CONTINGENT SETTLEMENT & STANDSTILL AGREEMENT
CONTINGENT
SETTLEMENT & STANDSTILL AGREEMENT
This
CONTINGENT SETTLEMENT & STANDSTILL AGREEMENT, dated as of July 1, 2010 (this
“Agreement”),
among GCA I Acquisition Corp., a Delaware corporation (“Parent”), Xxxxx
Energy Acquisition Corp., a Delaware corporation and a direct, wholly-owned
Subsidiary of Parent (“Merger Sub”), Xxxxx
Energy Systems, Inc., a Delaware corporation (the “Company”), Xxxxxx X.
Xxxxxx, the President, Chief Executive Officer, and a principal shareholder of
the Company (the “Company Principal
Stockholder”), Xxxxxxx Xxxxxxxx, the sole officer and director of each of
Parent and Merger Sub, and one of the two record holders of Parent common stock
as of the date hereof (“Membrado”), and
Xxxxxxxx Xxx, the other of the two record holders of Parent common stock as of
the date hereof (“Xxx”) (Parent, Merger
Sub, Company, Company Principal Stockholder, Membrado and Xxx may hereinafter be
referred to individually as a “Party” or
collectively as the “Parties”).
WHEREAS,
Parent, Merger Sub, the Company and the Company Principal Stockholder entered
into a certain amended and restated agreement and plan of merger as of March 27,
2009, a copy of which is annexed hereto as Exhibit A (the “Merger Agreement”)
pursuant to which, subject to certain conditions, Merger Sub was to merge with
and into the Company thereby causing the Company to become a wholly-owned
subsidiary of Parent (the “Merger”);
WHEREAS,
contemporaneously and in connection with the execution of the Merger Agreement,
the Company Principal Stockholder entered into an amended and restated voting
agreement with Parent a copy of which is annexed
hereto as Exhibit B (the “Voting Agreement”);
and
WHEREAS, each of the Company, the
Company Principal Stockholder, and Parent mutually acknowledge and agree that,
in accordance with Section 10.8 of the Merger Agreement, the Company currently
owes to Parent two hundred eighty-seven thousand eighty-four and 64/100 dollars
(USD$287,084.64) (the “Section 10.8 Preexisting
Obligation”), and that such amount represents the entirety of any and all
amounts due Parent or any other parties by the Company or any other parties
under Section 10.8 of the Merger Agreement as of the date hereof;
WHEREAS, certain disagreements have
arisen between and among certain of the Parties that are believed by such
Parties to be actionable against one another;
WHEREAS,
it is the contention of Parent and Merger Sub that certain covenants under
Sections 6.1 and 7.3 of the Merger Agreement have been breached by the Company
and the Company Principal Stockholder, and that, on the basis thereof, as well
as other alleged facts, Parent and Merger Sub are prepared to initiate and
pursue a claim against the Company and the Company Principal Stockholder under,
inter alia, Section
10.10 of the Agreement to seek injunctive relief and specific performance and to
recover related money damages (“Parent’s Cause of
Action”);
WHEREAS, the Company and the Company
Principal Stockholder now desire to terminate each of the Merger Agreement and
the Voting Agreement for all purposes and, rather than merge with Parent and
Merger Sub as contemplated by the Merger Agreement, acquire for cash all of the
shares of outstanding capital stock of Parent and Merger Sub
instead;
WHEREAS, Parent currently has
outstanding five million (5,000,000) shares of common stock, par value $.0001
per share (the “Parent
Common Stock”), held in equal amounts by Membrado and Xxx (2,500,000
shares each) and no other shares of capital stock or other
securities;
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WHEREAS, the Parent and Merger Sub are
willing to terminate the Merger Agreement to the extent that (i) until such time
as any such termination be deemed effective, the Company continues to maintain
responsibility for and pay to the Parent on a demand basis all obligations
arising under Section 10.8 of the Merger Agreement in order that, inter alia, the Parent remain
current in its periodic reporting requirements under the Securities Exchange Act
of 1934, as amended (the “Exchange Act”)
(collectively, the “Section 10.8 Further
Obligations”, and, together with the Section 10.8 Preexisting Obligation,
the “Section 10.8
Obligations”), (ii) the Company satisfy in whole the Section 10.8
Preexisting Obligations, (iii) Parent be given a reasonable period of time
following receipt of funds from the Company representing payment for the Section
10.8 Obligations to satisfy all then-outstanding obligations, and (iv) the
Company acquire all of the outstanding Parent Common Stock from Membrado and Xxx
as more specifically set forth in this Agreement; and
WHEREAS, the Parent and Merger Sub are
willing to refrain from initiating Parent’s Cause of Action for a specified
period of time under certain conditions;
NOW,
THEREFORE, in consideration of the covenants, promises and representations set
forth herein, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Parties agree as
follows:
1. Recitals. The
recitals set forth above are hereby incorporated by reference into and made an
integral part of this Agreement for all purposes.
