SHARE EXCHANGE AGREEMENT June 3, 2009
June
3, 2009
This
Share Exchange Agreement, dated as of June 3, 2009 (this “Agreement”), is made
and entered into by and among Premier Power Renewable Energy, Inc., a Delaware
corporation (“PPRW”), on the one
hand, and Rupinvest Sarl, a corporation duly organized and existing under the
laws of the country of Luxembourg (“LUX”), and Esdras
Ltd., a corporation duly organized and existing under the laws of the Cyprus
(“CYP”), on the
other hand.
R
E C I T A L S
WHEREAS,
on April 24, 2009, the Board of Directors of PPRW adopted resolutions approving
PPRW’s acquisition of one hundred percent (100%) of the equity ownership
interests of LUX (the “Acquisition”) in
exchange for twelve thousand five hundred euros (€12,500) and up to three
million (3,000,000) shares of the restricted common stock of PPRW (each a “PPRW Share” and
collectively the “PPRW
Shares”). For purpose of this and all provisions herein, the
value of the PPRW stock shall be the stock price on the Opening
Date.
WHEREAS,
CYP is the sole and exclusive shareholder of one hundred percent (100%) of the
equity ownership interests of LUX (the “LUX Equity
Interests”);
WHEREAS,
LUX is the sole and exclusive shareholder of one hundred percent (100%) of the
issued and outstanding equity ownership shares of ARCO Energy SRL (the “ARCO SRL Equity
Interests”), a private limited company duly organized and existing under
the laws of the country of Italy (hereinafter “ARCO SRL”);
WHEREAS,
a bank, independent lawyer or accountant will be selected to act as an escrow
agent (the “Escrow
Agent”) for the Acquisition who will be authorized and directed to
deliver up to said three million shares (3,000,000) PPRW Shares that are to be
transferred in exchange for one hundred percent (100%) of the shares of LUX,
upon the terms and conditions hereinafter set forth in this Agreement and the
Escrow Agreement attached hereto as Exhibit
B;
WHEREAS,
pursuant to this Agreement, PPRW shall be entitled to select two of the three
members of board of directors of PPRW ITALY (“PPRW ITALY’s Board”)
and CYP shall select the third remaining member of PPRW ITALY’s Board, and that
collectively these three members shall serve as the members of PPRW ITALY’s
Board;
WHEREAS,
CYP desires to sell and transfer the LUX Equity Interests in exchange for twelve
thousand five hundred euros (€12,500) and up to three million (3,000,000) PPRW
Shares pursuant to the terms and conditions of this Agreement and that PPRW,
LUX, and CYP will enter into this Agreement for the purposes of making certain
representations, warranties, covenants and agreements;
WHEREAS,
within twenty (20) calendar days after the Opening Date, ARCO SRL will be
converted by LUX from an Italian Srl (LTD) structured company to an Italian Spa
(PLC) structured company and its name shall be changed to Premier Power Italy
S.p.A. (hereinafter “PPRW ITALY”) and then
PPRW ITALY’s Social Capital shall be increased with an initial amount of one
million two hundred fifty thousand euros (€1,250,000). PPRW ITALY’s
Social Capital will also be increased by an additional amount to be
determined within one hundred and twenty (120) calendar days of the execution of
this Agreement, with the total capitalization not to exceed five million euros
(€5,000,000). Each PPRW ITALY’s increase of social capital will be
funded as follows: ninety percent (90%) from LUX and ten percent (10%) from
CYP. CYP and LUX will pay the shares issued as a consequence of this
increase of Social Capital in the timeframe set forth in art. 2342 of the
Italian Civil Code in pro rata amounts according to each of their contributions
to such social capital increase. LUX’s board of directors
will determine how much of the subject funding shall be capitalization and how
much will be in the form of low interest loans, provided, however, that
notwithstanding anything the contrary, no more then forty percent (40%) of the
total funding shall be in the form of loans.
A
G R E E M E N T
NOW,
THEREFORE, the parties hereto, intending to be legally bound, agree as
follows:
THE
ACQUISITION
1.1 The Acquisition. Upon
the terms and subject to the conditions hereof, at the Opening Date (as
hereinafter defined) the parties shall do the following:
1.1.1 CYP
hereby agrees to sell, convey, assign and transfer to PPRW the LUX Equity
Interests owned by CYP, which constitutes 100% of the issued and outstanding
equity ownership interests of LUX on the Opening Date (as defined in Section 1.5
below) on the opening date according to the terms and conditions
herein.
1.1.2 LUX
and CYP shall deliver or cause to be delivered to the Escrow Agent: (a) a share
certificate registered in the name of PPRW and issued by LUX for 100% of the
total issued and outstanding equity ownership (in shares of capital stock or
otherwise) of LUX (the “LUX Shares
Certificate”); and (b) a copy, authenticated by a notary, of the notarial
deed by which LUX acquired ARCO SRL Equity Interests evidencing LUX’s 100%
equity ownership (in shares of capital stock or otherwise) of ARCO SRL (the
“ARCO SRL Shares
Deed”), with both such deliveries to be made in accordance with the terms
of this Agreement including those set forth in Section 1.2, Section 1.3, Exhibit A and the
Escrow Agreement.
1.1.3 As
consideration for the Acquisition of the LUX Equity Interests, PPRW
shall deliver to the Escrow Agent: (a) cash payment of twelve thousand five
hundred euros (€12,500 and hereinafter the “Cash Payment”); and
(b) the stock certificate evidencing the three million 3,000,000 of
PPRW Shares and registered in the name of UNICREDIT, Lugano Switzerland as
Escrow Agent or other mutually agreed independent third party, with both such
deliveries to be made in accordance with the terms of this Agreement including
those set forth in Section 1.2, Section 1.3, Exhibit A and the
Escrow Agreement.
1.1.4 The
parties shall both execute the Escrow Agreement in the form attached hereto as
Exhibit B,
which shall direct the Escrow Agent to transfer, in accordance with the terms
set forth in this Agreement including Exhibit A, Sections
1.2 and 1.3 hereto: (a) the Cash Payment, the PPRW Shares and the other PPRW
deliveries set forth below in Section 7.1.1 (collectively the “PPRW Deliveries”) to
LUX and CYP; and (b) the LUX Shares Certificate, the ARCO SRL Shares Deed and
the other deliveries of LUX and CYP set forth below in Section 7.2.1
(collectively the “LUX
Deliveries”) to PPRW. The actual amount of PPRW Shares to be
transferred and delivered to CYP pursuant to this Agreement shall be determined
by the terms and formulas based on the gross revenue and profits of PPRW ITALY
as set forth in Exhibit A hereto and
in the Escrow Agreement, both of which are attached hereto and incorporated
herein by reference.
1.1.5 The
parties shall establish an escrow account (the “Escrow”) to
effectuate the transfers of the PPRW Deliveries and the LUX Deliveries
referenced in Paragraphs 1.1.3 and 1.1.4 above. Said Escrow shall be
established at UNICREDIT, Luguno Switzerland, or an independent bank, lawyer or
accounting office mutually acceptable to both parties.
1.2 Opening of Escrow.
The herein provided for Escrow shall be opened by the parties and the Escrow
Agreement shall be executed by all parties on the “Opening Date” (as such term
is defined in Section 1.5 below). PPRW must deposit the PPRW
Deliveries into Escrow within and no later than twenty (20) Trading Days after
the Opening Date. LUX, ARCO SRL and CYP must also deposit the LUX
Deliveries and CYP Deliveries into the subject Escrow within and no later than
twenty (20) Trading Days after the Opening Date. Should the Escrow
Agent not receive all of the PPRW Deliveries and LUX Deliveries within the above
mentioned deadlines, the Escrow Agent will return to the delivering party the
LUX Deliveries or PPRW Deliveries already received.
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1.3
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The Initial Exchange
and Transfer of PPRW Shares. Upon the Escrow Agent’s
complete receipt of all of the PPRW Deliveries and the LUX Deliveries and
CYP Deliveries, then, as soon as possible and no later than three (3)
Trading Days following such receipt, the Escrow Agent, in accordance with
the terms herein and in the Escrow Agreement: (a) shall deliver the LUX
Deliveries and CYP Deliveries to PPRW; and (b) shall deliver the PPRW
Deliveries, except for the PPRW Shares, to CYP, with copies of the PPRW
Deliveries also delivered to LUX. All of the PPRW Shares shall
remain in said Escrow until either distributed by Escrow Agent to CYP or
until refunded to PPRW, upon operation of the terms set forth in this
Agreement including the terms in Exhibit A and
the attached Escrow Agreement.
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1.4 Taking of Necessary Action;
Further Action. ARCO SRL’s Board will convene within fifteen (15)
calendar days after the Opening Date to determine operational procedures and
activities. If, at any time after the Opening Date, any further
action is necessary or desirable to carry out the transactions and purposes
contemplated by this Agreement, LUX, CYP and/or PPRW (as applicable) will take
any and all such lawful and necessary actions.
1.5 Certain
Definitions. The following capitalized terms as used in this
Agreement shall have the respective definitions:
“Affiliate” means any
Person that, directly or indirectly through one or more intermediaries, controls
or is controlled by or is under common control with a Person, as such terms are
used in and construed under Rule 405 under the Securities Act.
“Commission” means the
U.S. Securities and Exchange Commission.
“Contingent
Liabilities” or “Contingent
Liability” shall mean: (a) any claim, liability, obligation or right
to payment of any third party that is not listed in Exhibit C or Schedule
2.21 hereto, whenever arising, against ARCO SRL or its Affiliates arising out
of, in connection with or related to the ownership, operation or use prior to
the Opening Date of ARCO SRL including: (a) liabilities resulting from any
events or circumstances occurring after the Opening Date that creates
liabilities related to sales or installations made by ARCO SRL prior to the
Opening Date; and (b) any tax obligation of CYP, ARCO SRL or LUX that results
from, is in connection with or is related to the Acquisition or CYP’s structure
of the Acquisition.
“Exchange Act” means
the Securities and Exchange Act of 1934, as amended.
“Knowledge” shall mean
the actual knowledge of the officers, directors or advisors of the referenced
party.
“Liens” means a lien,
charge, security interest, encumbrance, right of first refusal, preemptive right
or other restriction.
“Material Adverse
Effect” means an adverse effect on a referenced party or the combined
entity resulting from the consummation of the transaction contemplated by this
Agreement, or the financial condition, results of operations or business, before
the consummation of the transaction contemplated in this Agreement, which as a
whole is or would be considered material to an investor in the securities of
PPRW, excluding adverse effects with respect to PPRW resulting from events,
restatements or adjustments related to any Commission or auditor’s review
of PPRW or financial statement results of PPRW.
“Net Current Assets”
is defined as follows: ARCO SRL’s cash on account, plus accounts receivable (no
older then ninety (90) calendar days), plus any inventory (less than six (6)
months old) to be valued at the current market price available to ARCO SRL as of
Opening Date, less any and all ARCO SRL liabilities disclosed or undisclosed,
including accrued expenses, including but not limited to accrued taxes related
to income earned from January 1, 2009 through the Opening Date, that are to be
listed on a schedule attached hereto as Exhibit C and
verified during any future audit or review period.
“Net Operating Loss”
means any financial losses resulting from PPRW ITALY or ARCO SRL’s operating
cost exceeding its revenue and/or PPRW ITALY’s or ARCO SRL’s solar installations
or transactions that incur financial losses as a result of such projects being
installed for a cost that exceeds the revenue related to said projects, or
products being sold for less than ARCO SRL or PPRW ITALY receives in
payment.
“Non-U.S. Person”
means any person who is not a U.S. Person or is deemed not to be a U.S. Person
under Rule 902(k)(2).
“Opening Date” means
the date on which this Agreement is signed by all parties and the date on which
Escrow is officially opened by the parties as described in Section 1.2
hereto. If such dates are not the same, the Opening Date shall be
defined as the later of the two dates, not exceeding twenty (20) days from the
date on which this Agreement is signed.
“Ordinary Course of
Business” means, when used in reference to any Person, the ordinary
course of business consistent with past customs and practices of such
Person.
“Organizational
Documents” means,
with respect to a particular Person (other than a natural person), the
certificate or articles of incorporation, bylaws, partnership agreement, limited
liability company agreement, trust agreement or similar organizational document
or agreement, as applicable, of such Person.
“Person” means an
individual, a group of persons that agree to act together, or corporation,
partnership, trust, incorporated or unincorporated association, joint venture,
limited liability company, joint stock company, government (or an agency or
subdivision thereof) or other entity of any kind.
“Preferred
Stock” shall mean all of PPRW’s issued and outstanding shares
of preferred stock including the three million five hundred thousand (3,500,000)
shares of Series A Convertible Preferred Stock issued to Vision Opportunity
Master Fund Ltd. (“Vision”) in connection with that certain Securities Purchase
Agreement entered into by and between PPRW and Vision dated September 9,
2008.
“Restricted Period”
shall have the meaning set forth in Section 3.5.2(f).
“Securities Act” shall
mean the Securities Act of 1933, as amended.
“Tax Returns” shall
mean all federal, state, local and foreign returns, estimates, information
statements and reports relating to Taxes.
“Tax” or “Taxes” shall mean any
and all applicable central, federal, provincial, state, local, municipal and
foreign taxes, including, without limitation, gross receipts, income, profits,
sales, use, occupation, value added, ad valorem, transfer, franchise,
withholding, payroll, recapture, employment, excise and property taxes,
assessments, governmental charges and duties together with all interest,
penalties and additions imposed with respect to any such amounts and any
obligations under any agreements or arrangements with any other person with
respect to any such amounts and including any liability of a predecessor entity
for any such amounts.
