4 3
JANUARY SALES 261828.60 4 4
057-00086- Proj Prod Bill Posting -261828.60 5 2
Revenue Posting 236208.91 5 4
057-00119- Proj Prod Bill Posting -236208.91 6 2
Revenue Posting 157372.37 6 5
057-00142- Proj Prod Bill Posting -157372.37 7 3
Revenue Posting 123551.85 7 4
057-00167- Proj Prod Bill Posting -123551.85 8 2
Revenue Posting 148795.92 8 4
Account Total 148795.92
00052-000 COGS Transfer -129626.19 1 4
COGS Transfer -184766.55 2 4
COGS Transfer -158311.52 3 5
COGS Transfer -259051.68 4 4
COGS Transfer -233344.14 5 4
COGS Transfer -154998.13 6 5
COGS Transfer -122114.18 7 4
COGS Transfer -147280.16 8 4
Account Total -1389492.55
00053-002 OVERHEAD 58869.76 1 4
OVERHEAD 62118.70 2 4
OVERHEAD 52667.24 3 5
OVERHEAD 62827.46 4 4
OVERHEAD 65820.21 5 4
OVERHEAD 55688.32 6 5
OVERHEAD 32882.93 7 4
OVERHEAD 32342.10 8 4
Account Total 4231216.72
00053-004 G&A 45194.68 1 4
G&A 49342.97 2 4
G&A 47604.16 3 5
G&A 77896.66 4 4
G&A 70166.42 5 4
G&A 46607.83 6 5
G&A 36719.65 7 4
G&A 44287.04 8 4
Account Total 417819.41
00401-000 OCT SALES -129626.19 1 4
Revenue Posting -189898.71 2 4
Revenue Posting -160570.64 3 5
JANUARY SALES -261828.60 4 4
Revenue Posting -236208.91 5 4
Revenue Posting -157372.37 6 5
Revenue Posting -123551.85 7 4
Revenue Posting -148795.92 8 4
Account Total -1407853.19
00411-001 COGS Transfer 129626.19 1 4
COGS Transfer 184766.55 2 4
COGS Transfer 158311.52 3 5
COGS Transfer 259051.68 4 4
COGS Transfer 233344.14 5 4
COGS Transfer 154998.13 6 5
COGS Transfer 122114.18 7 4
COGS Transfer 147280.16 8 4
Account Total 1389492.55
Project Total -619513.10
00053-003 5C6513 L1597 CASH WIP MATERIAL 4.86 5 4
Account Total 4.86
00053-493 ups 28.50 2 4
FEDERAL EXPRESS 19.80 3 5
Account Total 48.30
Project Total 53.16
00053-003 5C6513 1044 ENGI-NUITY ASSOC. WIP MATERIAL 1732.50 1 2
1045 ENGI-NUITY ASSOC. WIP MATERIAL 2261.25 1 3
1046 ENGI-NUITY ASSOC. WIP MATERIAL 1980.00 1 4
1047 ENGI-NUITY ASSOC. WIP MATERIAL 1822.50 2 1
UPS 2.57 2 2
1048 ENGI-NUITY ASSOC. WIP MATERIAL 2227.50 2 2
1049 ENGI-NUITY ASSOC. WIP MATERIAL 1687.50 2 3
1050 ENGI-NUITY ASSOC. WIP MATERIAL 832.50 2 4
1051 ENGI-NUITY ASSOC. WIP MATERIAL 1845.00 3 1
1052 ENGI-NUITY ASSOC. WIP MATERIAL 585.00 3 2
1053 ENGI-NUITY ASSOC. WIP MATERIAL 1440.00 3 2
1054 ENGI-NUITY ASSOC. WIP MATERIAL 540.00 3 4
1055 ENGI-NUITY ASSOC. WIP MATERIAL 1035.00 3 5
1056 ENGI-NUITY ASSOC. WIP MATERIAL 855.00 4 3
1057 ENGI-NUITY ASSOC. WIP MATERIAL 1845.00 4 4
Account Total 20691.32
00053-083 1058 ENGI-NUITY ASSOC. WIP MAT CONSULTANTS 2025.00 5 1
1059 ENGI-NUITY ASSOC. WIP MAT CONSULTANTS 1080.00 5 2
1062 ENGI-NUITY ASSOC. WIP MAT CONSULTANTS 1228.50 6 1
1063 ENGI-NUITY ASSOC. WIP MAT CONSULTANTS 1012.50 6 2
1064 ENGI-NUITY ASSOC. WIP MAT CONSULTANTS 1035.00 6 3
1065 ENGI-NUITY ASSOC. WIP MAT CONSULTANTS 135.00 6 4
1066 ENGI-NUITY ASSOC. WIP MAT CONSULTANTS 1147.50 6 5
1067 ENGI-NUITY ASSOC. WIP MAT CONSULTANTS 1125.00 7 1
1068 ENGI-NUITY ASSOC. WIP MAT CONSULTANTS 1111.50 7 2
1069 ENGI-NUITY ASSOC. WIP MAT CONSULTANTS 1777.50 7 3
1070 ENGI-NUITY ASSOC. WIP MAT CONSULTANTS 684.00 7 4
1071 ENGI-NUITY ASSOC. WIP MAT CONSULTANTS 1395.00 8 1
1072 ENGI-NUITY ASSOC. WIP MAT CONSULTANTS 1710.00 8 2
1073 ENGI-NUITY ASSOC. WIP MAT CONSULTANTS 1237.50 8 3
1074 ENGI-NUITY ASSOC. WIP MAT CONSULTANTS 450.00 8 4
Account Total 17154.00
00053-113 96120500 60507518 SCHENECTADY METALLURGICAL
M&P LABS MOUNTS OF SAM 118.00 1 4
FEDERAL EXPRESS 12.50 2 4
60091 70502187 AMERICAN DURAFILM
CO IN .001"THK./.0005" TEFLON, 18" 106.65 4 1
161662 70502277 FRY STEEL COMPANY 17-4 pH STN.STL.1-1/2" DIA.X 48.41 5 3
4389 70502110 KEY PERSONNEL DETAILER SERVICES,KARL KNAPP 880.00 5 3
SERVICES
SD80891 70502253 WALL COLMONOY CORP. DEVELOPMENT OF BRAZE PROCE 1519.25 5 3
171359 70502298 STEEL TREATERS INC CERTIFICATION AND FURNACE CH 12.00 6 2
171359 70502298 STEEL TREATERS INC HEAT TREAT TREAT PT. #883C018 45.00 6 2
Account Total 2741.81
00053-173 L396 CASH WIP MAT T&L TRANS 16.20 1 3
L396 CASH WIP MAT T&L TRANS 30.78 1 3
EX970100 GARY ANTONELLI EXPENSE 126.36 2 4
EX970115 GARY ANTONELLI EXPENSE 100.98 3 2
EX970136 GARY ANTONELLI EXPENSE 98.28 3 3
EX970225 GARY ANTONELLI EXPENSE 54.00 5 1
EX970265 GARY ANTONELLI EXPENSE 778.42 5 4
Account Total 1205.02
00053-273 EX970100 GARY ANTONELLI EXPENSE 4.27 2 4
EX970115 GARY ANTONELLI EXPENSE 9.50 3 2
EX970136 GARY ANTONELLI EXPENSE 16.50 3 3
EX970225 GARY ANTONELLI EXPENSE 12.92 5 1
EX970265 GARY ANTONELLI EXPENSE 40.80 5 4
Account Total 83.99
00053-473 EX970100 GARY ANTONELLI EXPENSE 5.30 2 4
EX970115 GARY ANTONELLI EXPENSE 10.90 3 2
EX970136 GARY ANTONELLI EXPENSE 1.10 3 3
EX970225 GARY ANTONELLI EXPENSE 0.55 5 1
EX970265 GARY ANTONELLI EXPENSE 14.00 5 4
Account Total 31.85
00053-493 FEDERAL EXPRESS 10.75 3 5
FEDERAL EXPRESS 8.00 4 4
FEDERAL EXPRESS 8.00 4 4
FEDERAL EXPRESS F0307 8.00 6 4
Account Total 34.75
00053-573 EX970265 GARY ANTONELLI EXPENSE 56.25 5 4
Account Total 56.25
00053-613 941681 524.01 5 3
941681 838.41 5 4
Account Total 1362.42
Project Total 43361.41
00053-003 5C6513 4295 70502110 KEY PERSONNEL DETAILER SERVICES, LYNNWOOD 840.00 3 3
SERVICES
4315 KEY PERSONNEL DETAILER SERVICES, LYNNWOOD 840.00 3 3
SERVICES
COLON INV 4329 -1000.00 5 1
COLON INV 4356 -1000.00 5 1
COLON INV 4364 -1000.00 5 1
COLON INV 4337 -800.00 5 1
DARDEN INV 4339 672.00 5 1
DARDEN INV 4348 672.00 5 1
DARDEN INV 4322 798.00 5 1
DARDEN INV 4358 819.00 5 1
DARDEN INV 4331 840.00 5 1
DARDEN INV 4366 840.00 5 1
4383 70502110 KEY PERSONNEL DETAILER SERVICES, LYNNWOOD 819.00 5 2
SERVICES
4398 70502110 KEY PERSONNEL DETAILER SERVICES, LYNNWOOD 840.00 5 4
SERVICES
4405 70502110 KEY PERSONNEL DETAILER SERVICES, LYNNWOOD 840.00 6 1
SERVICES
4420 70502110 KEY PERSONNEL DETAILER SERVICES, LYNNWOOD 840.00 6 4
SERVICES
4425 70502110 KEY PERSONNEL DETAILER SERVICES, LYNNWOOD 840.00 6 4
SERVICES
4412C KEY PERSONNEL WIP MATERIAL -22.00 7 3
Account Total 6678.00
00053-083 1068 ENGI-NUITY ASSOC. WIP MAT CONSULTANTS 90.00 7 2
1069 ENGI-NUITY ASSOC. WIP MAT CONSULTANTS 45.00 7 3
Account Total 135.00
00053-113 4308 70502110 KEY PERSONNEL DETAILER SERVICES, LYNNWOOD 504.00 3 3
SERVICES
4307 70502110 KEY PERSONNEL DETAILER SERVICES, KARL KNAPP 704.00 3 3
SERVICES
4314 70502110 KEY PERSONNEL DETAILER SERVICES, KARL KNAPP 880.00 3 3
SERVICES
30949 60502785 TURBO TECHNOLOGY DELIVERABLE OF FINAL AERO DES 1870.00 3 4
AL0200252 70502181 MCS/COMPUTERLAND HP COLOR PRINT CARTRIDGE #HP 55.00 4 1
AL0200252 70502181 MCS/COMPUTERLAND COLOR TRANSPARENCIES FOR HP 98.00 4 1
4321 70502110 KEY PERSONNEL SER. DETAILER SERVICES, KARL KNAPP 880.00 4 1
4320 70502110 KEY PERSONNEL SER. DETAILER SERVICES, DONALD CO 1000.00 4 1
30963 60502785 TURBO TECHNOLOGY DETAILED DRAWINGS FOR THE TU 2720.00 4 1
30963 60502785 TURBO TECHNOLOGY DELIVERABLE OF FINAL AERO DES 5400.00 4 1
4338 70502110 KEY PERSONNEL SER. DETAILER SERVICES, KARL KNAPP 704.00 4 1
4347 70502110 KEY PERSONNEL SER. DETAILER SERVICES, KARL KNAPP 704.00 4 3
4337 70502110 KEY PERSONNEL SER. DETAILER SERVICES, DONALD CO 800.00 4 3
4330 70502110 KEY PERSONNEL SER. DETAILER SERVICES, KARL KNAPP 880.00 4 3
4329 70502110 KEY PERSONNEL SER. DETAILER SERVICES, DONALD CO 1000.00 4 3
4356 70502110 KEY PERSONNEL SER. DETAILER SERVICES, DONALD CO 1000.00 4 3
4357 70502110 KEY PERSONNEL SER. DETAILER SERVICES, KARL KNAPP 880.00 4 4
4365 70502110 KEY PERSONNEL SER. DETAILER SERVICES, KARL KNAPP 880.00 4 4
4364 70502110 KEY PERSONNEL SER. DETAILER SERVICES, DONALD CO 1000.00 4 4
COLON INV 4320 -1000.00 5 1
4374 70502110 KEY PERSONNEL SER. DETAILER SERVICES, KARL KNAPP 847.00 5 1
