Exhibit 5
EPPF SECURITIES
PURCHASE and SALE AGREEMENT
This PURCHASE and SALE AGREEMENT (including the exhibits and schedules
hereto, this "Agreement") is made and entered into this 27th day of June, 2003,
between and among EP Power Finance, L.L.C., a limited liability company
organized and existing under the laws of the State of Delaware ("EPPF"), and the
Investors listed on Schedule I hereto (each, an "Investor" and collectively, the
"Investors").
WHEREAS, Duke Capital Partners, LLC, a limited liability company
organized and existing under the laws of the State of Delaware ("Duke"), is the
holder of the following securities, including accrued and unpaid dividends
thereon, of Electric City Corp.("ECC"), a Delaware corporation (collectively,
the "Duke Securities") issued under that certain Securities Purchase Agreement
dated as of July 31, 2001 among EEC and the Purchasers listed therein, including
Duke (the "Original Agreement"):
1. 471,737 issued shares of Series A Convertible Preferred Stock,
par value $0.01 per share:
2. 80,217 issued shares of common stock, par value $0.001 per share;
and
3. warrants to purchase 750,000 shares of common stock.
WHEREAS, Duke has informed ECC and the Investors that Duke is willing
to sell the Duke Securities for a purchase price of $1,750,000 (the "Duke
Purchase Price"); and
WHEREAS, EPPF is the holder of the following securities of ECC
(collectively the "EPPF Securities") issued under the Original Agreement:
1. 471,737 issued shares of Series A Convertible Preferred Stock,
par value $0.01 per share:
2. 80,217 issued shares of common stock, par value $0.001 per share;
and
3. warrants to purchase 750,000 shares of common stock.
WHEREAS, EPPF has informed ECC and the Investors that EPPF is willing
to sell the EPPF Securities for an aggregate purchase price of $1,750,000 (the
"EPPF Purchase Price"); and
WHEREAS, ECC desires to raise $1,500,000 of additional capital by
issuing and selling the following securities of ECC (collectively, the "ECC
Securities"):
1. 150,000 shares of Series D Convertible Preferred Stock, par value
$0.01 per share:
2. 37,500 Series D Warrants to purchase an aggregate of 37,500
shares of Series D Convertible Preferred Stock;
3. 22,562 shares of common stock;
4. 210,938 Common Stock Warrants to purchase an aggregate of 210,938
shares of common stock pursuant to the Securities Purchase
Agreement made and entered into this 27th day of June, 2003,
between and among ECC and the Investors (the "SPA"), (the "ECC
Shares"); and
WHEREAS, each of the Investors desire to purchase, ratably in
proportion to their aggregate investment amount (the "Ratable Portion"), the
Duke Securities, the EPPF Securities, and the ECC Shares, as more fully
described in Schedule II hereto;
WHEREAS, upon the terms and subject to the conditions of this
Agreement, EPPF desires to sell, transfer, assign and deliver to the Investors,
all of EPPF's right, title and interest in the EPPF Securities; and the
Investors, severally, desire to purchase, acquire and accept from EPPF each
Investor's Ratable Portion of the EPPF Securities;
NOW, THEREFORE, in consideration of the foregoing and of the mutual
representations, warranties, covenants and agreements contained in this
Agreement, and intending to be legally bound by this Agreement, the parties to
this Agreement agree as follows:
ARTICLE I
PURCHASE OF EPPF Securities
Section 1. 1. Purchase. Upon the terms and subject to the conditions of
this Agreement, at the Closing (as defined in Section 1.2) EPPF shall sell,
transfer, assign and deliver to the Investors, all of EPPF's right, title and
interest in the EPPF Securities, including EPPF's right, title, interest and
obligations, in to and under the certain contractual rights and obligations, as
set forth in the Original Agreement, including the Ancillary Agreements thereto,
and each Investor, severally, shall purchase, acquire and accept from EPPF, all
of EPPF's right, title and interest in the Investor's Ratable Portion of the
EPPF Securities and the Investors shall, as of the Closing, assume the rights
and obligations of EPPF, in to and under the express written terms of the
Original Agreement, including the Ancillary Agreements thereto; and
The consideration to be paid by each Investor to EPPF for the foregoing sale,
transfer, delivery, purchase, acquisition and acceptance of each Investor's
Ratable Portion of the EPPF Securities shall be each Investor's Ratable Portion
of the EPPF Purchase Price. Upon the terms and subject to the conditions of this
Agreement, at the Closing, each Investor shall pay to EPPF the Investor's
Ratable Portion of the EPPF Purchase Price, in cash by wire transfer of
immediately available funds to an account or accounts designated by Xxxxxx X.