“Trading Day” means a
day on which the principal Trading Market is open for trading.
“Trading Market” means
the following markets or exchanges on which PPRW’s common stock is listed or
quoted for trading on the date in question: the NYSE Alternext Exchange, the
NASDAQ Capital Market, the NASDAQ Global Market, the NASDAQ Global Select
Market, the New York Stock Exchange or the OTC Bulletin Board.
“Transaction” shall
mean the transactions contemplated by this Agreement, including the share
exchange.
“United States” means
and includes the United States of America, its territories and possessions, any
State of the United States, and the District of Columbia.
“U.S. Person” as defined in
Regulation S means: (i) a natural person resident in the United States; (ii) any
partnership or corporation organized or incorporated under the laws of the
United States; (iii) any estate of which any executor or administrator is a U.S.
Person; (iv) any trust of which any trustee is a U.S. Person; (v) any agency or
branch of a foreign entity located in the United States; (vi) any
nondiscretionary account or similar account (other than an estate or trust) held
by a dealer or other fiduciary for the benefit or account of a U.S. Person;
(vii) any discretionary account or similar account (other than an estate or
trust) held by a dealer or other fiduciary organized, incorporated and (if an
individual) resident in the United States; and (viii) a corporation or
partnership organized under the laws of any foreign jurisdiction and formed by a
U.S. Person principally for the purpose of investing in securities not
registered under the Securities Act, unless it is organized or incorporated,
owned, by accredited investors (as defined in Rule 501(a) under the Securities
Act) who are not natural persons, estates or trusts).
ARTICLE
2
REPRESENTATIONS
AND WARRANTIES OF LUX and CYP
Except as
otherwise disclosed herein or in a disclosure schedule attached hereto, LUX and
CYP hereby, jointly and severally, represent and warrant to PPRW that as of the
Opening Date (unless otherwise indicated), as follows:
2.1 Organization. LUX,
ARCO SRL and CYP have been duly incorporated, validly exist as corporations, and
are in good standing under the laws of their respective jurisdictions of
incorporation, and each have the requisite power to carry on its business as now
conducted. LUX and CYP have delivered to PPRW true and complete
copies of the Organizational Documents of LUX, CYP and ARCO SRL, each as amended
to date and presently in effect.
2.2 Capitalization. The
authorized capital stock of LUX consists of one thousand two hundred and fifty
(1,250) shares of common stock with a par value of € 10, of which on the Opening
Date, no more than one thousand two hundred and fifty (1,250) shares shall be
issued and outstanding and such issued and outstanding shares shall be 100%
owned by CYP. The authorized capital stock of ARCO SRL consists of
ten thousand (10,000) shares of common stock, no par value, of which on the
Opening Date, no more than ten thousand (10,000) shares shall be issued and
outstanding and such issued and outstanding shares shall be 100% owned by
LUX. All of the issued and outstanding shares of capital stock of LUX
and ARCO SRL, as of the Opening Date, are duly authorized, validly issued, fully
paid, non-assessable and free of preemptive rights. There are no
voting trusts or any other agreements or understandings with respect to the
voting of LUX’s or ARCO SRL’s capital stock.
2.3 Subsidiaries. As of
the Opening Date, LUX has no direct or indirect subsidiaries except for ARCO
SRL. ARCO SRL is an entity duly organized, validly existing and in
good standing under the laws of its jurisdiction of its formation and has the
requisite corporate power and authority to own, lease and to carry on its
business as now being conducted. CYP owns all of the equity ownership
shares of LUX, and there are no outstanding options, warrants, subscriptions,
conversion rights or other rights, agreements or commitments obligating LUX or
CYP to issue any additional shares of common stock or ordinary stock, as the
case may be, of LUX, or any other securities convertible into, exchangeable for
or evidence the right to subscribe for or acquire from LUX any shares of
LUX.
2.4 Certain Corporate
Matters. LUX, ARCO SRL and CYP are each duly qualified to do business as
a corporation or a limited company and are each in good standing under the laws
of the country and, jurisdiction under which they were formed, and in each other
jurisdiction in which the ownership of its property or the conduct of its
business requires it to be so qualified, except where the failure to be so
qualified would not have a Material Adverse Effect on LUX’s or ARCO SRL’s
financial condition, results of operations or business. LUX, ARCO SRL
and CYP have full corporate power and authority and all authorizations, licenses
and permits necessary to carry on the business in which it is engaged and to own
and use the properties owned and used by it.
2.5 Authority Relative to this
Agreement. LUX and CYP each possess the requisite power and authority to
enter into this Agreement and to carry out each of their respective obligations
hereunder. The execution, delivery and performance of this Agreement
and the consummation of the transactions contemplated hereby by LUX and CYP have
been duly authorized by their respective Boards of Directors and no other
actions on the part of LUX and CYP are necessary to authorize this Agreement or
the transactions contemplated hereby. This Agreement has been duly
and validly executed and delivered by LUX and CYP and constitutes a valid and
binding agreement, enforceable against each respective party in accordance with
its terms, except as such enforcement may be limited by bankruptcy, insolvency
or other similar laws affecting the enforcement of creditors’ rights generally
or by general principles of equity.
2.6 Consents and Approvals; No
Violations. Except for applicable requirements of federal securities laws
and state securities or blue-sky laws, no filing with, and no permit,
authorization, consent or approval of, any third party, public body or authority
is necessary for the consummation by LUX and CYP of the transactions
contemplated by this Agreement. Neither the execution and delivery of
this Agreement by LUX and CYP nor the consummation by LUX or CYP of the
transactions contemplated hereby, nor compliance by them with any of the
provisions hereof, will (a) conflict with or result in any breach of any
provisions of the charter or bylaws (or operating agreement) of LUX, CYP or ARCO
SRL, (b) result in a violation or breach of, or constitute (with or without due
notice or lapse of time or both) a default (or give rise to any right of
termination, cancellation or acceleration) under, any of the terms, conditions
or provisions of any note, bond, mortgage, indenture, license, contract,
agreement or other instrument or obligation to which LUX, CYP or ARCO SRL is a
party or by which any of their respective properties or assets may be bound or
(c) violate any order, writ, injunction, decree, statute, rule or regulation
applicable to LUX, CYP or ARCO SRL, or any of its properties or assets, except
in the case of clauses (b) and (c) for violations, breaches or defaults which
are not in the aggregate material to PPRW taken as a whole.
2.7 Books and Records.
The books and records of LUX and ARCO SRL that have been delivered to PPRW
and/or its due diligence agent Price Waterhouse Coopers and all other parties
employed by PPRW who made such requests prior to the Opening Date fully and
fairly reflect the transactions to which LUX and ARCO SRL are a party or by
which it or its properties are bound, and there shall be no material difference
between the unaudited combined financial statements of LUX and/or ARCO SRL given
to PPRW and the actual Luxembourg or Italian GAAP, as applicable, results of LUX
and ARCO SRL for the 15 month period ended March 31, 2009 (the “LUX Financial
Statements”).
2.8 Intellectual
Property. LUX and CYP each have no knowledge of any claim that, or
inquiry as to whether, any product, activity or operation of LUX or ARCO SRL
infringes upon or involves, or has resulted in the infringement of, any
trademarks, trade-names, service marks, patents, copyrights or other proprietary
rights of any other person, corporation or other entity; and no proceedings have
been instituted, are pending or are threatened.
2.9 Litigation. Except as
disclosed in Schedule
2.9, neither LUX, CYP nor ARCO SRL is subject to any judgment or order of
any court or quasi-judicial or administrative agency of any jurisdiction,
domestic or foreign, nor is there any charge, complaint, lawsuit or governmental
investigation pending against LUX, CYP or ARCO SRL. Neither LUX, CYP
nor ARCO SRL is a plaintiff in any action, domestic or foreign, judicial or
administrative. There are no existing actions, suits, proceedings
against or investigations of LUX, CYP or ARCO SRL and neither LUX nor CYP know
of any basis for such actions, suits, proceedings or
investigations. There are no unsatisfied judgments, orders, decrees
or stipulations affecting LUX, CYP or ARCO SRL or to which LUX, CYP, or ARCO SRL
is a party.
2.10 Legal Compliance. To
the best knowledge of LUX and CYP, after due investigation, no claim has been
filed against LUX, CYP and ARCO SRL alleging a violation of any applicable laws
and regulations of foreign, federal, state and local governments and all
agencies thereof. LUX, CYP and ARCO SRL each hold all of the material
permits, licenses, certificates or other authorizations of foreign, federal,
state or local governmental agencies required for the conduct of their
respective businesses as presently conducted.
2.11 Contracts. LUX,
CYP and ARCO SRL have delivered to PPRW copies of each and every material
agreements of LUX and ARCO SRL made in the Ordinary Course of
Business. All of the foregoing is referred to as the
“Contracts.” The copies of each of the Contracts delivered are
accurate and complete. Each Contract is in full force and effect and
constitutes a legal, valid and binding obligation of, and is legally enforceable
against, the respective parties thereto. There is no material default
with respect to any such contract which will give rise to liability in respect
thereof on the part of LUX or ARCO SRL or the other parties
thereto. No notice of default or similar notice has been given or
received by LUX or ARCO SRL under any of such contracts. Except as
disclosed in Schedule
2.21 and Exhibit C hereto,
there is no contingent or outstanding liability related to LUX and/or ARCO SRL
arising out of, in connection with or related to ARCO SRL failing to meet
purchasing minimums or any other obligation under the terms of any and all of
its suppliers and/or distribution agreements including, but not limited to, such
agreements with Wuxi Suntech Power Co. Ltd. and Canadian Solar,
Inc.
2.12 Material Changes.
Since January 1, 2009, except as disclosed in Schedule 2.12
attached hereto: (i) there has been no event, occurrence or development that has
had or that could reasonably be expected to result in a Material Adverse Effect,
(ii) LUX and ARCO SRL each have not incurred any liabilities (contingent or
otherwise) other than trade payables and accrued expenses incurred in the
Ordinary Course of Business consistent with past practice and disclosed in
writing to PPRW prior to Opening Date, (iii) LUX and ARCO SRL have not altered
their method of accounting, (iv) LUX and ARCO SRL each have not declared or made
any dividend or distribution of cash or other property to their respective
stockholders or purchased, redeemed or made any agreements to purchase or redeem
any shares of their respective capital stock, and (v) LUX and ARCO SRL each have
not issued any equity securities to any officer, director or
Affiliate.
2.13 Labor
Relations. No material labor dispute exists or, to the
knowledge of LUX or CYP, is imminent with respect to any of the employees of LUX
and ARCO SRL which could reasonably be expected to result in a Material Adverse
Effect. None of LUX’s or ARCO SRL’s employees is a member of a union
that relates to such employee’s relationship with LUX or ARCO SRL, and neither
LUX nor ARCO SRL is a party to a collective bargaining agreement, and LUX and
ARCO SRL believe that their relationships with their employees are
good. No executive officer of LUX or ARCO SRL, to the knowledge of
LUX and CYP, is, or is now expected to be, in violation of any material term of
any employment contract, confidentiality, disclosure or proprietary information
agreement or non-competition agreement, or any other contract or agreement or
any restrictive covenant in favor of any third party, and the continued
employment of each such executive officer does not subject LUX or ARCO SRL to
any liability with respect to any of the foregoing matters. LUX and
ARCO SRL are each in compliance with all federal, state, local and foreign laws
and regulations relating to employment and employment practices, terms and
conditions of employment and wages and hours, except where the failure to be in
compliance could not, individually or in the aggregate, reasonably be expected
to have a Material Adverse Effect.
2.14 Title to
Assets. LUX and ARCO SRL have good and marketable title in fee
simple to all real property owned by them and good and marketable title in all
personal property owned by them that is material to the business of LUX and ARCO
SRL, in each case all title is free and clear of all Liens, except for Liens
that do not materially affect the value of such property and do not materially
interfere with the use made and proposed to be made of such property by LUX and
ARCO SRL and Liens for the payment of Taxes, the payment of which is neither
delinquent nor subject to penalties. Any real property rights,
including access and/or mineral rights and related permits and facilities held
under lease by LUX and ARCO SRL are held by them under valid, subsisting and
enforceable leases with which LUX and ARCO SRL is in compliance.
2.15 Insurance. LUX
and ARCO SRL are insured by insurers of recognized financial responsibility
against such losses and risks and in such amounts as are prudent and customary
in the businesses in which LUX and ARCO SRL are engaged. Neither LUX
nor ARCO SRL has any reason to believe that it will not be able to renew its
existing insurance coverage as and when such coverage expires or to obtain
similar coverage from similar insurers as may be necessary to continue its
business without a significant increase in cost.
2.16 Transactions with Affiliates
and Employees. None of the officers or directors of LUX or
ARCO SRL and, to the knowledge of LUX and CYP, none of the employees of LUX or
ARCO SRL is presently a party to any transaction with LUX or ARCO SRL (other
than for services as employees, officers and directors), including any contract,
agreement or other arrangement providing for the furnishing of services to or
by, providing for rental of real or personal property to or from, or otherwise
requiring payments to or from any officer, director or such employee or, to the
knowledge of LUX and/or CYP, any entity in which any officer, director, or any
such employee has a substantial interest or is an officer, director, trustee or
partner, in each case in excess of €20,000, other than for: (i) payment of
salary or consulting fees for services rendered, (ii) reimbursement for expenses
incurred on behalf of LUX or ARCO SRL and (iii) other employee
benefits.
