AMENDED AND RESTATED
ASSET EXCHANGE AGREEMENT
AGREEMENT, dated as of February 8, 1999, by and among ELECTRIC & GAS
TECHNOLOGY, INC., a Texas corporation with offices at 00000 Xxxxxxx Xxxx, Xxxxxx
Xxxxx 00000-0000 ("ELGT"), and PROVIDENT PIONEER PARTNERS, L.P., a Delaware
limited partnership with offices at 000 Xxxx 00xx Xxxxxx, Xxxxx 0000, Xxx Xxxx,
Xxx Xxxx 00000 ("Provident"), and PIONEER POWER, INC., a Delaware corporation
("Newco").
W I T N E S E T H:
WHEREAS, on November 23, 1998, ELGT and Provident entered into the Asset
Exchange Agreement (the "Prior Agreement"); and
WHEREAS, the parties desire to add Newco as a party and to restate and
amend all of the terms and provisions of the Prior Agreement in their entirety,
in order that such terms and provisions shall, from and after the date hereof,
solely be as hereinafter set forth in this Agreement; and
WHEREAS, the parties desire to enter into the Transaction (as defined
below), subject to the terms and conditions set forth below;
NOW, THEREFORE, the parties hereto agree as follows:
1. The Transaction. Prior to the Closing (as hereinafter defined), the
parties shall engage in the following with respect to the transaction
contemplated by this Agreement (the "Transaction"):
(a) ELGT has caused a new wholly-owned subsidiary ("Newco") to be
organized in the State of Delaware under the name "Pioneer Power, Inc."
(b) Provident shall transfer to Newco all of the equity interests in
Provident or PTL (as defined below) in exchange for (i) approximately
eighty percent (80%) of the outstanding capital stock of Newco and (ii)
warrants to purchase additional shares of Newco in such quantity, at such
prices and at such times as will be mutually agreed upon by the parties
(such stock and warrants being hereinafter collectively referred to as the
"Provident Newco Stock"). As of the date hereof: (i) Provident owns (and
on the Closing Date will own) all of the outstanding capital stock of
Pioneer Transformers Ltd., a Canadian company engaged in the manufacture
and sale of electrical power and distribution transformers ("PTL"); and
(ii) PTL, in turn, owns (and on the Closing Date will own) all of the
outstanding capital stock of Xxxxxxx Granby Realty, Inc., a Canadian
corporation which owns certain real property located in Xxxxxx, Xxxxxx,
Xxxxxx.
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(c) (i) ELGT and Retech (as hereinafter defined) shall assign and
transfer the Note (as defined below) to Newco in exchange for (A)
approximately twenty percent (20%) of the outstanding capital stock of
Newco; and (B) warrants to purchase additional shares of Newco in such
quantity, at such prices and at such times as will be mutually agreed upon
by the parties (such stock and warrants being hereinafter collectively
referred to as the "ELGT Newco Stock"). On or prior to the Closing Date,
ACBC (as defined below) and ELGT and/or Retech shall enter into an
agreement amending the Note to provide for an outstanding balance of
$1,250,000.00 as of the Closing Date, and an amended Promissory Note
evidencing same will be duly issued (the "Note Amendment"). ELGT will then
"spinoff" or effect a dividend and distribution of all of the ELGT Newco
Stock, except for the Retained Newco Stock (as hereinafter defined), if
any, to the ELGT stockholders, thereby making Newco a public company (the
"Spinoff"). At the Closing, ELGT and Retech shall deliver or cause to be
delivered to Newco documentation evidencing the assignment and transfer of
the Note.
(ii) For purposes hereof, the "Note" shall mean the Promissory
Note, dated May 3, 1995, issued by American Circuit Breaker
Corporation, a New York corporation and an affiliate of Provident
("ACBC"), to Retech, Inc. (formerly Superior Technology, Inc.), a
Texas corporation and wholly owned subsidiary of ELGT ("Retech"),
evidencing a loan in the principal amount of $1,250,000.00, as amended
by the Note Amendment.