4382 70502110 KEY PERSONNEL SER. DETAILER SERVICES, KARL KNAPP 880.00 5 2
4390 70502110 KEY PERSONNEL SER. DETAILER SERVICES, LYNNWOOD 819.00 5 3
4397 70502110 KEY PERSONNEL SER. DETAILER SERVICES, KARL KNAPP 880.00 5 4
4404 70502110 KEY PERSONNEL SER. DETAILER SERVICES, KARL KNAPP 880.00 6 1
REV ACCR ENTRY FY'96 -5400.00 6 4
4413 70502110 KEY PERSONNEL SER. DETAILER SERVICES, LYNNWOOD 840.00 6 4
4419 70502110 KEY PERSONNEL SER. DETAILER SERVICES, KARL KNAPP 869.00 6 4
4412 70502110 KEY PERSONNEL SER. DETAILER SERVICES, KARL KNAPP 880.00 6 4
4424 70502110 KEY PERSONNEL SER. DETAILER SERVICES, KARL KNAPP 880.00 6 4
4411 70502110 KEY PERSONNEL SER. DETAILER SERVICES, DONALD CO 1000.00 6 4
4430 70502110 KEY PERSONNEL SER. DETAILER SERVICES, KARL KNAPP 858.00 6 5
4437 70502110 KEY PERSONNEL SER. DETAILER SERVICES, KARL KNAPP 880.00 7 1
31047 60502785 TURBO TECHNOLOGY DELIVERABLE OF RESULTS OF FINI5400.00 7 1
Account Total 31472.00
00053-173 EX970266 GARY ANTONELLI EXPENSE 75.33 5 4
EX970282 JOHN MEACHER EXPENSE 1078.76 5 4
Account Total 1154.09
00053-273 EX970282 JOHN MEACHER EXPENSE 5.10 5 4
EX970266 GARY ANTONELLI EXPENSE 12.85 5 4
Account Total 17.95
00053-473 EX970282 JOHN MEACHER EXPENSE 12.00 5 4
Account Total 12.00
00053-573 EX970282 JOHN MEACHER EXPENSE 46.45 5 4
Account Total 46.45
Project Total 39515.49
00053-003 5C6513 102 DUNNE, JOHN L. WIP MATERIAL 4128.00 8 4
Account Total 4128.00
00053-083 1060 ENGI-NUITY ASSOC. WIP MAT CONSULTANTS 1665.00 5 3
1061 ENGI-NUITY ASSOC. WIP MAT CONSULTANTS 1417.50 5 4
1063 ENGI-NUITY ASSOC. WIP MAT CONSULTANTS 472.50 6 2
1064 ENGI-NUITY ASSOC. WIP MAT CONSULTANTS 292.50 6 3
1065 ENGI-NUITY ASSOC. WIP MAT CONSULTANTS 913.50 6 4
1066 ENGI-NUITY ASSOC. WIP MAT CONSULTANTS 1102.50 6 5
1067 ENGI-NUITY ASSOC. WIP MAT CONSULTANTS 900.00 7 1
1068 ENGI-NUITY ASSOC. WIP MAT CONSULTANTS 562.50 7 2
1069 ENGI-NUITY ASSOC. WIP MAT CONSULTANTS 180.00 7 3
101 70505010 DUNNE, JOHN L. CONSULTING SERVICES (DESIGN 3440.00 7 3
1070 ENGI-NUITY ASSOC. WIP MAT CONSULTANTS 1080.00 7 4
1073 ENGI-NUITY ASSOC. WIP MAT CONSULTANTS 292.50 8 3
1074 ENGI-NUITY ASSOC. WIP MAT CONSULTANTS 562.50 8 4
Account Total 12881.00
00053-113 L797 CASH WIP MAT PURCH PARTS 96.29 3 2
435830-00 70507175 NEWARK ELECTRONICS ENCODER CODEWHEEL FOR HP M 22.87 4 2
435830-00 70507175 NEWARK ELECTRONICS ENCODER CODEWHEEL FOR HP M 25.90 4 2
4466 70502110 KEY PERSONNEL SER. DETAILER SERVICES, KARL KNAPP 726.00 7 4
4461 70502110 KEY PERSONNEL SER. KARL KNAPP AT $22.00/HR. FROM 847.00 7 4
4450 70502110 KEY PERSONNEL SER. KARL KNAPP AT $22.00/HR. FROM 858.00 7 4
4442 70502110 KEY PERSONNEL SER. KARL KNAPP AT $22.00/HR. FROM 880.00 7 4
4472 70502110 KEY PERSONNEL SER. KARL KNAPP AT $22.00/HR. FROM 880.00 8 2
4488 70502110 KEY PERSONNEL SER. KARL KNAPP AT $22.00/HR. FROM 682.00 8 4
4481 70502110 KEY PERSONNEL SER. KARL KNAPP AT $22.00/HR. FROM 792.00 8 4
Account Total 5810.06
00053-493 FEDERAL EXPRESS 7.91 8 1
Account Total 7.91
Project Total 22826.97
00053-003 5C6513 1047 ENGI-NUITY ASSOC. WIP MATERIAL 427.50 2 1
1048 ENGI-NUITY ASSOC. WIP MATERIAL 427.50 2 2
1049 ENGI-NUITY ASSOC. WIP MATERIAL 225.00 2 3
1051 ENGI-NUITY ASSOC. WIP MATERIAL 180.00 3 1
1052 ENGI-NUITY ASSOC. WIP MATERIAL 90.00 3 2
Account Total 1350.00
00053-083 1068 ENGI-NUITY ASSOC. WIP MAT CONSULTANTS 180.00 7 2
Account Total 180.00
Project Total 1530.00
00053-113 5C6513 UPS 6.74 2 2
CM609372 DWYER INSTRUMENTS WIP MAT PURCH APRTS -574.00 2 3
FEDERAL EXPRESS 35.15 2 3
8436690B 70507046 RICHEY/DEANCO, INC. EJECTOR LATCH 4.90 2 4
8436690B 70507046 RICHEY/DEANCO, INC. STRAIN RELIEF 5.40 2 4
8436690B 70507046 RICHEY/DEANCO, INC. STRAIN RELIEF 17.08 2 4
8436690A 70507046 RICHEY/DEANCO, INC. HEADER, STRAIGHT PIN, 16 PIN 44.34 2 4
131047-02 70507052 NEWARK ELECTRONICS RESISTOR NETWORK, 100K OHMS 45.32 2 4
8436690B 70507046 RICHEY/DEANCO, INC. CONNECTOR, SOCKET 16 PIN 57.00 2 4
8436690B 70507046 RICHEY/DEANCO, INC. HEADER, STRAIGHT, 30 PIN 73.60 2 4
8436690B 70507046 RICHEY/DEANCO, INC. CONNECTOR, SOCKET, 30 PIN 115.20 2 4
127156 70507080 ADIRONDACK ELECTRONICS JACK, INSULATED, BLACK 32.50 3 2
127156 70507080 ADIRONDACK ELECTRONICS JACK, INSULATED, BLUE 32.50 3 2
127156 70507080 ADIRONDACK ELECTRONICS JACK, INSULATED, BROWN 32.50 3 2
127156 70507080 ADIRONDACK ELECTRONICS JACK, INSULATED, GRAY 32.50 3 2
127156 70507080 ADIRONDACK ELECTRONICS JACK, INSULATED, GREEN 32.50 3 2
127156 70507080 ADIRONDACK ELECTRONICS JACK, INSULATED, ORANGE 32.50 3 2
127156 70507080 ADIRONDACK ELECTRONICS JACK, INSULATED, PURPLE 32.50 3 2
127156 70507080 ADIRONDACK ELECTRONICS JACK, INSULATED, RED 32.50 3 2
127156 70507080 ADIRONDACK ELECTRONICS JACK, INSULATED, YELLOW 32.50 3 2
127156 70507080 ADIRONDACK ELECTRONICS JACK, INSULATED, WHITE 36.00 3 2
8436690C 70507046 RICHEY/DEANCO, INC. CABLE ASSY. 16 CONDUCTOR, RIB 526.37 3 2
10608 70507040 MATRIX CORPORATION CONNECTORS & HOUSING 155.44 4 4
10608 70507040 MATRIX CORPORATION INTERFACE BOARD 425.00 4 4
10608 70507040 MATRIX CORPORATION MASTER SCANNER 975.00 4 4
10608 70507040 MATRIX CORPORATION SWITCH MODULE 350.00 4 4
8498301 70507240 RICHEY/DEANCO, INC. STRAIN RELIEF 4.95 5 3
8498301 70507240 RICHEY/DEANCO, INC. EJECTOR LATCH 12.83 5 3
8498301 70507240 RICHEY/DEANCO, INC. HEADER, STRAIGHT, 30 PIN 40.20 5 3
8498301 70507240 RICHEY/DEANCO, INC. CONNECTOR, SOCKET, 30 PIN 63.00 5 3
39703 70507238 LMC-CADEX, INC. PHOTOPLOTS, PER MTI DWG. 883C 45.00 6 5
223776-00 70502385 NEWARK ELECTRONICS SOCKET 106.91 6 5
78908 70502389 PICO ELECTRONICS CONVERTER DC/DC INPUT 12VDC 274.94 6 5
39703 70507238 LMC-CADEX, INC. PHOTOPLOTS, PER MTI DWG. 883C 378.00 6 5
300997 70502390 FUTURE ELECTRONICS IC,ISOLATION AMPLIFIER 162.75 7 1
18774 70507267 TAMPA PRINTED CIRCUIT PC BOARD PER MTI DWG. 883C412 200.00 7 2
18773 70507267 TAMPA PRINTED CIRCUIT FOR MFG. OF PRINTED CIRCUIT BO 434.25 7 2
18773 70507267 TAMPA PRINTED CIRCUIT PC BOARD PER MTI DWG. 883E401 1787.50 7 2
Account Total 9101.37
00053-893 970207 70507249 MC ENVIRONMENTAL SER CLEAN & DECONTAMINATE (2) TES 2620.00 6 2
Account Total 2620.00
Project Total 11721.37
00053-003 5C6513 FEDERAL EXPRESS 8.00 1 4
941582 145.86 4 3
L1597 CASH WIP MATERIAL 11.34 5 4
Account Total 165.20
00053-083 97-0411C ROY M. HARWELL, JR. WIP MAT CONSULTANTS -1500.00 8 2
97-0411 70505011 HARWELL, JR., ROY CONSULTING SERVICES (ONE DAY) 1500.00 8 2
97-0411CA HARWELL, JR., ROY WIP MAT CONSULTANTS -1500.00 8 3
97-0411A ROY M. HARWELL, JR. WIP MAT CONSULTANTS 1500.00 8 3
Account Total 0.00
00053-113 100996 70502052 EMERLE GRINDING MODIFY 5/64" DIA.MILLING CUT 40.00 1 3
093096 60502822 EMERLE GRINDING MODIFY 7/64" DIA.END MILLS PE 40.00 1 3
6771144 70502033 MSC INDUSTRIAL 5/64" DIA DOUBLE END, 2 FLUTE 42.01 1 3
SUPPLY C
118499 60507505 GALBRAITH ANALYZE SAMPLES FOR PLATINUM 70.00 1 4
LABORATORIES
55817 60502799 R.D.SPECIALTIES INC. WIRE COATING RODS,SIZES #14 103.08 1 4
08533 70502034 ADVANCED MANUF. PLATE FORM, 2 PATH 250.00 1 4
08533 70502034 ADVANCED MANUF. PLATE FORM, 2 PATH 250.00 1 4
08533 70502034 ADVANCED MANUF. PLATE FORM,INCLUDED IS SKC93 250.00 1 4
08533 70502034 ADVANCED MANUF. PLATE FORM,INCLUDED IS SKC93 250.00 1 4
5409 60502818 AAA-ACME RUBBER CO. SHEET 1/32"THK.X36" W X 144" 531.00 1 4
9614479 70507018 E-TEK, INC. CARBON, SIZE 28.5CM X 35.5CM, 1315.28 1 4
SD89878 60502802 WALL COLMONOY CORP BRIGHT ANNEAL/SINTER SUPPLIE 300.00 2 1
SD89878 60502802 WALL COLMONOY CORP BRIGHT ANNEAL/SINTER LAMINAT 320.25 2 1
FEDERAL EXPRESS 5.95 2 2
1267 60502746 AUTOMATED DYNAMICS 6"X6"X1"THK,PPS/AS-4C CARBON 4550.00 2 2
1529969 70502129 MCMASTER CARR NATURAL LATEX SHEETING, 014"T 4.67 2 4