SHARE
EXCHANGE AGREEMENT
Page
10
2.17 Certain
Fees. No brokerage or finder’s fees or commissions are or will
be payable by LUX or ARCO SRL to any broker, financial advisor or consultant,
finder, placement agent, investment banker, bank or other Person with respect to
the transactions contemplated by this Agreement.
2.18 Reserved.
2.19 Application of Takeover
Protections. LUX and ARCO SRL each have taken all necessary
actions, if any, in order to render inapplicable any control share acquisition,
business combination, poison pill (including any distribution under a rights
agreement) or other similar anti-takeover provision under LUX’s or ARCO SRL’s
certificate of incorporation (or similar charter documents) or the laws of its
state of incorporation that is or could become applicable as a result of LUX or
ARCO SRL fulfilling its obligations or exercising its rights under this
Agreement.
2.20 Tax
Status. LUX and ARCO SRL have each filed all necessary Tax
Returns due before the Opening Date and have each paid or accrued all Taxes
arising from such Tax Returns, and LUX and CYP each have no knowledge of a tax
deficiency which has been asserted or threatened against LUX or ARCO
SRL.
2.21 No Undisclosed
Liabilities. Except as set forth on Schedule 2.21
and Exhibit C
hereto, neither LUX nor ARCO SRL has liabilities, including any Contingent
Liabilities, or off-balance sheet undertakings, and in particular none of them
have granted any guarantees (in any form whatsoever, including as a comfort
letter) or security interest with regard to, or assumed any liability for, the
performance of obligations or liabilities of third parties (including partners,
shareholders, corporate officers and employees) and there has been no guarantee
or security interest extended or liability assumed by any third party with
regard to or for the performance of obligations or liabilities of LUX and/or
ARCO SRL.
2.22 Foreign Corrupt
Practices. Neither LUX or ARCO SRL, nor to the knowledge of
LUX and CYP and/or any agent or other person acting on behalf of LUX or CYP, has
LUX or ARCO SRL: (i) directly or indirectly, used any funds for unlawful
contributions, gifts, entertainment or other unlawful expenses related to
foreign or domestic political activity, (ii) made any unlawful payment to
foreign or domestic government officials or employees or to any foreign or
domestic political parties or campaigns from corporate funds, (iii) failed to
disclose fully any contribution made by LUX or ARCO SRL, (or made by any person
acting on its behalf of which LUX or ARCO SRL is aware) which is in violation of
law, or (iv) violated in any material respect any provision of the Foreign
Corrupt Practices Act of 1977 as amended, and any other applicable European
Union, federal or local laws under which LUX or ARCO SRL and their respective
shareholders and employees are governed.
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2.23 Manufacturing and Marketing
or Exploitation Rights. Neither LUX nor ARCO SRL has granted
rights to exploit, manufacture, produce, assemble, license, market, sell or
distribute its products or projects to any other Person and neither LUX nor ARCO
SRL is bound by any agreement that affects LUX or ARCO SRL’s exclusive rights to
develop, exploit, manufacture, assemble, distribute, market or sell its
respective products or projects.
2.24 Obligations of
Management. Each officer and key employee of LUX and ARCO SRL is
currently devoting substantially all of his or her business time to the conduct
of business of LUX and ARCO SRL. Neither LUX nor CYP is aware that
any officer or key employee of LUX or ARCO SRL is planning to work less than
full time at ARCO SRL, as applicable, in the future. No officer or
key employee is currently working or, to LUX’s or CYP’s knowledge, plans to work
for a competitive enterprise, whether or not such officer or key employee is or
will be compensated by such enterprise.
2.25 Minute Books. The
minute books of LUX and ARCO SRL made available to PPRW contain a complete
summary of all meetings and written consents in lieu of meetings of directors
and stockholders since the time of incorporation.
2.26 Accounts
Receivable. All accounts receivable of LUX and ARCO SRL that
are reflected on LUX’s and ARCO SRL’s balance sheets or interim balance sheets
or on the accounting records of LUX and ARCO SRL as of the Opening Date
(collectively, the “Accounts Receivable”)
represent or will represent valid obligations arising from sales actually made
or services actually performed in the Ordinary Course of
Business. Unless paid prior to the Opening Date, the Accounts
Receivable are or will be as of the Opening Date current and collectible net of
the respective reserves shown on the balance sheet or interim balance sheet or
on the accounting records of LUX and ARCO SRL as of the Opening Date (which
reserves are adequate and calculated consistent with past practice and, in the
case of the reserve as of the Opening Date, will not represent a greater
percentage of the Accounts Receivable as of the Opening Date than the reserve
reflected in the interim balance sheet represented of the Accounts Receivable
reflected therein and will not represent a material adverse change in the
composition of such Accounts Receivable in terms of aging). Subject
to such reserves, each of the Accounts Receivable either has been or will be
collected in full without any set-off, within ninety (90) days after the day on
which it must becomes due and payable. There is no contest, claim, or
right of set-off, other than returns in the Ordinary Course of Business, under
any agreement and/or contract with any obligor of an Accounts Receivable
relating to the amount or validity of such Accounts Receivable. Schedule 2.26
contains a complete and accurate list of all Accounts Receivable as of the date
of the interim balance sheet, which list sets forth the aging of such Accounts
Receivable.
2.27 Inventory. All
inventory of LUX and ARCO SRL, whether or not reflected in the balance sheet or
interim balance sheet, consists of a quality and quantity usable and salable in
the Ordinary Course of Business, except for obsolete items and items of below
standard quality, all of which have been written off or written down to net
realizable value in the balance sheet or interim balance sheet or on the
accounting records of LUX and ARCO SRL as of the Opening Date, as the
case may be. All inventories not written off have been priced at the
lower of cost or market on the last in, first out basis. The
quantities of each item of inventory (whether raw materials, work-in-process, or
finished goods) are not excessive, but are reasonable in the present
circumstances of LUX and ARCO SRL.
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2.28
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Returns. Neither
LUX nor ARCO SRL has had any of its products returned by a purchaser
thereof, other than minor, nonrecurring problems covered by the
manufacturer’s warranty.
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2.29
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Product and Service
Warranty.
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2.29.1 Except
as disclosed in Schedule 2.29,
the due diligence documents received by PPRW from LUX, ARCO SRL and CYP have
identified and disclosed any warranty claim asserted during the three year
period prior to the date hereof from which LUX and/or ARCO SRL has incurred
costs in excess of ten thousand euros (€10,000).
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2.29.2
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Except
as disclosed in Schedule 2.29
and ignoring any matter with a value less than ten thousand euros
(€10,000), (i) there is no notice, demand, claim, action, suit,
inquiry, hearing, proceeding, notice of violation or investigation of a
civil, criminal or administrative nature before any court or governmental
or other regulatory or administrative agency, commission or authority
against or involving any product, substance or material (collectively, a
“Product”), or
class of claims or lawsuits involving the same or similar LUX or ARCO SRL
Product manufactured, produced, distributed or sold by or on behalf of LUX
or ARCO SRL which is pending or, to the knowledge of LUX and CYP,
threatened, resulting from an alleged defect in design, manufacture,
materials or workmanship of any LUX or ARCO SRL Product manufactured,
produced, distributed or sold by or on behalf of LUX or ARCO SRL, or any
alleged failure to warn, or from any breach of implied warranties or
representations, (ii) to the knowledge of LUX or CYP, there has not
been any Occurrence (as defined below), and (iii) there is not, nor
is there under consideration or investigation by LUX or ARCO SRL, any
Product recall, rework, retrofit or post-sale warning (collectively “Recalls”)
conducted by or on behalf of LUX or ARCO SRL concerning any LUX or ARCO
SRL Products manufactured, produced, distributed or sold by or on behalf
of LUX or ARCO SRL or, to the knowledge of LUX or CYP, any product recall
conducted by or on behalf of any entity as a result of any alleged defect
in any LUX or ARCO SRL Product supplied by LUX or ARCO
SRL.
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2.29.3
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For
purposes of this Section 2.29, the term “Occurrence” shall mean any
accident, happening or event which is caused or allegedly caused by any
alleged hazard or alleged defect in manufacture, design, materials or
workmanship, including, without limitation, any alleged failure to warn or
breach of express or implied warranties or representations, with respect
to, or any such accident, happening or event otherwise involving a LUX or
ARCO SRL (including any parts or components) manufactured, produced,
distributed or sold by or on behalf of LUX or ARCO
SRL.
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2.29
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Employee
Benefits. Neither LUX nor ARCO SRL has (nor for the two
years preceding the date hereof has had) any plans which are subject to
ERISA. “ERISA” means
the Employee Retirement Income Security Act of 1974, as amended or any
successor law and the regulations and rules issued pursuant to that act or
any successor law, or any Italian or Luxembourg law, if any, that is
substantially similar to Employee Retirement Income Security Act of 1974,
as amended.
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2.29.4
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Disclosure. The
representations and warranties and statements of fact made by LUX and CYP
in this Agreement are, as applicable, accurate, correct and complete and
do not contain any untrue statement of a material fact or omit to state
any material fact necessary in order to make the statements and
information contained herein not false or
misleading.
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ARTICLE
3
REPRESENTATIONS
AND WARRANTIES OF CYP
Except as
otherwise disclosed herein or in a disclosure schedule attached hereto, CYP
hereby represents and warrants to PPRW that as of the Opening Date (unless
otherwise indicated), as follows:
3.1 Ownership of the LUX Equity
Interests. CYP owns, beneficially and of record, good and
marketable title to the LUX Equity Interests, free and clear of all security
interests, liens, adverse claims, encumbrances, equities, proxies, options or
voting agreements. CYP represents that it has no right or claims
whatsoever to any equity interests of LUX, other than the LUX Equity Interests
and does not have any options, warrants or any other instruments entitling it to
exercise or purchase or convert into additional equity interests of
LUX. As of the Opening Date, CYP has and, upon transfer of the LUX
Equity Interests to PPRW in accordance with the terms of this Agreement and the
Escrow Agreement, CYP will convey to PPRW good and marketable title to the LUX
Equity Interests, free and clear of any security interests, liens, adverse
claims, encumbrances, equities, proxies, options, shareholders’ agreements or
restrictions.
3.2 Authority Relative to this
Agreement. This Agreement has been duly and validly executed
and delivered by CYP and constitutes a valid and binding agreement of such
person, enforceable against such person in accordance with its terms, except as
such enforcement may be limited by bankruptcy, insolvency or other similar laws
affecting the enforcement of creditors’ rights generally or by general
principles of equity.
3.3 Restricted and Escrowed
Securities. CYP acknowledges that the PPRW Shares will not be
registered pursuant to the Securities Act or any applicable state securities
laws, that the PPRW Shares will be characterized as “restricted securities”
under federal securities laws, and that under such laws and applicable
regulations the PPRW Shares cannot be sold or otherwise disposed of without
registration under the Securities Act or an exemption there from. In this
regard, CYP is familiar with Rule 144 promulgated under the Securities Act, as
currently in effect, and understands the resale limitations imposed thereby and
by the Securities Act. Further, CYP acknowledges and agrees
that:
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3.3.1 CYP
is acquiring the PPRW Shares for investment, for CYP’s own account and not as a
nominee or agent, and not with a view to the resale or distribution of any part
thereof, and CYP has no present intention of selling, granting any participation
in, or otherwise distributing the same. CYP further represents that
it does not have any Contract, undertaking, agreement or arrangement with any
person to sell, transfer or grant participation to such person or to any third
person, with respect to any of the PPRW Shares.
3.3.2 CYP
understands that the PPRW Shares are not registered under the Securities Act on
the ground that the sale and the issuance of securities hereunder is exempt from
registration under the Securities Act pursuant to Section 4(2) thereof, and that
PPRW’s reliance on such exemption is predicated on CYP’s and LUX’s
representations set forth herein.
3.4. Acknowledgement Regarding
Release of PPRW Shares to CYP. CYP acknowledges and agrees that the PPRW
Shares subject to this Agreement will be held in the Escrow and shall only be
released to CYP according the terms set forth in this Agreement including terms
in Exhibit A
hereto and in the Escrow Agreement.
3.5 Status of
Stockholder. CYP hereby makes the representations and
warranties in either paragraph 3.5.1 or 3.5.2 of this Section 3.5, and other
sections as indicated on the signature page of such shareholder forming a part
of this Agreement:
3.5.1 Accredited Investor Under
Regulation D. CYP is an “Accredited Investor” as that term is defined in
Rule 501 of Regulation D promulgated under the Securities Act, an excerpt of
which is included in the attached Annex I,
and CYP is not acquiring its portion of the PPRW Shares as a result
of any advertisement, article, notice or other communication regarding the PPRW
Shares published in any newspaper, magazine or similar media or broadcast over
television or radio or presented at any seminar or any other general
solicitation or general advertisement.
3.5.2 Non-U.S. Person under
Regulation S.
(a) CYP
is not a “U.S. person” or persons as defined by Rule 902 of Regulation S
promulgated under the Securities Act of 1933 (the “Securities Act”), was
not organized under the laws of any U.S. jurisdiction, and was not formed for
the purpose of investing in securities not registered under the Securities
Act;
(b) at
the time of Opening Date, CYP was located outside the United
States;
(c) no
offer of the PPRW Shares was made to CYP within the United States;
(d) CYP
is either (a) acquiring the PPRW Shares for its own account for investment
purposes and not with a view towards distribution, or (b) acting as agent for a
principal that has signed this Agreement or has delivered representations and
warranties substantially similar to this Section 3.5.2;
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(e) all
subsequent offers and sales of the PPRW Shares by CYP will be made outside the
United States in compliance with Rule 903 of Rule 904 of Regulation S, pursuant
to registration of the PPRW Shares under the Securities Act, or pursuant to an
exemption from such registration; CYP understands the conditions of the
exemption from registration afforded by section 4(l) of the Securities Act and
acknowledges that there can be no assurance that it will be able to rely on such
exemption.