Xxxxxx, Esq. of Schwartz, Cooper, Xxxxxxxxxxx & Xxxxxx, Chartered as Escrow
Agent pursuant to that certain Escrow Agreement Letter, dated as of June 25,
2003, by and among Xxxxxx X. Xxxxxx, Esq., the Investors, ECC, Duke, and EPPF
(the "Escrow Agreement"), prior to the Closing. The transactions contemplated by
this Section 1.1 are sometimes referred to in this Agreement as the "Purchase".
Section 1.2. Time and Place of Closing. Upon the terms and subject to
the conditions of this Agreement, the Purchase and the other transactions
contemplated by this Agreement and the other Transaction Documents (as defined
in Section 2.1) that, by their nature, are to be consummated at the Closing
shall be consummated at a closing (the "Closing") to take place at the offices
of ECC, at 10:00 a.m. (local time) on the 27th day of June, 2003, subject to all
of the conditions specified in this Agreement to each party's obligations to
consummate the foregoing transactions (the "Closing Conditions") have been
satisfied or waived (or at such other date, place or time as the parties to this
Agreement may agree). The date and time on which the Closing occurs and the
transactions referenced in the immediately preceding sentence become effective
is referred to in this Agreement as the "Closing Date".
ARTICLE II
REPRESENTATIONS AND WARRANTIES
Each party to this Agreement hereby represents and warrants (as to
itself only) to the other parties to this Agreement as follows:
Section 2.1. Organization; Qualification. Each party is duly organized
and validly existing under the laws of its jurisdiction of organization and has
all requisite corporate, partnership or other similar power and authority to own
the EPPF Securities. Each party is duly licensed or duly qualified to do
business and in good standing under the laws of its jurisdiction of
organization. For all purposes of this Agreement, "Transaction Documents" means
this Agreement, and any agreement, instrument, document or other writing
contemplated by or executed in connection with this Agreement including, but not
limited to, the Electric City Corp. Securities Purchase Agreement, the
Certificate of Designations, the Series D Warrants, the Common Stock, the
Warrants, the Joinder to the Investors Rights Agreements and the Stock Trading
Agreement, each of even date herewith and the Escrow Agreement (as defined
herein).
Section 2.2. Authorization. Each party has the requisite corporate,
partnership or other similar power and authority to execute and deliver the
Transaction Documents to which it is party and to consummate the transactions
contemplated by the Transaction Documents that are to be consummated by it. The
execution and delivery by each party of the Transaction Documents to which it is
party and the consummation by each party of the transactions contemplated by the
Transaction Documents that are to be consummated by it have been duly authorized
and approved by all requisite corporate, partnership or other similar action on
the part of each party. Each party has duly and validly executed and delivered
the Transaction Documents to which it is party. Each Transaction Document that
has been executed and delivered by a party constitutes the legal, valid and
binding obligations of the party that has executed and delivered it, enforceable
against it in accordance with its terms and conditions, except that such
enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, fraudulent conveyance, moratorium or other similar laws
affecting or relating to the enforcement of creditors' rights generally and
general principles of equity (regardless of whether enforcement is considered in
a proceeding in equity or at law or under applicable legal codes) and assuming
that each such Transaction Document has been duly authorized, executed and
delivered by each other party thereto.
Section 2.3. Consents and Approvals; No Violations. Except as set forth
in Schedule 2.3, neither the execution nor the delivery by each party of any of
the Transaction Documents to which it is party nor the consummation by each
party of the transactions contemplated by the Transaction Documents that are to
be consummated by it will:
(a) conflict with, result in a breach of or require any consent under
any of the terms, conditions or provisions of its certificate of
incorporation, bylaws or equivalent governing instruments;
(b) violate any provision of, or require any filing, consent,
authorization, notice or approval under, any law, statute, rule,
regulation, order (including an executive order), award,
judgment, writ, injunction or decree applicable to, or binding
upon, it; or
(c) conflict with, result in a breach of or default (without regard
to requirements of notice or the lapse of time or both) under,
give rise to any right of termination, cancellation or
acceleration under, or require any consent, authorization, notice
or approval under, the terms, conditions or provisions of (i) any
mortgage, note, bond, indenture, loan or credit agreement or
other agreement or instrument evidencing indebtedness for
borrowed money to which it is a party or by which it is bound or
to which its properties are subject or (ii) any other agreement,
contract, lease, license or other instrument to which it is a
party or by which it is bound or to which the its properties are
subject.