1529969 70502129 MCMASTER CARR 12"X12"X1/16" NEOPREME SHE 7.32 2 4
1529969 70502129 MCMASTER CARR NITRILE(BUNA-N)SHEET,36"X 13.18 2 4
961021 70502117 FUEL CELL 4"X4"X.5" BLOCK 216.00 3 2
TECHNOLOGIES
11154 70502139 PIERCE ALUMINUM CO ALUMINUM PLATES 5083-H321,1" 550.00 3 2
08597 70502089 ADVANCED MANUF. MACHINE ANODE PLATE PER MAR 260.00 3 3
08597 70502089 ADVANCED MANUF. MACHINE CATHODE PLATE PERM 260.00 3 3
768549 AWESCO WIP MAT PURCH PARTS 3.60 3 4
780966 AWESCO WP MAT PURCH PARTS 3.60 3 4
775052 AWESCO WP MAT PURCH PARTS 3.72 3 4
016874327 70507138 W.W. GRAINGER, INC. HAND NOTCHER 28.12 3 4
784695 70502135 AWESCO GAS MIXTURE:74% UHP HYDROGE 125.00 3 4
9614535 70507111 E-TEK, INC. CATALYST, 20% PLATINUM ON VUL 287.00 3 4
9614559 70507131 E-TEK, INC. CATALYST, 20% PT/C ON VULCAN 574.00 3 4
9614562 70507028 E-TEK, INC. CARBON, SIZE W/A 4.2MG/CM-2 9642.24 3 4
122696 7050220 AAA-ACME RUBBER CO. 26.00 3 5
122696 70502200 AAA-ACME RUBBER CO. #2740-33 SILICONE RUBBER SHEE 40.00 3 5
9614577 70507028 E-TEK, INC. CARBON, SIZE W/A 4.2MG/CM-2 8035.20 4 1
1244900 70502082 DUPONT COMPANY NAFION 112,H+ FORM CUT TO 9.2 23483.00 4 1
UPS 3.34 4 2
157573 7050184 ROBERT MCKEOWEN CO. SILICONE ELASTOMER, 2# KIT,PA 58.96 4 2
011397 70502215 CAMBRIDGE-LEE COPPER ALLOY C145,3/4'THK X 174.00 4 2
INDUSTRIES
9714583 70507028 E-TEK, INC. CARBON, SIZE W/A 4.2MG/CM-2 9642.24 4 2
1955106 70502147 MCMASTER CARR .008"THK.X 42" W, 9.99 4 3
NATURAL LATEX
1955106 70502147 MCMASTER CARR 0.10" THK.X 42" W. 11.52 4 3
NATURAL LATEX
1955106 70502147 MCMASTER CARR .012:THK.X 42" W 16.45 4 3
NATURAL LATEX
08726 70502206 ADVANCED MANUF. CUT COUPON FROM 316 STN. STL. 25.00 4 3
08726 70502206 ADVANCED MANUF. CUT COUPON FROM NICKEL-LAT 25.00 4 3
783836 70502145 AWESCO NITROGEN,HIGH PURITY,K-SIZE 70.00 4 3
2994294 70507211 MCMASTER CARR SHAFT COLLAR,3/8"ID X 3/4'OD 4.62 4 4
2994294 70507211 MCMASTER CARR BRG,NYLON SLV.,LANGE,5/8" 3/ 4.91 4 4
787118 AWESCO WIP MAT PURCH PARTS 8.88 4 4
96-1002-00 70502077 LONG ISLAND METAL FORM HYDROFORM SMAPLE PLATES 225.75 4 4
9714695 70507028 E-TEK, INC. CARBON,SIZE W/A 4.2MG/CM-2 7499.52 4 4
1479131 70502232 SEALING DEVICES INC 5 MIL THK,NO ADHESIVE,24" W 43.64 5 1
1479901 70502254 SEALING DEVICES INC .010" THK X 24" WIDE 70.00 5 2
1479557 70502232 SEALING DEVICES INC 10 MIL THK.NO ADHESIVE,24" W 81.45 5 2
122224 70502192 GALBRAITH PRVIDE PLATINUM ALANYSIS OF 145.00 5 2
LABORATORIES
9714611 70507028 E-TEK, INC. CARBON, SIZE W/A 4.2MB/CM-2 9106.56 5 2
010046 70502237 VALLEY GAGE CO,INC ALUMINUM SAMPLE PIECE FOR PR 580.00 5 3
000221 70502263 YARR ENGINEERING DIE PLATE, 2 PATH PLATE FOR 650.00 5 3
010046 70502237 VALLEY GAGE CO,INC ELECTRODE - 2PATH PLATE FOR 1077.66 5 3
9714624 70507256 E-TEK, INC. CATALYST, 20% PLATINUM ON VUL 287.00 5 4
9714617 70507028 E-TEK, INC. CARBON, SIZE W/A 4.2MB/CM-2 21427.20 5 4
FEDERAL EXPRESS 8.00 6 1
FEDERAL EXPRESS 12.50 6 1
3D0015 70502278 ULBRICH STELL 316L STN.STL.STRIP .004" THK 300.32 6 1
STAINLESS
987 70502287 SOLUTION TECHNOLOGY 10% NAFION SOLUTION 1100WE,5 685.00 6 2
08933 70502328 ADVANCED MANUF. PLATE PER DWG #883C073-REV.A 720.00 7 1
08933 70502328 ADVANCED MANUF. PLATE PER DWG #883C073-REV.A 720.00 7 1
08933 70502328 ADVANCED MANUF. PLATE PER DWG #883C073-REV.A 720.00 7 1
08933 70502328 ADVANCED MANUF. STAINLESS STEEL PLATE PER DW 720.00 7 1
97-0411 ROY M. HARWELL JR. WIP MAT PURCH PARTS 1500.00 7 1
010148C VALLEY GAGE CO,INC. WIP MAT PURCH PARTS -12.25 7 2
010149C VALLEY GAGE CO,INC. WIP MAT PURCH PARTS -12.25 7 2
010148 70502383 VALLEY GAGE CO,INC. ELECTRODE #1, 2 PATH PLATEFO 1225.00 7 2
010149 70502383 VALLEY GAGE CO,INC. ELECTRODE #2, 2 PATH PLATEFO 1225.00 7 2
FEDERAL EXPRESS 19.80 7 3
29817 70507333 AIN PLASTICS TEFLON TAPE,.008"X8"X36 YDS 244.24 7 3
FEDERAL EXPRESS 10.71 7 4
FEDERAL EXPRESS 22.75 7 4
L00182 ALBANY AIRPORT WIP MAT PURCH PARTS 61.05 7 4
COMFORT
6469729 70507375 FISHER SCIENTIFIC TETRABUTYLAMMONIUM HYDROXI 130.45 7 4
970266 70502291 SCHENECTADY M&P LAB METALLURGICAL MOUNTS FROM 32700 7 4
230933 70507372 ALBANY VALVE ADAPTER,1/8"FNPT TO 1/4" SWA 27.65 8 1
& FITTING CO
799050 AWESCO WIP MAT PURCH PARTS 40.32 8 1
793101 AWESCO WIP MAT PURCH PARTS 44.64 8 1
805216 AWESCO WIP MAT PURCH PARTS 44.64 8 1
125342 70502192 GALBRAITH PROVIDE PLATINUM ALANYSIS OF 74.00 8 1
LABORATORIES
Y884035 70507387 KAMAN INDUSTRIAL INSULATING VARNISH,RED,AERO 15.56 8 2
050897 70507400 MASTER BOND, INC. SILICONE, 3 OX. TUBE 112.00 8 2
051697 70507410 UNIQUE WIRE WEAVING 8.55 8 3
000228 70502422 YARR ENGINEERING MODIFY EXISTING INVERSE DIE 20.00 8 3
051697 70507410 UNIQUE WIRE WEAVING SCREEN, PLAIN WEAVE, 316SS,.0 75.60 8 3
000228 70502422 YARR ENGINEERING DIE PLATE 1,2 PATH,50 SQ.CM P 650.00 8 3
000228 70502422 YARR ENGINEERING DIE PLATE 2,2 PATH,50 SQ.CM P 650.00 8 3
6382896 70507405 MCMASTER CARR SHIM STOCK ASSORTMENT,6"X12" 40.30 8 4
6382896 70507405 MCMASTER CARR SHIM STOCK,316 SS,12"X12"X 45.23 8 4
08926 70502328 ADVANCED MANUF. PLATE PER DWG,#883C115-REV.A 720.00 8 4
08926 70502328 ADVANCED MANUF. PLATE PER DWG,#883C115-REV.A 720.00 8 4
Account Total 115054.72
00053-173 EX970244 GARRY SMITH EXPENSE 52.11 5 3
EX970283 GARY ANTONELLI EXPENSE 83.16 5 4
EX70304 GARY ANTONELLI EXPENSE 97.47 6 1
EX970321 GARY ANTONELLI EXPENSE 98.01 6 2
EX970367 GARY ANTONELLI EXPENSE 58.05 6 5
EX970366 GARY ANTONELLI EXPENSE 68.31 6 5
L2097 CASH WIP MAT T&L TRANS 24.84 7 1
EX970383 GARRY SMITH EXPENSE 52.11 7 2
EX970382 GARY ANTONELLI EXPENSE 100.17 7 2
EX970446 GARY ANTONELLI EXPENSE 91.53 8 2
L2697 CASH WIP MAT T&L TRANS 8.10 8 4
L2697 CASH WIP MAT T&L TRANS 9.26 8 4
Account Total 743.12
0053-273 EX970244 GARRY SMITH EXPENSE 3.10 5 3
E5X22970283 GARY ANTONELLI EXPENSE 20.03 5 4
EX970304 GARY ANTONELLI EXPENSE 18.59 6 1
EX970321 GARY ANTONELLI EXPENSE 20.45 6 2
EX970366 GARY ANTONELLI EXPENSE 9.36 6 5
EX970367 GARY ANTONELLI EXPENSE 15.68 6 5
EX970382 GARY ANTONELLI EXPENSE 27.00 7 2
EX970446 GARY ANTONELLI EXPENSE 16.02 8 2
Account Total 130.23
00053-373 EX970382 GARY ANTONELLI EXPENSE 19.00 7 2
Account Total 19.00
00053-473 EX970244 GARRY SMITH EXPENSE 1.10 5 3
EX970283 GARY ANTONELLI EXPENSE 1.10 5 4
EX970304 GARY ANTONELLI EXPENSE 10.60 6 1
EX970321 GARY ANTONELLI EXPENSE 10.60 6 2
EX970366 GARY ANTONELLI EXPENSE 1.10 6 5
EX970367 GARY ANTONELLI EXPENSE 1.10 6 5
EX970383 GARRY SMITH EXPENSE 1.10 7 2
EX970382 GARY ANTONELLI EXPENSE 10.60 7 2
EX970446 GARY ANTONELLI EXPENSE 10.60 8 2
Account Total 47.90
00053-493 UPS 3.65 1 3
FEDERAL EXPRESS 8.00 3 5
FEDERAL EXPRESS 17.75 3 5
FEDERAL EXPRESS 18.20 3 5
UPS 3.16 6 4
FEDERAL EXPRESS F0307 8.00 6 4
FEDERAL EXPRESSF0314 12.75 6 4
FEDERAL EXPRESSF0307 16.93 6 4
FEDERAL EXPRESSF0314 51.85 6 4
UPS 3.16 7 3
Account Total 143.45
00053-613 941582 583.45 4 3
941851 645.78 4 4
941582 1061.94 4 4
941581 2.42 5 2
941582 13.61 5 2
941581 95.31 5 4
SHOPXX.94190.2 104.80 7 4
SHOPXX.94190.1 197.09 7 4
SHOPXX.94190.1 386.67 7 4
SHOPXX.94190.1 50.00 8 1
Account Total 3141.07
0053-893 33352 70507117 C.B.KAUPP & SONS INC PERFORM PROCESS DEVELOPME 865.00 6 3
33450 70507117 C.B.KAUPP & SONS INC PERFORM PROCESS DEVELOPME 1860.00 8 2
Account Total 2725.00
00053-993 3277 GERSHONS WIP MAT ALL OTHER 59.75 7 2
Account Total 59.75
Project Total 122229.44
00053-083 5C6513 1070 ENGI-NUITY ASSOC. WIP MAT CONSULTANTS 112.50 7 4
Account Total 112.50
00053-113 1355377 70502060 REID TOOL SUPPLY CO .250"DIA. FIXTURE BALL,PLAIN 309.04 1 4
228391 70502126 ALBANY VALVE MALE CONNECTOR, SWAGELOK 34.72 2 4
& FITTING CO
964333 70502055 ROBINSON FIN CORROGATED FIN STOCK, 7" W/D 1081.01 2 4
MACHINE INC.