(f) CYP
will not resell the PPRW Shares to U.S. Persons or within the United States
until after the holding period that is required prior to resale of such
restricted securities under Rule 144 promulgated under the Securities Act and
Regulation S (the “Restricted
Period”);
(g)
CYP shall not and hereby agrees not to enter into any short sales with respect
to the common stock of PPRW at any time after the execution of this Agreement by
CYP prior to the expiration of the Restricted Period;
(h) in
the event of resale of the PPRW Shares to non-U.S. Persons outside of the U.S.
during the Restricted Period, CYP shall provide a written confirmation or other
written notice to any distributor, dealer, or person receiving a selling
concession, fee, or other remuneration in respect of the PPRW Shares stating
that such purchaser is subject to the same restrictions on offers and sales that
apply to the undersigned, and shall require that any such purchase shall provide
such written confirmation or other notice upon resale during the Restricted
Period;
(i) CYP
has not engaged, nor is it aware that any party has engaged, and it will not
engage or cause any third party to engage in any “directed selling” efforts (as
such term is defined in Regulation S) in the United States with respect to the
PPRW Shares;
(j) CYP
is not a “distributor” as such term is defined in Regulation S, and it is not a
“dealer” as such term is defined in the Securities Act;
(k) CYP
has not taken any action that would cause any of the parties to this Agreement
to be subject to any claim for commission or other remuneration by any broker,
finder, or other person; and
(l) CYP
hereby represents that it has satisfied and fully observed of the laws of the
jurisdiction in which it is located or domiciled, in connection with the
acquisition of the PPRW Shares or this Agreement, including: (i) the legal
requirements of the CYP’s local jurisdiction related to the purchase and
acquisition of the PPRW Shares, (ii) any foreign exchange restrictions
applicable to such purchase and acquisition, (iii) any governmental or other
consents that may need to be obtained, and (iv) the income tax and other tax
consequences, if any, which may be relevant to the purchase, holding,
redemption, sale, or transfer of the PPRW Shares; and further, CYP agrees to
continue to comply with such laws as long as it shall hold the PPRW
Shares.
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3.6 Notice Regarding
Representations and Warranties. CYP understands that the PPRW
Shares are being offered and sold to it in reliance on specific provisions of
federal and state securities laws and that the parties to this Agreement are
relying upon the truth and accuracy of the representations, warranties,
agreements, acknowledgments and understanding of CYP set forth herein in order
to determine the applicability of such provisions. Accordingly, CYP
agrees to notify PPRW of any events which would cause the representations and
warranties of CYP to be untrue or breached at any time after the execution of
this Agreement by CYP and prior to the expiration of the Restricted
Period.
3.7 Investment
Risk. CYP is able to bear the economic risk of acquiring the
PPRW Shares pursuant to the terms of this Agreement, including a complete loss
of CYP’s investment in the PPRW Shares.
3.8 Restrictive
Legends. CYP acknowledges that the certificate(s) representing
CYP’s portion of the PPRW Shares shall each conspicuously set forth on the face
or back thereof a legend in substantially the following form, corresponding to
the stockholder’s status as set forth in Section 3.5 and the signature pages
hereto:
REGULATION D
LEGEND:
“THESE
SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED. THEY MAY NOT BE SOLD, OFFERED FOR SALE, PLEDGED OR HYPOTHECATED IN THE
ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT AS TO THE SECURITIES UNDER SAID
ACT OR PURSUANT TO AN EXEMPTION FROM REGISTRATION OR AN OPINION OF COUNSEL
SATISFACTORY TO THE COMPANY THAT SUCH REGISTRATION IS NOT
REQUIRED.”
REGULATION S
LEGEND:
“THE
SHARES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED, AND MAY NOT BE SOLD, TRANSFERRED, ASSIGNED, PLEDGED OR
HYPOTHECATED EXCEPT IN ACCORDANCE WITH THE PROVISIONS OF REGULATION S
PROMULGATED UNDER THE SECURITIES ACT, PURSUANT TO REGISTRATION UNDER THE
SECURITIES ACT, OR PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM REGISTRATION;
HEDGING TRANSACTIONS INVOLVING THE SHARES REPRESENTED HEREBY MAY NOT BE
CONDUCTED UNLESS IN COMPLIANCE WITH THE SECURITIES ACT.
SHARE EXCHANGE AGREEMENT
LEGEND:
“THESE
SECURITIES ARE SUBJECT TO THE TRANSFERABILITY RESTRICTIONS SET FORTH IN THE
SHARE EXCHANGE AGREEMENT BY AND AMONG THE COMPANY, RUPINVEST SARL, AND ESDRAS
LTD. DATED ON OR ABOUT MAY 14, 2009.”
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3.9 Disclosure. The
representations and warranties and statements of fact made by CYP in this
Agreement are, as applicable, accurate, correct and complete and do not contain
any untrue statement of a material fact or omit to state any material fact
necessary in order to make the statements and information contained herein not
false or misleading.
ARTICLE
4
REPRESENTATIONS
AND WARRANTIES OF PPRW
Except as
otherwise disclosed herein or in a disclosure schedule attached hereto, PPRW
hereby represents and warrants to LUX and CYP that as of the Opening Date
(unless otherwise indicated), as follows:
4.1 Organization and
Qualification. PPRW and the subsidiaries of PPRW (the “PPRW Subsidiaries”)
are each entities duly incorporated or otherwise organized, validly existing and
in good standing under the laws of the jurisdiction of its incorporation or
organization, with the requisite power and authority to own and use its
properties and assets and to carry on its business as currently
conducted.
4.2 Capitalization; Outstanding
Common Stock of PPRW. PPRW shall have at least five hundred
million shares (500,000,000) of its common stock authorized and shall have no
more than twenty seven million (27,000,000) shares of its common stock issued as
of the date of this agreement. All issued and outstanding shares of
PPRW’s common stock are duly authorized, validly issued, fully paid,
non-assessable and free of preemptive rights. There are no voting trusts or any
other agreements or understandings with respect to the voting of PPRW’s common
stock.
4.3 Authorization;
Enforcement. PPRW has the requisite corporate power and
authority to enter into and to consummate the transactions contemplated by this
Agreement and otherwise to carry out its obligations hereunder. The
execution and delivery of this Agreement by PPRW and the consummation by it of
the transactions contemplated hereby have been duly authorized by all necessary
action on the part of PPRW and no further action is required by PPRW, the Board
of Directors or PPRW’s stockholders in connection therewith.
4.4 Legal Compliance. No
claim has been filed against PPRW alleging a violation of any applicable laws
and regulations of foreign, federal, state and local governments and all
agencies thereof. PPRW holds all of the material permits, licenses,
certificates or other authorizations, federal, state or local governmental
agencies required for the conduct of its businesses as presently
conducted.
4.5 No
Conflicts. The execution, delivery and performance by PPRW of
this Agreement and the consummation by PPRW of the other transactions to which
it is a party and as contemplated hereby do not and will not conflict with or
violate any provision of PPRW’s or any PPRW Subsidiary’s certificate or articles
of incorporation, bylaws or other organizational or charter
documents.
4.6 Filings, Consents and
Approvals. PPRW is not required to obtain any consent, waiver,
authorization or order of, give any notice to, or make any filing or
registration with, any court or other federal, state, local or other
governmental authority or other Person (other than its senior lender) in
connection with the execution, delivery and performance by PPRW of this
Agreement, other than such filings as are required to be made under applicable
federal and state securities laws.
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4.7 Issuance of the PPRW
Shares. The PPRW Shares are duly authorized and, when issued
and paid for in accordance with this Agreement, will be duly and validly issued,
fully paid and not assessable, free and clear of all Liens imposed by PPRW other
than restrictions on transfer provided for in this Agreement or SEC rules and
regulations.
4.8 SEC Reports; Financial
Statements. PPRW has filed, is in the process of filing, or
will file all reports, schedules, forms, statements and other documents required
to be filed by PPRW under the Securities Act and the Exchange Act.
4.9 Material Changes. In
the past fifteen (15) days, except as specifically disclosed in a subsequent SEC
Report or PPRW financial statement or as a result of a restatement or adjustment
related to any Commission or auditor’s review of PPRW: (i) there has been no
event, occurrence or development that has had or that could reasonably be
expected to result in a Material Adverse Effect, (ii) PPRW has not incurred any
liabilities (contingent or otherwise) other than (A) liabilities and accrued
expenses incurred in the Ordinary Course of Business consistent with past
practice and (B) liabilities not required to be reflected in PPRW’s financial
statements pursuant to GAAP or disclosed in filings made with the Commission,
(iii) PPRW has not altered its method of accounting, (iv) PPRW has not declared
or made any dividend or distribution of cash or other property to its
stockholders or purchased, redeemed or made any agreements to purchase or redeem
any shares of its capital stock and (v) PPRW has not issued any equity
securities to any officer, director or Affiliate. No event, liability
or development has occurred or exists with respect to PPRW or the PPRW
Subsidiaries or their respective business, properties, operations or financial
condition, that would be required to be disclosed by PPRW under applicable
securities laws at the time this representation is made or deemed made that has
not been publicly disclosed at least one (1) Trading Day prior to the date that
this representation is made except for any Commission comments related to PPRW’s
pending Registration Statement on Form S-1 that may require certain accounting
treatment or changes according to GAAP rules or Commission
guidelines.
4.10 Regulatory
Permits. PPRW and the PPRW Subsidiaries possess all
certificates, authorizations and permits issued by the appropriate federal,
state, local or foreign regulatory authorities necessary to conduct their
respective businesses, except where the failure to possess such permits could
not reasonably be expected to result in a Material Adverse Effect (“Material Permits”),
and neither PPRW nor any PPRW Subsidiary has received any notice of proceedings
relating to the revocation or modification of any Material Permit.
4.11 Litigation. Except as
disclosed in Schedule
4.11, PPRW and the PPRW Subsidiaries are not subject to any judgment or
order of any court or quasi-judicial or administrative agency of any
jurisdiction, domestic or foreign, nor is there any charge, complaint, lawsuit
or governmental investigation pending against PPRW. PPRW is not a
plaintiff in any action, domestic or foreign, judicial or
administrative. To the knowledge of PPRW, there are no existing
actions, suits, proceedings against or investigations of PPRW and the PPRW
Subsidiaries and, to PPRW’s knowledge, there is no basis for such actions,
suits, proceedings or investigations. There are no unsatisfied
judgments, orders, decrees or stipulations affecting PPRW or PPRW Subsidiaries
or to which PPRW or any of the PPRW Subsidiaries is a party.
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4.12 Patents and
Trademarks. PPRW and the PPRW Subsidiaries have, or have
rights to use, all patents, patent applications, trademarks, trademark
applications, service marks, trade names, trade secrets, inventions, copyrights,
licenses and other intellectual property rights and similar rights as described
in the SEC Reports as necessary or material for use in connection with their
business and which the failure to so have could have a Material Adverse Effect
(collectively, the “Intellectual Property
Rights”). Neither PPRW nor any PPRW Subsidiary has received a
notice (written or otherwise) that any of the Intellectual Property Rights used
by PPRW or any PPRW Subsidiary violates or infringes upon the rights of any
Person. To the knowledge of PPRW, all such Intellectual Property Rights are
enforceable and there is no existing infringement by another Person of any of
the Intellectual Property Rights. PPRW and the PPRW Subsidiaries have
taken reasonable security measures to protect the secrecy, confidentiality and
value of all of their intellectual properties, except where failure to do so
could not, individually or in the aggregate, reasonably be expected to have a
Material Adverse Effect.
4.13 Transactions with Affiliates
and Employees. Except as set forth in the SEC Reports, none of
the officers or directors of PPRW and, to the knowledge of PPRW, none of the
employees of PPRW is presently a party to any transaction with PPRW or any PPRW
Subsidiary (other than for services as employees, officers and directors),
including any contract, agreement or other arrangement providing for the
furnishing of services to or by, providing for rental of real or personal
property to or from, or otherwise requiring payments to or from any officer,
director or such employee or, to the knowledge of PPRW, any entity in which any
officer, director, or any such employee has a substantial interest or is an
officer, director, trustee or partner, in each case in excess of €120,000, other
than for: (i) payment of salary or consulting fees for services rendered, (ii)
reimbursement for expenses incurred on behalf of PPRW or any PPRW Subsidiary and
(iii) other employee benefits.
