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EXHIBIT 99
AGREEMENT ENGAGING THE SERVICES OF
DOMINION BRIDGE CORP. AS INTERIM MANAGER
The New World Power Corporation ("the Company") a Delaware
corporation with its principal offices located at 000 Xxxx Xxxx Xxxx, Xxxx Xxxx,
Xxxxxxxxxxx 00000, wishes to engage professional management assistance to
provide general management of the Company's operating and business affairs, and
to assist the Company to the extent possible in seeking and finding solutions to
certain problems within the sphere of management direction and planning.
The Company hereby agrees to engage Dominion Bridge Corporation
("Dominion Bridge") a Delaware corporation, with its principal offices located
at 000, Xxxxx Xxxx Xxxxxx, Xxxxxxx, Xxxxxx, Xxxxxxxx, Xxxxxx, for the purpose of
assisting in managing the Company during the critical period ahead, and
implementing the business plan of the Company adopted by the Board of Directors
and as amended from time to time by the Board of Directors. Dominion Bridge will
provide Xxxxxxx Xxxxxxxxx as Consultant to the Company, and Xxxxxx Xxxxxx to
serve as Interim Chief Executive Officer, both reporting to the Board of
Directors of the Company, subject to the following terms and conditions.
Dominion Bridge may provide other personnel from time to time as required during
the course of the assignment, and as approved by the Board of Directors.
1. Dominion Bridge shall have full access to all personnel and a
relationship with the entire internal organization. The relationship of Dominion
Bridge to the Company shall at all times be that of an independent contractor.
While the Company shall retain the right to dictate the results of Dominion
Bridge's work as contemplated by this Agreement, it is expressly understood that
the Company shall have no right to control the manner and/or means by which
Dominion Bridge achieves these results. It is also expressly understood that
Dominion Bridge shall have no
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right to hire, fire, or discipline any of the Company's employees, or otherwise
in any way to control the manner and means by which any employees of the Company
perform their work, shall have no obligations of any kind to such employees,
including any obligation to contribute to such employees' compensation or fringe
benefits, may under no circumstances be regarded or treated as an "employer" or
"joint-employer" of such employees. Dominion Bridge shall have no authority to
legally bind the Company in any matter whosoever, except as specified herein.
Dominion Bridge may, in the performance of its duties, negotiate on behalf of
Company with various parties, including, but not limited to creditors,
stockholders, and employees of the Company, and governmental entities, but
unless authorized in writing by the Board of Directors or the Executive
Committee of the Company, in no case shall Dominion Bridge have any authority or
be under any duty whatsoever to execute documents in the name of or on behalf of
Company with respect to such negotiations or the transactions contemplated
therein.
2. Dominion Bridge shall review all financial and operating
policies, plans and programs and, except as set out in paragraph 6 herein, shall
participate in any major decision which might have a significant impact on such
policies.
3. Dominion Bridge shall be subject to the control of the Board of
Directors of the Company. Except for such control, Dominion Bridge shall not be
subject to the control of any other person or persons.
4. Dominion Bridge shall be compensated for its services under this
Agreement at the rate of ten thousand dollars ($10,000) per week for Xxxxxxxx
Xxxxxxxxx and Xxxxxx Xxxxxx, plus out-of-pocket expenses incurred by Dominion
Bridge, Xxxxxxx Xxxxxxxxx, Xxxxxx Xxxxxx, and any other personnel or
representative of Dominion Bridge (previously approved by the New World
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Board of Directors), including legal expenses incurred by Dominion Bridge
in respect of this Agreement. At the option of New World, New World may pay the
foregoing compensation forty percent (40%) in cash and sixty percent (60%) in
shares of New World stock. The value of the New World stock for such purposes
shall be the average price at which such stock has traded over the prior thirty
(30) days covering the invoice period. In the event that the stock does not
trade for the full thirty (30) days, the average price shall be based don the
actual number of trading dates, and if the stock fails to trade at all, due to
delisting or other events, the price shall be determined by an independent
expert reasonably acceptable to the Company and Dominion. By signing this
Agreement, Dominion Bridge stipulates that it will be receiving the stock for
investment purposes, and not with a view to distribution. Additional services
approved by New World under this Agreement will be provided at Dominion Bridge's
regular published rates, per the attached schedule. Fees and expenses shall be
billed monthly, and all invoices shall be due and payable upon receipt.
