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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D. C. 20549
FORM 10-Q
/X/ Quarterly report pursuant to Section 13 or 15 (d) of the Securities
Exchange Act of 1934
For the quarterly period ended June 25, 1999
/ / 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)
(518) 785-2211
______________
Registrant's telephone number, including area code
Not Applicable
______________
(Former name,former address and former fiscal year,if changed since last report)
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
___ ___
Class Outstanding at June 25, 1999
_____________________________ ____________________________
Common Stock, $1.00 Par Value 10,822,116 Shares
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<PAGE>
MECHANICAL TECHNOLOGY INCORPORATED AND SUBSIDIARIES
INDEX
Page No.
Part I Financial Information
Consolidated Balance Sheets - June 25, 1999
and September 30, 1998 3 - 4
Consolidated Statements of Income -
Three months and nine months ended
June 25, 1999 and June 26, 1998 5
Consolidated Statements of Cash Flows -
Nine months ended June 25, 1999
and June 26, 1998 6
Notes to Consolidated Financial Statements 7 - 14
Management's Discussion and Analysis of Financial
Condition and Results of Operations 15 - 19
Part II Other Information
Item 1 20
Item 6 20 - 21
Signature 22
<PAGE>
PART I FINANCIAL INFORMATION
MECHANICAL TECHNOLOGY INCORPORATED AND SUBSIDIARIES
CONSOLIDATED BALANCE SHEETS
As of June 25, 1999 (Unaudited) and
September 30,1998 (Derived from audited financial statements)
(Dollars in thousands)
June 25, Sept 30,
1999 1998
Assets
Current Assets:
Cash and cash equivalents $ 3,188 $ 5,567
Restricted cash 134 -
Trade accounts receivable 3,338 5,058
Allowance for doubtful accounts (84) (99)
_______ _______
Net receivables 3,254 4,959
Accounts receivable-Joint Venture 54 87
Inventories:
Raw materials and components 2,643 2,845
Work in process 1,342 791
Finished goods 86 112
_______ _______
Total inventories 4,071 3,748
Note receivable - current 333 327
Prepaid expenses and other current assets 662 472
Taxes receivable - 8
Net assets of a discontinued operation - 8
Total Current Assets 11,696 15,176
Property, Plant and Equipment, net 6,729 4,467
Note receivable - noncurrent 205 264
Investment in Joint Venture 5,938 1,221
_______ _______
Total Assets $ 24,568 $ 21,128
======= =======
The accompanying notes are an integral part of the consolidated financial
statements.
<PAGE>
MECHANICAL TECHNOLOGY INCORPORATED AND SUBSIDIARIES
CONSOLIDATED BALANCE SHEETS
As of June 25, 1999 (Unaudited) and
September 30, 1998 (Derived from audited financial statements)
(Dollars in thousands)
June 25, Sept 30,
1999 1998
Liabilities and Shareholders' Equity
Current Liabilities:
Accounts payable $ 803 $ 2,064
Accrued liabilities 2,025 3,328
Income taxes payable 13 5
Contribution payable - Joint Venture - 4,000
Current installments on long-term debt 285 -
Net liabilities of discontinued operations 504 -
_______ _______
Total Current Liabilities 3,630 9,397
Long-term debt, net of current maturities 5,715 -
Deferred income taxes and other credits 607 607
Total Liabilities 9,952 10,004
Commitments (Note 4)
Shareholders' Equity:
Common stock 10,828 10,775
Paid-in-capital 27,984 16,274
Deficit (24,138) (15,885)
Foreign currency translation adjustment (29) (11)
Treasury stock (29) (29)
_______ _______
Total Shareholders' Equity 14,616 11,124
_______ _______
Total Liabilities and Shareholders' Equity $ 24,568 $ 21,128
======= =======
The accompanying notes are an integral part of the consolidated financial
statements.
<PAGE>
MECHANICAL TECHNOLOGY INCORPORATED AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF INCOME (Unaudited)
(Dollars in thousands, except per share)
Three months ended Nine months ended
__________________ _________________
June 25, June 26, June 25, June 26,
1999 1998 1999 1998
Revenue $ 2,606 $ 5,767 $ 8,609 $16,016
Cost of sales 1,682 3,003 5,622 9,003
______ ______ ______ ______
Gross profit 924 2,764 2,987 7,013
Selling, general and administrative
expenses 1,137 1,699 3,517 4,607
Product development and
research costs 268 247 800 592
______ ______ ______ ______
Operating (loss)income (481) 818 (1,330) 1,814
Interest expense (74) (8) (101) (18)
Equity in joint venture losses (3,544) (27) (6,859) (27)
Other (expense) income, net (1) 86 33 (35)
______ ______ ______ ______
(Loss)income from continuing
operations before income taxes (4,100) 869 (8,257) 1,734
Income tax expense 37 - 37 -
______ ______ ______ ______
(Loss)income from continuing
operations $(4,137) $ 869 $(8,294) $ 1,734
______ ______ ______ ______
Discontinued Operations (Note 7)
Income (loss) from operations of
discontinued Technology Division,
net of tax benefit 41 - 41 (516)
Loss on disposal of Technology
Division, net of tax benefit - - - (1,769)
______ ______ ______ ______
Income (loss) from discontinued
operations 41 - 41 (2,285)
______ ______ ______ ______
Net (loss)income $(4,096) $ 869 $(8,253) $ (551)
====== ======= ====== ======
Earnings (Loss) per Share (Basic and Diluted):
(Loss)income from continuing
operations $ (.38) $ .10 $ (.76) $ .19
Income (loss) from discontinued
operations - - - (.25)
______ _______ ______ ______
Net(loss)income $ (.38) $ .10 $ (.76) $ (.06)
====== ======= ====== ======
The accompanying notes are an integral part of the consolidated financial
statements.
<PAGE>
MECHANICAL TECHNOLOGY INCORPORATED AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF CASH FLOWS (Unaudited)
(Dollars in thousands)
Nine months ended
June 25, June 26,
1999 1998
Operating Activities
Net(loss)income from continuing operations $ (8,294) $ 1,734
Adjustments to reconcile net (loss)income to net
cash used by continuing operations:
Depreciation and amortization 481 224
Equity in joint venture loss 6,859 27
Reserve for bad debts (15) 55
Deferred taxes and other credits - (70)
Stock option compensation 55 -
Changes in operating assets and liabilities:
Accounts receivable 1,720 (769)
Accounts receivable-joint venture 33 (392)
Inventories (323) (532)
Prepaid expenses and other current assets (280) (119)
Accounts payable (1,261) (2)
Income taxes 16 (284)
Accrued liabilities (1,303) (423)
_______ ______
Net cash used by continuing operations (2,312) (551)
Discontinued operations:
Net income (loss) from discontinued
operations 41 (2,285)
Change in net liabilities/assets of
discontinued operations 512 2,537
Net assets transferred from discontinued
operations - (878)
_______ ______
Net cash provided(used) by discontinued operations 553 (626)
_______ ______
Net cash used by operating activities (1,759) (1,177)
_______ ______
Investing Activities
Purchases of property, plant & equipment (2,653) (202)
Contribution payable-joint venture (4,000)
Principal payments from note receivable 53 43
_______ ______
Net cash used by investing activities (6,600) (159)
_______ ______
Financing Activities
Borrowings under IDA financing, less restricted cash 5,866 -
Proceeds from options exercised 132 220
_______ ______
Net cash provided by financing activities 5,998 220
_______ ______
Effect of exchange rate on cash (18) 2
_______ ______
Decrease in cash and cash equivalents (2,379) (1,114)
Cash and cash equivalents - beginning of period 5,567 1,421
_______ ______
Cash and cash equivalents - end of period $ 3,188 $ 307
====== ======
The accompanying notes are an integral part of the consolidated financial
statements.
<PAGE>
MECHANICAL TECHNOLOGY INCORPORATED AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
1. In the opinion of management the accompanying unaudited consolidated
financial statements contain all adjustments, consisting of only normal,
recurring adjustments, necessary for a fair presentation of results for such
periods. The results for any interim period are not necessarily indicative
of results for the full year. Certain information and footnote disclosures
normally included in financial statements prepared in accordance with generally
accepted accounting principles have been omitted. These consolidated
financial statements should be read in conjunction with the financial
statements and notes thereto for the fiscal year ended September 30, 1998.
2. Income Taxes
The Company's effective tax rates for the nine months ended June 25, 1999 and
June 26, 1998 were 1.2% and 0%, respectively.
3. Earnings per Share
The amounts used in computing earnings per share and the effect on income and
the weighted average number of shares of potentially dilutive securities are as
follows:
<TABLE>
For the three month period For the nine month period
ended ended
June 25, 1999 June 26, 1998 June 25,1999 June 26,1998
<S> <C> <C> <C> <C>
(Dollars in Thousands)
(Loss)income from continuing operations
available to common stockholders $ (4,137) $ 869 $ (8,294) $ 1,734
Weighted average number of
shares:
Weighted average number of shares
used in per share calculation 10,819,135 8,906,151 10,790,277 8,912,995
Effect of dilutive securities:
Stock options - 303,246 - 286,910
___________________________________________________________________________________________________
Weighted average number of
shares used in diluted net
loss per share 10,819,135 9,209,397 10,790,277 9,199,905
___________________________________________________________________________________________________
</TABLE>
During the three quarters of fiscal 1999, options to purchase 764,537 shares
of common stock at prices ranging between $1.63 and $22.50 per share were
outstanding but were not included in the computation of Earnings per Share-
assuming dilution because the Company incurred a loss during this period and
inclusion would be anti-dilutive. The options, which expire between December
20, 2006 and June 16, 2009 were outstanding at June 25, 1999.
During the three quarters of fiscal 1998, options to purchase 30,000 shares of
common stock at prices ranging from $5.70 to $6.00 per share were outstanding
but were not included in the computation of Earnings per Share-assuming
dilution because the option exercise prices were greater than the average
market price of the common shares (anti-dilutive). The options, which expire
on October 20, 2007 and April 27, 2008, were outstanding at June 26, 1998.
<PAGE>
MECHANICAL TECHNOLOGY INCORPORATED AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
4. Investment in Plug Power, L.L.C.
On April 15, 1998, Edison Development Corporation ("EDC") contributed $2.25
million in cash to Plug Power, L.L.C. ("Plug Power"). The Company contributed
a below-market lease for office and manufacturing facilities in Latham, New
York,valued at $2 million and purchased a one year option to match the remaining
$250 thousand of EDC's contribution. In May 1998, EDC contributed an additional
$2 million to Plug Power and the Company purchased another one year option to
match the contribution. The Company paid approximately $191 thousand for the
options, which matured April 24, 1999 ($250 thousand) and June 15, 1999
($2 million).
As of March 25, 1999, the Company and Plug Power exchanged the foregoing
options and certain "research credits" (described below) for 2.25 million
Plug Power membership interests. The Company earned the research credits by
assisting Plug Power in securing the award of certain government grants and
research contracts during the period June 1997 through April 1999.
In August 1998, the Company committed to contribute an additional $5 million
dollars (in cash, accounts receivable and research credits) between August 5,
1998 and March 31, 1999 and recorded a liability representing this obligation.
During the period September 1998 to February 1999, the Company fully funded
this commitment by contributing $4 million cash and converting $.5 million of
accounts receivable and $.5 million of notes receivable.
During April 1999, the Company and EDC amended and restated a prior agreement
granting MTI and EDC the right to purchase membership interests in Plug Power.
The agreement, which was effective as of January 26, 1999, states that, in the
event Plug Power determines that it requires funds at any time through
December 31, 2000, Plug Power has the right to call upon the Company and EDC
to each make capital contributions as follows:
* The Company and EDC will each fund capital calls of up to
$7.5 million in 1999 and $15 million in 2000 ("Capital Commitment").
* In exchange for such capital contributions to Plug Power, the
Company and EDC will receive class A membership interests ("Shares")
from Plug Power at $7.50 per share.
* The Company and EDC will share the Capital Commitment equally.
* Plug Power's Board of Managers will determine when there is need
for such capital contributions.
* The Company and EDC shall have sixty (60) days from the date of
such authorization to tender their payment to Plug Power.
The agreement will terminate on December 31, 2000 or the date of an initial
public offering of shares by Plug Power at a per share price of greater than
$7.50 per share ("Termination Date"). In exchange for the Capital Commitment,
Plug Power has agreed to permit the Company and EDC to make capital
contributions to the extent of their Capital Commitment on the Termination
Date, whether or not such funds have been called, in exchange for Shares at
the fixed price of $7.50 per share.
<PAGE>
MECHANICAL TECHNOLOGY INCORPORATED AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
If Plug Power requests capital contributions pursuant to the Capital
Commitments ("Capital Call"), and either the Company or EDC fail to make such
capital contribution ("Defaulting Member"), then such Defaulting Member shall
forfeit the right to receive the Shares it would have received in the Capital
Call at the fixed price of $7.50 per share ("Defaulted Shares"). Additionally,
to the extent that there are Capital Commitments outstanding, the Defaulting
Member will be required to forfeit the right to receive an additional number of
Shares, at a fixed price of $7.50 per share, equal to two times the Defaulted
Shares ("Additional Defaulted Shares"). The non-Defaulting Member may fund the
Defaulting Member's share of the Capital Call in exchange for Shares at the
fixed price of $7.50 per share.
