EXHIBIT 10.1
AGREEMENT
This Agreement is made this 12th day of June, 1999 by and between Thermo Ecotek
Corporation ("TCK") and KFx Inc. ("KFx").
WHEREAS, TCK and KFx entered into a Stock Purchase Agreement dated August 18,
1995 (the "Stock Purchase Agreement"); and
WHEREAS, KFx granted TCK a Stock Purchase Warrant dated August 18, 1995 to
purchase 7,750,000 shares of KFx common stock at $3.65 per share; and
WHEREAS, KFx granted TCK another Stock Purchase Warrant dated August 18, 1995 to
purchase sufficient shares of KFx to bring TCK's ownership of KFx up to 51% of
the common stock of KFx (hereafter, both Stock Purchase Warrants will be
referred to as the "Warrants"); and
WHEREAS, KFx desires to eliminate the $3.65 per share ceiling on the price of
its common stock; and
WHEREAS, KFx further desires to eliminate the ability of TCK to acquire a
controlling interest in KFx; and
WHEREAS, TCK desires to sell the common stock it owns in KFx subject to a
minimum market price as defined below.
NOW THEREFORE, in consideration of the premises and the mutual promises
contained herein, the parties hereto agree as follows:
1. Authorization to KFx to Find a Buyer: TCK hereby grants KFx authorization to
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find a buyer (the "Buyer") for all of the 4,250,000 shares of the common
stock of KFx owned by TCK (the "TCK Stock") on or before the Termination Date
(as defined in Section 3, below) for the consideration specified in Section
2.
2. Consideration: The price to be paid by Buyer for 100% of the TCK Stock will
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be $2.00 per share.
3. Termination of Authorization: KFx's authorization to find a Buyer for the
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TCK Stock shall expire 180 days from the effective date of this Agreement
(the "Termination Date").
4. Extension of Termination Date:
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A. The Termination Date may be extended by written request by KFx to TCK for
up to 60 days, provided however, KFx can demonstrate to the satisfaction
of TCK that KFx has a reasonable chance of closing a sale of the TCK Stock
during the 60 day extension period, and provided further, the $2.00 per
share price shall be increased by 15% to $2.30 per share.
B. If the TCK Stock is not purchased by a Buyer within such 60-day extension
of the Termination Date, KFx's authorization to find a Buyer for the TCK
Stock shall automatically terminate, and KFx shall have no further
authorization to find a Buyer for the TCK Stock.
5. Registration Statement Covering the TCK Stock: KFx agrees to prepare and
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file as soon as possible following the execution of this Agreement a
registration statement (the "Registration Statement") covering the resale by
TCK of the TCK Stock pursuant to the terms of the Registration Rights
Agreement between KFx and TCK dated as of August 18, 1995.
6. Closing of the Sale of the TCK Stock: If KFx finds a Buyer willing to
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purchase the TCK Stock on the terms described herein, the Buyer and TCK will
negotiate in good faith agreements for the sale and transfer of the TCK
Stock. At the Closing of the purchase of the TCK Stock (the "Closing") TCK
will transfer the Warrants to KFx for cancellation. KFx shall have no right
to directly buy the TCK Stock for its own account or to sell the TCK Stock
directly to Buyer. Such agreements with Buyer shall contain certain
representations, warranties, terms, conditions, indemnities, and opinions for
such stock and warrant transactions. At the Closing, in consideration of
TCK's agreement to transfer the warrants to KFx for cancellation, KFx shall
provide TCK a general release with respect to KFx and KFx Fuel Partners, L.P.
TCK shall provide to KFx a similar general release. Each release shall also
include a statement that, upon the closing, each of the Stock Purchase
Agreement and Registration Rights Agreement (with the exception of section 6
thereof) dated August 18th, 1995 between KFx and TCK will terminate and no
longer be of any force or effect.
7. Opinion of Counsel: As a condition to the Closing, KFx shall provide TCK
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with an opinion of counsel, with respect to KFx, that this Agreement complies
with and/or does not violate any applicable laws, regulations or KFx
agreements.
8. Information About Buyers: KFx shall keep TCK informed on at least a weekly
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basis about its progress in finding a Buyer for the TCK Stock, and KFx shall
immediately inform TCK about any offer from any Buyer to purchase the TCK
Stock.
9. Sale by TCK Without KFx Involvement: If, during the term of this Agreement,
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TCK should sell all the TCK Stock to a Buyer who was not found by KFx, TCK
shall nevertheless agree to terminate the Warrants at the Closing of the
sale of the TCK Stock and the Stock Purchase Agreement and Registration
Rights Agreement (except for Section 6 thereof) shall terminate and no
longer be of any force or effect.
10. Condition Precedent: It shall be a condition precedent to the effectiveness
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of this Agreement that the Board of Directors of both KFx and TCK approve
the execution and entering to of this Agreement by KFx and TCK,
respectively.
11. Representations of KFx:
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(a) Authority: KFx has all the requisite power and authority to execute and
deliver this Agreement and to perform its obligations hereunder. The
execution and delivery of this Agreement, the performance of KFx
hereunder and the consummation by KFx of the transactions contemplated
hereby have been duly and validly authorized by all necessary corporate
action. This Agreement has been duly and validly executed and delivered
by KFx, enforceable against KFx in accordance with its terms.
(b) Noncontravention: Neither the execution or delivery of this Agreement
nor the performance by KFx of its obligations hereunder will directly or
indirectly (1) violate KFx's certificate of incorporation, bylaws or any
contract or agreement or other arrangement to which KFx is a party, or
(2) violate any statute, law, regulation or order applicable to KFx.
Without limiting the foregoing, KFx shall not make any offers of the TCK
Stock prior to the effective date of the Registration Statement.
(c) Third Party Consents: No consent, authorization, approval or order of
any third party, including any governmental agency, is required in
connection with KFx's entry into this Agreement or the consummation by
KFx of the transactions contemplated hereby.
12. Governing Law; Prior Agreements: This Agreement shall be governed by
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Massachusetts law, and shall supercede all written or oral agreements and
contracts with respect to the Stock Purchase Agreement or the Warrants.
IN WITNESS WHEREOF, the parties execute this Agreement by their duly authorized
officers.
KFX INCORPORATED THERMO ECOTEK CORPORATION
/s/ Xxxx X. Xxxxxxxxx /s/ Xxxxx X. Xxxx
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Xxxx X. Xxxxxxxxx Xxxxx X. Xxxx
Executive Vice President President and Chief Executive Officer
and Chief Financial Officer