2. The Section 10.8
Obligations.
2.1 Satisfaction.
2.1.1 The Section 10.8 Preexisting
Obligations. The Company shall satisfy the Preexisting Section
10.8 Obligation by delivering to Parent the following amounts in
cash:
(i) fifty
thousand and 00/100 dollars ($50,000) (the “Section 10.8 Preexisting
Obligation Initial Payment”) contemporaneous with the execution of this
Agreement; and
(ii) the
balance of two hundred thirty-seven thousand eighty-four and 64/100 dollars
(USD$237,084.64) (the “Section 10.8 Preexisting
Obligation Balance Payment(s)”) as soon as possible but in no event later
than August 30, 2010.
2.1.2 The Section 10.8 Further
Obligations. Anything to the contrary contained in the Merger
Agreement notwithstanding, any Section 10.8 Further Obligations shall be paid by
the Company to the Parent within no more than three (3) business days following
notice and request for payment by the Parent to the Company (each, a “Section 10.8 Further
Obligation Payment”, and, collectively, the “Section 10.8 Further
Obligation Payments”).
2.2 Form and Delivery of
Payment. All payments made towards satisfaction of the Section 10.8
Obligations pursuant to Section 2.1 above shall be made by wire transfer and
directed to Parent’s only current bank account (the “Parent Account”)
pursuant to the following banking coordinates:
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Bank
Name:
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X.X.
Xxxxxx Chase
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Account
Holder:
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Account
#:
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6303922324
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ABA
#:
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000000000
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3. Share Conveyance &
Sale.
3.1 Price and Payment
Terms. The Company shall purchase and acquire, from each of
Membrado and Xxx, respectively, and each of Membrado and Xxx shall transfer,
convey and sell to the Company, two million five hundred thousand shares of
Parent Common Stock, representing in the aggregate one hundred percent (100%) of
the total issued and outstanding capital stock of Parent, for a price of 10/100
($0.10) per share, such amounts to be delivered by overnite courier to Membrado
and Xxx c/o Xxxxxxx Xxxxxxxx, 000 Xxx Xxxx Xxxx, Xxxxxxx Xxxxxxx, XX 00000-0000
in the form of bank cashier’s checks made payable to “XXXXXXX XXXXXXXX” and “DLG
MANAGEMENT, LLC”(which Xxx hereby acknowledges shall be deemed to constitute
payment to Xxx for all purposes hereunder), respectively, as
follows:
(i) a
fifty thousand and 00/100 dollar ($50,000) non-refundable down-payment (each,
individually, a “Share
Conveyance Down Payment” and, jointly, the “Share Conveyance Down
Payments”) contemporaneous with the execution of this Agreement;
and
(ii) the
balance of two hundred thousand and 00/100 dollars (USD$200,000.00) (each,
individually, a “Share
Conveyance Balance Payment” and, jointly, the “Share Conveyance Balance
Payments”) as soon as possible in one or more payments but in no event
later than September 15, 2010.
3.2 Certain Transactional
Mechanics & Related Rights.