In June 1999, MTI and Plug Power entered into an agreement for the sale of the
MTI campus and adjacent residence, including all land and buildings, to Plug
Power in exchange for 704,315 Class A membership interests and the assumption
of approximately $6 million in debt by Plug Power. The sale of the MTI
facility and the transfer of the $6 million IDR bonds to Plug Power were
effective as of July 1, 1999 with no gain or loss recognized.
The Company's total contributions to Plug Power (including contributions of
cash, assets, research credits, and a below market lease) for the period
commencing onJune 27, 1997, and ending on June 25, 1999 total $14 million.
The Company's total contributions to Plug Power as of July 1, 1999 total
$14.3 million.
During calendar 1999, Plug Power's equity increased approximately $32.483
million primarily due to investments by investors. Of this amount, $23.368
million was received in cash, $4.990 million in property and services and
$4.125 million represents membership interests issued in connection with the
formation of GE Fuel Cell Systems LLC. As a result, the Company recorded its
proportionate share of the increase in Plug Power's equity ($11.576 million)
as investment in the joint venture and additional paid-in-capital.
The Company has recorded its proportionate share of Plug Power's losses to the
extent of its recorded investment in Plug Power. The carrying value of the
Company's investment is $5.938 million as of June 25, 1999.
The Company will recognize its proportionate share of losses in the future to
the extent of its carrying value and additional future investments.
Plug Power will continue to need substantial investment after December 31,
1999. Plug Power continues to pursue additional sources of capital. There is
no assurance, however, that Plug Power will find other sources of capital. If
other sources of funding cannot be found, the Company will be faced with
contributing and/or lending additional capital to Plug Power or dilution of
its interest in Plug Power. If EDC, the Company and other Plug Power members
stop funding Plug Power and no additional sources of capital are found, Plug
Power will not be able to continue as a going concern.
5. Reclassification
Certain fiscal 1998 amounts have been reclassified to conform with the fiscal
1999 presentation.
<PAGE>
MECHANICAL TECHNOLOGY INCORPORATED AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
6. Comprehensive Income (Loss)
Total comprehensive (loss) income consists of the following:
Three months ended Nine months ended
June 25, June 26, June 25, June 26
(Dollars in thousands) 1999 1998
Net (loss) income $(4,096) $ 869 $(8,253) $ (551)
Other comprehensive (loss) income,
before tax:
Foreign currency translation
adjustments (7) (1) (18) 2
______ ______ ______ ______
Total comprehensive (loss) income $(4,103) $ 868 $(8,271) $ (549)
====== ====== ====== ======
7. Discontinued Operations
The sale of the Company's Technology Division, the sole component of the
Technology segment, to NYFM, Incorporated (a wholly owned subsidiary of Foster-
Miller, Inc., a Waltham, Massachusetts-based technology company) on March 31,
1998 completed management's planned sale of non-core businesses. Accordingly,
the Company no longer includes Technology among its reportable business
segments and now operates in only one segment, Test and Measurement. The
Technology Division is reported as a discontinued operation as of December
26, 1997, and the consolidated financial statements have been restated to
report separately the net assets and operating results of the business. In
exchange for the Technology Division's assets, NYFM, Incorporated (a) agreed
to pay the Company a percentage of annual gross sales in excess of $2.5
million for a period of five years; (b) assumed approximately $40 thousand
of liabilities; and (c) established a credit for warranty work of approximately
$35 thousand.
The Company's results for the third quarter of fiscal 1999 include a $41
thousand gain on the sale of the Technology Division calculated as a percentage
of NYFM's first year gross sales in excess of $2.5 million as of March 31, 1999.
<PAGE>
MECHANICAL TECHNOLOGY INCORPORATED AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
Discontinued operations consist of the following:
Three months ended Nine months ended
June 25, June 26, June 25, June 26,
(Dollars in thousands) 1999 1998 1999 1998
Sales $ - $ - $ - $ 532
====== ====== ====== ======
Loss from operations before
income tax $ - $ - $ - $ (516)
Income tax (benefit) - - - -
______ ______ ______ ______
Net loss from discontinued
operations $ - $ - $ - $ (516)
====== ====== ====== ======
Gain (loss) on disposal of Division$ 41 $ - $ 41 $(1,769)
Income tax (benefit) - - - -
______ ______ ______ ______
Gain (loss) on disposal of Division$ 41 $ - $ 41 $(1,769)
====== ====== ====== ======
The assets and liabilities of the Company's discontinued operations are as
follows:
June 25, Sept 30,
1999 1998
Assets $ 457 $ 1,136
Liabilities 961 1,128
Net(liabilities)assets $ (504) $ 8
Assets with a net book value of $907 thousand consisting primarily of land,
building and management information systems were transferred to continuing
operations on October 1, 1997.
8. Debt
The Industrial Development Agency for the Town of Colonie issued $6 million in
Industrial Development Revenue ("IDR") Bonds on behalf of the Company to assist
in the construction of a new building for Advanced Products and the Company's
corporate staff and renovation of existing buildings leased to Plug Power. The
bond closing was completed December 17, 1998 and proceeds of the IDR Bonds were
deposited with a trustee for the bondholders. The Company has drawn the bond
proceeds to cover qualified project costs. First Albany Companies, Inc. ("FAC"),
which owns 34% of the Company's stock, underwrote the sale of the IDR Bonds. FAC
received no fees for underwriting the IDR Bonds but will be reimbursed for its
out-of-pocket costs.
KeyBank issued a letter of credit for approximately $6 million in connection
with the $6 million IDR Bonds. The KeyBank credit agreements require the
Company to meet certain covenants, including a fixed charge coverage and
<PAGE>
MECHANICAL TECHNOLOGY INCORPORATED AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
leverage ratio. Further, if certain performance standards are achieved, the
interest rates on the debt may be reduced.
The debt and the letter of credit obligations were transferred to Plug Power,
LLC in connection with the sale of the MTI facility effective July 1, 1999.
As of June 25, 1999, KeyBank waived certain covenant violations and as of
March 26, 1999, the KeyBank credit agreement was amended to modify certain
covenants to conform with the Company's current performance projections.
9. Cash Flows - Supplemental Information
NonCash investing activities for the nine months ended June 25, 1999 includes a
$11.576 million increase in investment in joint venture and additional paid-in-
capital generated primarily by investments in Plug Power by third parties.
10. Geographic and Segment Information
The Company operates in one business segment, Test and Measurement, which
develops, manufactures, markets and services sensing instruments, computer-
based balancing systems for aircraft engines, vibration test systems and
power conversion products.
The Company evaluates performance based on profit or loss from operations
before income taxes.
The following table details information about the Test and Measurement segment
profit or loss, segment assets and shows the reconciliation of segment data to
the Company's consolidated totals. The Company does not allocate income taxes
or unusual items to segments.
Reconciling
(Dollars in thousands) Test and Item: Consolidated
Three months ended June 25, 1999 Measurement Corporate Totals
Revenues $ 2,606 $ - $ 2,606
Equity in joint venture loss - (3,544) (3,544)
Loss from continuing operations
before tax (689) (3,411) (4,100)
Loss from continuing operations (689) (3,448) (4,137)
Income from discontinued operations - 41 41
Total loss (689) (3,407) (4,096)
Segment assets 7,820 16,748 24,568
Net (liabilities) discontinued
operations - (504) (504)
<PAGE>
MECHANICAL TECHNOLOGY INCORPORATED AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
Reconciling
(Dollars in thousands) Test and Item: Consolidated
Three months ended June 26, 1998 Measurement Corporate Totals
Revenues $ 5,767 $ - $ 5,767
Income(loss)from continuing
operations before tax 1,038 (169) 869
Income(loss) from continuing
operations 1,038 (169) 869
Total income(loss) 1,038 (169) 869
Segment assets 9,969 3,139 13,108
Net assets discontinued
operations - 649 649
The reconciling items are the amounts of revenues earned and expenses incurred
for corporate operations, which is not included in the segment information.
Reconciling
(Dollars in thousands) Test and Item: Consolidated
Nine months ended June 25, 1999 Measurement Corporate Totals
Revenues $ 8,609 $ - $ 8,609
Equity in joint venture loss - (6,859) (6,859)
(Loss)income from continuing
operations before tax (1,375) (6,882) (8,257)
(Loss)income from continuing
operations (1,375) (6,919) (8,294)
Income from discontinued operations - 41 41
Total (loss)income (1,375) (6,878) (8,253)
Segment assets 7,820 16,748 24,568
Net (liabilities) discontinued
operations - (504) (504)
Reconciling
(Dollars in thousands) Test and Item: Consolidated
Nine months ended June 26, 1998 Measurement Corporate Totals
Revenues $ 16,016 $ - $ 16,016
Equity in joint venture loss - (27) (27)
Income(loss) from continuing
operations before tax 2,297 (563) 1,734
Income(loss)from continuing
operations 2,297 (563) 1,734
Loss on discontinued operations - (2,285) (2,285)
Total income(loss) 2,297 (2,848) (551)
Segment assets 9,969 3,139 13,108
Net assets discontinued
operations - 649 649
The reconciling items are the amounts of revenues earned and expenses incurred
for corporate operations, which is not included in the segment information.
<PAGE>
MECHANICAL TECHNOLOGY INCORPORATED AND SUBSIDIARIES
NOTES TO CONSOLIDTED FINANCIAL STATEMENTS
11. Equity
On April 23, 1999, the Company declared a 3 for 2 stock split in the form of a
stock dividend. Holders of the Company's $1.00 par value common stock received
one additional share of $1.00 par value common stock for every two shares of
common stock owned as of April 30, 1999. The financial statements for all
prior periods have been retroactively adjusted to reflect this stock split
for both common stock issued and options outstanding.
12. Subsequent Event
Effective July 1, 1999, the Company closed the sale of the MTI facility,
including a residence located adjacent to the campus, to Plug Power, LLC in
exchange for 704,315 Plug Power Class A membership interests and the
assumption of $6 million in debt by Plug Power.
On July 9, 1999, the Company completed the sale of 801,223 shares of common
stock to current shareholders through a rights offering. The offering raised
approximately $12.82 million before offering costs of approximately $.17 million
for net proceeds of approximately $12.65 million. The Company will use some or
all of the proceeds of the offering for further investment into Plug Power. In
addition, some proceeds may be used for acquisitions for the Company's core
businesses, efforts to increase market share, working capital, general corporate
purposes and other capital expenditures.
In connection with these transactions, the Company's balance sheet will be
impacted as follows:
Effect of
As Reported Transactions Pro-Forma
Current Assets $ 11,696 $ 12,145 $ 23,841
Property, Plant and Equipment, net 6,729 (5,825) 904
Investment in Joint Venture 5,938 330 6,268
Total Assets 24,568 6,650 31,218
Current Liabilities 3,630 (285) 3,345
Long-term debt, net of
current maturities 5,715 (5,715) -
Total Shareholders' Equity 14,616 12,650 27,266
Total Liabilities and
Shareholders' Equity 24,568 6,650 31,218
<PAGE>
MECHANICAL TECHNOLOGY INCORPORATED AND SUBSIDIARIES
MANAGEMENT'S DISCUSSION AND ANALYSIS
OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS
The following is management's discussion and analysis of certain significant
factors which have affected the Company's earnings during the periods included
in the accompanying consolidated statements of income.
The sale of the Company's Technology Division, the sole component of the
Technology segment, to NYFM, Incorporated (a wholly owned subsidiary of Foster-
Miller Inc., a Waltham, Massachusetts-based technology company) on March 31,
1998 completed management's planned sale of non-core businesses. Accordingly,
the Company no longer includes Technology among its reportable business segments
and now operates in only one segment, Test & Measurement. The Technology
Division is reported as a discontinued operation as of December 26, 1997 and the
consolidated financial statements have been restated to report separately the
net assets (liabilities) and operating results of the business.
Continuing Operations
Sales decreased $3.16 million to $2.61 million for the three months ended
June 25, 1999 as compared to $5.77 million for the three months ended June 26,
1998, a 54.8% decrease. This decrease is the result of continuing weak market
conditions. Sales for the first three quarters of fiscal year 1999 versus the
same period in fiscal year 1998 have decreased $7.4 million to $8.61 million in
1999 from $16.02 million in 1998, a 46.2% decrease. The nine-month changes are
the result of the same conditions as the three-month changes.
Selling, general and administrative expenses decreased $.56 million to
$1.14 million for the three months ended June 25, 1999 as compared to $1.7
million for the three months ended June 26, 1998, a 33% decrease. This decrease
is the result of additional cost reduction efforts in fiscal year 1999 and
decreased commissions as a result of decreased sales. Selling, general and
administrative expenses during the three-quarters of fiscal 1999 of $3.52
million represented a $1.09 million decrease or a 23.7% decrease from $4.61
million incurred during the same period in fiscal 1998. The nine-month changes
are the result of the same conditions as the three-month changes.