5. In addition to the foregoing compensation, Dominion Bridge shall
be entitled to receive upon execution of this Agreement options covering one
hundred thousand (100,000) shares of the Company's common stock at the option
price of 9/16th's per share. These options shall be exercisable at any time
within three (3) years of the execution of this Agreement. As a performance
bonus, Dominion Bridge shall also be entitled to receive thirty-seven thousand
five hundred dollars ($37,500), (payable as set out below) for each one quarter
point increase in the price of the Company's stock based on trades reported on
the NASDAQ exchange. The starting price for purposes of this calculation shall
be the closing price of the New World stock on the date of execution of this
Agreement. This performance bonus shall be payable twenty-five
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percent (25%) in cash, and seventy-five percent (75%) in additional shares of
the Company. For purposes of valuing the shares utilized to pay the portion of
the performance bonus payable in stock, the Company shall utilize the average
price reported by NASDAQ over the prior thirty (30) days. For each share of
stock which is issued to Dominion Bridge to cover that portion of the
performance bonus payable in stock, Dominion Bridge shall be entitled to an
option covering one additional share where the option price shall be the average
of the trading prices over the thirty (30) days prior to the date the
performance bonus is earned. The supplemental options shall be exercisable
within three years of issuance.
6. Both the Company and Dominion Bridge acknowledge that the Company
is currently considering forming a limited liability company in which Dominion
Bridge will be a fifty percent (50%) owner. The parties have executed a term
sheet setting out the key provisions, but further negotiations will be necessary
over the next forty five (45) days in order to reach a binding operating
agreement. To avoid any appearance of a conflict of interest, Dominion Bridge
shall recuse itself from any representation of the Company in such negotiations,
and all such negotiations on behalf of the Company shall be conducted by an
independent consultant to be retained by the Board of Directors, as assisted by
the Company's outside counsel. In addition, Dominion Bridge shall recuse itself
from participation in any other matters involving Dominion Bridge and the
Company.
7. In consideration for Dominion Bridge undertaking to discharge its
responsibilities as set forth in this Agreement, the Company:
(a) Shall and does hereby forever release, remise and
discharge Dominion Bridge and its officers, employees, agents, attorneys and
representatives from any and all actions,
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claims, demands, damages or liabilities whatsoever, whether direct or derivative
in law or in equity, which the Company may have against any of them as a result
of any act or failure to act in what they in good faith believed to be in the
best interests of the Company, arising out of any action taken pursuant to this
Agreement.
(b) Shall indemnify and hold harmless Dominion Bridge and
its officers, employees, agents, attorneys and representatives against any and
all actions, claims, demands, damages or liabilities, whatsoever, whether direct
or derivative, in law or in equity, to which any of them may become subject
insofar as any such actions, claims, demands, damages or liabilities arise out
of or are based upon any alleged action taken by them or any alleged failure to
act in what they in good faith believed to be in the best interests of the
Company, pursuant to this Agreement. The Company shall reimburse Dominion Bridge
and its officers, employees, agents, attorneys or representatives for any legal
or other expenses that any of them may reasonably incur, through counsel or of
their own choice or otherwise in connection with investigating, defending or
settling any such action, claims or demand, as such expenses are incurred. Any
right of indemnification provided under this paragraph 7(b) shall be
supplemental to any rights of indemnification to which Dominion Bridge, its
officers, employees, agents, attorneys and representatives may be entitled under
the Company's articles, by-laws, contracts of insurance or under any applicable
law.
(c) Without limiting the foregoing, the Company shall
indemnify, defend and hold harmless Dominion Bridge, its employees, officers,
directors, subsidiaries, affiliates, shareholders, contractors, consultants and
agents (such persons hereinafter referred to "Indemnitees") from any claim,
suit, proceeding, award, damages, liability, judgment, penalty,
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fine, assessment or any loss or expense (collectively "claims"), resulting from
any alleged violation of any environmental law, regulation, rule, permit or
policy of any country, state, province, municipality, locality, board, agency,
authority, compact or commission, including but not limited to the Comprehensive
Environmental Response, Compensation and Liability Act, as amended (42 U.S.C.
Sections 9601 et. seq.) or any claims alleging or arising out of the release or
disposal of any Hazardous Substance at, in, on, or under property owned, leased,
used or operated by the Company, now, in the past or future.
For the purpose of this paragraph "Hazardous Substance" shall mean
any hazardous or toxic material, constituents, substances, petroleum products
(including crude oil or a fraction thereof, as defined or regulated as such in
or under any environmental law).
8. Representations and Warranties of the Company. The Company
hereby represents to Dominion Bridge that:
(a) Corporate Existence. The Company is a corporation
duly organized and validly existing, under the laws of the State of Delaware,
with corporate power to own property and carry on its business as it is now
being conducted.
(b) No Conflict. This Agreement has been duly executed by
the Company and the execution and performance of this Agreement will not
violate, or result in a breach of, or constitute a default in any agreement,
instrument, judgment, decree or order to which the Company is a party or to
which the Company is subject, nor will such execution and performance constitute
a violation or conflict of any fiduciary duty to which the Company is subject.