3.2.1 Share Conveyance Down
Payments. Upon receipt by Membrado of the two certified checks
representing the Share Conveyance Down Payments, Membrado shall retain the one
payable to Membrado and immediately deliver to Xxx the one payable to Xxx, and
Membrado and Xxx shall have the right to deposit such checks
immediately.
3.2.2 Share Conveyance Balance
Payments and Closing. Upon receipt by Membrado of the
certified checks representing payment in full of the Share Conveyance Balance
Payments, Membrado shall retain such checks until (i) the Section 10.8
Obligations shall have been satisfied by the Company in full (if not already
satisfied in full), (ii) any funds then held in the Parent Account are disbursed
to and received by vendors of Parent and/or Merger Sub in order to meet then
outstanding obligations or are otherwise distributed to shareholders, and (iii)
the Parent Account has been closed out. Thereafter, Membrado shall
retain any Share Conveyance Balance Payment certified checks payable to Membrado
and immediately deliver to Xxx any payable to Xxx, and Membrado and Xxx shall
have the right to deposit such checks immediately; provided, however, that
Membrado shall have first delivered to the Company by overnite courier the
original Parent stock certificates numbers C-1 and C-2 (copies of which are
annexed hereto as Exhibits C and D respectively), duly endorsed over to the
Company, and thereafter received confirmation of the delivery thereof to the
Company (the receipt of such confirmation to be deemed the “Closing”, and the
date of such confirmation, if at all, to be deemed the “Closing
Date”).
3.2.3 All-or-Nothing
Conveyance. There shall be no transfer, conveyance or sale of
any shares of Parent Common Stock deemed for any purposes to have been
effectuated as a result of either or both of Membrado and/or Xxx receiving a
Share Conveyance Down Payment pursuant to Section 3.1(i) above, and no shares of
Parent Common Stock shall be deemed to have been conveyed by either Membrado or
Xxx to the Company pursuant to Section 3.1(i) above, unless and until the
Closing shall have occurred.
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3.3 The Company’s
Representations and Warranties. In connection with the share
conveyance, the Company and the Company Principal Stockholder hereby represent
and warrant to each of Parent, Merger Sub, Membrado and Xxx that each of the
following statements is correct and complete as of the date of this Agreement
and will be correct and complete as of the Closing Date (as though made then and
as though the Closing Date were substituted for the date of this
Agreement):
(i) The
Company has the full power and authority to enter into this Agreement and to
carry out its obligations hereunder.
(ii) This
Agreement has been duly executed and delivered by the Company and the Company
Principal Stockholder and is the legal, valid and binding obligation of the
Company and the Company Principal Stockholder, enforceable against the Company
and the Company Principal Stockholder in accordance with its terms.
(iii) The
Company is an accredited investor within the meaning of Rule 501 of Regulation D
under the Securities Act of 1933, as amended (the “Securities
Act”).
(iv) The
Company is acquiring the Parent Common Stock solely for its own account, for
investment purposes, and not with a view to the resale or distribution
thereof. Management of the Company, including the Company Principal
Stockholder, is aware that the shares of Parent Common Stock may only be
transferred or sold pursuant to an effective registration statement under the
Securities Act, including the rules and regulations promulgated thereunder, and
state securities laws, or an applicable exemption from registration
thereunder.
(v) Management
of the Company, including the Company Principal Stockholder, has such knowledge,
business and investment experience such that the Company is fully capable of
understanding the merits and risks associated with an investment in the Parent
Common Stock.
(vi) Management
of the Company, including the Company Principal Stockholder, has reviewed the
information concerning Parent presented in Parent’s periodic reports and
statements filed with the U.S. Securities and Exchange Commission, and has been
afforded an opportunity to ask any questions of Parent regarding Parent and
Merger Sub, including without limitation their respective businesses,
properties, financial conditions, SEC reports, and prospects, and to obtain
satisfactory answers thereto, and to verify and clarify the information relating
to Parent and Merger Sub, and, accordingly, management of the Company, including
the Company Principal Stockholder, is familiar with the business, properties,
management, financial condition and prospects of Parent and Merger
Sub.