Operating income decreased $1.299 million to an operating loss of $(.481)
million for the three months ended June 25, 1999 as compared to $.818 million
for the three months ended June 26, 1998, a 158.8% decrease. This decrease is
the result of decreased sales levels and corresponding decreases in gross
profits due to fixed cost absorption at lower sales levels. Operating losses of
$(1.330) million for the first three quarters of fiscal 1999 represented a
$3.144 million decrease or a 173.3% decrease from the $1.814 million operating
income recorded during the same period last year.
Other
In addition to the matters noted above, for the nine and three months ended
June 25, 1999, the Company recorded a $6.859 million and $3.544 million loss,
respectively, from the recognition of the Company's proportionate share of
losses of the Plug Power joint venture compared to a $27 thousand loss for
comparable periods in fiscal 1998.
<PAGE>
MECHANICAL TECHNOLOGY INCORPORATED AND SUBSIDIARIES
MANAGEMENT'S DISCUSSION AND ANALYSIS
OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS
Results during the first three-quarters of fiscal 1999 were reduced by higher
interest expense, principally resulting from increased indebtedness associated
with the Industrial Development Revenue Bonds. The tax rate for the nine months
ended June 25, 1999 and June 26, 1998 was 1.2% and 0%, respectively. This rate
is due to the loss generated by both continuing operations and the investment in
the joint venture and the use of net operating loss carryforwards. However, as
a result of ownership changes in 1996, the availability of pre-1996 net
operating loss carryforwards to offset future taxable income may be
significantly limited pursuant to the Internal Revenue Code.
Financial Condition
Working capital of $8.066 million at June 25, 1999 reflects a $2.287 million
increase from September 30, 1998 as a result of long-term financing.
At June 25, 1999, cash and cash equivalents were $3.19 million versus $5.57
million at September 30, 1998. Net cash used by operating activities for the
first three-quarters of fiscal 1999 amounted to $1.76 million, as compared to
cash used of $1.18 million in the prior year. The capital used during the first
three-quarters of fiscal 1999 was applied principally to fund short term
operating cash flow requirements. Additionally, accounts receivable decreased,
because of reduced sales, to $3.25 million or a 34.4% decrease as of June 25,
1999 as compared to $4.96 million as of September 30, 1998.
MTI also funded $4 million of previously accrued capital contributions to
Plug Power.
The Industrial Development Agency for the Town of Colonie issued $6 million
in Industrial Development Revenue ("IDR") Bonds on behalf of the Company to
assist in the construction of a new building for Advanced Products and the
Company's corporate staff and renovation of existing buildings leased to Plug
Power. The construction project is substantially completed. The bond closing
was completed December 17, 1998 and proceeds of the IDR Bonds were deposited
with a trustee for the bondholders. The Company has drawn bond proceeds to
cover qualified project costs.
KeyBank issued a letter of credit for approximately $6 million in
connection with the $6 million IDR Bonds. The KeyBank credit agreements require
the Company to meet certain covenants, including a fixed charge coverage and
leverage ratio. Further, if certain performance standards are achieved, the
interest rates on the debt may be reduced. The IDR Bonds and KeyBank Letter of
Credit were transferred to Plug Power effective July 1, 1999 in connection with
the sale of the MTI facility and adjacent residence.
Capital spending during the first nine months of fiscal 1999 was $2.65
million, an increase from the comparable period in 1998 where capital spending
totaled $.2 million. Capital spending during fiscal 1999 included the
construction described above. Total additional capital spending during fiscal
1999 is expected to be approximately $.90 million.
<PAGE>
MECHANICAL TECHNOLOGY INCORPORATED AND SUBSIDIARIES
MANAGEMENT'S DISCUSSION AND ANALYSIS
OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS
The Company anticipates that it will be able to meet its liquidity needs
during fiscal year 1999 from current cash resources, cash flow generated by
operations, borrowing under its existing line of credit and proceeds from the
Rights Offering completed on July 9, 1999 (see Note 12 to the financial
statements). As of June 25, 1999, KeyBank waived certain covenant violations
and as of March 26, 1999, the KeyBank credit agreement was amended to
modify certain covenants to conform with the Company's current performance
projections.
The Company and EDC have each committed to contribute up to $22.5 million to
Plug Power to fund continuing operations through December 31, 2000. The
Company does not have enough cash on hand to fund its commitment to Plug
Power. If Plug Power calls all or a portion of the $22.5 million, and the
Company agrees to fund the call, the Company may attempt to finance its
capital contribution. However, there is no assurance the Company will find a
lender or investors willing to fund the capital contribution, or that the
Company will be able to borrow or otherwise raise money on terms that are
favorable to the Company. If the capital commitment cannot be financed and
other sources of funding are not found, the Company will not fund its full
capital commitment, and the Company's right to purchase shares of Plug Power
at the fixed price of $7.50 per share will be reduced by three times the
amount of the capital call. If the Company does not satisfy its capital
commitment and EDC does, the Company's interest in Plug Power will suffer
substantial dilution.
Joint Venture
Plug Power, L.L.C. ("Plug Power") will continue to need substantial investment
after December 31, 1999. Plug Power continues to pursue additional sources of
capital. There is no assurance, however, that Plug Power will find other
sources of capital. If other sources of funding cannot be found, the Company
will be faced with contributing and/or lending additional capital to Plug Power
or dilution of its interest in Plug Power. If EDC, the Company and other Plug
Power members stop funding Plug Power and no additional sources of capital are
found, Plug Power will not be able to continue as a going concern.
Year 2000
General
Mechanical Technology Incorporated's company-wide Year 2000 plan is proceeding
on schedule. The plan is addressing the issue of computer programs and embedded
computer chips being unable to distinguish between the year 1900 and the year
2000 as well as the ability to recognize the leap year date of February 29,
2000. The plan has been divided into six areas: (1) Systems evaluation, (2)
Software evaluation, (3) Third-party suppliers, (4) Facility systems, (5)
Products and (6) Contingency plans. The general phases common to all segments
are: (1) Inventorying Year 2000 items, (2) Assigning priorities to identified
items, (3) Assessing the Year 2000 compliance of items determined to be material
to the Company, (4) Repairing or replacing material items that are determined
not to be Year 2000 compliant, (5) Testing material items and (6) Designing and
implementing contingency and business continuation plans for each organization
and Company location.
<PAGE>
MECHANICAL TECHNOLOGY INCORPORATED AND SUBSIDIARIES
MANAGEMENT'S DISCUSSION AND ANALYSIS
OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS
Systems Evaluation
All internal systems have been identified, inventoried, prioritized and assessed
for Year 2000 compliance. Systems found to be totally non-compliant are
scheduled for replacement, the remaining systems were found to be in compliance.
Plans are being developed to ensure that staff are available to oversee
restarting certain machines and manually adjusting their dates, if needed.
Software Evaluation
All software material to the Company has been identified, evaluated, and placed
into one of three categories: (1) Found to be in full compliance and certified
as such by vendors, (2) Identified as requiring update, or (3) Identified as
requiring replacement with compliant software. Those in the latter category have
been included in the current budget.
Third-Party Suppliers
This phase of the Year 2000 Plan is in process and will be completed by the end
of fiscal 1999. These third-party suppliers are in the process of implementing
their own plans with an expected completion date of 1999. If any provider is
not successfully compliant, the Company will evaluate selecting alternative
providers at that time.
Facility Systems
The facility systems review is complete. All systems are believed to be Year
2000 compliant including telephone, fire alarm, security, elevator and network
components.
Products
The Company has evaluated both current product offerings and products in the
field to determine their ability to comply with Year 2000 issues. The products
were found to be non-compliant, compliant if modifications are made, fully
compliant or not impacted (that is, the product does not have a computer or
contains an embedded computer but does not use a date function). Those products
identified as non-compliant are products in the field that are not Year 2000
compliant, cannot be modified and must be replaced. Products that can be
modified have upgrades available for sale.
Contingency Plans
This phase is currently being developed. Contingency plans should be in place
by the end of fiscal 1999.
Costs
The total cost associated with required modifications to become Year 2000
compliant is not expected to be material to the Company's financial position.
The estimated total cost of the Year 2000 project is approximately $120
thousand, which includes software, hardware and cabling upgrade and replacement
costs. This estimate does not include the Company's potential share of Year
2000 costs that may be incurred by our joint venture, in which the Company
participates but is not the operator. The total amount expended on the Plan
through June 25, 1999 was $50 thousand for the upgrade and replacement of
hardware.
<PAGE>
MECHANICAL TECHNOLOGY INCORPORATED AND SUBSIDIARIES
MANAGEMENT'S DISCUSSION AND ANALYSIS
OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS
Risks
The failure to correct a material Year 2000 problem could result in an
interruption in, or a failure of, certain normal business activities or
operations. Such failures could materially and adversely affect the Company's
results of operations, liquidity and financial condition. Due to the general
uncertainty inherent in the Year 2000 problem, resulting in part from the
uncertainty of the Year 2000 readiness of third-party suppliers and customers,
the Company is unable to determine at this time whether the consequences of the
Year 2000 failures will have a material impact on the Company's results of
operations, liquidity or financial condition. The Year 2000 Plan is expected to
significantly reduce the Company's level of uncertainty about the Year 2000
problem and, in particular, about the Year 2000 compliance and readiness of its
material customers. The Company believes that, with the implementation and
completion of the Year 2000 Plan as scheduled, the possibility of significant
interruptions of normal operations should be reduced.
Statement Concerning Forward Looking Statements
Statements in this Form 10-Q or in documents incorporated herein by
reference that are not statements of historical fact constitute "forward-looking
statements" within the meaning of the Private Securities Litigation Reform Act
of 1995, including statements regarding future revenues, expenses and profits.
These forward looking statements are subject to known and unknown risks,
uncertainties or other factors that may cause the actual results of the Company
to be materially different from the historical results or from any results
expressed or implied by the forward looking statements. Such risks and factors
include, but are not limited to, those discussed in "Management's Discussion and
Analysis of Financial Condition and Results of Operations".
<PAGE>
PART II OTHER INFORMATION
Item 1. Legal Proceedings
On September 9, 1998, Barbara Lawrence, the Lawrence Group, Inc.
("Lawrence"), and certain other Lawrence-related entities ("Plaintiffs") filed
suit in the United States Bankruptcy Court for the Northern District of New
York against First Albany Corporation ("FAC"), Dale Church, Edward Dohring,
Alan Goldberg, George McNamee, Beno Sternlicht, Marty Mastroianni (former
President and Chief Operating Officer of MTI) and 33 other individuals
("Defendants") who purchased a total of 820,909 shares of MTI stock from the
Plaintiffs. The complaint alleged that Defendants purchased MTI stock from the
Plaintiffs in violation of sections 10b, 20, 20A and rule 10b-5 of the
Securities Exchange Act of 1934. In December 1998, the complaint was amended
to add MTI as a defendant and assert a claim for common law fraud against all
the Defendants including MTI. The case concerns the Defendants' 1998 purchase
of MTI shares from the Plaintiffs at the price of $2.25 per share. Ownership of
the shares was disputed and several of the Plaintiffs were in bankruptcy at the
time of the sale. FAC acted as Placement Agent for the Defendants in the
negotiation and sale of the shares and in proceedings before the Bankruptcy
Court for the Northern District of New York, which approved the sale in
September 1997. Plaintiffs claim that the Defendants failed to disclose
material inside information concerning Plug Power, LLC to the Plaintiffs and
therefore the $2.25 per share purchase price was unfair. Plaintiffs are
seeking damages of $5 million plus punitive damages and costs. In April 1999,
Defendants filed a motion to dismiss the amended complaint, which was denied.
In June 1999, the parties agreed to stay discovery and amend Defendants time to
answer the amended complaint until September 17, 1999.
Item 6. Exhibits and Reports on Form 8-K
(a) Exhibits
Exhibit No. Description
4.103 Assignment and Assumption Agreement, dated as of
July 1, 1999, by and among Town of Colonie Industrial
Development Agency, the registrant, Plug Power, LLC,
KeyBank National Association and First Albany
Corporation in connection with the sale of the MTI
facility to Plug Power and the assignment and
assumption of rights and obligations in connection
with the Industrial Development Revenue Bonds (Letter
of Credit Secured) Series 1998 A in the original
aggregate amount of $6,000,000.
10.31 Agreement of Sale, effective as of June 23, 1999,
by and between the registrant and Plug Power, LLC
for the sale of the MTI campus and adjacent residence.
27 Financial Data Schedule
<PAGE>
PART II OTHER INFORMATION
(b) Two reports on Form 8-K were filed during the third quarter 1999 and one
report was filed subsequent to the quarter ended June 25, 1999.
The Company filed a Form 8-K Report, dated March 29, 1999, reporting
under Item 5 thereof that the Company had cancelled options for 2.25 million
Plug Power shares and certain "research credits" in exchange for 2.25 million
Plug Power Class A membership interests. The "research credits" were granted
to the Company for helping Plug Power secure commitments for government
funding.