4.14 Xxxxxxxx-Xxxxx; Internal
Accounting Controls. PPRW is in material compliance with all
provisions of the Xxxxxxxx-Xxxxx Act of 2002 or is acting to become in
compliance with all such provisions which are applicable to it as of the Opening
Date. PPRW and the PPRW Subsidiaries maintain a system or are
establishing a series of internal accounting controls sufficient to provide
reasonable assurance that: (i) transactions are executed in accordance with
management’s general or specific authorizations, (ii) transactions are recorded
as necessary to permit preparation of financial statements in conformity with
GAAP and to maintain asset accountability, (iii) access to assets is permitted
only in accordance with management’s general or specific authorization, and (iv)
the recorded accountability for assets is compared with the existing assets at
reasonable intervals and appropriate action is taken with respect to any
differences. PPRW has established or is establishing disclosure
controls and procedures (as defined in Exchange Act Rules 13a-15(e) and
15d-15(e)) for PPRW and it designed or is designing such disclosure controls and
procedures to ensure that information required to be disclosed by PPRW in the
reports it files or submits under the Exchange Act is recorded,
processed, summarized and reported, within the time periods specified in
the Commission’s rules and forms or has such process underway or will put in
place such process as required. PPRW’s certifying officers have
evaluated the effectiveness of PPRW’s disclosure controls and procedures as of
the end of the period covered by PPRW’s most recently filed periodic report
under the Exchange Act (such date, the “Evaluation
Date”). PPRW presented in its most recently filed periodic
report under the Exchange Act the conclusions of the certifying officers about
the effectiveness of the disclosure controls and procedures based on their
evaluations as of the Evaluation Date. Since the Evaluation Date,
there are ongoing changes in PPRW’s internal control over financial reporting
(as such term is defined in the Exchange Act) that has materially affected, or
is reasonably likely to materially affect, PPRW’s internal control over
financial reporting.
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4.15 Issuance of PPRW
Shares. Assuming the accuracy of CYP’s representations and warranties set
forth in Article 3 herein, no registration under the Securities Act is required
for the offer and issuance of the PPRW Shares by PPRW to CYP as contemplated
hereby. The issuance of the PPRW Shares hereunder does not contravene
the rules and regulations of the applicable Trading Market.
4.16 Investment Company.
PPRW is not an Affiliate of, an “investment company” within the meaning of the
Investment Company Act of 1940, as amended.
4.17 Listing and Maintenance
Requirements. PPRW’s common stock is registered pursuant to
Section 15(d) of the Exchange Act, and PPRW has taken no action designed to, or
which to its knowledge is likely to have the effect of, terminating the
registration of PPRW’s common stock under the Exchange Act nor has PPRW received
any notification that the Commission is contemplating terminating such
registration. PPRW has not, in the twelve (12) months preceding the
date hereof, received notice from any Trading Market on which PPRW’s common
stock is or has been listed or quoted to the effect that PPRW is not in
compliance with the listing or maintenance requirements of such Trading
Market. PPRW is in compliance with all such listing and maintenance
requirements.
4.18 Tax
Status. Except for matters that would not, individually or in
the aggregate, have or reasonably be expected to result in a Material Adverse
Effect, PPRW and each PPRW Subsidiary has filed all necessary Tax Returns and
has paid or accrued all Taxes shown as due thereon, and PPRW has no knowledge of
a tax deficiency which has been asserted or threatened against PPRW or any PPRW
Subsidiary.
4.19 Foreign Corrupt
Practices. PPRW has not and, to the best knowledge of PPRW, no
agent or other person acting on behalf of PPRW has: (i) directly or indirectly,
used any funds for unlawful contributions, gifts, entertainment or other
unlawful expenses related to foreign or domestic political activity, (ii) made
any unlawful payment to foreign or domestic government officials or employees or
to any foreign or domestic political parties or campaigns from corporate funds,
(iii) failed to disclose fully any contribution made by PPRW (or made by any
person acting on its behalf of which PPRW is aware) which is in violation of
law, or (iv) violated in any material respect any provision of the Foreign
Corrupt Practices Act of 1977, as amended.
4.20 Accountants. PPRW’s
accounting firm: (i) is a registered public accounting firm as required by the
Exchange Act, and (ii) expressed its opinion with respect to the financial
statements included in PPRW’s Annual Report on Form 10-K for the year ended
December 31, 2008.
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4.21 No Undisclosed
Liabilities. Except as set forth in Schedule 4.21 hereto
or in PPRW’s financial statements or as a result of a restatement or adjustment
related to any Commission or auditor’s review of PPRW, at the Opening Date, PPRW
and PPRW Subsidiaries shall have no liabilities, debts or payables (absolute,
accrued, contingent or otherwise) of a nature required to be disclosed on a
balance sheet or in the related notes to the consolidated financial statements
prepared in accordance with GAAP which are, individually or in the aggregate,
material to the business, results of operations or financial condition of
PPRW.
4.22 Disclosure. The
representations and warranties and statements of fact made by PPRW in this
Agreement are, as applicable, accurate, correct and complete and do not contain
any untrue statement of a material fact or omit to state any material fact
necessary in order to make the statements and information contained herein not
false or misleading.
ARTICLE
5
INDEMNIFICATION;
SURVIVAL OF REPRESENTATIONS AND WARRANTIES
5.1 Mutual Indemnification.
5.1.1 Subject
to the provisions of this Article 5, CYP agrees to indemnify fully in respect
of, hold harmless and defend PPRW and each of the officers, agents and directors
of PPRW against any damages, liabilities, costs, claims, proceedings,
investigations, penalties, judgments, deficiencies, including taxes, expenses
(including, but not limited to, any and all interest, penalties and expenses
whatsoever reasonably incurred in investigating, preparing or defending against
any litigation, commenced or threatened, or any claim whatsoever) and losses
(each, a “Claim”) to which it
or they may become subject arising out of or based on either (i) any breach of
or inaccuracy in any of the representations and warranties or covenants or
conditions made by LUX and CYP herein in this Agreement; or (ii) any and all
liabilities arising out of or in connection with: (A) any of the assets of LUX
or ARCO SRL prior to the Opening Date; or (B) the operations of LUX or ARCO SRL
prior to the Opening Date. If PPRW shall become reasonably aware of
any legal or financial Claim asserted in a court of law or arbitration against
ARCO SRL and/or LUX (“Claim”) covered by this Section 5.1, and while
such Claim is unresolved, PPRW shall have the right to issue stop transfer
instructions to the Escrow Agent and/or PPRW’s transfer agent with respect to
PPRW Shares or the shares of PPRW common stock held by CYP until such time as
the claim is settled or resolved or adjudicated in a court of law or
arbitration. After settlement, adjudication or arbitration or in the
event PPRW is required to pay compensation by any court or
authority PPRW shall be entitled to and may, at its sole discretion,
recover any and all payments (each a “PPRW Claim Payment”)
that it is required to make that are based on, in connection with, arise out of,
or are related to any Claim covered by this Section 5.1 by satisfying such PPRW
Claim Payment from PPRW Shares to which CYP becomes entitled under the terms of
this Agreement. Each time PPRW makes a PPRW Claim Payment, PPRW shall
become entitled to recover the total number of PPRW common stock shares with a
total dollar value equal to the PPRW Claim Payment (hereinafter the “PPRW Recovery Payment
Shares”). The price per PPRW common stock share that shall be
used to calculate the total number of PPRW Recovery Payment Shares to be paid to
PPRW under this Section 5.1.1 shall be the lower of: (a) the market price per
share of PPRW’s common stock on the Opening Date; or (b) the market price per
share of PPRW’s common stock on the date of PPRW’s payment of a PPRW Claim
Payment. Prior to making any Share Payments to CYP in accordance with
the terms of this Agreement and the Escrow Agreement, PPRW shall be entitled to
calculate the number of PPRW Recovery Payment Shares due and owing to PPRW as of
the date of each Share Payment (“Share Payment Date”),
and, at its sole discretion, PPRW shall be entitled to instruct the Escrow Agent
to reduce the number of shares to be transferred to CYP in an amount equal to
all of the PPRW Recovery Payment Shares due and owing to PPRW as of the Share
Payment Date, and instead, such PPRW Recovery Payment Shares shall be delivered
by the Escrow Agent on the Share Payment Date to PPRW in satisfaction of all of
the PPRW Claim Payments that PPRW had made as of the Share Payment
Date.
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5.1.2 Subject
to the provisions of this Article 5, PPRW agrees to indemnify fully in respect
of, hold harmless and defend CYP and each of the officers, agents and directors
of CYP against any damages, liabilities, costs, claims, proceedings,
investigations, penalties, judgments, deficiencies, including taxes, expenses
(including, but not limited to, any and all interest, penalties and expenses
whatsoever reasonably incurred in investigating, preparing or defending against
any litigation, commenced or threatened, or any claim whatsoever) and losses
brought as any legal or financial Claim asserted in n court of law or
arbitration (each, a “CYP Claim”) to which it
or they may become subject arising out of or based on either (i) any breach of
or inaccuracy in any of the representations and warranties or covenants or
conditions made by PPRW herein in this Agreement, except for the effects
resulting from any adjustments, restatements or changes required of PPRW by the
Commission, auditors or the U.S. Internal Revenue Service (“IRS”); or (ii) any
and all liabilities arising out of or in connection with: (A) any of the assets
of PPRW prior to the Opening Date; or (B) the operations of PPRW prior to the
Opening Date except for the effects resulting from any adjustments, restatements
or changes required of PPRW by the Commission, auditors or the IRS.
5.2 Survival of Representations and
Warranties. Notwithstanding any provision in this Agreement to
the contrary, the representations and warranties given or made by LUX, CYP and
PPRW under this Agreement shall survive the date hereof for a period of thirty
six (36) months from and after the Opening Date (the last day of such period is
herein referred to as the “Expiration Date”),
except that any written claim for breach thereof made and delivered prior to the
Expiration Date to the party against whom such indemnification is sought shall
survive thereafter and, as to any such claim, such applicable expiration will
not effect the rights to indemnification of the party making such claim; provided, however, that any
representations and warranties that were fraudulently made shall not expire on
the Expiration Date and shall survive indefinitely, and claims with respect to
fraud by LUX, CYP and PPRW may be made at any time.
5.3 Method of Asserting Claims,
Etc. All Claims for indemnification by any indemnified party
(“Indemnified
Party”) against an indemnifying party (“Indemnifying Party”)
as described under Sections 5.1.1 and 5.1.2 shall be asserted as
follows:
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(a) In
the event that any Claim or demand for which an Indemnifying Party would be
liable to an Indemnified Party hereunder is asserted against or sought to be
collected from such Indemnified Party by a third party, said Indemnified Party
shall with reasonable promptness notify the Indemnifying Party of such claim or
demand, specifying the nature of and specific basis for such claim or demand and
the amount or the estimated amount thereof to the extent then feasible (which
estimate shall not be conclusive of the final amount of such Claim or demand)
(the “Claim
Notice”). The Indemnified Party’s failure to so notify the
Indemnifying Party in accordance with the provisions of this Agreement shall not
relieve the Indemnifying Party of liability hereunder unless such failure
materially prejudices the Indemnifying Party’s ability to defend against the
claim or demand. The Indemnifying Party shall have thirty (30) days
from the giving of the Claim Notice (the “Notice Period”) to
notify the Indemnified Party: (i) whether or not the Indemnifying
Party disputes the liability of the Indemnifying Party to the Indemnified Party
hereunder with respect to such Claim or demand, and (ii) whether or not the
Indemnifying Party desires, at the sole cost and expense of the Indemnifying
Party, to defend the Indemnified Party against such Claims or demand; provided,
however, that any Indemnified Party is hereby authorized prior to and during the
Notice Period to file any motion, answer or other pleading which he shall deem
necessary or appropriate to protect his interests or those of the Indemnifying
Party and not prejudicial to the Indemnifying Party. In the event
that the Indemnifying Party notifies the Indemnified Party within the Notice
Period that he does not dispute liability for indemnification under this Article
5 and that he desires to defend the Indemnified Party against such claim or
demand and except as hereinafter provided, the Indemnifying Party shall have the
right to defend by all appropriate proceedings, which proceedings shall be
promptly settled or prosecuted by him to a final conclusion. The
Indemnified Party shall have the right to employ separate counsel in any such
action and participate in the defense thereof, but the fees and expenses of such
counsel shall be at the expense of such Indemnified Party except to the extent
that the employment thereof has been specifically authorized by the Indemnifying
Party in writing, the Indemnifying Party has failed after a reasonable period of
time to assume such defense and to employ counsel or in such action there is, in
the reasonable opinion of such separate counsel, a material conflict on any
material issue between the position of the Indemnifying Party and the position
of such Indemnified Party (a “Material
Conflict”). If requested by the Indemnifying Party and there
is no Material Conflict, the Indemnified Party agrees to cooperate with the
Indemnifying Party and his counsel in contesting any Claim or demand which the
Indemnifying Party elects to contest or, if appropriate and related to the Claim
in question, in making any Counterclaim against the person asserting the third
party Claim or demand, or any cross-complaint against any person. No
Claim for which indemnity is sought hereunder and for which the Indemnifying
Party has acknowledged liability for indemnification under this Article 5 may be
settled without the consent of the Indemnifying Party, which consent shall not
be unreasonably withheld or delayed.
(b) In
the event any Indemnified Party should have a Claim against any Indemnifying
Party hereunder which does not involve a Claim or demand being asserted against
or sought to be collected from him by a third party, the Indemnified Party shall
give a Claim Notice with respect to such Claim to the Indemnifying
Party. If, after receipt of a Claim Notice, the Indemnifying Party
does not notify the Indemnified Party within the Notice Period that he disputes
such Claim, then the Indemnifying Party shall be deemed to have admitted
liability for such Claim in the amount set forth in the Claim
Notice.