(vii)
Except as otherwise specifically set forth in Sections 3.4.2 and 3.5.2, neither
Membrado nor Xxx are making any representations or warranties regarding Parent
or Merger Sub, including without limitation their respective businesses,
properties, financial conditions, SEC reports, or prospects, or the value of the
Parent Common Stock, and, except for those representations or warranties
specifically set forth in Sections 3.4.2 and 3.5.2, the Company is not relying
in any way on any representations or warranties made or to be made by either
Membrado or Xxx.
(viii) The
execution and delivery of this Agreement and the consummation of the
transactions contemplated herein will not conflict with or violate any law,
regulation, court order, judgment or decree applicable to either the Company or
the Company Principal Stockholder or any agreement to which Company or the
Company Principal Stockholder is a party.
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3.4 Membrado Representations and
Warranties.
3.4.1 As of Both The Date Hereof
and Closing. In connection with the share conveyance, Membrado
hereby represents and warrants to the Company that each of the following
statements is correct and complete as of the date of this Agreement and will be
correct and complete as of the Closing Date (as though made then and as though
the Closing Date were substituted for the date of this Agreement):
(i) Membrado
is the beneficial and record owner of two million five hundred thousand
(2,500,000) shares of the Parent Common Stock and has good and marketable title
to such shares, free and clear of all liens, claims, charges, security
interests, and encumbrances of any kind or nature.
(ii) This
Agreement has been duly executed and delivered by Membrado and is the legal,
valid and binding obligation of Membrado, enforceable against Membrado in
accordance with its terms.
3.4.2 As of the Closing
Only. Provided that the Company meets all of its
obligations under this Agreement, and to the extent that a Closing occurs,
Membrado shall be deemed to have represented and warranted to the Company each
of the following as of such Closing:
(i) Neither
Parent nor Merger Sub has any material liabilities.
(ii) Parent
is in material compliance with all of its reporting obligations under the
Exchange Act.
3.5 Xxx Representations and
Warranties.
3.5.1 As of Both The Date Hereof
and Closing. In connection with the share conveyance, Xxx
hereby represents and warrants to the Company that each of the following
statements is correct and complete as of the date of this Agreement and will be
correct and complete as of the Closing Date (as though made then and as though
the Closing Date were substituted for the date of this Agreement):
(i) Xxx
is the beneficial and record owner of two million five hundred thousand
(2,500,000) shares of the Parent Common Stock and has good and marketable title
to such shares, free and clear of all liens, claims, charges, security
interests, and encumbrances of any kind or nature.
(ii)
This Agreement has been duly executed and delivered by Xxx and is the legal,
valid and binding obligation of Xxx, enforceable against Xxx in accordance with
its terms.
3.5.2 As of the Closing
Only. Provided that the Company meets all of its obligations
under this Agreement, and to the extent that a Closing occurs, Xxx shall be
deemed to have represented and warranted to the Company each of the following as
of such Closing:
(i) Neither
Parent nor Merger Sub has any material liabilities.
(ii)
Parent is in material compliance with all of its reporting obligations under the
Exchange Act.
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3.6 Post-Closing Date
Matters. As soon as practicable following the Closing Date,
Membrado shall forward or cause to be forwarded to the Company or its counsel
(as directed by the Company) at the expense of the Company paid in advance to
Membrado any and all original corporate records and documentation relating to
Parent and Merger Sub and file or cause to be a filed an IRS Form 8822 notifying
the IRS of the change in ownership of the Parent Common Stock and address of
Parent and Merger Sub.
4. Standstill.
4.1 Generally. Provided
that the Section 10.8 Preexisting Obligation Initial Payment, the two (2) Share
Conveyance Down Payments, the Section 10.8 Further
Obligation Payments, and the Section 10.8 Preexisting Obligation Balance
Payments are all duly received by Parent in accordance with the express terms of
Sections 2 and 3 of this Agreement above, respectively, Parent and Merger Sub
shall refrain from taking any action or causing to occur any action that will
result in the filing and commencement of Parent’s Cause of Action (the “Standstill”).