Section 2.4. No Brokers. Other than Delano Securities, LLC, no party
has, directly or indirectly, employed any broker, finder or intermediary that
might be entitled to an investment banking, brokerage, finders' or similar fee
or commission in connection with the transactions contemplated by the
Transaction Documents.
In addition, EPPF hereby represents and warrants to the Investors as
follows:
Section 2.5. Ownership of the EPPF Securities. The EPPF Securities are
the only securities of ECC owned by EPPF. Further, EPPF owns the EPPF
Securities, free and clear of all Liens (as defined below) other than any such
Liens arising under the Original Agreement and the Ancillary Agreements. For all
purposes of this Agreement, "Lien" means any lien, mortgage, security interest,
pledge, claim, assignment, option, priority, right, preference or other charge
or encumbrance. EPPF has the requisite company power and authority to convey the
EPPF Securities to the Investors, free and clear of all Liens, other than any
such Liens arising under the Original Agreement and the Ancillary Agreements.
Upon delivery of the EPPF Securities to the Investors on the Closing Date, each
Investor will acquire good and valid title to their Ratable Portion of the EPPF
Securities, respectively, free and clear of all Liens, other than any such Liens
arising under the Original Agreement and the Ancillary Agreements. There are no
outstanding agreements or obligations to offer, sell, transfer, pledge, dispose
of or encumber the EPPF Securities, other than the obligations applicable under
the Original Agreement and the Ancillary Agreements. Other than in connection
with the Transaction Documents, EPPF has never offered, sold, transferred,
pledged, disposed of or encumbered (including by merger) all or any part of the
EPPF Securities, or any rights or benefits arising therefrom or associated
therewith, to any person (including affiliates). EPPF has discharged and
complied with all of its liabilities, obligations, duties and responsibilities
as owner of the EPPF Securities (including timely filing of Tax (as defined in
Section 3.2) returns and timely payment of Taxes attributable to ownership of
the EPPF Securities, except that this representation and warranty shall not
apply to liabilities, obligations, duties and responsibilities that are to the
Investors and that are released and discharged pursuant to the Transaction
Documents.
Section 2.6. Securities Law Representation. In addition, each Investor
represents and warrants as follows:
(a) Investor is purchasing the EPPF Securities for such Investor's
own account for investment only and not with a view toward or in
connection with a view toward or in connection with the public
sale or distribution thereof. Investor will not resell the EPPF
Securities except pursuant to sales that are exempt from the
registration requirements of the Securities Act and all
applicable state securities laws, and/or sales registered under
the Securities Act and all applicable state securities laws.
Investor understands that it may bear the economic risk of this
investment indefinitely, unless the EPPF Securities are
registered pursuant to the Securities Act and any applicable
state securities laws or an exemption from such registration is
available.
(b) Investor is an "accredited investor" as that term is defined in
Rule 501(a) of Regulation D promulgated under the Securities Act.
By reason of his or its business and financial experience,
sophistication and knowledge, Investor is capable of evaluating
the risks and merits of the investment made pursuant to this
Agreement.
Section 2.7. Non-disclosure. Each of the Investors and EPPF covenant
that, except as required by law, the terms and conditions of this transaction
will not be disclosed to any third party, other than its broker, Delano Group
Securities, LLC.
ARTICLE III
COVENANTS OF THE PARTIES
Section 3.1. Commercially Reasonable Efforts. Each of the Investors and
EPPF shall cooperate, and use its commercially reasonable efforts, to take all
action and do all things necessary, proper or advisable to consummate and in
consummating the transactions contemplated by this Agreement and the other
Transaction Documents (including as may be required to satisfy the Closing
Conditions) to which it is a party.