The Company filed a Form 8-K Report, dated April 13, 1999, reporting under
Item 5 thereof that its common stock, currently traded on the OTC Electronic
Bulletin Board, will begin trading on the Nasdaq National Market System (NMS)
under the symbol "MKTY" effective April 16, 1999.
The Company filed a Form 8-K Report, dated July 2, 1999, reporting under
Item 5 thereof its intention to release 125,000 shares for the Rights Offering
over-subscription and pre-releasing preliminary third quarter 1999 results.
<PAGE>
SIGNATURE
Pursuant to the requirements 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
08-06-99 s/George C. McNamee
________ __________________________________
(Date) George C. McNamee
Chairman and Chief Executive Officer
08-06-99 s/Cynthia A. Scheuer
________ __________________________________
(Date) Cynthia A. Scheuer
Vice President/Chief Financial Officer
<PAGE>
Exhibit 4.103
ASSIGNMENT AND ASSUMPTION AGREEMENT
THIS ASSIGNMENT AND ASSUMPTION AGREEMENT dated as of July 1, 1999 is by and
among TOWN OF COLONIE INDUSTRIAL DEVELOPMENT AGENCY, a public benefit
corporation of the State of New York having an office at The Public Operations
Center, 347 Old Niskayuna Road, Latham, New York, 12205 (the "Agency"),
MECHANICAL TECHNOLOGY INCORPORATED, a business corporation organized and
existing under the laws of the State of New York, having its principal place of
business at 968 Albany-Shaker Road, Latham, New York 12110 ("MTI"), PLUG POWER,
L.L.C., a limited liability company organized and existing under the laws of the
State of Delaware, having its principal place of business located at 968
Albany-Shaker Road, Latham, New York 12110 ("Plug Power"), KEYBANK NATIONAL
ASSOCIATION, a national banking association organized and existing under the
laws of the United States having an office located at 66 South Pearl Street,
Albany, New York, 12207 (the "Bank") and FIRST ALBANY CORPORATION, a business
corporation organized and existing under the laws of the State of New York
having an office at 30 South Pearl Street, Albany, New York 12207 (the
"Underwriter");
WITNESSETH:
WHEREAS, on December 17, 1998, the Agency issued its Industrial Development
Revenue Bonds (Mechanical Technology Incorporated - Letter of Credit Secured),
Series 1998A in the original aggregate principal amount of $6,000,000 (the
"Bonds") to finance a portion of the Project (as hereinafter defined), which
were issued under and secured by a trust indenture dated as of December 1, 1998
by and between the Agency and Manufacturers and Traders Trust Company, as
trustee; and
WHEREAS, the Project consisted of (A)(1) the acquisition of a leasehold
interest in a parcel of land containing approximately 35.6 acres located at 968
Albany-Shaker Road in the Town of Colonie, Albany County, New York (the
"Land"), together with the existing buildings located thereon which contained
approximately 98,000 square feet in the aggregate (such buildings known
individually as Building I, Building II and Building III and hereinafter
collectively referred to as the "Existing Facility"), (2) the demolition of
Building I which contained approximately 14,105 square feet of space, (3) the
construction of a new building to replace Building I and which contains
approximately 32,000 square feet of space (the "New Facility") (the Existing
Facility and the New Facility hereinafter collectively referred to as the
"Facility"), (4) the renovation of Building III and (5) the acquisition of and
installation therein and thereon of certain machinery and equipment (the
"Equipment") (the Land, the Facility and the Equipment being hereinafter
collectively referred to as the "Project Facility"); all of the foregoing
occupied by MTI and operated as a manufacturing facility, a portion of which
was leased by MTI to Plug Power and operated as a facility for the manufacture,
research and development of fuel cells for residential and automotive
applications and related products and any other related activities; (B) the
financing of all or a portion of the costs of the foregoing by the issuance of
the Bonds; (C) the granting of certain other "financial assistance" (within the
meaning of Section 854(14) of the Act) with respect to the foregoing, including
exemption from certain sales taxes, deed transfer taxes, mortgage recording
<PAGE>
taxes and real property taxes; and (D) the sale of the Project Facility to MTI
or such other person as may be designated by MTI and agreed upon by the Issuer;
and
WHEREAS, in connection with the issuance of the Bonds, the Agency and MTI
executed and delivered an installment sale agreement dated as of December 1,
1998 (the "Installment Sale Agreement") pursuant to which the Agency agreed to
sell the Project Facility to MTI and a payment in lieu of tax agreement dated
as of December 1, 1998 (the "PILOT Agreement"); and
WHEREAS, Ling Electronics, Inc. ("Ling") executed and delivered to the Agency a
Guaranty dated December 16, 1998 (the "Ling Guaranty") pursuant to which Ling
guaranteed to the Agency the payment and performance by MTI of all of MTI's
covenants and obligations under the Installment Sale Agreement and the PILOT
Agreement; and
WHEREAS, as security for the Bonds, MTI entered into an irrevocable letter of
credit reimbursement agreement dated as of December 1, 1998 (the "Reimbursement
Agreement") with the Bank, pursuant to which the Bank has issued in favor of
the Trustee an irrevocable transferable direct-pay letter of credit; and
WHEREAS, in connection with the issuance of the Bonds, MTI also entered into a
remarketing agreement with the Underwriter (the "Remarketing Agreement"); and
WHEREAS, MTI has agreed to sell its interest in the Project Facility to Plug
Power and to assign to Plug Power the Installment Sale Agreement, the PILOT
Agreement and the Remarketing Agreement; and
WHEREAS, Section 9.1 of the Installment Sale Agreement provides that MTI may
not assign the Installment Sale Agreement without the prior written consent of
the Agency and the Bank, which consent may not be unreasonably withheld; and
WHEREAS, Section 9.4 of the Installment Sale Agreement provides that MTI may
not sell the Project Facility without the prior written consent of the Agency
and the Bank, which consent may not be unreasonably withheld;
NOW, THEREFORE, for good and valuable consideration, the parties hereto hereby
agree as follows:
SECTION 1. ASSIGNMENT. MTI assigns to Plug Power, as of July 1, 1999 (the
"Substitution Date"), all benefits under and all of MTI's right, title and
interest in the Installment Sale Agreement, the PILOT Agreement and the
Remarketing Agreement on the terms and conditions set forth in the Agreement of
Sale dated as of June 23, 1999.
SECTION 2. ASSUMPTION.
(A) Plug Power will pay, or cause to be paid, (1) all principal of the
Bonds when and as the same shall become due, whether at the stated maturity
thereof or by acceleration or call for prepayment or otherwise, and (2) all
interest on the Bonds when and as the same shall become due.
(B) Plug Power assumes and will pay, or cause to be paid, all payments or
sums now or hereafter owing by MTI, and will perform and observe all covenants,
agreements and other obligations to be performed or observed by MTI, under:
(1) the Installment Sale Agreement (including, without limitation,
Section 8.2 of the Installment Sale Agreement);
(2) the PILOT Agreement;
<PAGE>
(3) the Reimbursement Agreement, as amended and restated by a
Replacement Reimbursement Agreement dated as of the Substitution Date by
and between Plug Power and the Bank;
(4) the Remarketing Agreement;
(5) the mortgage and security agreement dated as of December 1,
1998 from the Agency and MTI to the Bank;
(6) the pledge and security agreement dated December 1, 1998 by
and between MTI and the Bank; and
(7) the lease to issuer dated as of December 1, 1998, between the
Agency and MTI
(all of the foregoing being hereinafter referred to as the "Bond Documents").
SECTION 3. REPRESENTATIONS AND COVENANTS OF PLUG POWER. Plug Power represents
to and covenants with each of the parties to this Agreement as follows:
(A) Plug Power is authorized transact business in the State of New York.
(B) Plug Power will take no action that would cause the Project Facility to
fail to continue to constitute a "project" under the Act (as defined under the
Installment Sale Agreement).
SECTION 4. CONSENT AND RELEASE.
(A) The Agency and the Bank:
(1) consent to the assignment by MTI to Plug Power of the Installment Sale
Agreement, the sale by MTI to Plug Power of MTI's interest in the Project
Facility and the assumption by Plug Power of MTI's obligations under the Bond
Documents;
(2) release MTI, as of the Substitution Date, from all of its liabilities
and obligations under the Bond Documents, except for those liabilities and
obligations which accrued on or before the Substitution Date; and
(3) release Ling from all of its obligations under the Ling Guaranty.
(B) The Underwriter consents to the assignment by MTI to Plug Power of the
Remarketing Agreement and releases MTI, as of the Substitution Date, from all
of its obligations under the Remarketing Agreement.
SECTION 5. MISCELLANEOUS.
(A) This Assignment and Assumption Agreement shall be binding upon and
inure to the benefit of the Agency, the Bank, the Underwriter, MTI, Plug Power,
and their respective successors and assigns.
(B) This Assignment and Assumption Agreement may be executed in several
counterparts, each of which shall be an original and all of which shall
constitute but one and the same instrument.
(C) This Assignment and Assumption Agreement shall be governed by and
construed in accordance with the law of the State of New York.
<PAGE>
IN WITNESS WHEREOF, the parties have caused this Assignment and Assumption
Agreement to be duly executed as the date first above written.
TOWN OF COLONIE INDUSTRIAL
DEVELOPMENT AGENCY
BY:
Peter J. Hess, Chairman
MECHANICAL TECHNOLOGY
INCORPORATED
BY:Cynthia A. Scheuer
Authorized Officer
PLUG POWER, L.L.C.
BY:Gary Mittleman
Authorized Officer
KEYBANK NATIONAL ASSOCIATION
BY:William B. Palmer
Authorized Officer
FIRST ALBANY CORPORATION
BY:Tom Cullinan
Authorized Officer
STATE OF NEW YORK )
ss.:
COUNTY OF ALBANY )
On the 9th day of July, in the year 1999, before me, the undersigned, a
notary public in and for said state, personally appeared Peter J. Hess,
personally known to me or proved to me on the basis of satisfactory evidence to
be the individual whose name is subscribed to the within instrument and
acknowledged to me that he executed the same in his capacity, and that by his
signature on the instrument, the individual, or the person upon behalf of which
the individual acted, executed the instrument.
Pamella Weisberg
Notary Public
<PAGE>
STATE OF NEW YORK )
ss.:
COUNTY OF ALBANY )
On the 14th day of July, in the year 1999, before me, the undersigned, a
notary public in and for said state, personally appeared Gary S. Mittleman,
personally known to me or proved to me on the basis of satisfactory evidence to
be the individual whose name is subscribed to the within instrument and
acknowledged to me that he executed the same in his capacity, and that by his
signature on the instrument, the individual, or the person upon behalf of
which the individual acted, executed the instrument.
Kathleen R. Petrucco
Notary Public
STATE OF NEW YORK )
ss.:
COUNTY OF ALBANY )
On the 14th day of July, in the year 1999, before me, the undersigned, a
notary public in and for said state, personally appeared Cynthia A. Scheuer,
personally known to me or proved to me on the basis of satisfactory evidence to
be the individual whose name is subscribed to the within instrument and
acknowledged to me that he executed the same in his capacity, and that by his
signature on the instrument, the individual, or the person upon behalf of which
the individual acted, executed the instrument.
Kathleen R. Petrucco
Notary Public
STATE OF NEW YORK )
ss.:
COUNTY OF ALBANY )
On the 12th day of July, in the year 1999, before me, the undersigned, a
notary public in and for said state, personally appeared William B. Palmer,
personally known to me or proved to me on the basis of satisfactory evidence to
be the individual whose name is subscribed to the within instrument and
acknowledged to me that he executed the same in his capacity, and that by his
signature on the instrument, the individual, or the person upon behalf of which
the individual acted, executed the instrument.
Dena T. Amodio
Notary Public
STATE OF NEW YORK )
ss.:
COUNTY OF ALBANY )
On the 15th day of July, in the year 1999, before me, the undersigned, a
notary public in and for said state, personally appeared Tom Cullinan,
personally known to me or proved to me on the basis of satisfactory evidence to
be the individual whose name is subscribed to the within instrument and
acknowledged to me that he executed the same in his capacity, and that by his
signature on the instrument, the individual, or the person upon behalf of which
the individual acted, executed the instrument.
Betty A. McCann
Notary Public
Exhibit 10.31
AGREEMENT OF SALE
THIS AGREEMENT OF SALE (this "Agreement"), is effective as of the 23rd
day of June, 1999, by and between MECHANICAL TECHNOLOGY INCORPORATED ("MTI")
a New York Corporation ("Seller"), and PLUG POWER, LLC, a Delaware Limited
Liability Company ("Purchaser").