535920 70502127 MOORE PRODUCTS CO. VALVE SPRING 1.50 3 4
535920 70502127 MOORE PRODUCTS CO. DIFF SPRING 3.60 3 4
535920 70502127 MOORE PRODUCTS CO. CLEANING WIRE 6.15 3 4
535920 70502127 MOORE PRODUCTS CO. VALVE SPRING 9.30 3 4
535920 70502127 MOORE PRODUCTS CO. RETAINING NUT 16.36 3 4
535920 70502127 MOORE PRODUCTS CO. TOP DIAPHRAGM ASSY. 39.00 3 4
535920 70502127 MOORE PRODUCTS CO. RESTRICTION SCREW 50.25 3 4
475919 70507074 OMEGA ENGINEERING CONNECTORS,MINATURE,TYPE N 53.12 3 4
535920 70502127 MOORE PRODUCTS CO EXHUST DIAPHRAGM 78.00 3 4
475919 70507074 OMEGA ENGINEERING JACK PANEL,19"W/MINIATURE C 91.20 3 4
475919 70507074 OMEGA ENGINEERING WIRE, THERMOCOUPLE, TYPE J 121.46 3 4
459476-00 70507086 NEWARK ELECTRONICS CABLE, 4 CONDUCTOR,25 GA.,DO 33.54 4 3
1043260-01 KRACKELER
70507186 SCIENTIFIC INC. CADMIUM OXIDE POWDER,J.T.BA 235.40 4 4
16586270 70507246 VWR SCIENTIFIC BORUNDUM CYLINDER,SIZE 1/2"S 66.05 5 4
16586270 70507246 VWR SCIENTIFIC BORUNDUM CYLINDER,SIZE 13/16" 66.05 5 4
16586270 70507246 VWR SCIENTIFIC MILL JAR, ROALOX,BURUNDUM-F 121.00 5 4
16850757 70502258 GATEWAY 2000 EPSON STYLUS 200 COLOR INKJET 356.50 5 4
16850757 70502258 GATEWAY 2000 GATEWAY P5-133 SYSTEM,SAME A 1742.00 5 4
16586281 70507246 VWR SCIENTIFIC GASKETS,FOR ROALOX MILL JARS 4.80 6 2
1680757C 70502258 GATEWAY 2000 GATEWAY P5-133 SYSTEM,SAME A -1742.00 6 3
1680757C 70502258 GATEWAY 2000 EPSON STYLUS 200 COLOR INKJET -346.50 6 3
1680757A 70502258 GATEWAY 2000 EPSON STYLUS 200 COLOR INK JE 204.00 6 3
16586290 70507246 VWR SCIENTIFIC MILL,JAR,GENERAL UTILITY,"1 1109.00 6 3
16850757A 70502258 GATEWAY 2000 GATEWAY P5-133 SYSTEM,SAME A 1924.00 6 3
L1997 CASH WIP MAT PURCH PARTS 9.71 6 5
08902 70502372 ADVANCED MANUF. TEST PIECE PER DWG.#883C085- 195.00 6 5
231003 70507377 ALBANY VALVE NEEDLE VALVE 77.44 8 1
& FITTING CO.
66069 70507378 SOLBERG MFG. CO. FILTER, INTAKE 79.82 8 1
AY54118 70507364 APPLIED INDUSTRIAL BELT,HTD FOR 19.53D.C.,USING 82.21 8 1
TECH.
932488345 70507376 W.W. GRAINGER,INC. SITE GLASS, IN LINE, 1" NPT 103.58 8 1
73340 70507390 CONGRESS GAS & OIL 10W40 SE, LUBRICATION OIL (1) 32.24 8 2
131563 70507389 BARNANT COMPANY FLOWMETER, 150-MM, 316 SS, W/ 219.34 8 4
7046 70502414-1 OPCON AUTOROTOR AB COMPRESSOR #0A1050 PER OPC 3200.00 8 4
68486 70502133 SL-MONTEVIDEO REVISED TO CANCEL THE ENTIRE 11400.00 8 4
TECHNOLOGY
68485 70502133 SL-MONTEVIDEO REVISED TO CANCEL THE ENTIRE 13208.00 8 4
TECHNOLOGY
Account Total 34265.99
00053-493 FEDERAL EXPRESS 21.20 3 5
Account Total 21.20
00053-613 SHOPXX.941701 104.80 6 5
SHOPXX.94198.1 209.60 8 1
SHOPXX.94200.1 386.67 8 1
SHOPXX.94200.1 296.36 8 2
SHOPXX.94198.1 640.20 8 2
SHOPXX.94199.1 744.87 8 2
SHOPXX.941197.1 824.33 8 2
SHOPXX.94201.1 190.62 8 3
SHOPXX.941200.1 269.82 8 3
SHOPXX.941197.1 133.50 8 4
Account Total 3800.77
Project Total 38200.46
00053-113 5C6513 291186-00 7050125 NEWARK ELECTRONICS IC, CONDITIONER, TYPE J
THERMO 36.12 3 4
198024 70508120 DATEL INC. IC, DC/DC CONVERTER,3 WATT,D 91.52 3 4
8456568A 70507121 RICHEY/DEANCO, INC. CABLE ASSY., 6 CONDUCTOR,8"L 128.33 4 1
1338 70507122 MOXLEY SKAN-MATIC SCANNER,HIGH SPEED RELFECTIVE 1267.50 4 1
557885 70507155 FUTURE ELECTRONICS PRESSURE SENSOR, 0-100 PSID 53.40 4 3
8487979A 70507214 RICHEY/DEANCO,INC. CABLE STRIP,4 COND.,SGLE END 163.90 5 2
3751535 70507250 MCMASTER CARR VACUUM PUMP, 2HP,LIQUID RIN 1170.93 5 4
598451 70507155 FUTURE ELECTRONICS PRESSURE SENSOR, 0-14.5 PSID 56.40 6 1
557885C 70507155 FUTURE ELECTRONICS PRESSURE SENSOR, 0-100 PSID -53.40 8 2
557885 70507155 FUTURE ELECTRONICS PRESSURE SENSOR, 0-14.5 PSID 53.40 8 2
Account Total 2968.10
Project Total 2968.10
00053-083 5C6513 1059 ENGI-NUITY ASSOC. WIP MAT CONSULTANTS 225.00 5 2
1071 ENGI-NUITY ASSOC. WIP MAT CONSULTANTS 270.00 8 1
Account Total 495.00
00053-173 EX970275 JOHN MEACHER EXPENSE 602.00 5 4
EX970281 JOHN MEACHER EXPENSE 766.00 5 4
EX970413 JOHN MEACHER EXPENSE 681.00 8 1
Account Total 2049.00
00053-273 EX970281 JOHN MEACHER EXPENSE 5.00 5 4
EX970413 JOHN MEACHER EXPENSE 4.15 8 1
Account Total 9.15
00053-473 EX970275 JOHN MEACHER EXPENSE 6.00 5 4
EX970281 JOHN MEACHER EXPENSE 6.00 5 4
Account Total 12.00
00053-493 FEDERAL EXPRESS 12.50 3 5
Account Total 12.50
00053-573 EX970275 JOHN MEACHER EXPENSE 114.00 5 4
Account Total 114.00
Project Total 2691.65
Division/Section Total -334415.05
Report Total -334415.05
</TABLE>
<PAGE>
MATERIAL IN SECURE GOVERNMENT ROOM
1. Computer, Gateway w/Monitor and Color Printer $1873 + $179
Government Tag 6255
P. O. #70502258 SC6513 0550-46150
2. 125-Z Extruded Teflon Tape 108 yds.
P. O. #70502514 5C6513 0550-46150
3. Nafion 112 H+Formcut Qty. 475
P. O. #70502082 5C6513 0550-46150 Sheets
4. Cadmium Oxide Qty. 1
P. O. #70507186 0550-46150 Bottle
5. Alum. Alloy 7075-T6 AMS 4126A Qty. 4
P. O. 70502246 5C6513 0550-46150
6. DC/DC Converter Qty. 3
P. O. #70502389 5C6513 0550-46150
7. Analog Device Socket Qty. 1
P. O. #70502385 5C6513 0550-46150
8. Amplifier, Isolation Qty. 1
P. O. #70502390 5C6513 0550-46150
9. Pressure Sensor
P. O. #70507155 5C6513 0550-46150-9
10. Pressure Switch
P. O. #70507155 5C6513 0550-46150-9
11. Pressure Sensor Qty. 2
P. O. #70507155 5C6513 0550-46150
12. High Speed Scanner Qty. 1
P. O. #70507122 5C6513 0550-46150-9
13. Motorola Pressure Sensor Qty. 3
P. O. #70507155 5C6513 0550-46150-9
CONFIDENTIAL
14. BWR 5/2 iC, DC Converter Qty. 2
P. O. #70507120 5C6513 0550-46150
15. Cable Strip C5525 6 Cord Qty. 9
P. O. #70507214 5C6513 0550-46150-9
MTI FABRICATION EQUIPMENT
Inventory of MTI Fabrication Equipment
<TABLE>
<CAPTION>
<S> <C> <C>
Machine/Equipment Quantity Performance Characteristics/
Limits
Miller Welding Unit 1 Hell Avc, TIG
Miller Welding Unit 1 Syncrowave 300, TIG
Miller Welding Unit 1 Deltawave, MIG
Untek Welding Unit 1 Spot, 100 W-sec
Weldamatic Welding Unit 1 Spot, 160 W-sec
Greenerd Press 1 Hand arbor
Annapolis Press 1 5-ton utility
Press 1 75-ton utility
Balancing Machine 1 Microbalance, to 4 in. Idameter x 36
in. Long: 50 lb
Crane 1 5-ton traveling
Crane 2 2-ton jio
Crane 1 1-ton A-frame
Crane 1 5-ton A-frame
Baker Fork Truck 1 830PL 2740 lb
Webb Engine Lathe 1 17 x 120 in. with GAP
Webb Engine Lathe 1 17 x 40 in. with GAP
Webb Engine Lathe 2 15 x 60 in.
Monarch Tool Room Lathe 1 EE 10 x 40 in.
Hardinge Tool Room Lathe 1 10 x 18 in.
Hardinge Second Operation
Lathe 2 DV59
Feeler Precision Lathe 1 10 in.
Bridgeport Vertical Mill 2 10 x 48 in.
Alliant Vertical Mill 2 Vertical with digital readout
Bridgeport Mill 1 10 x 48 in. Line-A-Mill
Cincinnati Mill 1 12 x 48 in. Tool Master
Millport Mill 1 Vertical
Brown & Sharp Grinder 1 14 x 48 in. Universal 0D-1D
Landis Surface Grinder 1 No. 1-1/2
Do-All Tool Grinder 1 - -
Baldor Bench Grinder 1 - -
Houdale Powermatic Sander 1 - -
Darex Drill Sharpener 1 - -
MAAS Radial Drill 1 5-lt arm
Rockwell Drilling Machine 1 1/2-in. Caoacity
Do-All Saw 1 18-in throat 8-in height capacity
Wells Cut-Off Saw 1 6 x 12 in. capacity
Everett Abrasive Cut-Off Saw 1 16 in.