(c) Authority. The Company has the full legal right,
power, authority and approval required to enter into, execute and deliver this
Agreement and to fully perform all of its
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obligations hereunder. The execution and performance of this Agreement have been
duly authorized by all requisite corporate action. This Agreement constitutes a
valid and binding obligation of the parties hereto.
(d) Share Issuance. The shares of the Company to be
issued in connection with this Agreement, and the shares issued upon exercise of
the options which may be granted under this Agreement, upon issuance, will be
validly issued, fully-paid and non-assessable.
9. Representations and Warranties of Dominion Bridge. Dominion
Bridge hereby represents to the Company that:
(a) Subsequent Events. Except as set forth in this
Agreement, Dominion Bridge will notify the Company if, subsequent to the date
hereof, either party incurs obligations which would compromise its efforts and
obligations under this Agreement.
(b) Authority. Dominion Bridge has the full legal right,
power, authority and approval required to enter into, execute and deliver this
Agreement and to fully perform all of its obligations hereunder. The execution
and performance of this Agreement have been duly authorized by all requisite
corporate action. This Agreement constitutes a valid and binding obligation of
the parties hereto.
10. Non-Exclusive Services. The Company acknowledges that Dominion
Bridge, and any individual or entity provided by Dominion Bridge to perform the
services contemplated hereunder, may currently be providing services of the same
or similar nature to other parties and the Company agrees that Dominion Bridge,
or such other party, is not prevented or barred from rendering services of the
same nature or a similar nature to any other individual or entity, provided
however, Dominion Bridge agrees not to undertake any actions or services on
behalf of
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an individual or entity in direct competition with the Company and Dominion
Bridge agrees that it will not undertake any actions or services that will
unreasonably interfere with the business or operations of the Company. Dominion
Bridge will advise the Company of its position with respect to any activity,
employment, business arrangement or potential conflict of interest which may be
relevant to this Agreement.
11. All Prior Agreements Terminated. This Agreement constitutes the
entire understanding of the parties with respect to the engagement of Dominion
Bridge for the services set forth in this Agreement and all prior agreements and
understandings with respect thereto are hereby terminated and shall be of no
force or effect.
12. Registration Rights. The Company and Dominion Bridge agree to,
using their best efforts, as soon as practicable upon execution of this
Agreement, to enter into a Registration Rights Agreement containing provisions
for the registration of the shares of Common Stock of the Company which may be
issued hereunder, on terms consistent with the registration rights currently
being provided by the Company. The Company and Dominion Bridge agree that the
Registration Rights Agreement entered into hereunder shall contain a provision
to the effect that notwithstanding anything else contained in the Registration
Rights Agreement, the Company shall not be obligated to register any shares
pursuant to the Registration Rights Agreement until the earlier of: (i) the date
of the triggering of the registration rights covered by existing option
agreements previously granted by the Company prior to the date of this Services
Agreement; (ii) the effective date of a significant recapitalization of the
Company; or (iii) May 2, 1997.
13. This engagement of Dominion Bridge shall continue at the
pleasure of the Company's Board of Directors, and may be terminated at any time
by resolution of the Board of
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Directors, a certified copy of which shall be delivered to Dominion Bridge.
Dominion Bridge shall have the option to terminate its employment at any time
upon notification to the Board of Directors of its desire to terminate.
14. Mutual Cooperation. The parties hereto shall cooperate with each
other to achieve the purpose of this Agreement, and shall execute such other and
further documents and take such other and further actions as may be necessary to
effect the transactions described herein.
15. The Company represents and warrants that:
(a) It has all necessary governmental approvals to own,
operate and conduct its business as contemplated;
(b) No approvals by any person or governmental authority
are required for the execution, delivery and performance of this Agreement; and
(c) The execution, delivery and performance of this
Agreement will not resulting any breach of any agreement, contract, instrument
or undertaking to which the company or any affiliate of the Company is a party,
including but not limited to any agreement for the purchase and sale of
electricity.
16. Neither Dominion Bridge, nor its officers, agents, directors or
employees shall have any responsibility for or any authority over the refuse or
waste disposal practices or policies of the Company.
AGREED AND ACCEPTED:
THE NEW WORLD POWER CORPORATION DOMINION BRIDGE CORPORATION
By:_________________________________ By:_______________________________
Its:_________________________________ Its:______________________________
Date:________________________________ Date:_____________________________
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RATE SCHEDULE
EFFECTIVE AUGUST 1, 1996
Executive Manager $200 - $250 per hour
Senior Engineer $150 - $200 per hour
Project Developer $100 - $150 per hour
Accounting/Finance Personnel $75 - $125 per hour
Clerical/Administrative $35 - $60 per hour
Out-of-Pocket Expenses At Cost