Section 3.2. Tax Matters. Each party to this Agreement shall be
responsible for all Taxes (as defined below) assessed against it arising from
the Purchase or any other transaction contemplated by this Agreement or any
other Transaction Document. Each party to this Agreement shall use its
commercially reasonable efforts to cooperate with the others to minimize any
Taxes arising from the Purchase and the other transactions contemplated by this
Agreement and the other Transaction Documents. Each party to this Agreement
shall be liable for and shall indemnify the other parties and hold the other
parties harmless from and against any and all liabilities, obligations,
responsibilities, Taxes, demands, claims, actions, causes of action,
controversies, assessments, losses, damages, costs and expenses (including
reasonable attorneys' fees and expenses and whether foreseen or unforeseen,
matured or unmatured, known or unknown or accrued or not accrued) (collectively,
"Damages") arising out of or relating to any Tax for which the indemnifying
party is responsible under this Section 3.2. For all purposes of this Agreement,
"Tax" means any tax, fee, levy, duty or charge, including income, capital gains,
sales, value added, transfer, customs, stamp, registration and any other tax,
fee, levy, duty or charge, that is assessed by any country or any other
governmental authority and any fines, penalties or interest with respect to such
tax, fee, levy, duty or charge.
Section 3.3. Further Assurances. From time to time before, on or after
the Closing Date, each of the Investors, and EPPF shall, as and when reasonably
requested by another party to this Agreement, execute, deliver and record (when
appropriate) any and all additional agreements, documents, instruments and
writings, and take any and all other further action, that, in the reasonable
opinion of another party to this Agreement or its counsel, are required to
consummate or evidence the transactions contemplated by this Agreement or any
other Transaction Document to which it is a party.
Section 3.4 Indemnification. EPPF agrees to indemnify and hold harmless
each of the Investors: (i) from any claim regarding breach of EPPF's
representations and warranties in Section 2.5 hereof with respect to title to
the EPPF Securities, and, (ii) to the extent of the consideration paid by each
Investor hereunder but not exceeding in the aggregate the EPPF Purchase Price,
for a period of one year from the date hereof, against any liabilities or
obligations of EPPF incurred or relating to EPPF's ownership of the EPPF
Securities prior to Closing.
ARTICLE IV
CLOSING CONDITIONS AND CLOSING DELIVERIES
Section 4.1. Conditions to Each Party's Obligations to Consummate the
Closing. The obligations of each party to this Agreement to consummate the
transactions contemplated by this Agreement and the other Transaction Documents
that, by their nature, are to be consummated at the Closing by it are subject to
the satisfaction (or waiver by all parties to this Agreement), at or prior to
the Closing, of the following conditions:
(a) No law, statute, rule, regulation, order (including an executive
order), decree, award, judgment, writ or injunction (permanent or
temporary) shall have been enacted, entered, issued, promulgated
or enforced by any court or other governmental authority that
remains in effect and prohibits the consummation of the
transactions contemplated by this Agreement and the other
Transaction Documents that have not previously been consummated;
(b) There shall not be any suit, action, investigation, inquiry or
other proceeding instituted, pending or specifically threatened
in writing by any governmental authority that seeks to enjoin or
otherwise prevent consummation of the transactions contemplated
by this Agreement and the other Transaction Documents that have
not previously been consummated; and
(c) All licenses, permits, consents, approvals, authorizations,
qualifications and orders of governmental authorities and other
third parties necessary to consummate the transactions
contemplated by this Agreement and the other Transaction
Documents that, by their nature, are to be consummated prior to
or at the Closing and have not previously been consummated shall
have been obtained.
(d) EPPF shall not have received timely notice from one or more of
the other parties to the Stock Trading Agreement (as defined in
the Sale Notice from EPPF dated June 18, 2003(the "Sale Notice"))
with respect to such party's right of first refusal pursuant to
Section 2.2 of the Stock Trading Agreement.
(e) There shall be simultaneous closings of the transactions to
purchase and sell the EPPF Securities and the Duke Securities
with all Investors participating in each transaction to the
extent of their purchase obligations as indicated on Schedule II
hereto.
Section 4.2. Further Conditions to the Obligations of EPPF to Consummate
the Closing. The obligations of EPPF to consummate the transactions contemplated
by this Agreement and the other Transaction Documents that, by their nature, are
to be consummated at the Closing by it are subject to the satisfaction (or
waiver by EPPF), at or prior to the Closing, of the following conditions:
(a) Each of the representations and warranties of the individual
Investors contained in this Agreement or any other Transaction
Document that is qualified as to materiality shall be true and
correct, and each of such representations and warranties that is
not so qualified shall be true and correct in all material
respects, as of the Closing Date (as though made again on and as
of the Closing Date if not then made);
(b) Each of the Investors shall have performed and complied in all
material respects with all covenants and agreements required by
this Agreement and each other Transaction Document to be
performed or complied with by it on or prior to the Closing; and
(c) Each of the Investors shall have made their respective Closing
deliveries.
