Exhibit 10.35
[LOGO]
NUVERA
FUEL CELLS
July 27, 2000
X. Xxxxxxx Xxxxxxx, XX, Esq.
Amerada Xxxx Corporation
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Barclay:
This letter sets forth the Agreement of Nuvera Fuel Cells, Inc.
("Nuvera") and Amerada Xxxx Corporation ("Xxxx") with respect to a transaction
pursuant to which Xxxx will invest $15,000,000 in Nuvera, representing 67,416
newly-issued shares of the common stock of Nuvera (the "Transaction'"). The
total number of shares of common stock outstanding after the closing under this
Transaction, taking into account the 6% to be sold to Xxxx pursuant to this
Transaction, will be 1,067,416 shares.
The following are the details of the Transaction:
1. The funds will be used as determined by the Nuvera Board of Directors.
2. At closing, Xxxx will pay $15,000,000 in cash to Nuvera in exchange for the
67,416 shares of stock of Nuvera as stated above.
3. In view of Xxxx'x role on the Nuvera Board of Directors, Xxxx represents that
there are no conditions to closing, other than as in Articles 7.1(a) and (b)
of the Investment Agreement dated March 30, 2000 among Xxxx, Xxxxxx X.
Xxxxxx, Inc. ("ADL") and Nuvera (formerly known as Epyx Corporation) (the
"Agreement"), and no due diligence is required by Xxxx to conclude this
Transaction.
X. Xxxxxxx Xxxxxxx, XX, Esq.
Page 2
July 27, 2000
4. The representations and warranties made by Nuvera and ADL in Article IV of
the Agreement, of ADL made in Article V of the Agreement and of Xxxx
contained in Article VI of the Agreement will apply to this Letter Agreement
as if made today and at the date of the closing of this Transaction, as
applicable. Other than Sections 4.1, 4.2 and 4.4, such representations and
warranties are made to the best knowledge of the parties.
5. The conditions precedent to closing as contained in Article VII of the
Agreement will apply to this Letter Agreement as if made today and at the
date of the closing of this Transaction, as applicable.
6. This Letter Agreement will not affect Xxxx'x rights under Article IX of the
Agreement.
7. Any provisions of the Agreement which by their nature would be applicable to
this Transaction and the shares to be issued, will apply giving due
effect to the intent of the parties in entering into this Letter Agreement.
8. Xxxx will transfer $15,000,000 to Nuvera no later that 12:00 p.m. on July
31, 2000, and Nuvera will deliver a share certificate to Xxxx representing
the 67,416 shares in Nuvera no later than 5:00 p.m. on July 31, 2000. All
times are Eastern Daylight Savings Time. If the share certificate is not
delivered to Xxxx for any reason, Nuvera will return the $15,000,000 to
Xxxx.
9. Xxxx represents that there are no further approvals of Xxxx required to
consummate the Transaction.
10. All approvals required by the Stockholders' Agreement dated April 4, 2000,
among XxXxxx Fuel Cells, S.p.A., ADL and Xxxx will be obtained prior to
closing under this Letter Agreement.
11. Article II, Section 2.1 of the Stockholders' Agreement will be amended so
that Stockholders will take such action as is necessary to fix the number of
Directors at nine (9) and Xxxx will have the right to designate two (2)
Directors. This Letter Agreement will not otherwise affect any rights of the
parties under the Stockholders' Agreement.
12. Each Party will bear its own fees and expenses incurred in connection with
the Transaction including fees for disbursements of attorneys and other
advisors.
X. Xxxxxxx Xxxxxxx
Page 3
July 27, 2000
13. Neither Xxxx nor Nuvera will issue a press release or public announcement
with respect to the contents of this letter or the negotiations relating to
this letter or any definitive documentation without the written consent of
the other party.
14. This letter will be governed by and construed in accordance with the laws
of the State of Delaware.
15. This letter is a legal and binding obligation of the parties.
Please confirm your agreement to the above by signing and returning one copy
of this letter to me.
Very truly yours,
/s/ Xxxxxxx X. Xxxxxxxx
Xxxxxxx X. Xxxxxxxx
AMERADA XXXX CORPORATION
By: /s/ Xxxx X. Xxxxxxx
------------------------------------
Xxxx X. Xxxxxxx for Xxxxxxx Xxxxxxx, XX
NUVERA FUEL CELLS INCORPORATED
By: /s/ Xxxxxxxx XxXxxx
------------------------------------
Xxxxxxxx XxXxxx
NUVERA FUEL CELLS INCORPORATED
By: /s/ Xxxx X. Xxxxxxx
-------------------------------------
Xxxx X. Xxxxxxx