4.2 Lifting of Standstill and
Resumption of Rights. In the event that the Share Conveyance
Balance Payment(s) are not both duly received by Membrado on behalf of Membrado
and Xxx in accordance with the express terms of Section 3 of this Agreement,
Parent and Merger Sub shall immediately resume their rights to file and commence
Parent’s Cause of Action, and neither the Company nor the Company Principal
Stockholder shall have any right of set-off or counterclaim for any amounts
previously paid hereunder or to compel specific performance of the share
conveyance transactions contemplated hereunder.
4.3 Tolling of Statute of
Limitations. Any and all applicable statutes of limitations
that apply to Parent’s Cause of Action shall be deemed for all purposes to have
been tolled for the duration of any Standstill.
5. Conditional Termination of
Merger Agreement. In the event that the Closing occurs in
accordance with the provisions of Section 3 of this Agreement, the following
shall immediately occur without any required action on the part of the Company
or the Company Principal Stockholder:
(i) the
Merger Agreement shall be deemed to have been terminated for all purposes
pursuant to Section 9.1(a) of the Merger Agreement;
(ii) the
Voting Agrement shall be deemed to have been terminated for all purposes by
agreement of the parties thereto; and
(iii) Membrado
shall be deemed to have resigned, effective immediately, from all positions then
held as an officer and director of each of Parent and Merger Sub.
6. Releases.
6.1 Membrado. As
and after any Closing, if at all, and except as otherwise expressly set forth in
this Agreement, Parent and the Company and the Company Principal Stockholder
shall have forever released and discharged Membrado, his heirs, legal
representatives, and any entities in which he or they shall have had or shall
thereafter have an interest, from any and all debts, obligations, agreements,
claims, cause or causes of action, damages, judgments, and demands whatsoever,
at law or in equity, which it shall have then had, or thereafter can, shall, or
may have, by reason of any matter dating back indefinitely to the point of any
Closing, including without limitation any right to make any claim against
Membrado for any economic losses incurred by the Company or any third parties at
any time after the Closing which losses shall have been attributable to any
decline in the market value of Parent Common Stock from and after the
Closing.
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6.2 Xxx. As
and after any Closing, the Company releases and forgoes any right to make any
claim against Xxx for any economic losses incurred by the Company at any time
after the Closing which losses shall have been attributable to any decline in
the market value of Parent Common Stock from and after the Closing.
6.3 Company, Company Principal
Stockholder, Parent and Merger Sub. As and after any Closing,
if at all, and except for any claims in relation to which Membrado is or may
reasonably be expected to be indemnified in accordance with Section 7.1 of this
Agreement, Membrado and Xxx, on behalf of themselves and their respective
assigns, shall have forever released and discharged the Company, the Company
Principal Stockholder, Parent and Merger Sub, and their respective successors
and/or assigns, from any and all debts, liabilities, obligations, rights,
promises, undertakings, agreements, claims, cause or causes of action, damages,
judgments, and demands of any kind or nature whatsoever, at law or in equity,
whether known or unknown, fixed or contingent, suspected or unsuspected which
have been or could have been asserted by way of claim or counterclaim, against
the Company, the Company Principal Stockholder, Parent and/or Merger Sub, and
their respective successors and/or assigns, which Membrado and/or Xxx may have
had against Company, Company Principal Stockholder, Parent and/or Merger Sub, or
their respective successors and/or assigns as of the Closing, including but not
limited to the transactions set forth herein.