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2. Retained Newco Stock. ELGT hereby represents and warrants to Provident
that, in the event that any ELGT Newco Stock will be retained by ELGT and not
distributed to the public stockholders of ELGT as part of the Spinoff, but in no
event exceeding four percent (4%) of the total outstanding capital stock of
Newco (the "Retained Newco Stock"), then such Retained Newco Stock shall not at
any time be assigned or otherwise transferred by ELGT in any manner whatsoever,
except in compliance with applicable laws and in a manner which does not
otherwise affect the status of the Transaction under applicable tax and
securities laws, respectively. Notwithstanding the foregoing, in the event that
any ELGT Proceedings (as hereinafter defined) shall at any time be commenced
against ELGT, then upon receipt of written demand therefor from Provident and/or
Newco, ELGT shall promptly effect a pro-rata stock dividend or distribution of
all of the Retained Newco Stock to ELGT's public stockholders. Notwithstanding
anything to the contrary herein contained, the representations, warranties,
covenants and agreements in respect of the Retained Newco Stock set forth in
this Section 2 shall survive the Closing hereunder without any limitation. In
the event that Provident and/or Newco and/or their respective directors,
officers, stockholders, partners or agents shall at any time suffer or incur any
Liability (as hereinafter defined in Section 7(a)) arising out of any
distribution of the Retained Newco Stock or otherwise, then ELGT shall indemnify
Provident and/or Newco pursuant to the indemnification provisions set forth in
Section 7 hereof.
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3. Litigation. In June, 1997, the Litigation (as defined below) was
commenced regarding certain transactions related to the Note, and each of the
parties has asserted claims against the other in connection with the Note and
such related transactions. The Transaction is being made and entered into in
consideration of the settlement of the Litigation and all claims asserted in
connection therewith. On December 12, 1997, the Litigation was dismissed without
prejudice. At the Closing, the parties to the Litigation and their respective
affiliates shall exchange mutual general releases of any and all claims against
each other, whether relating to the Litigation, the Note or otherwise, and ELGT
shall utilize its best efforts to obtain documentation evidencing the
termination of the Litigation with prejudice. For purposes hereof, the
"Litigation" shall mean Electric & Gas Technology, Inc. and Hydel Enterprises,
Inc. vs. American Circuit Breaker Corporation, Cause No. 3:97-CV-1888-T, filed
in the United States District Court for the Northern District of Texas.
4. Closing Date; Transaction Effective Date.
(a) The closing of the transactions contemplated by this Agreement
(the "Closing") shall take place at the offices of Messrs. Shiboleth,
Yisraeli, Xxxxxxx & Xxxxxx, L.L.P., 000 Xxxxx Xxxxxx, Xxxxx 0000, Xxx Xxxx,
Xxx Xxxx 00000-0000, at 10:00 A.M., local time, on the date which shall be
the tenth (10th) business day following the Registration Statement
Effective Date (as hereinafter defined) (the "Closing Date").
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(b) Notwithstanding anything to the contrary herein contained, upon
the occurrence of the Closing hereunder and the satisfaction of all of the
conditions set forth in Section 11 hereof and compliance with the other
terms and conditions of this Agreement, then for accounting purposes, the
Transaction shall be deemed to be effective as of July 31, 1998
(the"Transaction Effective Date"). Accordingly, upon the Closing, effective
control of Provident's equity interests shall be deemed transferred to
Newco as of the Transaction Effective Date without restriction, except
those required to protect Provident and/or its partners.
5. Registration Statement. (a) As soon as practicable following the date
hereof, ELGT shall cause Newco to prepare and file a registration statement on
Form 10SB with the U.S. Securities and Exchange Commission ("SEC") with respect
to the Transaction, including the Spinoff (the "Registration Statement"). In
addition, concurrently with the filing of the Registration Statement, ELGT shall
prepare and file with the SEC an information statement (the "Information
Statement") describing the Transaction and Spinoff which shall be distributed to
ELGT's stockholders following the Closing. The parties shall cause each of the
Registration Statement and Information Statement to comply with all applicable
requirements of the Securities Act of 1933, as amended (the "1933 Act"), and
Securities Exchange Act of 1934, as amended (the "1934 Act"), respectively, the
rules and regulations promulgated thereunder, and all applicable state
securities laws, rules and regulations. Notwithstanding anything
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to the contrary herein contained, this Agreement and the Transaction shall be
subject to, and conditioned upon, the Registration Statement becoming or being
deemed effective by the SEC (the "Registration Statement Effective Date") on or
prior to July 31, 1999 (the "Outside Date").