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ARTICLE
6
COVENANTS
OF THE PARTIES
6.1 Corporate Examinations and
Investigations. Prior to the Opening Date, each party shall be entitled,
through its employees and representatives, to make such investigations and
examinations of the books, records and financial condition of LUX ARCO SRL and
PPRW as each party may request. In order that each party may have the
full opportunity to do so, LUX, CYP and PPRW shall furnish each party and its
representatives during such period with all such information concerning the
affairs of LUX, ARCO SRL or PPRW as each party or its representatives may
reasonably request and cause LUX, ARCO SRL or PPRW and their respective
officers, employees, consultants, agents, accountants and attorneys to cooperate
fully with each party’s representatives in connection with such review and
examination and to make full disclosure of all information and documents
requested by each party and/or its representatives. Any such investigations and
examinations shall be conducted at reasonable times and under reasonable
circumstances, it being agreed that any examination of original documents will
be at each party’s premises, with copies thereof to be provided to each party
and/or its representatives upon request.
6.2 Cooperation;
Consents. Prior to the Opening Date, each party shall
cooperate with the other parties to the end that the parties shall (i) in a
timely manner make all necessary filings with, and conduct negotiations with,
all authorities and other persons the consent or approval of which, or the
license or permit from which is required for the consummation of the Acquisition
and (ii) provide to each other party such information as the other party may
reasonably request in order to enable it to prepare such filings and to conduct
such negotiations.
6.3 Conduct of Business.
Subject to the provisions hereof, from the date hereof through the Opening Date,
each party hereto shall conduct its business in the ordinary course and in such
a manner so that the representations and warranties contained herein shall
continue to be true and correct in all material respects as of the Opening Date
as if made at and as of the Opening Date.
6.4 Litigation. From
the date hereof through the Opening Date, each party hereto shall promptly
notify the representative of the other parties of any lawsuits, claims,
proceedings or investigations which after the date hereof are threatened or
commenced against such party or any of its affiliates or any officer, director,
employee, consultant, agent or shareholder thereof, in their capacities as such,
which, if decided adversely, could reasonably be expected to have a Material
Adverse Effect on such party or any of its subsidiaries.
6.5 Notice of
Default. From the date hereof through the Opening Date, each
party hereto shall give to the representative of the other parties prompt
written notice of the occurrence or existence of any event, condition or
circumstance occurring which would constitute a violation or breach of this
Agreement by such party or which would render inaccurate in any material respect
any of such party’s representations or warranties herein.
6.6 Confidentiality; Access to
Information.
(a) Confidentiality. Upon
the Opening Date, any confidentiality agreement or letter of intent previously
executed by the parties shall be superseded in its entirety by the provisions of
this Agreement. Each party agrees to maintain in confidence any non-public
information received from the other party, and to use such non-public
information only for purposes of consummating the transactions contemplated by
this Agreement. Such confidentiality obligations will not apply to (i)
information which was known to the one party or their respective agents prior to
receipt from the other party; (ii) information which is or becomes generally
known; (iii) information acquired by a party or their respective agents from a
third party who was not bound to an obligation of confidentiality; and (iv)
disclosure required by law. In the event this Agreement is terminated as
provided in Article 8 hereof, each party will return or cause to be returned to
the other all documents and other material obtained from the other in connection
with the Transaction contemplated hereby.
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(b) Access to
Information.
(i) LUX
and CYP will afford PPRW and its financial advisors, accountants, counsel and
other representatives reasonable access during normal business hours, upon
reasonable notice, to the properties, books, records and personnel of LUX and
ARCO SRL during the period prior to the Opening Date to obtain all
information concerning the business, including the status of product development
efforts, properties, results of operations and personnel of LUX and ARCO SRL, as
PPRW may reasonably request. No information or knowledge obtained by
PPRW in any investigation pursuant to this Section 6.6 will affect or be deemed
to modify any representation or warranty contained herein or the conditions to
the obligations of the parties to consummate the Transaction.
(ii) PPRW
will afford LUX and CYP and its financial advisors, underwriters, accountants,
counsel and other representatives reasonable access during normal business
hours, upon reasonable notice, to the properties, books, records and personnel
of PPRW during the period prior to the Opening Date to obtain all information
concerning the business, including the status of product development efforts,
properties, results of operations and personnel of PPRW, as LUX and CYP may
reasonably request. No information or knowledge obtained by LUX and
CYP in any investigation pursuant to this Section 6.6 will affect or be deemed
to modify any representation or warranty contained herein or the conditions to
the obligations of the parties to consummate the Transaction.
6.7 Public Disclosure.
Except to the extent previously disclosed or to the extent the parties believe
that they are required by applicable law or regulation to make disclosure, prior
to Opening Date, no party shall issue any statement or communication to the
public regarding the transaction contemplated herein without the consent of the
other party, which consent shall not be unreasonably withheld. To the
extent a party hereto believes it is required by law or regulation to make
disclosure regarding the Transaction, it shall, if possible, immediately notify
the other party prior to such disclosure. Notwithstanding the
foregoing, the parties hereto agree that LUX and CYP will cooperate with PPRW in
PPRW’s preparation and filing of a Current Report on Form 8-K pursuant to the
Exchange Act to report the execution of this Agreement and Opening Date of the
transactions contemplated thereby.
6.8 Assistance with Post-Opening
Date SEC Reports and Inquiries. Upon the reasonable request of PPRW,
after the Opening Date, LUX and CYP shall use its reasonable efforts to provide
such information available to it, including information, filings, reports,
financial statements or other materials of LUX and ARCO SRL occurring, reported
or filed prior to the Opening Date, as may be necessary or required by PPRW for
the preparation of the post-Opening Date reports that PPRW is required to file
with the SEC to remain in compliance and current with its reporting requirements
under the Securities Act, or filings required to address and resolve matters as
may relate to the period prior to the Opening Date and any SEC comments relating
thereto or any SEC inquiry thereof.
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6.9
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Post-Opening Date
Increase in Capitalization. The parties hereby further agree
that:
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6.9.1
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Prior
to the Opening Date ARCO SRL will declare and distribute a
shareholder dividend for the benefit of LUX in an amount equal to the Net
Current Assets, (which shall not exceed €200,000). Such dividend
shall be paid by ARCO SRL to LUX and then conveyed from LUX to CYP prior
to the Opening Date.
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6.9.2
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Within
twenty (20) calendar days after the Opening Date, LUX will convert ARCO
SRL from an Italian Srl (LTD) structured company to an Italian Spa (PLC)
structured company named Premier Power Italy S.p.A. (“PPRW ITALY”) in
accordance with the laws governing such companies in Italy (the “Restructuring”).
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6.9.3
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Upon completion
of the Restructuring, the Social Capital of PPRW ITALY will be increased
by an initial amount of one million two hundred fifty thousand euros
(€1,250,000) (the “Initial PPRW ITALY
Capitalization Increase”).
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6.9.4
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An
additional capital increase will be determined within one hundred twenty
(120) calendar days of the execution of this Agreement, with the total
capitalization (hereinafter the “Total PPRW ITALY
Capitalization Increase”) not to exceed five million euros
(€5,000,000).
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6.9.5
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The
Initial PPRW ITALY Capitalization Increase and the Total PPRW ITALY
Capitalization Increase shall each be funded as follows: (a) ninety
percent (90%) from LUX, and (b) ten percent (10%) from
CYP. Following the Initial PPRW ITALY Capitalization Increase
and continuing through the Total PPRW ITALY Capitalization Increase, LUX
will retain 90% of the total equity ownership interests of PPRW ITALY and
CYP will own the remaining 10% of PPRW ITALY’s total equity ownership
interests (the “CYP 10% PPRW ITALY
INTEREST”). LUX’s board of directors will determine how
much of the subject funding shall be capitalization and how much will be
in the form of low interest loans, provided however that, notwithstanding
anything the contrary, no more than forty percent (40%) of the total
funding shall be in the form of
loans.
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6.9.6
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LUX
and CYP hereby agree that LUX shall have the option to repurchase the CYP
10% PPRW ITALY INTEREST from CYP under the following
terms:
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(a) If
the CYP 10% PPRW ITALY INTEREST is repurchased by LUX on or before December 31,
2009, then LUX shall pay to CYP the total amount of capital CYP paid into the
combined Initial PPRW ITALY Capitalization Increase and the Total PPRW ITALY
Capitalization Increase in exchange for the CYP 10% PPRW ITALY
INTEREST.
(b) If
the CYP 10% PPRW ITALY INTEREST is repurchased by LUX after December 31, 2009,
then LUX shall pay to CYP: (i) the total amount of capital CYP paid into the
combined Initial PPRW ITALY Capitalization Increase and the Total PPRW ITALY
Capitalization Increase in exchange for the CYP 10% PPRW ITALY INTEREST, plus
(ii) ten percent (10%) of any net profits accrued up to the time of LUX’s
re-purchase of the CYP 10% PPRW ITALY INTEREST from CYP. This interest shall be
calculated per annum on the 10% capitalization amount paid by CYP to PPRW Italy
and included under Section 6.9.6(b)(i) from the date of payment until the date
of reimbursement by LUX. Interests are not due if LUX exercises the
option before December 31, 2009.
6.10 Change of Control
Transaction. If, during the period starting on the Opening
Date and ending either nine (9) months after the Opening Date or December 31,
2009, whichever ending date is earlier, any Person which is not an Affiliate of
PPRW (hereinafter an “Acquiring Party”):
(a) acquires more than sixty six percent (66%) of PPRW’s voting securities, and
as a result of such acquisition, (i) changes more than two-thirds (2/3) of
PPRW’s board of directors as of the Opening Date, and (ii) changes PPRW’s Chief
Executive Officer and President (hereinafter a “Change in Control
Transaction”), and (b) the Acquiring Party either: (i) requires the
operations of PPRW ITALY to shut down, or to change the business to an industry
other than renewable energies or (ii) does not provide the funding
under the terms of this Agreement for any reason other than for fraud,
malfeasance or Net Operating Losses, then CYP will be entitled to
receive a share payment of one million (1,000,000) PPRW Shares (the “Change of Control Share
Payment”) from the PPRW Shares in Escrow, which shall constitute the full
and final Share Payment due to CYP under this Agreement. In the event
a Change of Control Share Payment is made by PPRW, the Escrow Agent shall return
to PPRW any and all PPRW Shares left in Escrow after the delivery of such Change
of Control Share Payment.
6.11 Obligation
Waivers. LUX and CYP hereby agree to supply waivers to PPRW as
soon as possible and no later than the Opening Date from Wuxi SunTech Co. Ltd.
and Canadian Solar, Inc. and any other equipment suppliers releasing ARCO SRL
and any related third parties from any outstanding or contingent liabilities
arising out of, in connection with or related to ARCO SRL failing to meet
purchasing minimums or any other obligation under the terms of any and all past
and present suppliers or distribution agreements with Wuxi SunTech Co. Ltd.,
Canadian Solar, Inc. or other suppliers.
6.12 Tax
Obligations. LUX and CYP hereby agree to assume any and all
financial responsibility, including, but not limited, to payment responsibility,
for: (a) tax obligations of CYP, ARCO SRL or LUX resulting from, in connection
with or related to the Acquisition and the Transaction, and (b) any and all tax
obligations of LUX or ARCO SRL as of the Opening Date.
6.13 Post-Opening Date Affiliate
Compliance. CYP hereby agrees that if it becomes an Affiliate
of PPRW while they own any PPRW Shares, CYP will comply with all local, state
and federal securities laws applicable to the PPRW Shares and the shareholders
of such restricted securities, including, but not limited to, the Securities Act
and the rules and regulations promulgated thereunder in connection with the
resale and/or transfer of such restricted securities.
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ARTICLE
7
CONDITIONS
TO OBLIGATIONS
7.1 Conditions to Obligations of
LUX and CYP. The obligations of LUX and CYP under this Agreement shall be
subject to each of the following conditions:
7.1.1 PPRW
Deliveries. As soon as possible and no later than twenty (20)
Trading days after the Opening Date, PPRW shall have delivered or caused to be
delivered the following:
(a) resolutions
duly adopted by the Board of Directors of PPRW approving the following events or
actions, as applicable:
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(i)
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the
execution, delivery and performance of this
Agreement;
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(ii)
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the
Acquisition and the terms thereof;
and
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(iii)
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the
execution, delivery and performance of the Escrow
Agreement.
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(b) this
Agreement duly executed by PPRW;
(c) the
Escrow Agreement duly executed by PPRW;
(d) the
Cash Payment;
(e) a
certificate of good standing for PPRW from its jurisdiction of incorporation,
dated not earlier than five (5) calendar days prior to the Opening
Date.
(f) an
instruction letter signed by the President of PPRW addressed to the transfer
agent of record, consistent with the terms of this Agreement, instructing the
transfer agent to issue stock certificates representing the PPRW Shares to be
delivered if and when so designated by the terms and conditions of this
Agreement and the Escrow Agreement;
(g) all
corporate records, agreements, seals and any other information reasonably
requested by any representatives with respect to PPRW; and
(h) such
other documents as may be reasonably request in connection with the transactions
contemplated hereby.
7.1.2 Representations and
Warranties to be True. All the representations and warranties of all of
PPRW herein shall be true in all material respects at the Opening Date with the
same effect as though made at such time. All parties hereto shall
have performed in all material respects all obligations and complied in all
material respects with all covenants and conditions required by this Agreement
to be performed or complied with by them at or prior to the Opening
Date.
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7.1.3 SEC Filings. At the
Opening Date, PPRW will be current in all SEC filings required by it to be
filed.
7.1.4 Outstanding Common Stock of
PPRW. PPRW shall have at least five hundred million shares (500,000,000)
of its common stock authorized and shall have no more than twenty seven million
(27,000,000) shares of its common stock issued and outstanding (plus any shares
of Preferred Stock that may be converted to common stock) as of the Opening Date
and immediately prior to PPRW’s issuance of the subject PPRW Shares in
connection with this Agreement.