7. Indemnification.
7.1 Membrado (as
Officer/Director of Parent). Continuing indefinitely from and
after any Closing, each of Parent and the Company shall, jointly and severally
and to the fullest extent permitted by applicable law, indemnify, defend and
hold harmless Membrado from and against all damages, liabilities or orders or
amounts that are paid or become payable in settlement of or in connection with
any claim or proceeding that is based in whole or in part on, or arises in whole
or in part out of, the fact that Membrado was a director, officer or employee of
Parent, and pertaining to any any acts, omissions, matters or circumstances
occurring prior to any Closing, whether known or unknown to anyone as of any
such Closing, or any matters or circumstances occurring following any such
Closing, and provide advancement of all expenses and other amounts otherwise
payable by Membrado in connection with or as a result of any such claims or
proceedings to Membrado to the same extent that any officer or director of
Parent is entitled to be indemnified and/or have the right to advancement of
expenses and other amounts payable as of the date of this Agreement by Parent
pursuant to its certificate of incorporation, bylaws, and/or any indemnification
agreements in effect as of the date hereof; provided; however, that, if
any such rights of entitlement to be indemnified and/or have the right to
advancement of expenses and other amounts payable are greater in scope and/or
protection as a practical economic matter under the Company’s certificate of
incorporation, bylaws, and/or any indemnification agreements in effect as of the
date hereof than under Parent’s certificate of incorporation, bylaws, and/or any
indemnification agreements in effect as of the date hereof, then Membrado shall
be entitled to those under the Company’s certificate of incorporation, bylaws,
and/or any indemnification agreements in effect as of the date
hereof.
7.2 Membrado (as seller of
Parent Common Stock). For a period of one (1) year from and
after any Closing, Membrado shall indemnify, defend and hold harmless the
Company from and against all damages, liabilities or orders or amounts that are
paid in settlement of or in connection with any claim or proceeding that is
based on any breach of the representations and warranties set forth in Section
3.4.1 of this Agreement up to a maximum amount of 10/100 ($0.10) per
share.
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7.3 Xxx (as seller of Parent
Common Stock). For a period of one (1) year from and after any
Closing, Xxx shall indemnify, defend and hold harmless the Company from and
against all damages, liabilities or orders or amounts that are paid in
settlement of or in connection with any claim or proceeding that is based on any
breach of the representations and warranties set forth in Section 3.5.1 of this
Agreement up to a maximum amount of 10/100 ($0.10) per share.
8. Notices. Any
notice, request, demand, waiver, consent, approval or other communication which
is required or permitted hereunder shall be in writing and shall be deemed
given: (a) on the date established by the sender as having been delivered
personally; (b) on the date delivered by FedEx, UPS, USPS, or DHL as
established by the sender by evidence obtained from such courier; (c) on
the date sent by email in .pdf format, upon good faith confirmation by the
recipient of receipt; or (d) on the third (3rd) day after the date mailed,
by certified or registered mail, return receipt requested, postage
prepaid. Such communications, to be valid, must be addressed as
follows:
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If to Parent or Merger
Sub:
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000
Xxxx 00xx
Xxxxxx, Xxxxx 0000
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Xxx
Xxxx, Xxx Xxxx 00000
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Att: Xxxxxxx
X. Xxxxxxxx, President & CEO
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Email:
xxx@xxxxxxxxxx.xxx
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with a copy
to:
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Certilman,
Balin, Xxxxx & Xxxxx, LLP
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00
Xxxxxxx Xxxxxx
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Xxxx
Xxxxxx, Xxx Xxxx 00000
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Att: Xxxxx
X. Xxxxx
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Email:
xxxxxx@xxxxxxxxxxxxxx.xxx
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If to the Company or Xxxxxx
Xxxxxx:
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Xxxxx
Energy Systems, Inc.
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0000
000xx
Xxxx X.X.
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Xxxxxx,
XX 00000
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Att: Xxxxxx
Xxxxxx, CEO
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Email:
xxxxxxxxx@xxxxxxxxxxx.xxx
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with a copy
to:
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Xxxxxxxx
& Associates, PA
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0000
Xxxxxx Xxxxxx Xxxxx, Xxxxx 000
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Xxxxxxxxxxx,
XX 00000
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Att: Xxxxx
X. Xxxxxxxx, Esq.
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Email: xxxxxx@xxxxxxxxxx.xxx
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or to
such other address or to the attention of such person or persons as the
recipient party has specified by prior written notice to the sending party (or
in the case of counsel, to such other readily ascertainable business address as
such counsel may hereafter maintain). If more than one method for
sending notice as set forth above is used, the earliest notice date established
as set forth above shall control.