W I T N E S S E T H:
1. PURCHASE AND SALE. Purchaser agrees to purchase and Seller agrees to sell at
the price of Nine Million Seven Hundred Thousand and No/100 Dollars
($9,700,000.00) (the "Purchase "Price"), that certain property commonly known
as 968 Albany-Shaker Road and 950 Albany-Shaker Road in the Town of Colonie,
Latham, New York and more particularly described as follows, subject only to
the "Permitted Exceptions" (hereinafter defined);
1.1. that certain tract of real estate consisting of approximately 35.6 acres,
on which is situated two (2) office/manufacturing buildings, which real estate
is legally described in the attached Exhibit A, together with any and all and
singular easements, covenants, agreements, rights, privileges, tenements,
hereditaments, rights of way, licenses, interests and appurtenances of any kind
thereunto now or hereafter owned by Seller and belonging or appertaining
thereto including, but not limited to, all right, title and interest of Seller
in and to any adjacent vaults, alleys, strips or gores of land, and any air,
zoning or development rights appurtenant thereunto and all right, title and
interest of Seller in and to any land lying in the bed of any street, highway,
alley, road access way, easement of avenue (whether open, closed or proposed)
within, in front of, behind, aside or otherwise adjoining the real estate
legally described in Exhibit A, and all right, title and interest of Seller in
and to any award made of to be made as a result or in lieu of condemnation
(subject to the provisions of Paragraph 6 hereof) (collectively the "968
Land"); and
1.1.2 that certain tract of real estate consisting of approximately .37 acres,
on which is situated one (1) house, which real estate is legally described in
the attached Exhibit B, together with any and all and singular easements,
covenants, agreements, rights, privileges, tenements, hereditaments, rights of
way, licenses, interests and appurtenances of any kind thereunto now or
hereafter owned by Seller and belonging or appertaining thereto including, but
not limited to, all right, title and interest of Seller in and to any adjacent
vaults, alleys, strips or gores of land, and any air, zoning or development
rights appurtenant thereunto and all right, title and interest of Seller in and
to any land lying in the bed of any street, highway, alley, road access way,
easement of avenue (whether open, closed or proposed) within, in front of,
behind, aside or otherwise adjoining the real estate legally described in
Exhibit B, and all right, title and interest of Seller in and to any award made
of to be made as a result or in lieu of condemnation (subject to the provisions
of Paragraph 6 hereof) (collectively the "950 Land"), (the "968 Land" and the
"950 Land" collectively the "Land");
1.2. all right, title and interest of Seller in and to all of the buildings,
structures and other improvements now or hereafter in, on, over or under the
Land, and to any award for damage to such buildings and improvements or any
part thereof by reason of casualty, exclusive of any furniture, furnishings,
fixtures, equipment, machinery or other personal property (subject to the
provisions of Paragraph 6 hereof) (collectively, the "Improvements"; the Land
and Improvements being collectively referred to as the "Premises"); and
<PAGE>
1.3 all right, title and interest of Seller in and to all existing contracts,
permits, guarantees, bonds, certificates of occupancy, warranties, surveys,
blue prints, drawings, plans and specifications, to the extent available and in
Seller's possession or control (excluding computer software) related to the
Premises (the "Contracts").
2. PURCHASE PRICE. The Purchase Price shall be paid by Purchaser as
follows:
2.1. On the "Closing Date" (as hereinafter defined), the Purchase Price,
adjusted in accordance with the prorations, shall be paid as follows: a)
Purchaser shall transfer shares of Purchaser's class A membership interest
units (the "Class A Shares") in an amount equal to $4,697,782 based upon a par
unit valuation of $6.67 per unit;
b) Purchaser shall assume all obligations of Seller under that certain
installment sale agreement by and between Seller and the Town of Colonie
Industrial Development Agency (the "IDA"), dated December 1, 1998, (the
"Installment Sale Agreement") and all other obligations of Seller in connection
with the Land, Premises and Contracts; and
c) Seller shall transfer all remaining research credits as is defined in
Purchaser's Limited Liability Company Agreement, dated June 27, 1997, as
amended.
3. TITLE COMMITMENT, SURVEY AND APPRAISAL
3.1. Attached hereto Exhibit E is a copy of a title commitment for an owners'
standard title insurance policy issued by D'Agostino, Hoblock, Greisler &
Siegel, P.C. as agent for the Chicago Title Insurance Company (such company is
hereinafter referred to as "Initial Title Insurer") dated June 10, 1999 for the
Premises (the "Title Commitment"). For purposes of this Agreement, "Permitted
Exceptions" shall mean: (a) those matters listed on Exhibit F attached hereto;
(b) general real estate taxes, assessments, special assessments, special
district taxes and related charges not yet due and payable; and (c) matters
caused by the actions of Purchaser. On the Closing Date, as a condition to
Purchaser's obligations hereunder, Seller shall deliver to Purchaser a 1992
ATLA title policy in conformance with the previously delivered "Title
Commitment", subject to Permitted Exceptions (the "Title Policy"). Purchaser
shall pay for the premiums for the Title Policy and Purchaser shall pay for the
premiums for any endorsements to, or extended coverage on the Title Policy.
3.2 Purchaser has received a survey of the Premises prepared by C.T. Male &
Associates, dated November 30, 1998.
3.3. The obligation of Purchaser to pay various costs set forth in Paragraphs
3.1 and 3.2 shall survive the consummation of the within transaction (the
"Closing") and termination of this Agreement unless this Agreement is
terminated by reason of Seller's default.
3.4. Purchaser has received an appraisal of the Premises prepared for Key Bank
dated, October 31, 1998 (the "Appraisal").
4. PAYMENT OF CLOSING COSTS.
4.1 Purchaser shall pay for the costs of the documentary or transfer stamps to
be paid with reference to the "Deed" (hereinafter defined) and all other
stamps, intangible, transfer, documentary, recording, sales tax and surtax
imposed by law with reference to any other sale documents delivered in
<PAGE>
connection with the sale of the Premises to Purchaser.
5. CONDITION OF TITLE.
5.1 Seller agrees to convey fee simple title to the Premises to Purchaser by a
warranty deed (the "Deed") in recordable form.
6. CONDEMNATION, EMINENT DOMAIN, DAMAGE AND CASUALTY
6.1 Except as provided in the indemnity provisions contained in Paragraph 7 of
this Agreement, Seller shall bear all risk of loss with respect to the Premises
up to the time title is transferred to Purchaser in accordance with this
Agreement. Notwithstanding the foregoing, in the event of damage to the
Premises by fire or other casualty that is neither the direct nor indirect
fault of Purchaser, prior to the Closing Date, repair of which would cost less
than or equal to $500,000 (as reasonably determined by Seller in good faith)
Purchaser shall not have the right to terminate its obligations under this
Agreement by reason thereof, but Seller shall have the right to elect to either
repair and restore the Premises (in which case the Closing shall be adjourned
by up to 90 days until completion of such restoration) or to assign and
transfer to Purchaser on the Closing Date all of Seller's right, title and
interest in and to all insurance proceeds paid or payable to Seller on account
of such fire or casualty and allow as a credit against the Purchase Price an
amount equal to the applicable insurance deductible. Seller shall promptly
notify Purchaser in writing of any such fire or other casualty and Seller's
determination of the cost to repair the damage caused thereby. In the event of
damage to the Premises by fire or other casualty not caused either directly or
indirectly by Purchaser, prior to the Closing Date, repair of which would cost
in excess of $500,000 (as reasonably determined by Seller in good faith), then
this Agreement may be terminated at the option of Purchaser, which option shall
be exercised, if at all, by Purchaser's written notice thereof to Seller within
fifteen (15) business days after Purchaser receives written notice of such fire
or other casualty, and Seller's determination of the amount of such damages,
and upon the exercise of such option by Purchaser this Agreement shall become
null and void, and neither party shall have any further liability or
obligations hereunder except for those obligations expressly stated to survive
termination. In the event that Purchaser does not exercise the option set forth
in the preceding sentence, the Closing shall take place on the scheduled
Closing Date and Seller shall deliver, assign and transfer to Purchaser on the
Closing Date all insurance proceeds theretofore received by Seller and all of
Seller's right, title and interest in and to all insurance proceeds payable to
Seller on account of the fire or casualty and allow as a credit against the
Purchase Price an amount equal to the applicable insurance deductible. In the
event of damage to the Premises by fire or other casualty that is caused either
directly or indirectly by Purchaser, Purchaser shall proceed to closing on the
Closing Date set forth herein. Any insurance proceeds due to Seller in
connection with the Premises shall be paid in the following priority: (1) to
compensate Seller for its loss; (2) the remainder, if any, to Purchaser.
6.2 If between the date of this Agreement and the Closing Date, any
condemnation or eminent domain proceedings are initiated which might result in
the taking of any part of the Premises or the taking or closing of any right of
access to the Premises, Seller shall immediately notify Purchaser of such
occurrence. In the event that the taking of any part of the Premises shall: (i)
adversely and materially impair access to the Premises; (ii) adversely and
materially impair the use of the Premises; or (iii) affect the value of the
Premises in an amount greater than $100,000 (hereinafter collectively referred
to as a "Material Event"), Purchaser may:
<PAGE>
6.2.l terminate this Agreement by written notice to Seller, in which event
all rights and obligations of the parties hereunder with respect to the closing
of this transaction will cease; or
6.2.2 proceed with the Closing, in which event Seller shall deliver, transfer
and assign to Purchaser all amounts previously paid to Seller on account
thereof and all of Seller's right, title and interest in and to any award
payable in connection with such condemnation or eminent domain proceedings.
6.3 Purchaser shall then notify Seller, within ten (10) business days after
Purchaser's receipt of Seller's notice, whether Purchaser elects to exercise
its rights under Paragraph 6.2.1 or Paragraph 6.2.2. Closing shall be delayed,
if necessary, until Purchaser makes such election. If Purchaser fails to make
an election within such ten (10) business day period, Purchaser shall be deemed
to have elected to exercise its rights under Paragraph 6.2.1. Except as
otherwise provided in this Agreement, if between the date of this Agreement and
the Closing Date, any condemnation or eminent domain proceedings are initiated
which do not constitute a Material Event, Purchaser shall be required to
proceed with the Closing, in which event Seller shall deliver, transfer and
assign to Purchaser all of Seller's right, title and interest in and to any
award payable in connection with such condemnation or eminent domain
proceedings.
7 INSPECTION, ENVIRONMENTAL WARRANITES AND CONDITIONS
PRECEDENT TO CLOSING
7.1 In connection with Purchaser's review of the Premises, Seller agrees to
deliver to Purchaser copies of the most recent tax and insurance bills, utility
account numbers, and service contracts.
7.2 Seller makes no representations or warranties concerning Purchaser's use,
storage, disposal, treatment or handling of hazardous or toxic wastes (the
"Purchaser's Use"). The Seller hereby makes the following representations,
warranties; and covenants concerning Hazardous Substances: (i)(A) Except for
Purchaser's Use, no portion of the Premises or any property owned by the Seller
which is adjacent to the Premises is being used, or has ever been used at any
previous time to generate, treat, store, handle or dispose of hazardous or
toxic substances, as such term is defined by applicable federal, state or local
laws and regulations relating to hazardous waste, except in compliance with
Environmental Laws (hereinafter defined); (B) To the best of Seller's
knowledge, the soil and surface water and ground water which are a part of the
Premises are free from any solid wastes, hazardous or toxic substances or
contaminant and any discharge of sewage or effluent; and (C) To the best of
Seller's knowledge, no lien has been attached to the Premises, or any revenues
therefrom as a result of a violation of any federal, state or local laws and
regulations governing hazardous waste removal and clean-up, nor are there any
governmental, judicial or administrative actions with respect to environmental
matters pending, or the best of the Seller's knowledge threatened, which
involve the Premises; (ii) Except for Purchaser's Use, there have been no
summons, citations, directives, letters or other written communication received
from any federal, state or local agency charged with the enforcement of any
environmental protection laws or regulations which has resulted from the
releasing, spilling, leaking, pumping, pouring, emitting, emptying or dumping
of hazardous substances, as such term is currently defined by applicable
federal, state and local laws or regulations relating to hazardous waste at the
Premises; (iii) Except for Purchaser's Use, the Premises are in compliance in
all material respects with all applicable federal, state, or local laws and
regulations, including, without limitation, those relating to hazardous and
toxic substances and other environmental laws.
<PAGE>
7.2.1 Except for Purchaser's Use, the Seller agrees to comply in all material
respects with all applicable laws, rules, regulations, and orders, relating to
hazardous waste applicable to the Premises.
7.2.2 At no expense to the Purchaser, the Seller shall promptly supply the
Purchaser with any written notices, correspondence and submissions made by the
Seller to the New York State Department of Environmental Conservation, the
United States Environmental Protection Agency, the United States Occupational
Safety and Health Administration, or any other local, state or federal
authority that regulates wastes. This shall not include routine correspondence
or submissions to any agency or authority.