Hauser Jig Borer 1 Model 5: 24 (H) x 29 (L) x 24 (D) in:
5 hp
Borce Coordinate Measuring
Machine 1 Model 401: 24 x 36
x 22 in. to 0.0003-in. accuracy
Pnemu-Canon Pronometer 1 Model 5500
J & L Optical Comparator 1 14 in.
Talysurf Surface Roughness 1 Model 4
Bench Hardness Toster 1 Rockwell A,j B, C, D, E, and F
superificial
EQUOTIP Portable Hardness
Tester 1 - -
Shore A Durometer 1 - -
Federal Air Gage 1 8000:1
Federal Air Gage 1 2500:1
Inspection Light 1 Optical flat and monochromatic
</TABLE>
16. Cable Assembly C55-6 Qty. 9
P.O. #70507121 5C6513 0550-46150
- - 6389K45) Nylon Qty. 8
6432K14) Sleeve Qty. 2
P. O. #70507211 5C6513 0550-46150
18. 250 dia. Fixture Ball Qty.14
P. O. #70502060
5C6513 0550-46150
19. Str. Pin Header Qty.30
P.O.#70507046 5C6513 0550-46150
20. 30 Pin Str. Header P.O. #70507046 Qty.10
Ejector Latch - Qty.10
16 P Conn Sock - Qty.30
30P Conn. Sock - Qty.35
Strain Relief - Qty.30
Strain Relief - Qty.35
16 Count Cable Assy. - Qty.29
30P Conn. - Qty. 0
5C6513 0550-46150
21. Insulated Jack (Black) P.O. #70507080 Qty. 44
" " (Brown) " Qty.
" " (Red) " Qty. 44
" " (Orange) " Qty. 60
" " (Yellow) " Qty.100
" " (Green) " Qty.100
" " (Blue) " Qty.100
" " (Purple) " Qty.100
" " (Gray) " Qty.100
" " (White) " Qty.100
5C6513 0550-46150
22. 100K Register Qty. 44
P.O. #70507052 5C6513 0550-46150
23. Electrode Govt. Tag
5C6513 0550- 6253
24. Test Housing Govt. Tag
5C6513 6266
25. Die Plate Govt. Tag
5C6513 6256
26. PN5C00 Carbon
P.O. #70560002746
27. Teflon Tape Qty. 1
P.O. #70507333 5C6513 0550-46150-7
28. Adapter NFPV to 1/4 Qty. 2
P.O. #70507372 5C6513
29. Insulat. Varnish Red Qty. 3
P.O. 70507387 5C6513
30. Alum. Plates Qty. 9
P.O. 70502139
31. Compressor 0A1050 Qty. 2
P.O. #70502414-1 5C6513 0550-46150-8
32. Grafoil Qty. 1
P.O. #70502232 5C6513 0550-46150-7 1 Roll
33. Grafoil Qty. 14'
P.O. #70502232 5C6513 0550-46150-7 Qty.14"
34. Flat Electrode Qty.10
P.O. #70507028 5C6513 0550-46150-7
35. Flat Electrode Qty.80
P.O. #70507028 5C6513 0550-46150-7
36. Flat Electrode Qty.30
P.O. #70507028 5C6513 0550-46150-7
37. Flat Electrode Qty.34
P.O. #70507028 5C6513 0550-46150-7
38. Flat Electrode Qty.36
P.O. #70507028 5C6513 0550-46150-7
39. ST. Montevideo Qty. 1
P.O. # 70502133 Tech 5C6513 0550-46150
40. Vacuum Pump Govt. Tag
5C6513 6258
41. Corr. Fin Stock Qty.47"
P.O. # 70502055 5C6513
<PAGE>
SCHEDULE 1.1(b) -- Inventory
Attached is a list of all raw materials, finished goods, work-in-progress,
supplies and inventories to be transferred to Plug Power, LLC.
HARDWARE FOR MTI 10KW IRD FUEL CELL PROGRAM
CONFIDENTIAL TREATMENT REQUESTED.
CONFIDENTIAL TREATMENT REQUESTED.
Functional Plates CONFIDENTIAL TREATMENT REQUESTED.
Rejected Plates CONFIDENTIAL TREATMENT REQUESTED.
Reserved for CONFIDENTIAL TREATMENT REQUESTED.
(Gasket Evaluation)
Reserved for CONFIDENTIAL TREATMENT REQUESTED.
(Single Module)
Total Plates CONFIDENTIAL TREATMENT REQUESTED.
RAW MATERIALS
Description Quantity
CONFIDENTIAL TREATMENT REQUESTED 2
CONFIDENTIAL TREATMENT REQUESTED 2
CONFIDENTIAL TREATMENT REQUESTED CONFIDENTIAL TREATMENT REQUESTED
WORK IN PROCESS AND AVAILABLE INVENTORY
Description Drawing Number Quantity
CONFIDENTIAL TREATMENT REQUESTED. 1
CONFIDENTIAL TREATMENT REQUESTED. 1
CONFIDENTIAL TREATMENT REQUESTED. 1
CONFIDENTIAL TREATMENT REQUESTED. 1
CONFIDENTIAL TREATMENT REQUESTED. 1
CONFIDENTIAL TREATMENT REQUESTED. 1
CONFIDENTIAL TREATMENT REQUESTED. 1
CONFIDENTIAL TREATMENT REQUESTED. 1
CONFIDENTIAL TREATMENT REQUESTED. approx. 50
CONFIDENTIAL TREATMENT REQUESTED. approx. 50
CONFIDENTIAL TREATMENT REQUESTED. 1
CONFIDENTIAL TREATMENT REQUESTED. 1
CONFIDENTIAL TREATMENT REQUESTED. 1
CONFIDENTIAL TREATMENT REQUESTED. 1
CONFIDENTIAL TREATMENT REQUESTED. 1
ITEM NUMBER RAW MATERIAL DESCRIPTION MTI TAG PROJECT LOCATION
CONFIDENTIAL TREATMENT REQUESTED. Inventory Manuf. Room
CONFIDENTIAL TREATMENT REQUESTED. Inventory Manuf. Room
CONFIDENTIAL TREATMENT REQUESTED. IRD Manuf. Room
CONFIDENTIAL TREATMENT REQUESTED. IRD Manuf. Room
CONFIDENTIAL TREATMENT REQUESTED. IRD Manuf. Room
CONFIDENTIAL TREATMENT REQUESTED. Ford Gov. Locked Rm.
CONFIDENTIAL TREATMENT REQUESTED. Ford Gov. Locked Rm.
<PAGE>
SCHEDULE 1.1(d) -- Rights of MTI
License Agreements -
1. Nonexclusive Patent License Agreement with:
The Regents of the University of California
Los Alamos National Laboratory
2237 Trinity Drive
Los Alamos, NM 87545
For:
Technical information, know-how and data owned and controlled by the
University and relating to catalyst loadings for solid polymer fuel
cells as applied in
CONFIDENTIAL TREATMENT REQUESTED.
Government Contracts -
2. Grant No. DE-FG02-96ER82208
U.S. Department of Energy
Chicago Operations Office
9800 South Cass Avenue
Argonne, Illinois 60439
Title: "Natural Gas Reformed Cleanup System for Proton Exchange
Membrane (PEM) Fuel Cell
3. Order No. C-75502-F
National Aeronautics and Space Administration
Lewis Research Center
21000 Brookpark Road
Cleveland, OH 44135
Title: "400 Watt Fuel Cell Assembly"
4. Subcontract No. 47-2-R31153 under Ford Motor Company Prime Contract
No. DE-AC02-94CE50389 with U.S. Department of Energy
Ford Motor Company
The American Road
Dearborn, MI 48121-1899
Title: "R&D of a Direct-Hydrogen-Fueled Proton Exchange Membrane Fuel
Cell for Transportation Applications"
5. Agreement No.: 1791-ERER-ER-92
New York State Energy Research & Development Authority (NYSERDA)
Corporate Plaza West
286 Washington Avenue Extension
Albany, New York 12203-6399
Title: "Hybrid Electric Vehicle Program"
6. Agreement No.: 4087-ERTER-TR-95
New York State Energy Research & Development Authority (NYSERDA)
Corporate Plaza West
286 Washington Avenue Extension
Albany, New York 12203-6399
Title: "MTI/Ford PEM Fuel Cell"
7. Agreement No.: 4540-ERTER-RT-97
New York State Energy Research & Development Authority (NYSERDA)
Corporate Plaza West
286 Washington Avenue Extension
Albany, New York 12203-6399
Title: "Develop 50 kW Proton Exchange Membrane "PEM"
Fuel Cell for Ford Vehicle"
Pending Contracts -
1. PRDA No. DE-RA02-97EE50443
U.S. Department of Energy
Chicago Operations Office
9800 South Cass Avenue
Argonne, IL 60439
Title: "Topic 1, Integrated Power System for Transportation"
2. PRDA No. DE-RA02-97EE50443, Subcontract
Energy and Environmental Research Corp.
18 Mason
Irvine, CA 92618
Title: "Topic 3, Fuel Cell for Buildings"
Open Purchase Orders (Associated with Contracts and Plant
Appropriations) - See Attached
Employment Agreements - See Schedule 1.1(I)
CONFIDENTIAL TREATMENT REQUESTED.
Schedule of Active Proposals - See Attached
Confidentiality Agreements - Confidentiality Agreements have
been executed with all MTI employees having access to fuel cell
technology. An example of MTI's standard Agreement is attached.
See Schedule 1.1(I)
Memorandum of Understanding - See Attached
Arthur D. Little, Inc.
Acorn Park
Cambridge, MA 02140
Effective: 9/10/96 - 12/31/97
Teaming Agreement - See Attached
Space Industries International
101 Courageous Drive
League City, TX 77573
Subject: NASA JSC Solicitation 9-BE13-12-7-66P
<PAGE>
SCHEDULE 1.1(e) - Credits, Prepaid Expenses, Deferred Charges, Advance
Payments, Security Deposits and Pre-Paid Items
None
<PAGE>
SCHEDULE 1.1(g) -- Intellectual Property
Attached is a list of all Intellectual Property used in connection with the
Fuel Cell Business.
Copyright - None
Patents - See Attached
Trademarks- None
Trade Secrets - See Attached
Know-How - Methods, Processes, Propietary Data and Information
Necessary for MTI's Conduct of the Fuel Cell
Business
Fuel Cell Prototype Hardward
Engineer's Patent Notebooks
Associated Drawings
Computer Files in Object and Source Code
FUEL CELL PATENTS/PATENT APPLICATIONS
MTI DOCKET TITLE STATUS
CONFIDENTIAL TREATMENT REQUESTED.
FUEL CELL TRADE SECRETS
MTI DOCKET TITLE STATUS
CONFIDENTIAL TREATMENT REQUESTED.
<PAGE>
SCHEDULE 1.1(h) -- Interest in Government Contracts
License Agreements -
1. Nonexclusive Patent License Agreement with:
The Regents of the University of California
Los Alamos National Laboratory
2237 Trinity Drive
Los Alamos, NM 87545
For:
Technical information, know-how and data owned and controlled by the
University and relating to catalyst loadings for solid polymer
electrolyte fuel cells as applied in
CONFIDENTIAL TREATMENT REQUESTED.