(b) Provident and ELGT shall pay all costs and expenses in
connection with the preparation and filing of the Registration Statement
and Information Statement, respectively, including without limitation,
filing fees, printing, accounting, legal, broker and/or finders fees, in a
manner to be agreed upon by the parties.
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6. Resale Registration Statement. Upon written demand by Provident at any
time following the Closing Date, Newco shall prepare and file a registration
statement with the SEC on Form SB-2 or on any other form for which Newco shall
then be eligible (the "Resale Registration Statement") to register the resale by
Provident and/or its partners of the Provident Newco Stock from time to time in
open market transactions or in private transactions. Newco shall be required to
take any and all steps reasonably necessary to make the Resale Registration
Statement effective and to maintain the effectiveness thereof, including the
filing of such prospectus supplements and/or post-effective amendments
(including post-effective amendments necessary to update the financial
statements of Newco included in the Resale Registration Statement) as shall be
necessary to maintain the effectiveness of the Resale Registration Statement and
to allow Provident and/or its partners to sell Provident Newco Stock pursuant
thereto. Newco shall maintain the effectiveness of the Resale Registration
Statement until such time as Provident and/or its partners shall be permitted to
sell all of the Provident Newco Stock pursuant to Rule 144(k) without
restriction or limitation as to volume or manner of sale. All expenses incurred
in connection with the preparation and filing of such Resale Registration
Statement, including without limitation, all registration and filing fees,
printing expenses, expenses of compliance with blue sky laws, legal, accounting
and other fees and expenses, shall be borne solely by Newco. ELGT shall furnish
or cause to be furnished any documentation
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reasonably required to evidence consent or approval relating to the preparation
and filing of such Resale Registration Statement.
7. Indemnification. (a) Provident hereby agrees to indemnify and hold
harmless ELGT and its officers and directors (the "Provident Indemnified
Parties") from and against any and all claims, demands, actions, losses, costs,
damages, liabilities and expenses (including, without limitation, reasonable
attorneys' fees and expenses) (collectively, the "Liabilities"), based upon,
arising out of or resulting from any untrue statement of a material fact
contained in the Registration Statement and/or Information Statement, or any
omission to state therein a material fact necessary in order to make the
statements made therein, in light of the circumstances under which they were
made, not misleading, except insofar as any such Liabilities are based upon,
arise out of or result from any information furnished by ELGT and/or its
directors, officers, agents or representatives.
(b) ELGT hereby agrees to indemnify and hold harmless Provident and/or
Newco and their respective stockholders, partners, directors, officers and
agents (the "ELGT Indemnified Parties") from and against any and all
Liabilities based upon, arising out of or resulting from: (i) any untrue
statement of a material fact contained in the Registration Statement,
and/or Information Statement, or any omission to state therein a material
fact necessary in order to make the statements made herein, in light of the
circumstances under which they were made, not misleading, based upon,
arising out of or resulting
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from any information furnished by ELGT and/or its directors, officers, agents or
representatives; and (ii) the Retained Newco Stock as set forth in Section 2
hereof.
(c) Upon receipt of actual notice of any claim pursuant to which any
Indemnified Party (i.e., Provident Indemnified Party or ELGT Indemnified
Party) may seek indemnification under this Section 7 (a "Claim"), the
Indemnified Party shall promptly submit notice thereof to the party
required to furnish indemnification under this Section 7 (the "Indemnifying
Party"). The failure of the Indemnified Party so to notify the Indemnifying
Party of any such Claim shall not relieve the Indemnifying Party from any
liability it may have under this Section 7, to the extent that such failure
to notify is not prejudicial. The Indemnifying Party shall have the right
to conduct the defense of any Claim and litigation arising therefrom;
provided, however, that the Indemnified Party shall have the right to
employ separate counsel and to participate in such defense, but the fees
and expenses of any such separate counsel shall be at the sole expense of
the Indemnified Party. The Indemnifying Party and the Indemnified Party
shall cooperate with, and assist, one another in the defense of any Claim
hereunder. No settlement of any Claim shall be made without the consent of
the Indemnified Party, which consent shall not be unreasonably withheld or
delayed.