7.2.3 Except for any claims, actions, demands, penalties, fines, liabilities,
settlements, damages, costs or expenses (including, without limitation,
attorney and consultant fees, investigations or laboratory fees, court costs
and litigation expenses of whatever kind or nature known or unknown, contingent
or otherwise) arising out of or in any way related to Purchaser's use of the
Premises, the Seller agrees to defend, indemnify and hold harmless Purchaser,
its employees, agents, officers and directors from and against any claims,
actions, demands, penalties, fines, liabilities, settlements, damages, costs or
expenses (including, without limitation, attorney and consultant fees,
investigations or laboratory fees, court costs and litigation expenses of
whatever kind or nature known or unknown, contingent or otherwise) arising out
of or in any way related to: (i) the past or present disposal, release or
threatened release of any hazardous or toxic substances on the Premises; (ii)
any personal injury (including wrongful death or property damage, real or
personal) arising out of or related to such hazardous or toxic substances;
(iii) any lawsuit brought or threatened, settlement reached or government order
given relating to such hazardous or toxic substances; and/or (iv) any violation
of law, order, regulation, requirement, or demand of any government authority,
which are based upon or in any way related to such hazardous or toxic
substances.
7.2.4. The Seller knows of no on-site or off-site locations where hazardous or
toxic substances from the operation of any improvement or otherwise have been
stored, treated, recycled or disposed of.
7.2.5 The provisions of this Section shall be in addition to any other
obligations and liabilities the Seller may have to the Purchaser or Purchaser
may have to Seller at common law, and shall survive the transactions
contemplated herein;
7.2.6. Purchaser shall indemnify and hold harmless Seller for any claims,
actions, demands, penalties, fines, liabilities, settlements, damages, costs or
expenses (including, without limitation, attorney and consultant fees,
investigations or laboratory fees, court costs and litigation expenses of
whatever kind or nature known or unknown, contingent or otherwise) arising out
of or in any way related to Purchaser's Use of the Premises.
7.2.7. The term "Environmental Laws" shall include all federal, state and local
statutes, codes, regulations, rules, ordinances, orders, standards, permits,
licenses, policies and requirements (including consent decrees, judicial
decisions and administrative orders) relating to the protection, preservation,
remediation or conservation of the environment or worker health or safety, all
as amended or reauthorized, or as hereafter amended or reauthorized, including
without limitation, the Comprehensive Environmental Response, Compensation and
Liability Act ("CERCLA"), 42 U.S.C. 9601 et seq., the Resource Conservation
and Recovery Act of 1976 ("RCRA"), 42 U.S.C. 6901 et seq., the Emergency
Planning and Community Right-to-Know Act ("Right-to-Know Act"), 42 U.S.C.
<PAGE>
11001 et seq., the Clean Air Act ("CAA"), 42 U.S.C. 7401 et seq., the Federal
Water Pollution Control Act ("Clean Water Act"), 33 U.S.C. 1251 et seq. the
Toxic Substances Control Act ("TSCA"), 15 U.S.C. 2601 et seq., the Safe
Drinking Water Act ("Safe Drinking Water Act"), 42 U.S.C. 300f et seq., the
Atomic Energy Act ("AEA"), 42 U.S.C. 2011 et seq., the Occupational Safety
and Health Act ("OSHA"), 29 U.S.C. 651 et seq., and the Hazardous Materials
Transportation Act (the "Transportation Act"), 49 U.S.C. 1802 et seq.
7.2.8. The term "hazardous substance" shall include, without limit, any
substance or material defined in 42 U.S.C. Section 9601 (as the same may be
amended from time to time), the Hazardous Materials Transportation Act (as
amended from time to time), and the New York Environmental Conservation Law or
the Resource Conservation and Recovery Act (as each may be amended from time to
time) and in any regulations adopted or publications promulgated pursuant to
any of the foregoing.
7.3 Seller has provided to Purchaser the following existing report: Phase I
Environmental Site Assessment, prepared for Seller and Key Bank by Rust
Environment & Infrastructure, dated July, 1998 (the "Existing Report").
Purchaser hereby releases Seller and the Affiliates of Seller from any
liability whatsoever with respect to the Existing Report, or, including,
without limitation, the accuracy and/or completeness of the Existing Report.
Furthermore, Purchaser acknowledges that it will be purchasing the Premises
with all faults disclosed in the Existing Report. Notwithstanding anything
contained herein to the contrary, the terms of this Paragraph 7.3 shall survive
the Closing and the delivery of the Deed and termination of this Agreement.
7.4 If Purchaser's consultants reasonably determine that, based upon their
examination of the Existing Report, a Phase II examination is necessary with
respect to all or part of the Premises, Purchaser may elect to perform a Phase
II examination, at Purchaser's sole expense. Purchaser may also elect to
examine the structural, mechanical, electrical, HVAC, plumbing and other
physical characteristics and condition of the new building constructed in 1998,
commonly known as Building One ("Building One"); and the compliance of Building
One with all housing, zoning, land-use, subdivision, life safety, and fire
codes, and codes with respect to access for persons with disabilities,
including, without limitation, the Americans with Disabilities Act, together
with building and construction laws and regulations restricting or regulating
or otherwise affecting the use, occupancy or enjoyment of the Premises. Such
examinations will be completed not later than June 18, 1999, and if not
completed will be deemed waived. The successful assignment to, and assumption
by the Purchaser of Seller's obligations under the Installment Sale Agreement
including, but not limited to Seller's debt of approximately Six Million
Dollars ($6,000,000) of IDA Taxable Industrial Development Revenue Bonds (the
"IDA Loan"), is a condition precedent to Closing ("Condition Precedent").
Purchaser has a commitment to provide a back-up letter of credit from Key Bank
N.A. (the "Key Term Sheet") to secure the IDA Loan. Purchaser agrees to
complete the assignment and assumption of the IDA Loan on terms not less
favorable than those set forth on the Key Term Sheet.
8. CLOSING.
8.1 The Closing shall take place when the foregoing Conditions Precedent
have occurred, and the following conditions have been met, but not later than
July 6, 1999 (the "Closing Date"), at which time Seller shall deliver
possession of the Premises to Purchaser. Notwithstanding anything contained
herein to the contrary, Purchaser shall have the right to extend the Closing
Date for a period not to exceed two (2) weeks. In the event that the Conditions
Precedent do not occur, or the following conditions are not met due to Seller's
<PAGE>
Default, the provisions set forth in Section 11 of this Agreement shall take
effect. Prior to the release of the Purchase Price to Seller, Purchaser shall
receive the Title Policy or marked-up commitment dated the date of the Closing
Date.
8.2. On or prior to the Closing Date, Seller and Purchaser shall execute and
deliver to one another a joint closing statement and such other documents as
may be reasonably required by the Title Insurer in order to consummate the
transaction as set forth in this Agreement.
8.3. On the Closing Date, Seller shall execute and acknowledge (if
appropriate) and deliver to Purchaser the following:
8.3.1. A Warranty Deed (in the form of Exhibit G attached hereto), subject
only to the Permitted Exceptions expressly consented to by the Purchaser;
8.3.2. An assignment of the Contracts and the intangible property, if any;
8.3.3. All documents necessary or convenient to effectuate the assumption by
Purchaser of Seller's obligations under the Installment Sale Agreement and the
Bank Documents as that term is defined in the Installment Sale Agreement;
8.3.4. All documents and instruments reasonably required by the Title Insurer
to issue the Title Policy;
8.3.5. Possession of the Premises to Purchaser;
8.3.6. Evidence of the termination of any and all management and leasing
agreements affecting the Premises, other than Permitted Exceptions;
8.3.7. Plans and specifications of the Improvements within the possession or
control of Seller prepared in connection with the construction, maintenance,
repair, management or operation of the Premises;
8.3.8. All lease files and expense records maintained at the Premises by or on
behalf of Seller in connection with the Premises;
8.3.9. The keys in Seller's possession to all entrance doors, tenant spaces,
offices and store rooms;
8.3.10. An opinion of counsel as to the following: (i) Seller's due
incorporation; (ii) Seller's power, authority, and due authorization to enter
into this Agreement and to consummate the transactions contemplated herein; and
(iii) no action, suit, proceeding, inquiry or investigation before any court,
public board or body is pending or, to Seller's knowledge, threatened, wherein
an unfavorable decision, ruling or finding would materially and adversely
affect the validity or enforceability of this Agreement.
8.4. On the Closing Date Purchaser shall deliver: (i) $4,697,782 worth of
Purchaser's Class A Shares at $6.67 per share; (ii) the assignment documents
related to the IDA Loan; (iii) the lease for Building One, top floor, the term
of which shall run to December 31, 1999 and the lease for Building One, bottom
floor, the term of which shall run to December 31, 2000, in the form attached
hereto as Exhibit C; and (iv) an opinion of counsel as to the authority of
Purchaser to enter into the transactions contemplated by this Agreement and to
issue the Class A Shares and assume the IDA Loan contemplated hereby.
9. [RESERVED]
<PAGE>
10. PURCHASER'S DEFAULT.
IF THIS SALE IS NOT COMPLETED BECAUSE OF PURCHASER'S DEFAULT,
PURCHASER SHALL (i) COMPLETE CONSTRUCTION OF THE PREMISES AND
SELLER SHALL CREDIT THE PURCHASER AS PRE-PAID LEASE PAYMENTS
ALL EXPENDITURES ASSOCIATED WITH THE CONSTRUCTION; (ii) ENTER
INTO A LONG-TERM LEASE WITH SELLER FOR THE PREMISES (OTHER THAN
BUILDING ONE); AND (iii) ISSUE $4,697,782 WORTH OF PURCHASER'S CLASS
A SHARES AT $6.67 PER SHARE IN EXCHANGE FOR CASH.
11. SELLER'S DEFAULT.
IF THIS SALE IS NOT COMPLETED BECAUSE OF SELLER'S DEFAULT, AND PURCHASER HAS
COMMENCED CONSTRUCTION ON THE PREMISES: (i) THE PURCHASER SHALL COMPLETE
CONSTRUCTION OF THE PREMISES AND THE SELLER SHALL CREDIT THE PURCHASER AS
PRE-PAID LEASE PAYMENTS ALL EXPENDITURES ASSOCIATED WITH THE CONSTRUCTION; (ii)
SELLER WILL EXECUTE A LEASE IN THE FORM ATTACHED HERETO AS EXHIBIT D; AND (iii)
SELLER SHALL PURCHASE IN CASH $4,697,782 WORTH OF PURCHASER'S CLASS A SHARES AT
$6.67 PER SHARE.
12. PRORATIONS.
12.1. The items described in this Paragraph shall be prorated between the
parties on a per diem basis (on the basis of actual calendar days in the
relevant calendar year) so that credits and charges preceding, or on 11:59 pm
on the day preceding the Closing Date, shall be allocated to Seller and credits
and charges for the period after 11:59 pm on the day preceding the Closing Date
and all days thereafter shall be allocated to Purchaser.
12.1.1 Real Estate and Personal Property Taxes and Special Assessments.
General real estate and personal property taxes payable for all calendar years
prior to the year in which Closing occurs shall be paid by Seller. General real
estate and personal property taxes payable for the calendar year in which
Closing occurs shall be prorated between Seller and Purchaser on the Closing
Date, with taxes attributable to the day of Closing to be paid by Purchaser. If
the Closing shall occur before the tax rate and assessment is fixed, the
apportionment of such general real estate personal property taxes at the
Closing shall be upon the basis of the latest tax rate applied to the most
recently assessed value of the Premises. Purchaser shall receive a credit
against the Purchase Price equal to Seller's prorated portion of such estimated
general real estate and personal property taxes payable for the calendar year
in which the Closing occurs. Seller shall pay on or before Closing the full
amount of any bonds or assessments against the Premises including interest
payable therewith, including any bonds or assessments that may be payable after
the Closing Date as a result of or in relation to the construction or operation
of any improvements or any public improvements that took place, or for which
any assessment was levied prior to the Closing Date. Purchaser shall pay the
full amount of any bonds or assessments incurred after the Closing Date that
are not subject to the immediately preceding sentence. Purchaser shall notify
Seller in writing promptly after such information is available to Purchaser in
the event Purchaser's credit described above is insufficient to pay Seller's
share of the actual general real estate or personal taxes for the calendar year
in which Closing occurs, and Seller shall promptly pay such deficiency to
Purchaser together with, if payment is not made within thirty (30) days after
delivery of such notification, interest thereon at the lesser of two percent
(2%) over the "prime rate" (as announced from time to time in the Wall Street
Journal) per annum or the maximum rate allowed by law, from the date Purchaser
notified Seller of the deficiency. In the event Purchaser's credit described
above is in excess of Seller's share of the actual general real estate or
personal property taxes for the calendar year in which Closing occurs,
Purchaser shall promptly pay such excess to Seller together with, if payment is
<PAGE>
not made within thirty (30) days after the delivery of such notification,
interest thereon at the lesser of two percent (2%) over the "prime rate" (as
announced from time to time in the Wall Street Journal) per annum or the
maximum rate allowed by law, from the date Purchaser notified Seller of the
excess.
12.1.2. Utility and fuel charges, including, without limitation, charges for
water, electricity, gas, gasoline, steam, oil and telephones used in connection
with the heating, cooling, lighting, maintenance and operation of the Premises
and any personal property included therein or used in connection therewith
shall be prorated as of the Closing Date. Seller shall obtain readings of all
utility meters no earlier than 30 days prior to Closing Date.