Section 4.3. Further Conditions to the Obligations of the Investors to
Consummate the Closing. The obligations of the Investors to consummate the
transactions contemplated by this Agreement and the other Transaction Documents
that, by their nature, are to be consummated at the Closing are subject to the
satisfaction (or waiver by the Investors), at or prior to the Closing, of the
following conditions:
(a) Each of the representations and warranties of EPPF contained in
this Agreement or any other Transaction Document that is
qualified as to materiality shall be true and correct, and each
of such representations and warranties that is not so qualified
shall be true and correct in all material respects, as of the
Closing Date (as though made again on and as of the Closing Date
if not then made);
(b) EPPF shall have performed and complied in all material respects
with all covenants and agreements required by this Agreement and
each other Transaction Document to be performed or complied with
by it on or prior to the Closing; and
(c) EPPF shall have made its Closing deliveries.
Section 4.4. Closing Deliveries by EPPF. EPPF shall, at the Closing,
deliver to the Escrow Agent the following:
(a) Certificates representing the EPPF Securities duly endorsed and
accompanied by an executed Escrow Agreement and Assignments.
(b) All other agreements, documents, instruments and writings
required to be delivered by the EPPF at or prior to the Closing
pursuant to this Agreement or any other Transaction Document to
which it is a party .
Section 4.5. Closing Deliveries by the Investors. The Investors shall,
at the Closing, cause the Escrow Agent to deliver to EPPF the following:
(a) Each Investor's Ratable Portion of the EPPF Purchase Price in cash in
immediately available funds according to this Agreement;(b) All other
agreements, documents, instruments and writings required to be delivered by the
Investors at or prior to the Closing pursuant to this Agreement or any other
Transaction Document including, but not limited to the Escrow Agreement.
ARTICLE V
TERMINATION AND ABANDONMENT
Section 5.1. Termination. This Agreement may be terminated and the
transactions contemplated by this Agreement and the other Transaction
Documents may be abandoned at any time prior to the Closing Date:
(a) by mutual written consent of EPPF and each of the Investors;
(b) by EPPF if any of the conditions set forth in Section 4.1 or 4.2
shall have become incapable of fulfillment and shall not have
been waived by EPPF; or
(c) by any Investor if any of the conditions set forth in Section 4.1
or 4.3 shall have become incapable of fulfillment and shall not
have been waived by it; provided, however, that the right to
terminate this Agreement and abandon the transactions
contemplated by this Agreement and the other Transaction
Documents pursuant to Section 5.1 (b) or 5.1(c) shall not be
available to a party to this Agreement if the event that gives
rise to that right is due to the breach by that party of any
representation, warranty, covenant or agreement set forth in this
Agreement or any other Transaction Document.
Section 5.2. Procedure for Valid Effect of Termination. In the event of
termination of this Agreement and abandonment of the transactions contemplated
by this Agreement and the other Transaction Documents pursuant to Section 5.1
(b) or 5.1(c), notice of that termination and abandonment shall be given by EPPF
or an Investor, whichever is so terminating and abandoning, to the others and,
except as provided in this Section 5.2, this Agreement shall immediately
terminate and shall become null and void and of no further force or effect, and
the transactions contemplated by this Agreement and the other Transaction
Documents shall be abandoned without further action by any party to this
Agreement. If such termination and abandonment occurs:
(a) All filings, applications and other submissions and requests made
pursuant to this Agreement or any other Transaction Document
shall be withdrawn from the governmental authority or other
person to which made; and
(b) There shall be no liability or obligation on the part of any
party to this Agreement, except (i) that this Section 5.2 and
Article VI shall survive such termination and abandonment and
(ii) that a termination and abandonment pursuant to Section
5.1(b) or 5.1(c) shall not relieve any party to this Agreement of
the consequences (subject to the terms and conditions of this
Agreement) of any prior breach of any warranty, representation,
agreement or covenant in this Agreement or any other Transaction
Document and all duties, covenants, obligations and liabilities
relating to the enforcement of those consequences and applicable
provisions of this Agreement creating or relating to such duties,
covenants, obligations and liabilities (including Article VI)
shall survive such termination and abandonment for purposes of
such enforcement.
ARTICLE VI
INDEMNIFICATION AND LIABILITY
Section 6.1. No Special Damages. NO PARTY TO THIS AGREEMENT
SHALL BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT, FOR EXEMPLARY,
SPECIAL, PUNITIVE, INDIRECT, REMOTE, SPECULATIVE OR CONSEQUENTIAL DAMAGES,
WHETHER IN TORT (INCLUDING NEGLIGENCE OR GROSS NEGLIGENCE), STRICT LIABILITY, BY
CONTRACT OR STATUTE.