9. Survival. The
representations and warranties set forth in Section 3.3 of this Agreement shall
survive any Closing and continue in effect for so long as may be reasonably
necessary for Parent to preserve, protect and defend its economic and other
interests, including without limitation those arising under applicable
securities laws. The representations and warranties set forth in
Sections 3.4.1 and 3.5.1 of this Agreement shall survive any Closing and
continue in effect for a period of one (1) year thereafter. The
covenants set forth in Section 3.6 shall only have effect post-Closing, but,
once effective, if at all, shall continue thereafter until reasonably satisfied
by Membrado. The releases set forth in Sections 6.1, 6.2 and 6.3
shall only have effect post-Closing, but, one effective, if at all, shall
continue thereafter indefinitely. The indemnification provisions set
forth in Section 7.1. 7.2 and 7.3 shall only have effect post-Closing, but, once
effective, if at all, shall continue thereafter in accordance with their express
terms.
10. Severability. If
any term or other provision of this Agreement is invalid, illegal or incapable
of being enforced by any rule of law or public policy, all other conditions and
provisions of this Agreement shall nevertheless remain in full force and effect
so long as the economic or legal substance of the transactions contemplated
hereby is not affected in any manner materially adverse to any
Party. Upon a determination that any term or other provision of this
Agreement is invalid, illegal or incapable of being enforced, the Parties shall
negotiate in good faith to modify this Agreement so as to effect the original
intent of the Parties as closely as possible in a mutually acceptable manner in
order that the transactions contemplated hereby be consummated as originally
contemplated to the fullest extent possible.
11. Assignment; Binding Effect;
Benefit. Neither this Agreement nor any of the rights,
interests or obligations hereunder shall be assigned by any of the Parties
hereto (whether by operation of law or otherwise) without the prior written
consent of the other Parties. Subject to the preceding sentence, this
Agreement shall be binding upon and shall inure to the benefit of the Parties
hereto and their respective executors, heirs, personal representatives
successors and assigns.
12. Governing
Law. This Agreement and the exhibits hereto shall be governed
by and interpreted and enforced in accordance with the laws of the State of New
York, without giving effect to any choice of law or conflict of laws rules or
provisions (whether of the State of New York or any other jurisdiction) that
would cause the application of the laws of any jurisdiction other than the State
of New York.
13. Consent to Jurisdiction;
Waiver of Jury Trial. Each Party irrevocably submits to the
exclusive jurisdiction of (a) New York County, New York, and (b) the
United States District Court for the Southern District of New York, for the
purposes of any proceeding arising out of this Agreement or any of the
transactions contemplated hereby. Each Party agrees to commence any
such proceeding either in the United States District Court for the Southern
District of New York or if such proceeding may not be brought in such court for
jurisdictional reasons, in the Supreme Court sitting in New York County
(including its Appellate Division). Each Party further agrees that
service of any process, summons, notice or document by U.S. registered mail to
such Party’s respective address set forth above shall be effective service of
process for any proceeding in New York with respect to any matters to which it
has submitted to jurisdiction in this Section 13. Each Party
irrevocably and unconditionally waives any objection to the laying of venue of
any proceeding arising out of this Agreement or any of the transactions
contemplated hereby in (i) the United States District Court for the
Southern District of New York, or (ii) the Supreme Court sitting in New
York County (including its Appellate Division), and hereby further irrevocably
and unconditionally waives and agrees not to plead or claim in any such court
that any such Proceeding brought in any such court has been brought in an
inconvenient forum. EACH PARTY HEREBY IRREVOCABLY WAIVES ALL RIGHT TO
TRIAL BY JURY IN ANY ACTION (WHETHER BASED ON CONTRACT, TORT OR OTHERWISE)
ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE ACTIONS OF SUCH PARTY IN THE
NEGOTIATION, ADMINISTRATION, PERFORMANCE AND ENFORCEMENT
HEREOF.