12.1.3. Annual fees for those permits and licenses disclosed in Exhibit J shall
be prorated as of the Closing Date.
12.2. The interest on the IDA Loan shall be prorated as of the Closing Date.
12.2.1. All other reasonable expenses normal to the operation and maintenance
of the Premises which require payments either in advance or in arrears for
periods which begin prior to the Closing Date or end thereafter shall be
apportioned between Seller and Purchaser as of 11:59 P.M. on the day preceding
the Closing Date.
12.3. Seller shall prepare or cause to be prepared statements in reasonable
detail showing separately each item prorated or adjusted pursuant to this
Agreement and a detailed reconciliation showing separately each item prorated
or adjusted pursuant to this Agreement and a detailed reconciliation of the
Prorations and Adjustments, such statements to be delivered three (3) business
days prior to the Closing and adjusted as necessary at the Closing. The parties
shall mutually agree after review thereof by Purchaser that such closing
statement accurately reflects the method of proration set forth in this
Agreement.
13. [RESERVED]
14. [RESERVED]
15. BROKER. Each of the parties hereto represents and warrants that no
broker commission, finder fee or advisory fee is due and payable in connection
with this transaction by reason of any act of the representing party. Purchaser
and Seller shall indemnify, defend and hold the other party hereto harmless
from any claim whatsoever (including without limitation, reasonable attorney's
fees, court costs and costs of appeal) from anyone claiming by or through the
indemnifying party any fee, commission or compensation on account of this
Agreement, its negotiation or the sale hereby contemplated. The indemnifying
party shall undertake its obligations set forth in this Paragraph 15 using
attorneys selected by the indemnifying party and reasonably acceptable to the
indemnified party. The provisions of this Paragraph 15 will survive the Closing
and delivery of the Deed.
16. REPRESENTATIONS AND WARRANTIES.
16.1 Seller's Representations and Warranties. Seller hereby represents and
warrants to Purchaser, as follows:
<PAGE>
16.1.1 This Agreement is in all respects a valid and legally binding obligation,
enforceable in accordance with its respective terms;
16.1.2. Seller is a New York corporation, duly organized and validly existing
under the laws of the State of New York. Seller has the power and authority to
enter into this Agreement, to perform its obligations under this Agreement, and
to consummate the transactions contemplated herein. The execution and delivery
hereof and the performance by Seller of its obligations hereunder will not
violate or constitute an event of default under any material term or material
provision of any agreement, document, instrument, judgment, order or decree to
which Seller is a party or by which Seller is bound. No petition in bankruptcy
(voluntary or otherwise), assignment for the benefit of creditors, or petition
seeking reorganization or arrangement or other action under federal or state
bankruptcy laws is pending against or contemplated by Seller;
16.1.3. Seller has caused all actions required to be taken by or on behalf of
Seller to authorize Seller to make, deliver and carry out the terms of this
Agreement. No consent to the execution, delivery and performance of this
Agreement by Seller is required from any partner, board of directors,
shareholder, creditor, investor, judicial or administrative body, government
authority (excluding any governmental authority solely applicable to Purchaser)
or other person or entity, other than any such consent which already has been
unconditionally given. This Agreement is a valid and binding obligation of
Seller, enforceable in accordance with its terms, except as the same may be
affected by bankruptcy, insolvency, moratorium or similar laws, or by legal or
equitable principles relating to or limited the rights of contracting parties
generally;
16.1.4 The execution and delivery of this Agreement by the Seller does not,
and the performance and observance by the Seller of its obligations thereunder
will not, contravene or result in a breach of (i) the Seller's corporate
charter or by-laws, (ii) any governmental requirements, or (iii) any decree or
judgment binding on the Seller, or (iv) any agreement or instrument binding on
the Seller or any of its properties, nor will the same result in the creation
of any lien or security interest under any such agreement or instrument;
16.1.5 There are no legal actions, suits, or other legal or administrative
proceedings, including condemnation cases, pending or, to the best of Seller's
knowledge, threatened against or affecting the Premises and Seller, or
affecting the validity or enforceability of this Agreement or which will affect
the Seller's ability to carry-out its obligations under this Agreement, at law
or in equity or before or by any government authority, other than the
Albany-Shaker Road extension project. Seller is not aware of any facts
presently existing or which, with the passage of time or the giving of notice,
or both, which might result in any such action, suit or other proceeding,
except as disclosed to Purchaser;
16.1.6 That there exist no violations of law or municipal ordinances affecting
Building One. Notwithstanding the foregoing, Seller covenants to cure any and
all such violations affecting Building One prior to the Closing Date;
16.1.7 The utility services necessary and sufficient for the operation of
Building One for its current use are presently available to the Premises
through dedicated public rights of way or through perpetual private easements,
including but not limited to water supply, storm and sanitary sewer, gas,
electric and telephone facilities and drainage;
<PAGE>
16.1.8. That neither Building One nor any portion thereof is now damaged or
injured as a result of any fire, explosion, flood or other casualty or has been
the subject of any taking, and to the knowledge of the Seller, no taking is
pending or contemplated;
16.1.9. That all federal, state and other tax returns of the Seller required by
law to be filed have been filed, that all federal, state and other taxes,
assessments and other governmental charges upon the Seller or their properties
that are due have been paid, or are being challenged through appropriate means,
and that the Seller has set aside on their books, provisions reasonably
adequate for the payment of all taxes for periods subsequent to the periods for
which such returns have been filed;
16.1.10. (a) To Seller's knowledge, there are no service contracts, landscaping
contracts, maintenance agreements or other contracts for the provision of
labor, services, materials or supplies to or for the benefit of the Premises
which will affect or be obligations of Purchaser or of the Premises or any
portion thereof following the Closing Date, other than those listed on Exhibit
H, (the "Service Contracts"), to Seller's knowledge, true and complete copies
of which have been provided to Purchaser; (b) to Seller's knowledge, except as
shown on the copies of the Service Contracts heretofore delivered there are no
amendments to said Service Contracts; and (c) to Seller's knowledge, no
material uncured default exists under any Service Contract;
16.1.11. Except as set forth on Exhibit I hereto, to Seller's knowledge, Seller
has not received any written notice from any Governmental Authority that
Building One is in violation of any law, regulation, ordinance, order or other
requirements materially affecting the Premises or any portion thereof, which
notice remains uncured;
16.1.12. To Seller's knowledge, Seller has not received any written notice that
the Premises or any portion thereof is or will be imminently subject to or
affected by any condemnation, eminent domain or similar proceedings;
16.1.13. Building One is free and clear of any and all mechanics and other
liens. All contractors, subcontractors, laborers and materialmen performing
work upon or furnishing labor or materials to improve or benefit Building One
at Seller's request have been or will be paid in full by the Seller.
Accordingly, Seller agrees to indemnify and hold Purchaser harmless from any
claims, liabilities, damages or expenses that Purchaser, or its successors and
assigns, may incur by reason of any mechanic's, materialmen's, or similar liens
being lodged against Building One for work performed or materials furnished by
or at the request of Seller prior to the Closing Date. Seller will execute the
necessary affidavits and indemnities required by the title insurance company to
eliminate from the title policy or abstract of title any exception for unfiled
mechanic's liens;
16.1.14. To the best of Seller's knowledge, Building One is free from latent
defects;
16.1.15. The occupancy of Building One is within the current zoning;
16.1.16. The Premises are, as of the Closing Date, free of all encumbrances,
except the Permitted Exceptions;
16.1.17. All oil burners and other fuel-burning devices in Building One comply
with all applicable federal, state, and municipal governmental or
quasi-governmental bodies having jurisdiction as well as any applicable
insurance or fire underwriter requirements. Where required, all heating devices
<PAGE>
have been properly upgraded to comply with all pollution control laws, orders,
rules and regulations, and certificates of operation current as of the Closing
Date will be delivered to Purchaser;
16.1.18. There are no tenancies affecting the Premises other than those
occupancies identified in the Permitted Exceptions;
16.1.19. The Premises consist of two (2) parcels and there is sufficient
parking with respect to Building One to meet all applicable zoning or other
codes;
16.1.20. Purchaser shall have for itself, its successors and assigns,
unrestricted access by foot or by any vehicle to and from the Premises, to and
from any all unrestricted access streets, highways, alleys and ways bordering
the Premises;
16.1.21. To Seller's knowledge, there are no options or rights of first refusal
affecting the Premises or Seller's rights to complete the transactions
contemplated by this Agreement;
16.1.22. Seller has not received any written notice from any insurance company
requiring or recommending that Seller make any repairs or perform any work on
or at the Land or Building One, which has not been completed;
16.1.23. To Seller's knowledge, annexed hereto as Exhibit J is a true, accurate
and complete copy of the Certificate of Occupancy in Seller's possession for
Building One;
16.1.24. To Seller's knowledge, annexed hereto as Exhibit K is a true, accurate
and complete schedule of the permits and licenses (collectively, "Permits") in
Seller's possession for Building One. To Seller's knowledge, Seller has
received no notice of revocation, which revocation has not been cured or
rescinded, from any issuer of a Permit, and, Seller has no knowledge of any
facts which would lead Seller to believe that said permits will not be
re-issued in the ordinary course;
16.1.25. That the rights of way for all roads necessary for the full
utilization of Building One for its current use has either been acquired by the
Seller, the appropriate governmental authority or have been dedicated for
public use and accepted by such governmental authority to assure the complete
construction and installation thereof prior to the date upon which access to
Building One via such roads shall be necessary. All curb cuts, driveway permits
and traffic signals necessary for access to Building One are existing or have
been fully approved by the appropriate government authority;
16.1.26. The Premises have not been acquired with any proceeds from a
transaction or activity that would cause the Premises to be subject to
forfeiture, and the Seller does not know of any act or omission by any prior
owner, that would cause the Premises to be subject to forfeiture pursuant to
any law, rule or regulation.
16.2. Purchaser hereby represents and warrants to Seller as follows:
16.2.1. Purchaser is a Limited Liability Company, duly organized, validly
existing and in good standing under the laws of the State of Delaware;
Purchaser has the power and authority to enter into this Agreement, to perform
its obligations hereunder and to consummate the transactions contemplated
herein; neither the execution and delivery hereof by Purchaser nor the
performance by Purchaser of Purchaser's obligations hereunder will violate or
<PAGE>
constitute an event of default under any material terms or material provision
of any decree to which Purchaser is a party or by which Purchaser is bound. No
petition in bankruptcy (voluntary or otherwise), assignment for the benefit of
creditors, or petition seeking reorganization or arrangement or other action
under federal or state bankruptcy laws is pending against or contemplated by
Purchaser;
16.2.2. All action required to be taken by or on behalf of Purchaser to
authorize Purchaser to execute and deliver this Agreement have been duly taken
and all action required to be taken by or on behalf of Purchaser to authorize
Purchaser to carry out the terms of this Agreement and the transactions
contemplated hereby; including assumption of the Installment Sale Agreement and
the IDA Loan represented thereby, pursuant to the terms of the Key Term Sheet,
will be taken not later than July 6, 1999, subject to extension at the option
of the Purchaser, which extension shall not exceed two (2) weeks. No consent to
the execution, delivery and performance of this Agreement by Purchaser is
required from any partner, member, board of directors, shareholder, creditor,
investor, judicial or administrative body, Governmental Authority or other
Person, other than any such consents which already have been unconditionally
given. This Agreement is a valid and binding obligation of Purchaser,
enforceable in accordance with its terms, except as the same may be affected by
bankruptcy, insolvency, moratorium or similar laws, or by legal or equitable
principles relating to or limiting the rights of contracting parties generally.
16.2.3. This Agreement is in all respects a valid and legally binding
obligation, enforceable in accordance with its respective terms;
16.2.4. The execution and delivery of this Agreement by the Purchaser does not,
and the performance and observance by the Purchaser of its obligations
thereunder will not, contravene or result in a breach of (i) the Purchaser's
certificate of formation or operating agreement; (ii) any governmental
requirements, or (iii) any decree or judgment binding on the Purchaser. The
execution and delivery hereof and the performance by Purchaser of its
obligations hereunder will not violate or constitute an event of default under
any material term or material provision of any agreement, document, instrument,
judgment, order or decree to which Purchaser is a party or by which Purchaser
is bound. No petition in bankruptcy (voluntary or otherwise), assignment for
the benefit of creditors, or petition seeking reorganization or arrangement or
other action under federal or state bankruptcy laws is pending against or
contemplated by Purchaser;
16.2.5. There are no legal actions, suits, or other legal or administrative
proceedings, pending or, to the best of Purchaser's knowledge, threatened
against or affecting Purchaser, or affecting the validity or enforceability of
the Agreement or which will affect the Purchaser's ability to carry-out its
obligations under this Agreement, at law or in equity or before or by any
government authority. Purchaser is not aware of any facts presently existing or
which, with the passage of time or the giving of notice, or both, that might
result in any such action, suit or other proceeding, except as disclosed to
Purchaser.
16.3 On the Closing Date, Seller shall tender possession of the Premises to
Purchaser in accordance with this Agreement.