7.1.5 Outstanding Preferred Stock
of PPRW. PPRW shall have at least twenty million (20,000,000) shares of
preferred stock authorized and shall have no more three million five hundred
thousand (3,500,000) shares of preferred stock issued and outstanding at the
Opening Date.
7.1.6 No Adverse
Effect. The business and operations of PPRW will not have
suffered any Material Adverse Effect prior to the Opening Date, except for any
effects of changes required as a result of the Commission’s review of PPRW’s
pending Registration Statement on Form S-1.
7.2 Conditions to Obligations of
PPRW. The obligations of PPRW under this Agreement shall be subject to
each of the following conditions:
7.2.1 Deliveries by LUX and
CYP. As soon as possible and no later than twenty (20) Trading
Days after the Opening Date, LUX and/or CYP shall have delivered to Escrow the
following:
(a) this
Agreement duly executed by LUX and CYP;
(b) the
Escrow Agreement duly executed by LUX and CYP;
(c) letters
of resignation from all of the executive officers and directors of LUX and ARCO
SRL, with such resignations effective at the Opening Date and each confirming
that he has no claim against LUX or ARCO SRL (as applicable) in respect of any
outstanding remuneration or fees of whatever nature as of the Opening
Date;
(d) resolutions
duly adopted by the Board of Directors or Shareholders of LUX
approving the following events or actions, as applicable:
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(i)
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the
execution, delivery and performance of this
Agreement;
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(ii)
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the
Acquisition and the terms thereof;
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(iii)
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adoption
of LUX bylaws in the form agreed by the
parties
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(iv)
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the
appointment of Xxxx X. Xxxxx as Chairman of the board of directors to
serve on LUX’s board of directors, effective on Opening Date and the
appointment of Xxxxxx de Anquin as director effective on the Opening
Date;
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(v)
|
the
appointment of the persons to be chosen and designated by PPRW prior to
the Opening Date as the requisite officers of LUX, effective on the
Opening Date (the “LUX
Officers”):
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(vi)
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In
the event LUX’s board of directors decides to authorize an “Authorized
Third Party Signatory” (as defined in Section 7.2.1(o)) to sign this
Agreement and the Escrow Agreement on behalf of LUX and CYP, then
resolutions granting the Authorized Third Party Signatory full power and
authority to enter into and sign the Agreement and the Escrow Agreement on
behalf of LUX.
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(e) the
LUX Shares Certificates registered or transferred to the name of PPRW
and representing the LUX Equity Interests to be delivered to PPRW pursuant to
this Agreement;
(f) a
shareholders list or shareholders’ register of LUX as certified by LUX’s
Secretary or transfer agent, reflecting PPRW’s ownership of the LUX Equity
Interests if applicable ;
(g) resolutions
duly adopted by the Board of Directors or Shareholders of ARCO SRL, as
applicable according to the law approving the following events or
actions, as applicable:
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(i)
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Requiring
ARCO SRL to execute, deliver and perform under the terms
of this Agreement and
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(ii)
|
the
Acquisition and the terms thereof;
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(iii)
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adoption
of bylaws in the form agreed by the
parties
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(iv)
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fixing
the number of authorized directors on the ARCO SRL board of directors at
five (5);
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(v)
|
the
appointment of Xxxx X. Xxxxx as Chairman of the board of directors of ARCO
SRL, the appointment of Xxxxxx De Anquin to serve on ARCO SRL’s board of
directors effective on the Opening Date and the appointment of Xxxxx
Xxxxxxxx and Xxxxxxxx Xxxxxxxx as ARCO SRL directors effective on the
Opening Date, with a fifth member of ARCO SRL’s board of directors to be
determined and designated solely by PPRW
upon the date of the restructuring to be done within
20 Days of the Opening
Date;
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(vi)
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the
appointment of the following persons as officers of ARCO SRL, effective on
the Opening Date with the titles set forth opposite his name (the “ARCO SRL
Officers”):
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|
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Xxxxx
Xxxxxxxx Chief
Executive Officer (managing director) Amministratore delegato
Xxxxxxxx
Xxxxxxxx Chief
Operating Officer (managing
director) Amministratore delegato
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(viii)
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the
duly executed employment agreements (collectively the “ARCO SRL Employment
Agreements”) by and between: (a) ARCO SRL and Xxxxx Xxxxxxxx for his
employment as ARCO SRL’s Chief Executive Officer and President; (b) the
executed employment agreement by and between ARCO SRL and Xxxxxxxx
Xxxxxxxx for his employment as ARCO SRL’s Chief Operating
Officer.
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(h) resolutions
duly adopted by the board of directors of CYP: (i) authorizing and approving the
execution, delivery and performance of this Agreement, and (ii) in the event
CYP’s board of directors decide to authorize an “Authorized Third Party
Signatory” (as defined in Section 7.2.1(o)) to sign this Agreement and the
Escrow Agreement on behalf of CYP, then resolutions granting the Authorized
Third Party Signatory full power and authority to enter into and sign the
Agreement and the Escrow Agreement on behalf of CYP;
(i) the
ARCO SRL Shares Deed registered in the name of LUX and representing the ARCO SRL
Equity Interests that are to be owned as of the Opening Date by LUX pursuant to
this Agreement;
(j) a
shareholders list or shareholders’ register of ARCO SRL as certified by the
Italian Registry of enterprise’s certificate reflecting LUX’s
ownership of the ARCO SRL Equity Interests;
(k) certificates
of good standing for ARCO SRL from its jurisdictions of incorporation or
formation, dated not earlier than five (5) calendar days prior to the Opening
Date;
(l) an
opinion of counsel to LUX or from a Notary, in the form reasonably satisfactory
to PPRW in regards to LUX and CYP as to: (i) due organization, existence and
good standing under the laws of their respective jurisdictions of incorporation,
and the validity and effectiveness of the “Power of Attorney” (as defined in
Section 7.2.1(o)) granted by LUX and CYP to the Authorized Third Party Signatory
under applicable laws to which LUX, CYP and the Authorized Third Party Signatory
are subject;. and a statement that (viii) the transfer of the LUX Equity
Interests to PPRW at or immediately following the Opening Date being a legal
transfer of such equity ownership interests under the laws of LUX’s jurisdiction
of incorporation is subject and that upon such transfer, the LUX Equity
Interests shall be free of any claims or Liens of any kind or
nature.
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(m) an
opinion of counsel to ARCO SRL in the form reasonably satisfactory to PPRW, in
regards to ARCO SRL as to: (i) due organization, existence and good standing (in
Italy), (ii) the authorized capital stock of ARCO SRL; and (iii) the ARCO SRL
Equity Interests, when issued to LUX, were legally transferred to LUX under the
laws of LUX’s jurisdiction of incorporation and that the LUX Equity Interests
are free of any claims or Liens of any kind or nature.
(n) a
certificate, dated as of the Opening Date, signed by the Chief Executive Officer
of ARCO SRL, as applicable,: (i) attaching certified copies of the
Organizational Documents applicable to ARCO SRL, and (ii) certifying that
all director, shareholder and other actions required to authorize and approve
the execution and delivery of this Agreement and the other documents and
agreements provided for herein and the transactions contemplated hereby and
thereby have been taken and setting forth copies of such actions.
(o) a
copy of the power of attorney executed by LUX and CYP that grants full power and
authority to a third party who is not an Affiliate of LUX or CYP (the “Authorized Third Party
Signatory”) to sign this Agreement and the Escrow Agreement on behalf of
LUX and CYP, if such Authorized Third Party Signatory signs this Agreement and
Escrow Agreement on behalf of LUX and CYP;
(p) all
corporate records, board minutes and resolutions, tax and financial records,
agreements, seals and any other information reasonably requested by any
representatives with respect to LUX and ARCO SRL; and
(q) such
other documents as PPRW may reasonably request in connection with the
transactions contemplated hereby.
7.2.2 Outstanding Capital
Stock. LUX shall have at least 12,500 shares of its common
stock authorized and shall have no more than 12,500 shares of its common stock
issued and outstanding in the aggregate as of the Opening Date. ARCO
SRL shall have at least 10,000 shares of its common stock authorized and shall
have no more than 10,000 shares of its common stock issued and outstanding in
the aggregate as of the Opening Date.
7.2.3 No Liabilities. At
the Opening Date, LUX and ARCO SRL shall have, in the aggregate, no liabilities
or nominal liabilities not to exceed €1,000 Euros in total, debts or payables,
except for those liabilities listed in Exhibit C
hereto.
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7.2.4 Representations and
Warranties True and Correct. The representations and warranties of LUX
and CYP herein contained shall be true in all material respects at the Opening
Date with the same effect as though made at such time. LUX and CYP
shall have performed in all material respects all obligations and complied in
all material respects with all covenants and conditions required by this
Agreement to be performed or complied with by them at or prior to the Opening
Date.
7.2.5 No Adverse
Effect. The business and operations of LUX and ARCO SRL will
not have suffered any Material Adverse Effect.
ARTICLE
8
TERMINATION
8.1 This
Agreement may be terminated at any time prior to the Opening Date:
8.1.1 by
either PPRW or LUX if a governmental entity shall have issued an order, decree
or ruling or taken any other action, in any case having the effect of
permanently restraining, enjoining or otherwise prohibiting the Acquisition,
which order, decree, ruling or other action is final and
non-appealable;
8.1.2 by
LUX, upon a material breach of any representation, warranty, covenant or
agreement on the part of PPRW set forth in this Agreement, or if any
representation or warranty of PPRW or shall have become materially untrue, in
either case such that the conditions set forth in Section 8.1 would not be
satisfied as of the time of such breach or as of the time such representation or
warranty shall have become untrue, provided, that if
such inaccuracy in PPRW representations and warranties or breach by PPRW is
curable by such party prior to the Opening Date, then XXX xxx not
terminate this Agreement under this Section 8.1.2 for thirty (30) days after
delivery of written notice from LUX to either PPRW of such breach, provided PPRW
continue to exercise commercially reasonable efforts to cure such breach (it
being understood that XXX xxx not terminate this Agreement pursuant to this
Section 8.1.2 if they shall have materially breached this Agreement or if such
breach by PPRW is cured during such thirty (30) day period); or
8.1.3 By
PPRW upon a material breach of any representation, warranty, covenant or
agreement on the part of LUX and/or CYP set forth in this Agreement, or if any
representation or warranty LUX and/or CYP of shall have become materially
untrue, in either case such that the conditions set forth in Section 8.2 would
not be satisfied as of the time of such breach or as of the time such
representation or warranty shall have become untrue, provided, that if
such inaccuracy in LUX’s and/or CYP’s representations and warranties or breach
by LUX and/or CYP is curable by LUX and/or CYP prior to the Opening
Date, then PPRW may not terminate this Agreement under this Section 8.1.3 for
thirty (30) days after delivery of written notice from PPRW to LUX and/or CYP of
such breach, provided LUX and/or
CYP continue to exercise commercially reasonable efforts to cure such breach (it
being understood that PPRW may not terminate this Agreement pursuant to this
Section 8.1.3 if it shall have materially breached this Agreement or if such
breach by LUX and/or CYP is cured during such thirty (30) day
period).
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8.2 Notice of Termination;
Effect of Termination. Any termination of this Agreement under
Section 8.1 above will be effective immediately upon (or, if the termination is
pursuant to Section 8.1.2 or Section 8.1.3 and the proviso therein is
applicable, thirty (30) days after) the delivery of written notice of the
terminating party to the other parties hereto. In the event of the
termination of this Agreement as provided in Section 8.1, this Agreement shall
be of no further force or effect and the Acquisition shall be abandoned, except
as set forth in Section 8.1, Section 8.2 and Article 9 (General Provisions),
each of which shall survive the termination of this Agreement.
ARTICLE
9
GENERAL
PROVISIONS
9.1 Notices. Any
and all notices or other communications or deliveries required or permitted to
be provided hereunder shall be in writing and shall be deemed given and
effective on the earliest of: (a) the date of transmission, if such notice or
communication is delivered via facsimile at the facsimile number set forth on
the signature pages attached hereto prior to 5:30 p.m. (U.S Pacific Standard
Time) on a Trading Day, (b) the next Trading Day after the date of transmission,
if such notice or communication is delivered via facsimile at the facsimile
number set forth on the signature pages attached hereto on a day that is not a
Trading Day or later than 5:30 p.m. (U.S Pacific Standard Time) on any Trading
Day, (c) the second Trading Day following the date of mailing, if sent by U.S.
nationally recognized overnight courier service or (d) if personally delivered,
upon actual receipt by the party to whom such notice is required to be
given. The address for such notices and communications shall be as
set forth on the signature pages attached hereto.
9.2 Interpretation. The
headings contained in this Agreement are for reference purposes only and shall
not affect in any way the meaning or interpretation of this Agreement.
References to Sections and Articles refer to sections and articles of this
Agreement unless otherwise stated.
9.3 Severability. If any
term, provision, covenant or restriction of this Agreement is held by a court of
competent jurisdiction to be invalid, void or unenforceable, the remainder of
the terms, provisions, covenants and restrictions of this Agreement shall remain
in full force and effect and shall in no way be affected, impaired or
invalidated and the parties shall negotiate in good faith to modify this
Agreement to preserve each party’s anticipated benefits under this
Agreement.
9.4 Miscellaneous. This
Agreement (together with all other documents and instruments referred to
herein): (a) constitutes the entire agreement and supersedes all other prior
agreements and undertakings, both written and oral, among the parties with
respect to the subject matter hereof; (b) except as expressly set forth herein,
is not intended to confer upon any other person any rights or remedies hereunder
and (c) shall not be assigned by operation of law or otherwise, except as may be
mutually agreed upon by the parties hereto.