Government Contracts -
2. Grant No. DE-FG02-96ER82208
U.S. Department of Energy
Chicago Operations Office
9800 South Cass Avenue
Argonne, Illinois 60439
Title: "Natural Gas Reformed Cleanup System for Proton
Exchange Membrane (PEM)Fuel Cell
3. Order No. C-75502-F
National Aeronautics and Space Administration
Lewis Research Center
21000 Brookpark Road
Cleveland, OH 44135
Title: "400 Watt Fuel Cell Assembly"
4. Subcontract No. 47-2-R31153 under Ford Motor Company
Prime Contract No. DE-AC02- 94CE50389 with U.S. Department of Energy
Ford Motor Company
The American Road
Dearborn, MI 48121-1899
Title: "R&D of a Direct-Hydrogen-Fueled Proton Exchange Membrane
Fuel Cell for Transportation Applications"
5. Agreement No.: 1791-ERER-ER-92
New York State Energy Research & Development Authority (NYSERDA)
Corporate Plaza West
286 Washington Avenue Extension
Albany, New York 12203-6399
Title: "Hybrid Electric Vehicle Program"
6. Agreement No.: 4087-ERTER-TR-95
New York State Energy Research & Development Authority (NYSERDA)
Corporate Plaza West
286 Washington Avenue Extension
Albany, New York 12203-6399
Title: "MTI/Ford PEM Fuel Cell"
7. Agreement No.: 4540-ERTER-RT-97
New York State Energy Research & Development Authority (NYSERDA)
Corporate Plaza West
286 Washington Avenue Extension
Albany, New York 12203-6399
Title: "Develop 50 kW Proton Exchange Membrane "PEM" Fuel Cell
for Ford Vehicle"
<PAGE>
SCHEDULE 1.1(l) -- Employee and Independent
CONFIDENTIAL TREATMENT REQUESTED
<PAGE>
SCHEDULE 1.2 -- Excluded Assets
1. Shared assets that will not convey:
* Buildings, parking lots, laboratories, shipping/receiving areas at
968 Albany Shaker Road
* Conference Rooms, including furniture, overhead projector video
monitor and VCR
* Lavatories
* Fax Machine
* Copiers
* Laser Printers
* MTI fabrication equipment shown on Attachment
* Deltek Accounting System
* Purchasing reference materials such as: Thomas Register
* Human Resources Reference Materials
* Tools, toolboxes, etc., other than as specifically identified in
Schedule 1.1(a)
2. Software that will not transfer to Plug Power:
* ANSYS Finite Element Analysis Software
* Microsoft Office (unless such software has been pre-loaded on Gateway
computers)
* Deltek Accounting System and supporting modules
* Two (2) copies of Lab View
* All other copies of AutoCad, other than five (5) to convey
* ANSOFT Electromagnetic Package
* E-Mail or any other Network-Based Software (Novell, etc.)
* Anti-Virus Software
3. Any employees other than those employees set forth below:
Gary Antonelli, Manufacturing Engineer
Donald Buesing, Technician
Matthew Cusack, Mechanical Engineer
Dr. Manmohan Dhar, Mechanical Engineer & Analyst
Dr. William Ernst, Mechanical Engineer
Robert Hamm, Mechanical Engineer
Gregory Heroth, Chemical Process Technician
David Hicks, Mechanical Engineer
Dr. Wenhau (Wayne) Huang, Electrochemist
Daniel Jones, Mechanical Engineer
Karl Knapp (Contract Employee - Becomes Plug Power Employee),
Designer
Tina Leonard, Human Resources
Sandra MacCue, Executive Secretary & Intellectual Property Clerk
Richard Maddaloni, Mechanical Engineer
Bruce Maynard, Technician
John Meacher, Mechanical Engineer
Gregory Migirditch, Purchasing
Edward Nestler, Designer
David Siler, Technician
Thomas Smykowski (Summer Hire)
Zbigniew Sobolewski, Electrical Engineer
William Sumigray, Contracts Manager
John VanHeertum, Mechanical Technician
Michael Walsh (Contract Employee), Mechanical Design Engineer
Michael E. Walsh (Summer Hire)
4. Any and all Intellectual Property Rights in connection with the Hybrid
Electric Vehicle and Energy Management System (EMS).
<PAGE>
SCHEDULE 1.4 -- Assumed Liabilities
Liabilities being transferred by MTI to Plug Power LLC are as follows:
Administrative -
1. Accrued Vacation for Plug Power employees -- $24,570.74
Accrued Vacation $47,361.13
Grandfather Clause $ 1,780.35
TOTAL $49,141.48*
* (Will be paid out to transferred employees. Plug Power will
reimburse MTI for one-half (1/2) of that amount or $24,570.74.)
2. Purchased Vacation -- The asset and liability associated with
Purchased Vacation will be transferred to Plug Power consistent
with IRS regulations -- $2,150.00
3. Accrued FSA (Subject to IRS regulations) for Plug Power employees
-- $2,661.49
4. Any and all liabilities for employees on and after the effective
date of this transaction, including but not limited to (subject to
applicable employment or consulting contracts with Plug Power, LLC):
CONFIDENTIAL TREATMENT REQUESTED.
Vendor -
5. Outstanding balance for Air Compressor Engineering for purchase of
compressors to support Ford Phase II (because Air Compressor
Engineering refuses to consent to transfer lien, entire balance is
due and owing). -- $18,384
6. Recorded vendor payables and unrecorded vendor payables for work
unbilled and necessary to the Fuel Cell Business
Accounts -
7. Plant Appropriations as set forth on the attached Schedule
(to be updated as of the effective date); as of 5/23/97,
estimated to be $10,585.46.
Contracts -
8. Any and all liabilities, costs and obligations in connection with
any and all contracts assigned pursuant to this Agreement,
including but limited to cost overruns or delays in connection
with any assigned Contract, but only to the extent related to events
after the contribution date (except with respect to cost overruns and
delays in the ford/DOE contract.
9. Any and all liabilities set forth in the Contributed FCB Balance
Sheet (to be updated as of the effective date).
<PAGE>
SCHEDULE 2.1(f) -- Employment Agreements
CONFIDENTIAL TREATMENT REQUESTED.
<PAGE>
SCHEDULE 3.1(b)(ii) -- States in Which MTI is Qualified to do Business
Maryland
New York
<PAGE>
SCHEDULE 3.1(c) - Required Consents and Governmental Approvals
1. Grant No. DE-FG02-96ER82208
U.S. Department of Energy
Chicago Operations Office
9800 South Cass Avenue
Argonne, Illinois 69439
Title: "Natural Gas Reformer Cleanup System for Proton Exchange
Membrane (PEM) Fuel Cell
2. Order No. C-75502-F
National Aeronautics and Space Administration
Lewis Research Center
21000 Brookpark Road
Cleveland, OH 44135
Title: "400 Watt Fuel Cell Assembly"
3. Subcontract No. 47-2-R31153 under Ford Motor Company Prime Contract
No. DE-AC02- 94CE50389 with U.S. Department of Energy
Ford Motor Company
The American Road
Dearborn, MI 48121-1899
Title: "R&D of a Direct-Hydrogen-Fueled Proton Exchange Membrane
Fuel Cell for Transportation Application"
4. Agreement No.: 1791-ERER-ER-92
New York State Energy Research & Development Authority (NYSERDA)
Corporate Plaza West
286 Washington Avenue Extension
Albany, New York 12203-6399
Title: "Hybrid Electric Vehicle Program"
5. Agreement No.: 4087-ERTER-TR-95
New York State Energy Research & Development Authority (NYSDERDA)
Corporate Plaza West
286 Washington Avenue Extension
Albany, New York 12203-6399
Title: "MTI/Ford PEM Fuel Cell"
6. Agreement No.: 4540-ERTER-TR-97
New York State Energy Research & Development Authority (NYSERDA)
Corporate Plaza West
286 Washington Avenue Extension
Albany, New York 12203-6399
Title: "Develop 50 kW Proton Exchange Membrane "PEM" Fuel Cell
for Ford Vehicle"
7. Nonexclusive Patent License Agreement with:
The Regents of the University of California
Los Alamos National Laboratory
2237 Trinity Drive
Los Alamos, NM 87545
For:
Technical information know-how and data owned or controlled by the
University and relating to catalyst loadings for solid polymer
electrolyte fuel cells as applied in U.S. Patent Applicable Serial
Number 07/656,329 (filed February 19,1991) and U.S. Patent Application
Serial Number 07/736,876 (filed February 19,1991).
As amended by Letter of Intent dated 6/18/97
8. Financed Purchase Agreement with:
Air Compressor Engineering
Parkford Industrial Park
Clifton Park, NY 12065
For:
Three (3) new Ingersoll-Rand Model 0L15X15 Air Compressors
One (1) New Model IR175AC Filter
One (1) New Model IR17CHE Filter
Together with Attachments, Accessories, Replacement Parts, Repairs,
Additions
9. Loan with:
The Chase Manhattan Bank
(See Exhibit A)
10. See Schedule 3.1(u)(i)
<PAGE>
SCHEDULE 3.1(d) -- Contributed Business Balance Sheet
Attached is a Contributed Business Balance Sheet as of 6/25/97
<PAGE>
Mechanical Technology Inc.
Fuel Cell Activity
Proforma Statement of New Assets at 5/23/97
Total To Plug Power
Assets -------- -------------
Cash $ 0 $ 0
(1) - Accounts Receivable 348,794 0
Inventory 77 77
Property, Plant & Equipment
at Acquisition Cost 463,532 463,532
Accumulated Depreciation (82,600) (82,600)
------- -------
Net Property, Plant, and Equipment 380,932 380,932
------- -------
Total Assets 729,803 381,009
Liabilities
(2) - Accounts Payable 52,191 10,585
Notes Payable 18,384 18,384
Accrued Vacation
Base Vacation 49,141 24,571
Purchased Vacation 2,150 2,150
(3) - Accrued FSA 2,662 2,662
------- -------
Total Liabilities 124,528 58,352
------- -------
Net Assets $ 605,275 $ 322,658
======= =======
(1) - Retained by MTI
(2) - Will transfer payables associated with transferred assets, materials,
and supplies.
For example, per the attached list, laboratory expenditures of $430.7
thousand had been authorized and $389 thousand recorded, as of 5/23/97.
Payables associated with the $389 thousand expenditure will be
transferred. Additional payables, including but not limited to
authorized but unexpended Plan Appropriations, will also transfer.
(3) - Subject to IRS regulations that may inhibit transfer of this liability.
Backlog $ 657,000 $ 657,000
======= =======
<PAGE>
SCHEDULE 3.1(e) -- Liabilities Relating to Business
See Schedule 1.4
See Schedule 3.1(g)
<PAGE>
SCHEDULE 3.1(f)(i) -- Taxes Contested in Good Faith
MTI pays a variety (sales, use franchise, property, and income, etc.) of
taxes at various and numerous levels of government including, but not
limited to, school, town, county, state, and federal.
In the ordinary course of business MTI is subject to audit by the various
taxing authorities.
MTI is currently involved in settling, in good faith, both New York State
corporation franchise tax and sales and use tax for several open years.
MTI also has contested Property taxes (Town of Colonie) for 1995/96 and
1996/97.
<PAGE>
SCHEDULE 3.1(f)(ii) -- Extension of Assessment on Taxes
In connection with both New York State corporation franchise tax and sales
and use tax audits, MTI has consented to extending the period of limitation.
<PAGE>
SCHEDULE 3.1(f)(iii) -- Disclosures Regarding Taxes and Withholding Taxes
See Schedule 3.1(f)(i) and Schedule 3.1 (f)(ii)
<PAGE>
SCHEDULE 3.1(f)(iv) -- Litigation or Administrative Appeals Pending In
Connection with Covered Taxes
See Schedule 3.1(f)(i) and Schedule 3.1(f)(ii)
<PAGE>
SCHEDULE 3.1(g) -- Changes in Conduct of Business Since audited Balance Sheet
1. See Schedule 3.1(i)(iv)
2. Anticipate cost growth and schedule delays such that Ford will be
unable to meet its contractual obligations to DOE. -- See Attachment
3. Confidential Treatment Requested
4. NYSERDA Restated Agreement
5. Letter of Intent with Los Alamos National Laboratory dated 6/18/97
6. Department of Energy Waivers - See Schedule 3.1(i)(iii) and attachments
thereto.
7. Changes in the compensation level for:
CONFIDENTIAL TREATMENT REQUESTED.
CONFIDENTIAL TREATMENT REQUESTED.
8 New Karner Road building lease--Debtor's Bankruptcy Estate rejected the
lease.
<PAGE>
SCHEDULE 3.1(h) -- Litigation, Citations, Fines or Penalties
None
<PAGE>
SCHEDULE 3.1(i)(i) -- Violations of Applicable Laws
None
<PAGE>
SCHEDULE 3.1(i)(ii) -- Governmental Approval and Consents Required for
Conduct of the Business
1. See Schedule 1.1(h)
2. See Schedule 3.1(c)
3. See Schedule 3.1(u)(i)
4. Received Approvals only form the Chase Manhattan Bank, NYSERDA and
LANL.