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8. Representations of ELGT.
ELGT hereby makes the following representations and warranties to
Provident:
(a) Valid Corporate Existence. ELGT is a corporation duly organized,
validly existing and in good standing under the laws of the State of Texas,
and has the corporate power to carry on its business as now being conducted
and to own its assets. ELGT is duly qualified to conduct business and is in
good standing as a foreign corporation in those jurisdictions in which ELGT
required to qualify in order to own its assets and properties or to carry
on its business.
(b) No Consents. There are no consents and approvals of governmental
and other regulatory agencies, foreign or domestic, or of other third
parties which are required to be obtained by or on behalf of ELGT in order
to enable ELGT to enter into and carry out this Agreement and the
Transaction in all material respects.
(c) Corporate Authority; Binding Nature of Agreement. ELGT has the
full power and authority to enter into this Agreement and to carry out its
obligations hereunder. The execution and delivery of this Agreement and the
consummation of the Transaction contemplated hereby have been duly
authorized by ELGT and the Board of Directors of ELGT and no other
corporate proceedings on the part of ELGT are necessary in order to
authorize the execution and delivery of this Agreement and the consummation
of the Transaction contemplated hereby.
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This Agreement constitutes the valid and binding obligation of ELGT and is
enforceable in accordance with its terms, subject to applicable bankruptcy,
reorganization, moratorium or similar laws relating to the enforcement of
creditors' rights generally and the application of general principles of
equity.
(d) ELGT Proceedings. Except as set forth on Schedule A annexed
hereto, there are no actions, suits, proceedings or governmental
investigations relating to or involving ELGT by or before any court or
governmental or other regulatory agency or commission, including without
limitation, the SEC (collectively, "ELGT Proceedings"), either pending or,
to the knowledge of ELGT, after reasonable inquiry, threatened, or any
outstanding order, injunction, judgment, writ, award or decree against
ELGT, its business, properties and/or assets.
(e) No Breach. Neither the execution and delivery of this Agreement
nor compliance by ELGT with any of the provisions hereof nor consummation
of the transactions contemplated hereby, will:
(i) violate or conflict with any provision of the Articles of
Incorporation or By-Laws of ELGT;
(ii) violate or, alone or with notice or the passage of time,
result in the material breach or termination of, or otherwise give any
contracting party the right to terminate, or declare a default under,
the terms of any agreement or other document or undertaking, oral or
written, to which ELGT is a party or by which it may be bound
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(except for such violations, conflicts, breaches or defaults as to
which required waivers or consents by other parties have been, or
will, prior to the Closing, be obtained);
(iii) violate any judgment, order, injunction, decree or award
against, or binding upon ELGT and/or its assets or business; or
(iv) violate any law or regulation of any jurisdiction relating
to ELGT and/or its assets, business or securities.
0X. Xxxxxxxxxxxxxxx Xxxxxxxxx Xxxxx.
XXXX hereby makes the following representations and warranties to Provident
with respect to Newco:
(a) Valid Corporate Existence. Newco is a corporation duly organized,
validly existing and in good standing under the laws of the State of
Delaware, and has the corporate power to carry on its business as now being
conducted and to own its assets.
(b) No Consents. There are no consents and approvals of governmental
and other regulatory agencies, foreign or domestic, or of other third
parties which are required to be obtained by or on behalf of Newco in order
to enable Newco to enter into and carry out this Agreement and the
Transaction in all material respects.
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(c) Corporate Authority; Binding Nature of Agreement. Newco has the
full power and authority to enter into this Agreement and to carry out its
obligations hereunder. The execution and delivery of this Agreement and the
consummation of the Transaction contemplated hereby have been duly
authorized by ELGT and the Board of Directors of Newco and no other
corporate proceedings on the part of Newco are necessary in order to
authorize the execution and delivery of this Agreement and the consummation
of the Transaction contemplated hereby. This Agreement constitutes the
valid and binding obligation of Newco and is enforceable in accordance with
its terms, subject to applicable bankruptcy, reorganization, moratorium or
similar laws relating to the enforcement of creditors' rights generally and
the application of general principles of equity.