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14. Confidentiality,
etc. Membrado acknowledges that, in his capacity as an officer
of, and legal counsel to, GCA and Merger Sub, he has become privvy to extensive
information relating to all aspects of the Company, certain of which information
the Company considers sensitive and desires to keep confidential (the
“Confidential Information”), and, with a general understanding as to what the
Company considers to constitute Confidential Information, Membrado agrees to use
his reasonable good faith efforts for the indefinite future to respect the
sensitivity and confidentiality of such Confidential Information; provided, however, that any
such Confidential Information (i) has not previously, or as of any given point
in time at which it may be disclosed, already become generally available to the
public, (ii) is reasonably required to be disclosed pursuant to applicable
securities laws, or (iii) has been requested or required to be disclosed by
Membrado by operation of applicable law or by order of any court or regulatory
or supervisory authority with jurisdiction over Membrado and/or GCA and/or
Merger Sub and with the power to order Membrado, GCA and/or Merger Sub to
disclose such Confidential Information pursuant to deposition or other oral
questioning, interrogatories, requests for information or documents, subpoena,
civil investigative demand or other process, provided that Membrado, GCA and/or
Merger Sub, as applicable, provides the Company with prompt notice of any such
request or requirement so that the Company may challenge any such request or
requirement, seek an appropriate protective order, or waive Membrado’s
compliance with this provision of this Agreement.
15. Headings. The
descriptive headings contained in this Agreement are included for convenience of
reference only and shall not affect in any way the meaning or interpretation of
this Agreement.
16. Counterparts. This
Agreement may be executed and delivered (including by email transmisssion in
..pdf format) in one or more counterparts, and by the different Parties hereto in
separate counterparts, each of which when executed and delivered shall be deemed
to be an original but all of which taken together shall constitute one and the
same agreement; and
a facsimile signature or PDF signature via email shall be considered an
equivalent of an original.
17. Entire
Agreement. This Agreement constitutes the entire agreement
among the Parties with respect to the subject matter hereof and supersedes all
prior agreements and understandings among the Parties with respect thereto;
provide, however, that it shall only supercede the Merger Agreement and the
Voting Agreement, if at all, in accordance with the express terms set forth
herein. Except as may otherwise be provided herein, no addition to or
modification of any provision of this Agreement shall be binding upon any Party
hereto unless made in writing and signed by all Parties hereto.
[SIGNATURES
APPEAR ON THE FOLLOWING PAGE]
10
IN
WITNESS WHEREOF, the Parties have executed this Agreement or caused this
Agreement to be executed by the respective officers thereunto duly authorized,
in each case as of the date first written above.
|
“PARENT”
|
|
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By:
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| Name: Xxxxxxx X. Xxxxxxxx | |
| Title: President & Chief Executive Officer | |
|
“MERGER
SUB”
|
|
|
XXXXX
ENERGY ACQUISITION CORP.
|
|
|
By:
|
|
| Name: Xxxxxxx X. Xxxxxxxx | |
| Title: President & Chief Executive Officer | |
|
“COMPANY”
|
|
|
XXXXX
ENERGY SYSTEMS, INC.
|
|
|
By:
|
|
| Name: Xxxxxx X. Xxxxxx | |
| Title: President & Chief Executive Officer | |
|
Xxxxxx
X. Xxxxxx
|
|
|
|
|
|
Xxxxxxx
X. Xxxxxxxx
|
|
|
|
|
|
Xxxxxxxx
Xxx
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|
11
EXHIBITS
|
Exhibit
A
|
Amended
and Restated Agreement & Plan of Merger
|
|
Exhibit
B
|
Amended
and Restated Voting Agreement
|
|
Exhibit
C
|
Parent
Stock Certificate # C-1 - Membrado
|
|
Exhibit
D
|
Parent
Stock Certificate # C-2 - Xxx
|