<PAGE>
SCHEDULE 3.1(i)(iii) - Contracts with Governmental Authority
1. Grant No. DE-FG02-96ER82208
U.S. Department of Energy
Chicago Operations Office
9800 South Cass Avenue
Argonne, Illinois 60439
Title: "Natural Gas Reformer Cleanup System for Proton Exchange
Membrane(PEM) Fuel Cells"
Confidential Treatment Requested
2. Order No. C-75502-F
National Aeronautics and Space Administration
Lewis Research Center
21000 Brookpark Road
Cleveland, OH 44135
Title: "400 Watt Fuel Cell Assembly"
Confidential Treatment Requested
3. Subcontract No. 47-2-R31153 under Ford Motor Company Prime Contract
No. DE-AC02- 94CE50389 with U.S. Department of Energy
Ford Motor Company
The American Road
Dearborn, MI 48121-1899
Title: "R&D of a Direct-Hydrogen-Fueled Proton Exchange Membrane Fuel
Cell for Transportation Applications"
Confidential Treatment Requested
4. Agreement No.: 1791-ERER-ER-92
New York State Energy Research & Development Authority (NYSERDA)
Corporate Plaza West
286 Washington Avenue Extension
Albany, New York 12203-6399
Title: "Hybrid Electric Vehicle Program"
Confidential Treatment Requested
5. Agreement No.: 4087-ERTER-TR-95
New York State Energy Research & Development Authority (NYSERDA)
Corporate Plaza West
286 Washington Avenue Extension
Albany, New York 12203-6399
Title: "MTI/Ford PEM Fuel Cell"
Confidential Treatment Requested
6. Agreement No.: 4540-ERTER-TR-97
New York State Energy Research & Development Authority (NYSERDA)
Corporate Plaza West
286 Washington Avenue Extension
Albany, New York 12203-6399
Title: "Develop 50 kW Proton Exchange Membrane "PEM" Fuel Cell for
Ford Vehicle"
Confidential Treatment Requested
7. Letter of Intent with Los Alamos National Laboratory -
See Schedule 3.1(c)
8. DOE Waivers - See Attached
9. Restated NYSERDA Agreement - See Attached
10. Security Clearances -
A number of transferring Plug Power employees currently hold security
clearances. When these people become Plug Power employees they will
automatically lose their security clearances. This will prevent their
participation in government agency-sponsored business development and/or
technical meetings where classified information is to be discussed.
<PAGE>
SCHEDULE 3.1(i)(iv) -- Disclosures Regarding Business
1. The Committee on Appropriations, Subcommittee on Interior and Related
Agencies, has completed a "mark-up" of the budget that includes the DOE
Office of Advanced Automobile Technologies Programs, and has moved $10
Million form the fuel cell area to the heavy duty diesel area. This
action would reduce the fuel cell effort form $29.6 Million to $19.6
Million. It is the understanding of many that this action is counter
to DOE plans and results form the interests of the diesel engine
technology community. it is difficult to understand the wisdom of
moving money to the giant diesel engine industry with its mature
technology while depriving the embryonic fuel cell industry with its
potential for break-through commercial technology that can rival the
emergence of the PC industry form the mainframe computer.
2. Phase II of the Ford contract will not be completed within the current
limits of the contract. -- Please the Addendum to Schedule 3.1(g)
<PAGE>
SCHEDULE 3.1(j) -- Operation of the Business
MTI has conducted the Business only through MTI. There are no exceptions.
<PAGE>
SCHEDULE 3.1(k) -- Permitted Liens
1. All government property as set forth on Schedule 1.1(a), items in
Government owned property room, Ford Phase I material, and Ford Phase
II material is owned exclusively by the Department of Energy and used
by MTI in connection with research and development activities.
2 Air Compressor Engineering lien, as assigned to LCA.
3. Limitations on Intellectual Property Rights, as set forth in Schedules
3.1(p)(iii)-(iv)
<PAGE>
SCHEDULE 3.1(l)(i) - Contracts
The following is a complete list of all agreements, contracts, commitments
and other instruments and arrangements: 1) by which any of the Assets are
bound or affected or 2) to which MTI is a party or by which is bound that
directly affects the Fuel Cell Business or the Assets.
1. PRDA No. DE-RA02-97EE50443 (Topic 1, Integrated Power System for
Transportation) - See Schedule 1.1(d)
2. PRDA No. DE-RA02-97EE50443 (Topic 3, Fuel Cell for Buildings)
Subcontract to Energy and Environmental Research Corp. -
See Schedule 1.1(d)
3. Schedule of Active Proposals - See Schedule 1.1(d)
4. See Schedule 1.1(g)
5. See Schedule 1.1(h)
6. See Schedule 1.1(l)
7. See Schedule 1.1(c)
8. See Schedule 1.1(i)(iii)
9. See Schedule 1.1(p)(i)
10. See Schedule 1.1(r)(i)
11. See Schedule 1.1(u)(i)
12. Recorded vendor payables and unrecorded vendor payables for work
unbilled and necessary to the Fuel Cell Business.
13. Plant Appropriations as set forth on Schedule 1.4; as of 5/23/97,
estimated to be $10,585.46
<PAGE>
SCHEDULE 3.1(l)(iii) -- Existing Default Under Contracts
None
<PAGE>
SCHEDULE 3.1(m) -- Territorial Restrictions
See Schedule 1.1(h)
<PAGE>
SCHEDULE 3.1(o)- Suppliers to Fuel Cell Business
Attached is a list of all suppliers from which the fuel cell business
has ordered raw materials, supplies, merchandise and other goods and
services over the past twelve months. Also provided is a separate
listing of vendor names, addresses, phone numbers, etc.
Vendor Name Vend Id City State Postal Cd
CONFIDENTIAL TREATMENT REQUESTED
PO PO Line Description Vend Name Div A/C Project Item Amt Order Date
CONFIDENTIAL TREATEMENT REQUESTED
<PAGE>
SCHEDULE 3.1(p)(i) - Government Contracts
Contracts/Grants -
1. Grant No. DE-FG02-96ER82208
U.S. Department of Energy
Chicago Operations Office
9800 South Cass Avenue
Argonne, Illinois 60439
Title: "Natural Gas Reformer Cleanup System for Proton Exchange
membrane(PEM) Fuel Cells"
Grant Amount: CONFIDENTIAL TREATMENT REQUESTED
Performance Period: CONFIDENTIAL TREATMENT REQUESTED
2. Order No. C-75502-F
National Aeronautics and Space Administration
Lewis Research Center
21000 Brookpark Road
Cleveland, OH 44135
Title: "400 Watt Fuel Cell Assembly"
CONFIDENTIAL TREATMENT REQUESTED
3. Subcontract No. 47-2-R31153 under Ford Motor Company Prime Contract
No. DE-AC02- 94CE50389 with U.S. Department of Energy
Ford Motor Company
The American Road
Dearborn, MI 48121-1899
Title: "R&D of a Direct-Hydrogen-Fueled Proton Exchange Membrane
Fuel Cell for Transportation Applications"
Subcontract Amount:
Cost Sharing - CONFIDENTIAL TREATMENT REQUESTED
Performance Period: CONFIDENTIAL TREATMENT REQUESTED
4. Agreement No. 1791-ERER-ER-92
New York State Energy Research & Development Authority (NYSERDA)
Corporate Plaza West
286 Washington Avenue Extension
Albany, New York 12203-6399
Title: "Hybrid Electric Vehicle Program"
Agreement Amount: CONFIDENTIAL TREATMENT REQUESTED
Performance Period: CONFIDENTIAL TREATMENT REQUESTED
5. Agreement No. 4087-ERTER-TR-95
New York State Energy Research & Development Authority (NYSERDA)
Corporate Plaza West
286 Washington Avenue Extension
Albany, New York 12203-6399
Title: "MTI/Ford PEM Fuel Cell"
Agreement Amount: CONFIDENTIAL TREATMENT REQUESTED
Performance Period: CONFIDENTIAL TREATMENT REQUESTED
6. Agreement No. 4540-ERTER-TR-97
New York State Energy Research & Development Authority (NYSERDA)
Corporate Plaza West
286 Washington Avenue Extension
Albany, New York 12203-6399
Title: "Develop 50 kW Proton Exchange Membrane "PEM" Fuel Cell for
Ford Vehicle"
Agreement Amount: CONFIDENTIAL TREATMENT REQUESTED
New Business Proposals -
- - See Scheudle 1.1(d) --Active Proposal List
- - Teaming Agreement with Space Industries International --
See Schedule 1.1(d)
- - AD Little - See Schedule 1.1(d)
- - Other Opportunities to Bid
Taiwan Fuel Cell Development
<PAGE>
SCHEDULE 3.1(p)(iii) -- Exceptions to Patent Rights
See attached memorandum. To the extent that any exception in
the attached memorandum is cured, there shall be no exceptions.
With respect to inventions CONFIDENTIAL TREATMENT REQUESTED,
MTI shall reimburse Plug Power L.L.C. for reasonable costs in taking
all steps necessary to obtain: 1.) DOE waivers of untimely disclosure
or election, or 2.) contingent disclosures.
CONFIDENTIAL TREATMENT REQUESTED
RESTATED AGREEMENT
NO.
A. MTI and NYSERDA have entered into an agreement(Restated Agreement)
to supersede and restate the obligations and rights of NYSERDA and MTI
under NYSERDA sponsored contracts (Agreements Numbers CONFIDENTIAL
TREATMENT REQUESTED) related to fuel cells. The Restated Agreement
includes changes to the intellectual property provisions, royalty
provisions and other terms set forth in the three NYSERDA fuel cell
agreements.
Under the terms of the restated agreement, NYSERDA has waived its rights
to any inventions that were or will be conceived or reduced to practice
during the contemporaneous performance of the Ford/DOE and NYSERDA
programs, with the exception that NYSERDA will reserve for itself
a CONFIDENTIAL TREATMENT REQUESTED.
B. Patents Conceived under CONFIDENTIAL TREATMENT REQUESTED
Contract CONFIDENTIAL TREATMENT REQUESTED.
CONFIDENTIAL TREATMENT REQUESTED
At the time of conception of the above invention, the inventor was
also CONFIDENTIAL TREATMENT REQUESTED.
On June 12, 1997, MTI submitted a CONFIDENTIAL TREATMENT REQUESTED.
II. Ford Motor Company (FMC) Subcontract No. 47-2-R31153 dated May 2,
1995 under FMC/Department of Energy (DOE) Prime Contract No. DE-AC02-
94CEO50369.
A. As set forth in Exhibits 2, 3 and 4 to this Schedule, MTI
notified the DOE by virtue of letters dated December 23, 1996,
January 6, 1997 and January 27, 1997 (Notification Letters), that
inventions had been conceived or first reduced to practice under
Phase I of the Ford/DOE subcontract. The letter notifications failed
to specifically elect to retain waived U.S. and foreign patent rights
for the Invention Dockets listed below.
CONFIDENTIAL TREATMENT REQUESTED
In addition to the above, MTI indicated in its Notification Letters
that it was excepting from its election rights the following MTI Docket
Numbers:
CONFIDENTIAL TREATMENT REQUESTED.
Subsequently, as set forth in Exhibits 5, 6 and 7 to this Schedule,
MTI submitted three letters on May 23, 1997 requesting that DOE permit
MTI to modify the Notification Letters to specifically elect to retain
waived U.S. and foreign patent rights for all the reported inventions,
including those previously excepted by MTI from such election to retain
both U.S. and foreign patent rights, notwithstanding that MTI was
delinquent in reporting the inventions in the Notification Letters
(Exhibits 2, 3 and 4) and the subsequent modifications dated May 23,
1997 (as set forth in Exhibits 5, 6 and 7).
Robert J. Fischer, Esq., Deputy Chief Counsel, Office of Intellectual
Property Law, DOE Chicago Operations Office informed John Denniston,
Esq. Covington & Burling (representing the interests of MTI) during a
telephone conversation that it was understood by DOE when the Notification
Letters (Exhibits 2, 3 and 4) were received by DOE, that MTI was electing
its right to retain waived U.S. and foreign patent rights for the
inventions listed. In addition, at the request of Mr. Denniston, the
lettersset forth in Exhibits 8, 9, 10, 11, and 12 to this Schedule were
sent to MTI confirming MTI's election of domestic and foreign patent rights
to those inventions previously excepted by MTI as described above.