(d) No Proceedings. There are no actions, suits, proceedings or
governmental investigations relating to or involving Newco by or before any
court or governmental or other regulatory agency or commission, including
without limitation, the SEC, either pending or, to the knowledge of ELGT,
after reasonable inquiry, threatened, or any outstanding order, injunction,
judgment, writ, award or decree against Newco, its business, properties
and/or assets.
(e) No Breach. Neither the execution and delivery of this Agreement
nor compliance by Newco with any of the provisions hereof nor consummation
of the transactions contemplated hereby, will:
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(i) violate or conflict with any provision of the Certificate of
Incorporation or By-Laws of Newco;
(ii) violate or, alone or with notice or the passage of time,
result in the material breach or termination of, or otherwise give any
contracting party the right to terminate, or declare a default under,
the terms of any agreement or other document or undertaking, oral or
written, to which Newco is a party or by which it may be bound (except
for such violations, conflicts, breaches or defaults as to which
required waivers or consents by other parties have been, or will,
prior to the Closing, be obtained);
(iii) violate any judgment, order, injunction, decree or award
against, or binding upon Newco and/or its assets or business; or
(iv) violate any law or regulation of any jurisdiction relating
to Newco and/or its assets, business or securities.
(f) Assets; Liabilities: Newco has no assets or properties except as
set forth in Schedule B annexed hereto. In addition, Newco has no debts,
liabilities, obligations, contracts or commitments of any kind or nature
whatsoever (the "Liabilities") except as set forth on Schedule B-1 annexed
hereto, and since its date of incorporation (July 28, 1998), Newco has not
incurred any such Liabilities except as set forth on said Schedule B-1.
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9. Representations of Provident.
Provident hereby makes the following representations and warranties to
ELGT:
(a) Valid Existence. Provident is a limited partnership duly organized
and validly existing under the laws of the State of Delaware,and has the
power to carry on its business as now being conducted and to own its
assets.
(b) No Consents. There are no consents and approvals of governmental
and other regulatory agencies, foreign or domestic, or of other third
parties which are required to be obtained by or on behalf of Provident in
order to enable Provident to enter into and carry out this Agreement and
the Transaction in all material respects.
(c) Binding Nature of Agreement. Provident has the power to enter into
this Agreement and to carry out its obligations hereunder. This Agreement
constitutes the valid and binding obligation of Provident and is
enforceable in accordance with its terms, subject to applicable bankruptcy,
reorganization, moratorium or similar laws relating to the enforcement of
creditors' rights generally and the application of general principles of
equity.
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(d) No Proceedings. There are no actions, suits, proceedings or
governmental investigations relating to or involving Provident by or before
any court or governmental or other regulatory agency or commission,
including without limitation, the SEC, either pending or, to the knowledge
of Provident, after reasonable inquiry, threatened, or any outstanding
order, injunction, judgment, writ, award or decree against Provident, its
business, properties and/or assets.
(e) No Breach. Neither the execution and delivery of this Agreement
nor compliance by Provident with any of the provisions hereof nor
consummation of the transactions contemplated hereby, will:
(i) violate or conflict with any provision of the partnership
agreement or other organizational document of Provident;
(ii) violate or, alone or with notice or the passage of time,
result in the material breach or termination of, or otherwise give any
contracting party the right to terminate, or declare a default under,
the terms of any agreement or other document or undertaking, oral or
written, to which Provident is a party or by which it may be bound
(except for such violations, conflicts, breaches or defaults as to
which required waivers or consents by other parties have been, or
will, prior to the Closing, be obtained);
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(iii) violate any judgment, order, injunction, decree or award
against, or binding upon, Provident; or
(iv) violate any law or regulation of any jurisdiction relating
to Provident.
10. Access. From and after the date hereof and until the Closing or earlier
termination of this Agreement, Provident shall afford to ELGT and its
representatives reasonable access, during regular business hours and upon
reasonable prior notice, to the books and records of Provident and/or PTL.