Section 6.2. Limited Recourse. NO PARTY TO THIS AGREEMENT WILL
HAVE ANY LIABILITY OR RESPONSIBILITY FOR ANOTHER PARTY'S FAILURE TO PERFORM ANY
TERM, COVENANT, CONDITION OR PROVISION OF THIS AGREEMENT, AND IN PURSUING ANY
REMEDY FOR ANY PARTY'S BREACH OF ANY TERM, COVENANT, CONDITION OR PROVISION OF
THIS AGREEMENT, OR OF ANY DUTY OR STANDARD OF CONDUCT BASED ON NEGLIGENCE, GROSS
NEGLIGENCE, STRICT LIABILITY OR OTHER TORT OR VIOLATION OF APPLICABLE LAW, OR
OTHERWISE, NO PARTY OR OTHER PERSON WILL HAVE RECOURSE AGAINST ANY PERSON OTHER
THAN THE DEFAULTING OR BREACHING PARTY ITSELF NOR AGAINST ANY ASSETS OTHER THAN
THE ASSETS OF THE DEFAULTING OR BREACHING PARTY ITSELF.
ARTICLE VII
MISCELLANEOUS PROVISIONS
Section 7.1. Amendment and Modification. This Agreement may be amended,
modified or supplemented at any time by the parties to this Agreement but only
pursuant to an instrument in writing signed by all parties to this Agreement.
Section 7.2. Entire Agreement. This Agreement (including the Exhibits
and the Schedules to this Agreement) and the other Transaction Documents, as
relevant, constitute the entire agreement between the parties to this Agreement
with respect to the subject matter of this Agreement and supersede other prior
agreements and understandings, both written and oral, among some or all of the
parties to this Agreement with respect to the subject matter of this Agreement.
Section 7.3. Severability. If any provision of this Agreement is held
invalid or unenforceable, all other provisions will not be affected. With
respect to the provision held invalid or unenforceable, the parties to this
Agreement will amend this Agreement as necessary to effect the original intent
of the parties to this Agreement as closely as possible.
Section 7.4. Notices. Except as otherwise expressly provided in this
Agreement, all notices and other communications to be given or made under this
Agreement shall be in writing, shall be addressed as specified below and shall
either be personally delivered, sent by internationally recognized courier (with
proof of service) or sent by facsimile (with confirmation of transmittal).
Initially, the addresses and facsimile numbers of the Investors are set out in
Schedule I hereto. The address and facsimile numbers of EPPF is as follows:
EP Power Finance, L.L.C.
0000 Xxxxxxxxx
Xxxxxxx, XX 00000
Attention: Xxxxxxx Xxxxxx
Fax: 000-000-0000
All notices shall be deemed delivered (a) when presented personally at
the receiving party's address for notices then in effect, (b) if transmitted on
a business day for the receiving xxxxx, when transmitted by facsimile to the
receiving party's facsimile number for notices then in effect and, if
transmitted on a day that is not a business day for the receiving party, on the
first business day following the date transmitted by facsimile to the receiving
party's facsimile number for notices then in effect or (c) three (3) calendar
days after being delivered to an internationally recognized courier addressed
to the receiving party at the receiving party's address for notices then in
effect. Any party to this Agreement may by notice change the address or
facsimile number, or both, to which notices and communications are to be sent.
Section 7.5. Governing Law. This Agreement shall be governed by and
construed in accordance with the internal laws of the State of New York without
regard to its rules of conflict of laws that would require the application of
laws of a different jurisdiction.
Section 7.6. Counterparts; Delivery by Facsimile. This Agreement may be
executed in counterparts, each of which shall be deemed an original but all of
which together shall constitute one and the same instrument. The delivery of an
executed counterpart of this Agreement by facsimile shall be deemed to be valid
delivery thereof.
Section 7.7. Fees and Expenses. Whether or not this Agreement and the
other Transaction Document and the transactions contemplated by this Agreement
and the other Transaction Documents are consummated, and except as otherwise
expressly set forth in this Agreement, all costs and expenses (including legal
and financial advisory fees and expenses) incurred in connection with, or in
anticipation of, this Agreement, the other Transaction Documents and the
transactions contemplated by this Agreement and the other Transaction Documents
shall be paid by the person incurring such expenses.
