SCR-Tech Sale and Share Ownership Reconciliation Agreement
Exhibit 10.3
This SCR-Tech Sale and Share Ownership Reconciliation (this “Agreement”) is entered into
effective February 12, 2008 (the “Effective Date”) between The Xxxxxx X. Xxxxxxx and Xxxxxxx X.
Xxxxxxx Revocable Trust (“Stockholder”) and Renegy Holdings, Inc. (“Renegy”) (each a “Party” and
together, the “Parties”).
Whereas Stockholder, Renegy and various affiliates entered into a Contribution and Merger
Agreement dated as of May 8, 2007, as amended (the “CMA”);
Whereas the CMA provided that the shares of the common stock of Renegy held by Stockholder
shall be reduced in the event of the sale of SCR-Tech, LLC together with CESI-Tech Technologies,
Inc. and CESI-SCR, Inc. (collectively “SCR-Tech”) above an agreed threshold (the “Threshold”)
before December 31, 2007;
Whereas a sale of SCR-Tech was consummated on November 7, 2007;
Whereas the sale proceeds, net of expenses and adjustments as provided in the CMA, resulted in
proceeds above the Threshold of $1,836,682.80 (the “Excess Net Proceeds”);
Whereas the CMA provided that the shares of the common stock of Renegy held by Stockholder
shall be reduced by 0.8% for each $1 million of net proceeds above the Threshold;
Whereas Stockholder and Renegy desire to document the amount of shares held by Stockholder
which shall be reduced as a result of the Excess Net Proceeds;
Now, therefore, Stockholder and Renegy agree as follows:
1. Excess Net Proceeds and Reduction in Shares.
Stockholder and Renegy confirm and agree that the Excess Net Proceeds total $1,836,682.80 and
that the Excess Net Proceeds shall result in a reduction in the shares held by Stockholder of
220,891 shares, such that the 3,774,048 shares of common stock of Renegy held by Stockholder as of
the date of this Agreement shall be reduced to a total of 3,553,157 shares.
2. Correction of Stock Certificate.
The Parties shall fully cooperate to exchange any stock certificate representing the shares of
common stock of Renegy held by Stockholder to reflect the ownership of shares of common stock of
Renegy as set forth in Section 1 of this Agreement. Renegy’s books and records shall reflect the
reduction in shares effective as of the date of this Agreement.
3. Notices.
All notices, requests, claims and other communications under this Agreement shall be in
writing and shall be deemed given if delivered personally or by overnight courier to the parties at
the following addresses (or at such other address for a party as shall be specified by notice from
such party):
| (a) | If to Renegy, to | |||
| Renegy Holdings, Inc. | ||||
| 000 Xxxx Xxxxxx Xxxx, Xxxxx 000 | ||||
| Xxxxx, Xxxxxxx 00000 | ||||
| Attention: Xxxxxx X. Xxxx, CFO |
| (b) | If to Stockholder, to: | |||
| Xxxxxx X. Xxxxxxx and Xxxxxxx X. Xxxxxxx Revocable Trust | ||||
| 0000 X. Xxx Xxxxx Xxxxx | ||||
| Xxxx, Xxxxxxx 00000 | ||||
| Attention: Xxxxxx X. Xxxxxxx |
4. Counterparts; Facsimile Signatures.
This Agreement may be executed in counterparts, all of which shall be considered one and the
same agreement and shall become effective when one or more counterparts have been signed by each
Party and delivered to the other Party. This Agreement may be signed by facsimile signatures, each
of which shall be deemed to be original signatures.
5. Entire Agreement.
This Agreement and the other agreements referred to herein constitute the entire agreement
among the parties regarding the subject matter of this Agreement.
6. Governing Law.
This Agreement shall be governed by, and construed in accordance with, the laws of the State
of Delaware regardless of any laws that might otherwise govern under applicable principles of
conflicts of laws thereof.
7. Assignment.
Neither this Agreement nor any right, interest or obligation hereunder shall be assigned, in
whole or in part, by operation of law or otherwise, by any Party without the prior written consent
of the other Party. Subject to the preceding sentence of this Section 7, this Agreement will be
binding upon, inure to the benefit of, and be enforceable by, the Parties and their respective
legal successors and permitted assigns.
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8. Amendments; Waiver.
This Agreement may not be amended or modified except by written agreement of the Parties
hereto. No breach of any covenant, agreement, representation or warranty made herein shall be
deemed waived unless expressly waived in writing by the party who might assert such breach.
9. Jurisdiction and Venue.
Any suit, action or proceeding seeking to enforce any provision of, or based on any matter
arising out of or in connection with, this Agreement or the transactions contemplated hereby shall
be brought exclusively in the Delaware Court of Chancery and any state appellate court therefrom
(or, if the Delaware Court of Chancery declines to accept jurisdiction over a particular matter, in
any federal court located in the State of Delaware or any Delaware state court), and each of the
Parties hereby consents to the exclusive jurisdiction of such courts (and of the appropriate
appellate courts therefrom) in any such suit, action or proceeding and irrevocably waivers, to the
fullest extent permitted by law, any objection that it may now or hereafter have to the laying of
the venue of any such suit, action or proceeding in any such court or that any such suit, action or
proceeding brought in any such court has been brought in an inconvenient forum. Process in any
such suit, action or proceeding may be served on any Party anywhere in the world, whether within or
without the jurisdiction of any such court.
10. Remedies; Attorneys’ Fees.
The Parties agree that irreparable damage would occur if any provision of this Agreement were
not performed in accordance with its terms or were otherwise breached and thus each Party shall be
entitled to injunctive relief to prevent any breach of this Agreement and to specifically enforce
this Agreement. In addition to any other remedies available to a Party hereunder, the Party
prevailing in any litigation regarding this Agreement shall be entitled to an award of attorneys’
fees and costs arising from such litigation.
11. Severability.
Each provision of this Agreement will be interpreted so as to be effective and valid under
applicable law, but if any provision is held invalid, illegal or unenforceable under applicable law
in any jurisdiction, then such invalidity, illegality or unenforceability will not affect any
other provision, and this Agreement will be reformed, construed and enforced in such jurisdiction
as if such invalid, illegal or unenforceable provision had never been included herein.
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IN WITNESS WHEREOF, the parties have executed this Agreement effective as of the Effective Date.
| RENEGY | ||||
| RENEGY HOLDINGS, INC. | ||||
| a Delaware corporation | ||||
By:
|
/s/ Xxxxxx X. Xxxx | |||
Name:
|
Xxxxxx X. Xxxx | |||
Title:
|
Executive Vice President and CFO | |||
| STOCKHOLDER | ||||
| XXXXXX X. XXXXXXX AND XXXXXXX X. XXXXXXX REVOCABLE TRUST | ||||
By:
|
/s/ Xxxxxx X. Xxxxxxx | |||
Name:
|
Xxxxxx X. Xxxxxxx | |||
Title:
|
Trustee | |||
By:
|
/s/ Xxxxxxx X. Xxxxxxx | |||
Name:
|
Xxxxxxx X. Xxxxxxx | |||
Title:
|
Trustee | |||
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