11. Conditions to Closing .
(a) Provident Conditions. The obligations of Provident to enter
into and complete the Closing are subject to the fulfillment, on or
prior to the Closing Date, of each of the following conditions, any
one or more of which may be waived by Provident (except when the
fulfillment of such condition is a requirement of law):
(i) Representations. All representations and warranties of
ELGT and/or Newco contained in this Agreement or other document
delivered pursuant hereto shall be true and correct in all
material respects as of the Closing Date, as if made at the
Closing and as of the Closing Date.
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(ii) No Actions. No action, suit, proceeding or
investigation shall have been instituted, and be continuing
before a court or before or by a governmental body or agency, or
shall have been threatened and be unresolved, to restrain or to
prevent or to obtain damages in respect of, the carrying out of
the Transaction.
(iii) Registration Statement. The Registration Statement
shall become or be deemed effective by the SEC on or prior to the
Outside Date (July 31, 1999).
(iv) Transaction. Each of the steps of the Transaction shall
have been duly completed in accordance with Section 1 hereof.
(v) Termination. The parties to the Litigation (i.e., ACBC
and ELGT and/or Retech) shall have duly executed and delivered
documentation evidencing termination of such Litigation with
prejudice, if available.
(vi) Note Amendment. ACBC and ELGT and/or Retech shall have
duly executed and delivered the Note Amendment.
(vii) Market Makers. Provident shall receive assurances that
there shall be not less than two (2) registered market makers
acceptable to Provident and its counsel who shall participate in
the quoting of Newco's stock, and such stock shall be quoted on
the OTC
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Bulletin Board or listed on NASDAQ immediately following the
Closing, which assurances shall be acceptable to Provident and
its counsel in their sole discretion.
(b) ELGT Conditions. The obligations of ELGT to enter into and
complete the Closing are subject to the fulfillment, on or prior to the
Closing Date, of each of the following conditions, any one or more of which
may be waived by ELGT (except when the fulfillment of such condition is a
requirement of law):
(i) Representations. All representations and warranties of
Provident contained in this Agreement or other document delivered
pursuant hereto shall be true and correct in all material respects as
of the Closing Date, as if made at the Closing and as of the Closing
Date. Notwithstanding the foregoing, on the Closing Date, the audited
consolidated financial statements of PTL for the year ended December
31, 1997, and the unaudited financial statements of PTL for the period
ended June 30 1998, respectively, previously delivered by Provident to
ELGT, shall be the true and correct in all material respects as of the
respective dates thereof.
(ii) No Actions. No action, suit, proceeding or investigation
shall have been instituted, and be continuing before a court or before
or by a governmental body or agency, or shall have been threatened and
be unresolved, to restrain or to prevent or to obtain damages in
respect of, the carrying out of the Transaction.
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(iii) Registration Statement. The Registration Statement shall
become or be deemed effective by the SEC on or prior to the Outside
Date (July 31, 1999).
(iv) Transaction. Each of the steps of the Transaction shall have
been duly completed in accordance with Section 1 hereof.
(v) Stockholders' Equity. ELGT shall receive reasonable
assurances that, immediately following the Closing, Newco will have
stockholders' equity of not less than $500,000.00 in the aggregate
(the "Equity Amount"); provided, however, that the determination of
the Equity Amount shall be made without regard for, or taking into
account, the accounting treatment of the Note.
12. Survival. The parties hereby agree that their respective
representations, warranties, covenants and agreements contained in this
Agreement shall survive the Closing for a period of one (1) year, except as set
forth in Sections 2 and 7 hereof, respectively, and as otherwise provided
herein.
13. Miscellaneous Provisions.
(a) Further Assurances. Following the Closing Date, each party hereto
shall execute and deliver, or cause to be executed and delivered, such
other documents and instruments, and will do and perform all other acts as
may reasonably be required by such other
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party to evidence the validity of, or to perfect the full and proper
performance of this Agreement.
(b) Expenses. Except as otherwise expressly provided in this
Agreement, each of the parties hereto shall bear its own expenses in
connection with this Agreement and the transactions contemplated hereby.
(c) Confidential Information. Each party hereby agrees that such party
and its representatives will hold in strict confidence all information and
documents received from the other parties and, if the transaction herein
contemplated shall not be consummated, each party will continue to hold
such information and documents in strict confidence and will return to such
other parties all such documents (including the Exhibits hereto) then in
such receiving party's possession without retaining copies thereof;
provided, however, that each party's obligations under this Section 13(c)
to maintain such confidentiality shall not apply to any information or
documents that are in the public domain at the time furnished by the others
or that become in the public domain thereafter through any means other than
as a result of any act of the receiving party or its agents, officers,
directors or stockholders, as the case may be, which constitutes a breach
of this Agreement, or that are required by applicable law to be disclosed.