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9.5 Separate Counsel.
Each party hereby expressly acknowledges that it has been advised to seek its
own separate legal counsel for advice with respect to this Agreement, and that
no counsel to any party hereto has acted or is acting as counsel to any other
party hereto in connection with this Agreement.
9.6 Governing Law;
Arbitration.
9.6.1This Agreement shall be governed by, and
construed and enforced in accordance with, the laws of the State of Delware . Each party hereby irrevocably
submits to the jurisdiction of the state
and federal courts sitting in the City of Sacramento, California, U.S.A. and /or in any other local court in the world of
competent jurisdiction to enforce the binding decision of the arbitration
award described in Section 9.6.2 below, with regards to any transaction contemplated
hereby or discussed herein, and hereby irrevocably waives, and agrees not to
assert in any suit, action or proceeding, any claim that it is not personally
subject to the jurisdiction of any such court, that such suit, action or
proceeding is improper or is an inconvenient venue for such
proceeding. Each party hereby irrevocably waives personal service of
process and consents to process being served in any such suit, action or
proceeding by mailing a copy thereof via registered or certified mail or
overnight delivery (with evidence of delivery) to such party at the address in
effect for notices to it under this Agreement and agrees that such service shall
constitute good and sufficient service of process and notice thereof.
Nothing contained herein shall be deemed to limit in any way any right to serve
process in any other manner permitted by law. If either party shall
commence an action or proceeding to enforce any provisions of the Agreement,
then the prevailing party in such action or proceeding shall be reimbursed by
the other party for its reasonable attorneys’ fees and other costs and
expenses incurred with the investigation, preparation and prosecution of such
action or proceeding.
9.6.2 The
parties agree that any dispute, claim or controversy directly or indirectly
relating to or arising out of this Agreement, the termination or validity
hereof, any alleged breach of this Agreement or the engagement contemplated
hereby shall be submitted to mediation under International Chamber of Commerce
(“ICC”)
Alternative Dispute Resolution Rules, in Zurich, Switzerland. If the
matter is not resolved through mediation within sixty (60) calendar days after
the initiation of the mediation or within such other period as the parties may
agree in writing, then it shall be submitted for final and binding arbitration
in front of a panel of three arbitrators in Zurich, Switzerland under the Rules
of Arbitration of the ICC. Notwithstanding anything to the contrary,
PPRW and LUX will each choose one of the two arbitrators, and the two
party-appointed arbitrators shall choose the third arbitrator. The
language of the arbitration shall be in English, provided, however, that PPRW
will use its best efforts to ensure one of the arbitrators speaks fluent Italian
and is qualified to practice law in Italy. The arbitrators shall, in
their award, determine who is the prevailing party and shall allocate all of the
costs of the arbitration (and the mediation, if applicable), including the fees
of the arbitrators and the reasonable attorneys’ fees of the prevailing party,
against the party who did not prevail. The award in the arbitration
shall be final and binding. Judgment upon the award rendered by the arbitrators
may be entered in the state and federal courts sitting in the City of
Sacramento, California, U.S.A. as detailed above and in any other local court in
the world of competent jurisdiction as final and as required to perfect the
prevailing party’s claim.
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9.7 Counterparts and Facsimile
Signatures. This Agreement may be executed in two or more counterparts,
which together shall constitute a single agreement. This Agreement and any
documents relating to it may be executed and transmitted to any other party by
facsimile or .pdf, which copy shall be deemed to be, and utilized in all
respects as, an original, wet-inked manually executed document.
9.8 Amendment. No
provision of this Agreement may be waived, modified, supplemented or amended
except in a written instrument signed, in the case of an amendment, by PPRW, LUX
and CYP or, in the case of a waiver, by the party against whom enforcement of
any such waived provision is sought.
9.9 Parties In Interest.
Except as otherwise provided herein, the terms and conditions of this Agreement
shall inure to the benefit of and be binding upon the respective heirs, legal
representatives, successors and assigns of the parties hereto.
9.10 Waiver. No
waiver by any party of any default or breach by another party of any
representation, warranty, covenant or condition contained in this Agreement
shall be deemed to be a waiver of any subsequent default or breach by such party
of the same or any other representation, warranty, covenant or
condition. No act, delay, omission or course of dealing on the part
of any party in exercising any right, power or remedy under this Agreement or at
law or in equity shall operate as a waiver thereof or otherwise prejudice any of
such party’s rights, powers and remedies. All remedies, whether at law or in
equity, shall be cumulative and the election of any one or more shall not
constitute a waiver of the right to pursue other available
remedies.
9.11 Incorporation of Exhibits
and Schedules. The exhibits and schedules identified and/or
attached to this Agreement are incorporated herein by reference and made a part
hereof.
9.12 Expenses. Within
twenty (20) Trading Days of the Opening Date, the parties hereto shall pay all
of their combined expenses relating to the transactions contemplated by this
Agreement out of the initial capitalization of PPRW ITALY, including, without
limitation, the fees and expenses of their respective counsel and financial
advisers.
[Remainder of Page Left Blank
Intentionally]
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IN
WITNESS WHEREOF, the parties have executed this Share Exchange Agreement as of
the date first written above.
PPRW:
a
corporation incorporated and existing under the laws of the State of
Delaware
By: /s/ Xxxx X.
Xxxxx
Xxxx
X. Xxxxx
Chief
Executive Officer and President
Address for
Notices:
0000
Xxxxxxxx Xxxxx, Xxxxx 000
Xx Xxxxxx
Xxxxx, XX 00000
Tel: (000)
000-0000
Fax: (000)
000-0000
With a copy to (which shall not
constitute Notice):
Xxxxxxxxxx
& Xxxxx LLP
00000
Xxxxxxxx Xxxxxxxxx, Xxxxx 000
Xxx
Xxxxxxx, Xxxxxxxxxx, X.X.X 00000
Attention:
Xx. Xxxxx X. Xxxxx, Esq.
Tel:
(000) 000-0000
Fax:
(000) 000-0000
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SIGNATURE PAGE OF
LUX
RUPINVEST
SARL
By: /s/ Xxxxxxxx
Xxxxxxx
Name:
Xxxxxxxx XXXXXXX
Title:
Gerant
[If
signed by Authorized Third Party Signatory (as defined in the Agreement): By
signing above, I, Xxxxxxxx Xxxxxxx,
hereby represent and warrant that I have full power and authority to enter into
and sign this Agreement on behalf of Rupinvest Sarl.]
Address for
Notices:
Address:
0 Xxx Xxxxxx Xxxxxx Xxxxxx
X-0000 XXXXXXXXXX
Tel:
x000 00 000 000
Fax: x000
00 000 000
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SIGNATURE PAGE OF
CYP
ESDRAS
LTD.
By: /s/ Xxxxxxx
Xxxxxxx
Name: Xxxxxxx
XXXXXXX
Title: Procuratore
[If
signed by Authorized Third Party Signatory (as defined in the Agreement): By
signing above, I, Xxxxxxx Xxxxxxx,
hereby represent and warrant that I have full power and authority to enter into
and sign this Agreement on behalf of Esdras Ltd.]
Address for
Notices:
Address: Campobasso
ITALY
Via San Giovanni in Golfo
205/e
Tel: 0000
0000 000000
Fax: 0000
0000 000000
Check
One:
ESDRAS
LTD. hereby certifies that it is:
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o
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an
“Accredited Investor” under Regulation D of the Securities Act (see
Section 3.5 and Annex I of this
Agreement; or
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x
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a
Non-U.S. Person, that hereby confirms that the representations and
warranties in Section 3.5.2 of this Agreement are true and correct as to
ESDRAS LTD., and hereby accepts and agrees to comply with the covenants in
Section 3.5.2.
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ANNEX
I
ACCREDITED
INVESTOR DEFINITION
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Category
A
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The
undersigned is an individual (not a partnership, corporation, etc.) whose
individual net worth, or joint net worth with his or her spouse, presently
exceeds $1,000,000.
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Category
B
|
The
undersigned is an individual (not a partnership, corporation, etc.) who
had an income in excess of $200,000 in each of the two most recent years,
or joint income with his or her spouse in excess of $300,000 in each of
those years (in each case including foreign income, tax exempt income and
full amount of capital gains and losses but excluding any income of other
family members and any unrealized capital appreciation) and has a
reasonable expectation of reaching the same income level in the current
year.
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Category
C
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The
undersigned is a director or executive officer of the Company which is
issuing and selling the securities.
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Category
D
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The
undersigned is a bank; a savings and loan association; insurance company;
registered investment company; registered business development company;
licensed small business investment company (“SBIC”); or employee benefit
plan within the meaning of Title 1 of ERISA and (a) the investment
decision is made by a plan fiduciary which is either a bank, savings and
loan association, insurance company or registered investment advisor, or
(b) the plan has total assets in excess of $5,000,000 or (c) is a self
directed plan with investment decisions made solely by persons that are
accredited investors.
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Category
E
|
The
undersigned is a private business development company as defined in
section 202(a)(22) of the Investment Advisors Act of
1940.
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Category
F
|
The
undersigned is either a corporation, partnership, Massachusetts business
trust, or non-profit organization within the meaning of Section 501(c)(3)
of the Internal Revenue Code, in each case not formed for the specific
purpose of acquiring the Securities and with total assets in excess of
$5,000,000.
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Category
G
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The
undersigned is a trust with total assets in excess of $5,000,000, not
formed for the specific purpose of acquiring the Securities, where the
purchase is directed by a “sophisticated investor“ as defined in
Regulation 506(b)(2)(ii) under the Act.
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Category
H
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The
undersigned is an entity (other than a trust) in which all of the equity
owners are “accredited investors” within one or more of the above
categories. If relying upon this Category alone, each equity owner must
complete a separate copy of this
Agreement.
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EXHIBIT
A
PPRW SHARES PAYMENT
TERMS
1. Share
Payments of up to an aggregate 3,000,000 shares of PPRW’s restricted common
stock (each share hereinafter a “PPRW Share”) will be
made by PPRW to CYP in connection with this Agreement as follows:
(a) First Payment: In
return for good and valuable consideration received by PPRW from CYP, PPRW will
transfer to CYP a total of 375,000 PPRW Shares for each €10 million worth of
Sales (as defined in Section 3 below) achieved by PPRW ITALY from the Opening
Date to December 31, 2009, with the (i) maximum number of PPRW Shares payable
for the First Payment of up to 1,500,000 PPRW Shares (the PPRW Shares Payment
made for the period ended December 31, 2009, if any, is hereinafter the “First Payment”), and
(ii) fifty percent (50%) of any PPRW Shares that could have been earned based on
Sales subject to this First Payment but could not be awarded to CYP because such
PPRW Shares exceeded the maximum 1,500,000 PPRW Shares that could be paid for
this First Payment will instead be paid to CYP as part of the Second
Payment;
(b) Second Payment: In
return for good and valuable consideration received by PPRW from CYP, PPRW will
transfer to CYP 200,000 PPRW Shares for each €10 million worth of Sales (as
defined in Section 3 below) achieved by PPRW ITALY from January 1, 2010 to
December 31, 2010, with the maximum combined number of PPRW Shares payable for
the First Payment and the Second Payment not to exceed a combined aggregate of
3,000,000 PPRW Shares (the PPRW Shares Payment made for the period ended
December 31, 2010, if any, is hereinafter the “Second Payment”);
and
(c) Third Payment: If,
and only if, CYP has not earned in aggregate the total 3,000,000 PPRW Shares as
a result of the First Payment and Second Payments, then, in return for good and
valuable consideration received by PPRW from CYP, PPRW will transfer to CYP
100,000 PPRW Shares for each €10 million worth of Sales (as defined in Section 3
below) achieved by PPRW ITALY from January 1, 2011 to December 31, 2011, with
the maximum combined number of PPRW Shares payable for the First Payment, Second
Payment and Third Payment not to exceed a combined aggregate of 3,000,000 PPRW
Shares (the PPRW Shares Payment made for the period ended December 31, 2011, if
any, is hereinafter the “Third
Payment”).
2. All
of the above-described Share Payments by PPRW to CYP shall be distributed to
CYP, no later than ninety (90) calendar days after the close of each year’s
books by PPRW ITALY, share payments not to be later then March 1st. If we move
to a fiscal year payments to be made 90 days from the fiscal year end will
apply. Any PPRW Shares remaining in Escrow after the Third Payment, if any shall
be transferred back by the Escrow Agent to PPRW.
3. “Sales” is defined as gross sales
revenue earned by PPRW ITALY in a given period with an average Gross Margin in
excess of fourteen percent (14%). For purposes of this Agreement,
“Gross Margin” is defined as gross sales revenue minus direct costs (including, but not
limited to, the cost of system design, engineering, property acquisition,
special purpose entity formation, legal services, consulting services,
permitting, civil works, solar modules, invertors, racking, mounting, trackers,
balance of system costs, subcontracting services, substation construction, grid
connection, labor, taxes and sales commissions), the difference to be
divided
by gross sales
revenue. Any gross sales revenue earned by PPRW ITALY without a
fourteen percent (14%) Gross Margin will be excluded from Sales, unless
expressly accepted by PPRW in writing.
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EXHIBIT
B
[ESCROW
AGREEMENT]
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EXHIBIT
C
[ARCO
SRL’S SCHEDULE OF LIABILITIES]
Page
44