Section 7.8. Interpretation. In this Agreement:
(a) The headings are for convenience of reference only and shall be
ignored in construing this Agreement;
(b) Where the context requires, the singular includes the plural and
vice versa;
(c) The words "include," "includes" and "including" shall be deemed
to be followed by the words "without limitation";
(d) Unless the context otherwise indicates, references to articles,
sections, exhibits or schedules are references, respectively, to
articles, sections, exhibits or schedules of or to this
Agreement; and unless the context clearly otherwise indicates,
references to "Investors" with respect to securities purchased
pursuant to agreements other than this Agreement means the
purchasers of such securities under the agreements governing such
transactions.
(e) All references to contracts, agreements and other documents shall
be deemed to refer to such contracts, agreements and other
documents as amended, modified and supplemented from time to
time;
(f) The words "hereof," "herein," "hereto," and "hereunder" and words
of similar import shall, unless otherwise expressly specified,
refer to this Agreement as a whole and not to any particular
portion or provision of this Agreement;
(g) The term "affiliate" shall mean, with respect to a referenced
person, any other person that directly or indirectly, through one
or more intermediaries, controls, is controlled by, or is under
common control with such referenced person; and
(h) Wherever the consent or approval of any party is required under
this Agreement, such consent or approval shall not be
unreasonably withheld unless this Agreement provides that such
consent or approval is to be given by such party at its sole or
absolute discretion or is otherwise qualified.
Each of the parties to this Agreement acknowledges that it and its
counsel have reviewed and revised this Agreement and that any rule of
construction to the effect that any ambiguities are to be resolved against the
drafting party shall not be employed in the interpretation of this Agreement.
Section 7.9. No Third Party Beneficiaries. This Agreement is intended
solely for the benefit of the parties to this Agreement and nothing in this
Agreement shall be construed to create any right in, any duty to, any standard
of care with reference to, or any liability to, any person not a party to this
Agreement.
Section 7.10. Waivers. If on any occasion a party to this Agreement
does not insist upon the performance of any term, condition or provision of this
Agreement, such forbearance shall not operate or be construed as an acceptance
of any variation in any term, condition or provision of this Agreement or
relinquishment of any right under this Agreement. No waiver by any party to this
Agreement of any right or of any breach by any other party under this Agreement
shall operate or be construed as a waiver of any other or further right or as a
waiver of any future breach, whether of like or different character or nature.
Section 7.11. Assignment; Binding Effect. No party to this Agreement
may assign this Agreement without the prior written consent of the other
parties, except that any party to this Agreement shall have the right, without
the consent of the other parties, to assign this Agreement in connection with a
sale (including by merger) of all or substantially all the assets of, or by
operation of law in connection with a merger involving, the assigning party and,
if a party so assigns this Agreement, the assigning party shall, to the extent
the assignee assumes the duties, liabilities, covenants and obligations of the
assigning party under this Agreement, be relieved of its duties, liabilities,
covenants and obligations under this Agreement. This Agreement shall be binding
upon and inure to the benefit of the parties hereto and their successors and
permitted assigns.
Section 7.12. Incorporation of Exhibits and Schedules. All exhibits and
schedules to this Agreement are hereby incorporated in this Agreement and made a
part of this Agreement for all purposes as if fully set forth in this Agreement.
The exhibits and schedules as of the date of this Agreement are as follows:
Schedule I - Investors and Investor's Notice Addresses
Schedule II - Description of each Investor's Ratable Portion
Schedule 2.3 - Required Consents
Section 7.13. Investor Independence. The obligations of each Investor
under any Transaction Document are several and not joint with the obligations of
any other Investor, and no Investor shall be responsible in any way for the
performance of the obligations of any other Investor under any Transaction
Document. Nothing contained herein or in any Transaction Document, and no action
taken by any Investor or other party hereto pursuant thereto, shall be deemed to
constitute the Investors and such parties as a partnership, an association, a
joint venture or any other kind of entity, or create a presumption that such
parties are in any way acting in concert or as a group with respect to such
obligations or the transactions contemplated by the Transaction Document.
[REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
IN WITNESS WHEREOF, each of the undersigned has caused this
Agreement to be duly signed as of the date first above written.
EP POWER FINANCE, L.L.C.