16.4. Seller covenants and agrees that from and after the date of this
Agreement until the Closing Date or earlier termination of this Agreement:
16.4.1 Seller will not, without the prior written consent of Purchaser, enter
into any new employment, management, service, maintenance or union agreements
<PAGE>
relating to the Premises or renew or extend any contracts, unless such new
agreements and such contracts, as renewed or extended, will be cancelable by
Purchaser on not more than thirty (30) days prior notice without any costs for
such cancellation;
16.4.2. No alterations to the physical condition of the Premises will be made
without the prior written consent of Purchaser, except for (a) work required
(if any) to be performed by Seller at the request of Purchaser, and (b)
restoration work in connection with a casualty;
16.4.3. All necessary diligence will be used to keep in full force and effect
(or to renew, when necessary) all Permits, except Permits in the control or the
responsibility of the Purchaser;
16.4.4. Seller shall promptly notify Purchaser of any written notices received
by Seller from any governmental authority regarding the violation of any law
relating to Building One.
17. INDEMNIFICATION, SUBROGATION
17.1(a) The Seller shall at all times prior to the Closing Date protect and
hold the Purchaser and any director, member, officer, employee, servant or
agent thereof and persons under the Purchaser's control or supervision
(collectively, the "Purchaser's Indemnified Parties" and each a "Purchaser
Indemnified Party") harmless of, from and against any and all claims (whether
in tort, contract or otherwise), demands, expenses and liabilities for losses,
damage, injury and liability of every kind and nature and however caused, and
taxes (of any kind and by whomsoever imposed), resulting from, arising out of
or in any way related to the breach by Seller of its representations and
warranties set forth in this Agreement, other than, with respect to each
Purchaser Indemnified Party, losses arising from the gross negligence or
willful misconduct of such Purchaser Indemnified Party. The Purchaser's
Indemnified Parties, jointly or severally, shall not be liable for any damage
or injury to the person or property of the Seller or its respective directors,
officers, partners, employees, agents or servants or persons under the control
or supervision of the Seller or any other Person who may be about the Premises,
due to any breach by Seller of its representations and warranties set forth
herein, other than, with respect to any Purchaser Indemnified Party, the gross
negligence or willful misconduct of such Purchaser Indemnified Party. Each
Purchaser Indemnified Party, as the case may be, shall promptly notify the
Seller in writing of any claim or action brought against such Purchaser
Indemnified Party in which indemnity may be sought against the Purchaser
pursuant to this Section; such notice shall be given in sufficient time to
allow the Purchaser to defend or participate in such claim or action, but the
failure to give such notice in sufficient time shall not constitute a defense
hereunder nor in any way impair the obligations of the Seller under this
Section.
(b) The indemnification and protections set forth in this Section shall be
extended to the Purchaser and its members, directors, officers, employees,
agents and servants and persons under the Purchaser's control or supervision.
17.2(a) The Purchaser shall at all times prior to the Closing Date protect and
hold the Seller and any director, member, officer, employee, servant or agent
thereof and persons under the Seller's control or supervision (collectively,
the "Seller's Indemnified Parties" and each a "Seller Indemnified Party")
harmless of, from and against any and all claims (whether in tort, contract or
otherwise), demands, expenses and liabilities for losses, damage, injury and
liability of every kind and nature and however caused, and taxes (of any kind
<PAGE>
and by whomsoever imposed), resulting from, arising out of or in any way
related to the breach by Purchaser of its representations and warranties set
forth in this Agreement, other than, with respect to each Seller Indemnified
Party, losses arising from the gross negligence or willful misconduct of such
Seller Indemnified Party. The Seller's Indemnified Parties, jointly or
severally, shall not be liable for any damage or injury to the person or
property of the Purchaser or its respective directors, officers, partners,
employees, agents or servants or persons under the control or supervision of
the Purchaser or any other Person who may be about the Premises, due to any
breach by Purchaser of its representations and warranties set forth herein,
other than, with respect to any Seller Indemnified Party, the gross negligence
or willful misconduct of such Seller Indemnified Party. Each Seller Indemnified
Party, as the case may be, shall promptly notify the Purchaser in writing of
any claim or action brought against such Seller Indemnified Party in which
indemnity may be sought against the Seller pursuant to this Section; such
notice shall be given in sufficient time to allow the Seller to defend or
participate in such claim or action, but the failure to give such notice in
sufficient time shall not constitute a defense hereunder nor in any way impair
the obligations of the Purchaser under this Section.
(b) The indemnification and protections set forth in this Section shall be
extended to the Seller and its members, directors, officers, employees, agents
and servants and persons under the Seller's control or supervision.
17.3 A waiver of subrogation shall be obtained by the Seller from its
insurance carrier and, consequently, the Seller waives any and all right to
claim or recover against Purchaser, its officers, employees, agents and
representatives, for loss of or damage to the Seller, the Premises, the
Seller's property or the property of others under the Seller's control from any
cause insured against or required to be insured against by the provisions of
this Agreement.
18. TIME OF ESSENCE. Time is of the essence with respect to each and every
covenant, agreement and obligation of the Seller under this Agreement, subject
to Purchaser's right to extend the Closing Date to a date no later than July
__, 1999 as specifically set forth in Paragraph 8 herein.
19. NOTICES. Any notice or demand which either party hereto is required or
may desire to give or deliver to or make upon the other party shall be in
writing and may be personally delivered or given or made by overnight courier
such as Federal Express, by facsimile transmission addressed as follows:
TO SELLER: Mechanical Technology Incorporated
968 Albany-Shaker Road
Latham, New York 12110
Attention: Cynthia Scheuer
TO PURCHASER: Plug Power, L.L.C.
968 Albany-Shaker Road
Latham, New York 12210
Attention: Gary Mittleman
and one copy to: Plunkett & Jaffe, P.C.
111 Washington Avenue
Albany, New York 12210
Attention: John S. Harris, Esq.
(518) 462-1800
(518) 462-4875 (FAX)
<PAGE>
subject to the right of either party to designate a different address for
itself by notice similarly given. Any notice or demand so given shall be deemed
to be delivered or made on the next business day or if sent by overnight
courier, or the same day as given if personally delivered or if sent by
facsimile transmission and received by 5:00 p.m. Eastern Standard Time. Any
such notice, demand or document may be given by each party's attorneys.
20. EXECUTION OF AGREEMENT AND LEASE. Purchaser will execute two (2) copies
of this Agreement, and forward them to Seller for execution. Seller will
forward one (1) copy of the executed Agreement to Purchaser.
21. GOVERNING LAW. The provisions of this Agreement shall be governed by
the laws of the State of New York.
22. ENTIRE AGREEMENT. This Agreement constitutes the entire agreement
between the parties and supersedes all other negotiations, understandings and
representations made by and between the parties and the agents, servants and
employees.
23. COUNTERPARTS. This Agreement may be executed in multiple counterparts,
each of which shall be deemed an original but all of which shall constitute one
and the same instrument.
24. CAPTIONS. Paragraph titles or captions contained herein are inserted as
a matter of convenience and for reference, and in no way define, limit, extend
or describe the scope of this Agreement or any provision hereof.
25. AMENDMENT. No provision of this Agreement or of any documents or
instruments entered into, given or made pursuant to this Agreement may be
amended, charged, waived, discharged, or terminated except by an instrument in
writing signed by the party against whom enforcement of the amendment, change,
waiver, discharge or termination is sought.
26. PARTIES. The covenants and agreements herein contained shall extend to
and be obligatory upon the heirs, executors, administrators, successors and
assigns of the respective parties hereto.
27. NUMBER AND GENDER OF WORDS. Words of any gender used in this Agreement
shall be held and construed to include any other gender , and words of a
singular number shall be held to include the plural and vice versa, unless the
context requires otherwise.
28. THIRD PARTIES. Nothing in this Agreement, express or implied, is
intended to confer upon any person, other than the parties hereto and their
respective heirs, executors, administrators, successors and assigns, any rights
or remedies under or by reason of this Agreement.
<PAGE>
29. FURTHER ASSURANCE. Each of Seller and Purchaser will, at any time and
from time to time after the Closing Date, upon the request of the other,
execute, acknowledge and deliver or will cause to be done, executed,
acknowledged and delivered all such further acts, deeds, assignments,
transers, conveyance, and assurance as may reasonably be required to
consummate the transactions described herein. The provisions of this Paragraph
shall survive the Closing.
30. EXHIBITS. All exhibits described in this Agreement and attached hereto
are by this reference incorporated fully herein. The term "this Agreement"
shall be considered to include all such exhibits.
31. SEVERABILITY. If any provision of this Agreement is held to be illegal,
invalid or unenforceable under present or future laws, such provisions shall be
fully severable; this Agreement shall be construed and enforced as if such
illegal, invalid or unenforceable provisions had never comprised a part of this
Agreement; and the remaining provisions of this Agreement shall remain in full
force and effect and shall not be affected by the illegal, invalid or
unenforceable provision or buy it severance from this Agreement. Furthermore,
in lieu of such illegal, invalid, or unenforceable provision, there shall be
added automatically as a part of this Agreement a provision as similar in terms
to such illegal, invalid or unenforceable provision as may be possible and be
legal, valid and enforceable.
32. INTERPRETATION. The parties agree that each party and its counsel have
reviewed and revised this Agreement and that the normal rule of construction to
the effect that any ambiguities are to be resolved against the drafting party
shall not be employed in the interpretation of this Agreement or any amendments
hereto.
33. NO WAIVER. No failure of any party to exercise any power given such
party hereunder to insist upon strict compliance by the other party with its
obligations hereunder shall constitute a waiver of such party's right
thereafter to demand strict compliance with the terms of this Agreement.
34. ATTORNEYS' FEES. In the event of a dispute in connection with this
Agreement involving an action for damages in which the prevailing party
recovers a final judgment, the prevailing party shall be entitled to reasonable
attorneys' fees and all other expenses of litigation, up to an aggregate
maximum amount of $100,000.00 for all actions for damages arising under this
Agreement, and the attorneys' fees and all other expenses of litigation shall
be included in and made part of any such judgment.
35. WAIVER OF JURY TRIAL. The Seller hereby waives trial by jury in any
litigation in any court with respect to, in connection with, or arising out of
this Agreement, or any instrument or document delivered in connection with the
transaction, or the validity, protection, interpretation, collection or
enforcement thereof, or the relationship between the Seller and Purchaser, or
any other claim or dispute howsoever arising between the Seller and Purchaser.
<PAGE>
IN WITNESS WHEREOF, Seller and Purchaser respectively have signed this
Agreement, and this Agreement is effective as of the date first written above.
MECHANICAL TECHNOLOGY INCORPORATED
By:
Name: Cynthia A. Scheuer
Title: Vice President and Chief Financial Officer
PLUG POWER, L.L.C.
By:
Name: Gary Mittleman
Title: President and Chief Executive Officer
STATE OF NEW YORK )
) ss.:
COUNTY OF ALBANY )
On this 23rd day of June in the year 1999 before me, the
undersigned, a Notary Public in and for said State, personally appeared CYNTHIA
A. SCHEUER, personally known to me or proved to me on the basis of satisfactory
evidence to be the individual(s) whose name is (are) subscribed to the within
instrument and acknowledged to me that he/she/they executed the same in his/her/
their capacity(ies), and that by his/her/their signature(s) on the instrument,
the individual(s), or the person upon behalf of which the individual(s) acted,
executed the instrument.
______________________________
NOTARY PUBLIC
STATE OF NEW YORK )
) ss.:
COUNTY OF ALBANY )
On this 23rd day of June in the year 1999 before me, the undersigned, a
Notary Public in and for said State, personally appeared GARY MITTLEMAN,
personally known to me or proved to me on the basis of satisfactory evidence to
be the individual(s) whose name is (are) subscribed to the within instrument
and acknowledged to me that he/she/they executed the same in his/her/their
capacity(ies), and that by his/her/their signature(s) on the instrument, the
individual(s), or the person upon behalf of which the individual(s) acted,
executed the instrument.
______________________________
NOTARY PUBLIC
<PAGE>
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<FISCAL-YEAR-END> SEP-30-1999
<PERIOD-END> JUN-25-1999
<CASH> 3,188
<SECURITIES> 0
<RECEIVABLES> 3,338
<ALLOWANCES> 84
<INVENTORY> 4,071
<CURRENT-ASSETS> 11,696
<PP&E> 14,545
<DEPRECIATION> 7,828
<TOTAL-ASSETS> 24,568
<CURRENT-LIABILITIES> 3,630
<BONDS> 0
0
0
<COMMON> 10,828
<OTHER-SE> 3,788
<TOTAL-LIABILITY-AND-EQUITY> 24,568
<SALES> 8,609
<TOTAL-REVENUES> 8,609
<CGS> 5,622
<TOTAL-COSTS> 9,939
<OTHER-EXPENSES> 6,826
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<INTEREST-EXPENSE> 101
<INCOME-PRETAX> (8,257)
<INCOME-TAX> 37
<INCOME-CONTINUING> (8,294)
<DISCONTINUED> 41
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> (8,253)
<EPS-BASIC> (.76)
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