B. As set forth more fully in the small business patent rights clause,
the provisions of that clause apply to any invention CONFIDENTIAL TREATMENT
REQUESTED.
Applicable Patent Disclosure (Phase II):
CONFIDENTIAL TREATMENT REQUESTED
The report to DOE will be considered CONFIDENTIAL TREATMENT REQUESTED the
principal patent rights to MTI.
<PAGE>
SCHEDULE 3.1(p)(iv) - Third Party and Government Rights
See attached memorandum
THIRD PARTY AND GOVERNMENT RIGHTS
Nonexclusive Patent License Agreement (As Amended)
Between
CONFIDENTIAL TREATMENT REQUESTED
And
Mechanical Technology Inc.
The above Agreement, and Modification No. 1 thereto, have been previously
provided. Under the terms of the Agreement, as amended, the University
grants to MTI, subject to compliance with various reporting and other
administrative and record keeping and payment obligations on the part of
MTI as set forth in the Agreement, a CONFIDENTIAL TREATMENT REQUESTED.
In addition, to the rights granted to MTI, the U.S. Government has the
rights described in Paragraph 2.2 of the Agreement to the inventions
covered by the University's Patent Rights set forth in Paragraph 1.2 of
the amended Agreement. The Government also has the rights set forth in
Paragraph 3.4. In addition, sales to foreign countries are restricted as
set forth in Article 17, and Article 18 states that any products
embodying Licensed Products or produced through the use of a Licenses
Method will be manufactured substantially in the United States.
With regard to Article 3, MTI provided payment for the nonrefundable
license fee of CONFIDENTIAL TREATMENT REQUESTED and is also obligated to
provide royalty payments in the amounts set forth therein and under the
conditions described therein to the University, during the term of the
Agreement, which will remain valid until the last patent expires, unless
MTI fails to satisfy its obligations as set forth in the Agreement.
Accordingly, the Agreement provides (as more fully set forth therein)
that the University may give written notice of default to MTI, and if MTI
fails to cure such default within ninety days after date of delivery of
such notice, the University shall have the rights to terminate the License
Agreement. To date, MTI has complied with, and shall continue to comply
with the requirements of the License Agreement.
The parties have agreed to amend the License Agreement as set forth in the
Letter of Intent, as previously provided. In addition to the CONFIDENTIAL
TREATMENT REQUESTED.
CONFIDENTIAL TREATMENT REQUESTED
This agreement, which has been previously provided, states the following:
CONFIDENTIAL TREATMENT REQUESTED
D. Both patent rights clauses of that contract further provides for a
section related to the preference for United States industry, as set forth
below:
CONFIDENTIAL TREATMENT REQUESTED
E. Set forth in the Advance Waiver of Patent Rights clause, Section
(3)(ix), entitled, "U.S. Competitiveness", paragraph (F) states:
CONFIDENTIAL TREATMENT REQUESTED
<PAGE>
SCHEDULE 3.1(r)(i) -- Intellectual Property Owned by MTI
See attached Fuel Cell Patents, Trade Secrets and Know-How. Such Fuel
cell Patents, and any applications therefor are limited to the jurisdiction
of the United States only.
See Schedule 1.1(g)
See Schedule 3.1(p)(iv)
See attached memorandum for requirements with respect to registration, as
set forth in Section 3.1(r)(i), and the royalty provisions of the
contracts listed thereon.
FUEL CELL PATENTS/PATENT APPLICATIONS
MTI DOCKET TITLE STATUS
CONFIDENTIAL TREATMENT REQUESTED
SCHEDULE 3.1(r)(i)
INTELLECTUAL PROPERTY RIGHTS
I. CONFIDENTIAL TREATMENT REQUESTED
The above Agremeent, and Modification No. 1 thereto, as amended by
the Letter of Intent, provide that MTI is subject to various fee and
royalty payment obligations.
CONFIDENTIAL TREATMENT REQUESTED
B. Set forth in the Advance Waiver of Patent Rights clause, Section
(3)(ix), entitled, "U.S. Competitiveness", paragraph (F) states:
CONFIDENTIAL TREATMENT REQUESTED
<PAGE>
SCHEDULE 3.1(r)(ii) -- Infringement by Third Party of MTI Intellectual
Property Rights
None
<PAGE>
SCHEDULE 3.1(r)(ii) -- Infringement of Third Party Intellectual Property
Rights
None
<PAGE>
SCHEDULE 3.1(r)(v) - Confidential Information
1. Access to Intellectual Property - MTI was involved in business
discussions with Niagara Mohawk during 1995 and 1996 to explore
initiating a NiMo-funded project to develop a commercial fuel
cell-based power system. In that period of time NiMo representatives
visited MTI facilities several times. NiMo representatives saw complete
fuel cells in operation in MTI's development laboratory but at no time
were provided with access to our manufacturing processes or shown actual
component hardware. NiMo did however explore MTI's position regarding
intellectual property.
2. Teaming Relations and Vendor's Access to Intellectual Property - MTI
has had discussions with a number of teaming candidates in fuel cell
development and related power system applications, as well as worked with
a number of vendors to produce required parts/components. Access, if any,
to any MTI fuel cell Intellectual Property is shown under Comments.
Company Comments
Teaming -
CONFIDENTIAL TREATMENT REQUESTED
Vendors - (MTI Drawings Provided to
Vendors Contain a Proprietary
Information Marking, Vendors
acknowledge they will not disclose
to a third party.)
CONFIDENTIAL TREATMENT REQUESTED
Consultants -
CONFIDENTIAL TREATMENT REQUESTED
<PAGE>
SCHEDULE 3.1(s) -- Insurance
This Schedule contains a complete list of all insurance policies maintained
by MTI. A summary description of each policy is attached. No claims have
been made by MTI's Fuel Cell Business during the past two years.
Coverage Claims (Past 2 Years)
-------- ---------------------
Directors & Officers Liability None
Excess Directors & Officers Liability None
Property & General Liability None
Air Craft Products Liability None
Workers Compensation None
Commercial Umbrella None
ERISA Bond None
Commercial Crime Policy None
Commercial Auto None
California Tax Bond None
Open Cargo Policy None
<PAGE>
SCHEDULE 3.1(u)(iii) -- Disclosure of Information Regarding Environmental
Conditions Relating to the Business, Assets or leased Property
See Attached Phase I (Hard Copy Previously Provided)
<PAGE>
SCHEDULE 3.1 (u)(iv) -- Other
None
<PAGE>
SCHEDULE 3.1(v) -- Employees of MTI
Name Title Compensation
Gary Antonelli Manufacturing Engineer CONFIDENTIAL TREATMENT REQUESTED
Donald Buesing Technician CONFIDENTIAL TREATMENT REQUESTED
Robert Carr Technician CONFIDENTIAL TREATMENT REQUESTED
Peter Chapman Design Engineer CONFIDENTIAL TREATMENT REQUESTED
Matthew Cusack Mechanical Engineer CONFIDENTIAL TREATMENT REQUESTED
Dr. Manhoman Dhar Mechanical Engineer &
Analyst CONFIDENTIAL TREATMENT REQUESTED
Arthur Donahue Electrical Controls
Engineer CONFIDENTIAL TREATMENT REQUESTED
Dr. William Ernst Mechanical Engineer CONFIDENTIAL TREATMENT REQUESTED
Robert Hamm Mechanical Engineeer CONFIDENTIAL TREATMENT REQUESTED
Gregory Heroth Chemical Process
Technician CONFIDENTIAL TREATMENT REQUESTED
David Hicks Mechanical Engineer CONFIDENTIAL TREATMENT REQUESTED
Dr. Wayne Huang Electrochemist CONFIDENTIAL TREATMENT REQUESTED
Daniel Jones Mechanical Engineer CONFIDENTIAL TREATMENT REQUESTED
Karl Knapp Designer CONFIDENTIAL TREATMENT REQUESTED
Walter Kusaywa Technician CONFIDENTIAL TREATMENT REQUESTED
David Ladue Electrical Technician CONFIDENTIAL TREATMENT REQUESTED
Tina Leonard Human Resources CONFIDENTIAL TREATMENT REQUESTED
Sandra MacCue Executive Secretary CONFIDENTIAL TREATMENT REQUESTED
Richard Maddaloni Mechanical Engineer CONFIDENTIAL TREATMENT REQUESTED
Bruce Maynard Technician CONFIDENTIAL TREATMENT REQUESTED
John Meacher Mechanical Engineer CONFIDENTIAL TREATMENT REQUESTED
Gregory
Migirditch Purchasing CONFIDENTIAL TREATMENT REQUESTED
Edward Nestler Designer CONFIDENTIAL TREATMENT REQUESTED
Charles Prisco Electrical Systems
Engineer CONFIDENTIAL TREATMENT REQUESTED
David Siler Technician CONFIDENTIAL TREATMENT REQUESTED
Garry Smith Quality Assurance CONFIDENTIAL TREATMENT REQUESTED
Thomas Smykowski Summer Hire CONFIDENTIAL TREATMENT REQUESTED
Zbigniew
Sobolewski Electrical Engineer CONFIDENTIAL TREATMENT REQUESTED
William Sumigray Contracts Manager CONFIDENTIAL TREATMENT REQUESTED
John VanHeertum Mechanical Technician CONFIDENTIAL TREATMENT REQUESTED
Nicholas Vitale Senior Staff Engineer CONFIDENTIAL TREATMENT REQUESTED
Michael Walsh Mechanical Design
Engineer CONFIDENTIAL TREATMENT REQUESTED
Michael E. Walsh Summer Hire CONFIDENTIAL TREATMENT REQUESTED
Except as otherwise indicated by Schedule 1.1(l), all other people remain
MTI employees.
<PAGE>
SCHEDULE 3.1(w) -- Employee Benefit Plans
Existing MTI Employee Benefit Plans are listed as follows:
1. 401(k) Savings Plan (Administered by Mass Mutual)
2. Medical Insurance (Four carriers are currently available at the
employees option)
- Capital District Physician's Health Plan (CDPHP)
- Blue Shield of Northeastern New York
- Mohawk Valley Physicians (MVP)
- Community Health Plan (CHP)
3. Dental Insurance (Offered through Phoenix Home Life. Employees with
CHP medical coverage may select CHP Dental)
4. Long Term Disability Insurance (Policy with UNUM)
5. Short Term Disability Insurance (Policy with Phoenix Home Life)
6. Flexible Spending Account (Administered by Lawrence Healthcare)
7. Life Insurance (Policy with Mass Mutual)
8. Vacation
- Earned Vacation
- Vacation Purchase
9. Short Term Personal Illness
10. Extended Personal Illness
11. Personal Business Time
12. Voluntary Furlough Program
13. Technology Division Profit Sharing Plan
14. Stock Incentive Plan
Profit Sharing Plan
Technology Division
1996 Fiscal Year
Effective: Fiscal Year 1995
Eligibility:
* All full time employees and scheduled employees who work more than
1000 hours. Distributions made on basis of individual salary as a
percentage of total salary.
* New hires may participate on a pro rata share basis at the
discretion of management at the time of hiring.
* Must be on the payroll on 9/30/96 to receive distribution.
<PAGE>
* Non-discretionary.
* Based upon earnings before taxes, but after corporate assessment.
Formula:
Earnings < Budget No Distribution
Earnings = Budget 10% Payment to Pool
Earnings > Budget 10% of amount = budget, +
15% of any additional earnings
Impact:
Budget = $200,000 income pre-tax
Earnings Distribution
-------- ------------
$ 200,000 $ 20,000
300,000 35,000
500,000 65,000
Comments:
* Plan is identical to 1995 approved plan
<PAGE>
SCHEDULE 3.1(x) -- Confidentiality
None
<PAGE>
SCHEDULE 3.1(y) -- Guarantees By Third Parties
Guaranty dated as of October 31, 1995, by MASCO Corporation, a Delaware
corporation, located at 21001 Van Born Road, Taylor, Michigan 48180, in
favor of Chemical Bank, to secure payment of a $4,000,000 Promissory Note
dated October 31, 1995 by Mechanical Technology Incorporated in favor of
Chemical Bank.
<PAGE>
SCHEDULE 9 -- COPYRIGHT, PATENT AND TRADEMARK RIGHTS
See Schedule 1.1(g)