By: /s/Xxxxxx X. Xxxxx
Name: Xxxxxx X. Xxxxx
Title: President
CINERGY VENTURES II, LLC
By:/s/X. Xxxxxx Xxxxxx
Name: X. Xxxxxx Xxxxxx
Title: President
000 Xxxx 0xx Xxxxxx
26th Floor
Atrium II EA610
Xxxxxxxxxx, XX 00000
Xxxxxxx X. Xxxxxxx
/s/Xxxxxxx X. Xxxxxxx
c/o Xxxxxxx Xxxxx & Co.
000 X. Xxxxx Xxxxxx
Xxxxxxx, XX 00000
SF CAPITAL PARTNERS LTD.
By: /s/Xxxxx X. Xxxxxxxx
Name: Xxxxx X. Xxxxxxxx
Title: Authorized Signatory
C/x Xxxxx Asset Management, LLC
0000 Xxxxx Xxxx Xxxxx
Xx. Xxxxxxx, XX 00000
XXXX XXXXXX HURVIS REVOCABLE TRUST
By:/s/Xxxx Xxxxxx Hurvis
Name: Xxxx Xxxxxx Hurvis
Title: Trustee
Xxxx Xxxxxx Hurvis Trustee
C/o Old World Industries
0000 Xxxxxxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
SCHEDULE I - INVESTORS
Cinergy Ventures II, LLC
000 Xxxx 0xx Xxxxxx
26th Floor
Atrium II EA610
Xxxxxxxxxx, XX 00000
Attn: Xxxxx Xxxxxxx
Xxxxx.xxxxxxx@xxxxxxx.xxx
Telephone: 000-000-0000
Facsimile: 000-000-0000
Xxxxxxx X. Xxxxxxx
c/o Xxxxxxx Xxxxx & Co.
000 X. Xxxxx Xxxxxx
Xxxxxxx, XX 00000
Telephone: 000-000-0000
Facsimile: 000-000-0000
xxx@xxxxxxx.xxx
---------------
SF Capital Partners, Ltd.
C/x Xxxxx Asset Management, LLC
0000 Xxxxx Xxxx Xxxxx
Xx. Xxxxxxx, XX 00000
Telephone: 000-000-0000
Facsimile: 000-000-0000
Attn: Xxxxx Xxxxxxxx
xxxxxxxxx@xxxxxxxxxxxxxxxx.xxx
------------------------------
Xxxx Xxxxxx Hurvis Revocable Trust C/O Old World Industries 0000 Xxxxxxxxxx
Xxxxxx Xxxxxxxxxx, XX 00000 (for purposes of the EPPF Securities Purchase and
Sale Agreement and the ECC Securities Purchase Agreement only)
Xxxxx X. Xxxxxxx
c/x Xxxxxx Group Securities, LLC
000 X. Xxxxxxx Xxxx, Xxxxx 0000
Xxxxxxx, XX 00000
Telephone: 000-000-0000
Facsimile: 000-000-0000
xxxxxxxx@xxxxxxxxxxxxxxxx.xxx
-----------------------------
(for purposes of the Duke Securities
Purchase and Sale Agreement and the
ECC Securities Purchase Agreement only)
SCHEDULE II
INVESTORS' RATABLE PORTION OF DUKE SECURITIES,
EPPF SECURITIES AND ECC SECURITIES
Total Purchase Price: $5 Million
Pro Rata Payments
El Paso Duke ECC
Investor Investment
Cinergy Ventures II $2, 000,000 = 40% of total $700,000 $700,000 $600,000
Xxxxxxx Xxxxxxx $1,750,000 = 35% of total $612,500 $612,500 $525,000
Xxxxx Investment $1,000,000 = 20% of total $350,000 $350,000 $300,000
Xxxxx Xxxxxxx $125,000 = 2.5% of total $0 $87,500 $37,500
Hurvis Trust $125,000 = 2.5% of total $87,500 $0 $37,500
Total Proceeds $1,750,000 $1,750,000 $1,500,000
SCHEDULE 2.3
CONSENTS AND APPROVALS
The right of first refusal under Section 2.2 of that certain Stock Trading
Agreement, dated as of July 31, 2001 (as amended from time to time) made by and
among the Purchasers and the Placement Agent, each as defined therein, and Xxxx
Xxxxxx, Xxxxx Xxxxxxxx, Xxxx Xxxxxxx, Xxxxxx Xxxxxx (with respect to 50,000
shares of Common Stock), and Xxxxxxx Xxxxxx, which right of first refusal has
been deemed to be waived pursuant to the provisions of the Sale Notice.