The parties hereby agree that the remedy at law for any breach of this
Section 13(c) will be inadequate and a non-breaching party will be entitled
to injunctive relief to compel the breaching
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party to perform or refrain from action required or prohibited hereunder.
The remedies set forth in this Section 13(c) shall not be deemed to be
exclusive of any rights or remedies which the non-breaching party may be
entitled to at law, in equity or otherwise.
(d) Amendments; Waiver. This Agreement may be amended, modified,
superseded or terminated, and any of the terms, covenants, representations,
warranties or conditions hereof may be waived, but only by a written
instrument executed by the party waiving compliance. The failure of any
party at any time or times to require performance of any provision hereof
shall in no manner affect the right of such party at a later time to
enforce the same.
(e) Publicity. The parties hereby agree that no publicity, release or
other public announcement concerning the transactions contemplated by this
Agreement shall be issued by either party without the advance approval of
both the form and substance of the same by the other party and its counsel,
which approval, in the case of any publicity, release or other public
announcement required by applicable law, shall not be unreasonably withheld
or delayed.
(f) Notices. Any notice or other communication required or which may
be given hereunder shall be in writing and either be delivered by hand or
via facsimile transmission (subject to confirmation of receipt), or be
mailed by certified or registered mail, postage prepaid, and shall be
deemed given when so delivered
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by hand or via facsimile , or if mailed, three (3) days after the date of
mailing, addressed in each case as follows:
if to ELGT, at:
Electric & Gas Technology, Inc.
00000 Xxxxxxx Xxxx
Xxxxxx Xxxxx 00000-0000
Attention: S. Xxxx Xxxxxxxxx, President
with a copy to:
Xxxx X. Xxxxxxx, Esq.
0000 Xxxx Xxxxxx Xxxx
Xxxxxx, Xxxxx 000000
if to Provident, at:
Provident Pioneer Partners, L.P.
c/o Provident Industries, Inc.
000 Xxxx 00xx Xxxxxx
Xxxxx 0000
Xxx Xxxx, XX 00000
Attention: Xxxxxx X. Xxxxxxx
with a copy to:
Shiboleth, Yisraeli, Xxxxxxx & Xxxxxx, L.L.P.
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Xxxxxx Xxxxxxx, Esq.
The parties may change the persons and addresses to which the notices or
other communications are to be sent by giving written notice of any such
change in the manner provided herein for giving notice.
(g) Binding Effect and Assignment. This Agreement shall be binding
upon and inure to the benefit of the respective successors and assigns of
the parties hereto. No assignment of any rights or delegation of any
obligations provided for herein may be made by any party hereto without the
express written consent of the other party;
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provided, however, that Provident may at any time assign all or any portion
of its right, title and interest under this Agreement to any of its
affiliates without the consent or approval of ELGT.
(h) Entire Agreement. This Agreement contains the entire agreement
between the parties with respect to the subject matter hereof, and merges
and supersedes all prior agreements and understandings, written or oral,
with respect thereto, including without limitation, the Prior Agreement.
(i) Governing Law. This Agreement shall be governed by, and construed
in accordance with, the internal laws of the State of Delaware, without
giving effect to principles of conflicts of law.
(j) Counterparts. This Agreement may be executed in counterparts, each
of which shall be deemed to be an original, but which together shall
constitute one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the day and year first above written.
ELECTRIC & GAS TECHNOLOGY, INC.
By: /s/S. Xxxx Xxxxxxxxx
S. Xxxx Xxxxxxxxx, President
PROVIDENT PIONEER PARTNERS, L.P.
By: PROVIDENT CANADA CORP.
General Partner
By: /s/Xxxxxx X. Xxxxxxx
Xxxxxx X. Xxxxxxx, President
PIONEER POWER, INC.
By: /s/Xxxxxx X. Xxxxxxx
Xxxxxx X. Xxxxxxx, President
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