STOCK PURCHASE AGREEMENT dated as of November 23, 2007 between ALLEGRO BIODIESEL CORPORATION and COMMUNITY POWER CORPORATION
Execution
Copy
dated
as of November 23, 2007
between
ALLEGRO
BIODIESEL CORPORATION
and
COMMUNITY
POWER CORPORATION
|
ARTICLE
I
|
PURCHASE
AND SALE
|
1
|
|
|
Section
1.1
|
Purchase
and Sale of the Common Stock
|
1
|
|
|
Section
1.2
|
Purchase
Price for Securities and Company Stock Options
|
1
|
|
|
ARTICLE
II
|
CLOSING
|
1
|
|
|
Section
2.1
|
Closing
Dates
|
1
|
|
|
Section
2.2
|
Closing
Date Payment
|
1
|
|
|
Section
2.3
|
Deliveries
to Purchaser
|
2
|
|
|
ARTICLE
III
|
REPRESENTATIONS
AND WARRANTIES OF THE COMPANY
|
2
|
|
|
Section
3.1
|
Organization;
Power and Authority
|
2
|
|
|
Section
3.2
|
Authorization;
Execution and Validity
|
2
|
|
|
Section
3.3
|
Absence
of Conflicts
|
2
|
|
|
Section
3.4
|
Governmental
and Third Party Approvals
|
3
|
|
|
Section
3.5
|
Capitalization
of the Company
|
3
|
|
|
Section
3.6
|
Financial
Statements
|
3
|
|
|
Section
3.7
|
Liabilities
|
4
|
|
|
Section
3.8
|
Absence
of Certain Changes
|
4
|
|
|
Section
3.9
|
Subsidiaries;
Investments
|
5
|
|
|
Section
3.10
|
Title
to Tangible Assets; Sufficiency of Assets
|
5
|
|
|
Section
3.11
|
Contracts
|
5
|
|
|
Section
3.12
|
Status
of Contracts
|
5
|
|
|
Section
3.13
|
Intellectual
Property
|
6
|
|
|
Section
3.14
|
Litigation
|
6
|
|
|
Section
3.15
|
Employee
Benefits
|
7
|
|
|
Section
3.16
|
Taxes
|
7
|
|
|
Section
3.17
|
Permits;
Compliance with Laws
|
8
|
|
|
Section
3.18
|
Environmental
Laws
|
9
|
|
|
Section
3.19
|
Insurance
|
10
|
|
|
Section
3.20
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Transactions
with Affiliates
|
10
|
|
|
Section
3.21
|
Fees
|
11
|
|
|
Section
3.22
|
Improper
and Other Payments
|
11
|
|
|
Section
3.23
|
Customers
|
11
|
|
|
Section
3.24
|
Accuracy
of Statements
|
11
|
|
|
ARTICLE
IV
|
REPRESENTATIONS
AND WARRANTIES OF PURCHASER
|
11
|
|
|
Section
4.1
|
Organization;
Power and Authority
|
11
|
|
|
Section
4.2
|
Authorizations;
Execution and Validity
|
11
|
|
|
Section
4.3
|
Absence
of Conflicts
|
12
|
|
|
Section
4.4
|
Governmental
and Third Party Approvals
|
12
|
|
|
Section
4.5
|
Litigation
|
12
|
|
|
ARTICLE
V
|
INDEMNIFICATION
|
12
|
|
|
Section
5.1
|
Indemnification
by the Company
|
12
|
|
|
ARTICLE
VI
|
GENERAL
PROVISIONS
|
13
|
|
|
Section
6.1
|
Survival
of Obligations
|
13
|
|
|
Section
6.2
|
Amendments
|
13
|
|
|
Section
6.3
|
Waivers
|
13
|
|
|
Section
6.4
|
Notices
|
14
|
|
|
Section
6.5
|
Successors
and Assigns; Parties in Interest
|
15
|
|
|
Section
6.6
|
Severability
|
15
|
|
|
Section
6.7
|
Entire
Agreement
|
15
|
|
|
Section
6.8
|
Governing
Law
|
15
|
|
|
Section
6.9
|
Remedies
|
15
|
|
|
Section
6.10
|
Disputes
|
16
|
|
|
Section
6.11
|
Expenses
|
16
|
|
|
Section
6.12
|
Further
Assurances
|
16
|
|
|
Section
6.13
|
No
Public Announcement
|
16
|
|
|
Section
6.14
|
Interpretation
|
16
|
|
|
Section
6.15
|
Counterparts
|
17
|
|
|
ARTICLE
VII
|
DEFINITIONS
|
17
|
|
|
Section
7.1
|
Definitions
|
17
|
|
iii
STOCK
PURCHASE AGREEMENT
(this
“Agreement”),
dated
as of November 23, 2007, between Allegro Biodiesel Corporation, a Delaware
corporation (“Purchaser”),
and
Community Power Corporation, a Colorado corporation (the “Company”).
WHEREAS,
the
Company is engaged in the business of developing, commercializing, marketing
and
selling modular biopower systems;
WHEREAS,
Purchaser desires to purchase from the Company, and the Company is willing
to
sell to Purchaser, a total of [XX] shares of common stock, par value $.001
per
share of the Company (the “Common
Stock”),
upon
the terms and subject to the conditions set forth in this Agreement;
and
WHEREAS,
capitalized
terms used herein without definition have the respective meanings set forth
in
Article
VII.
NOW,
THEREFORE, in
consideration of the premises, the terms and provisions set forth herein, the
mutual benefits to be gained by the performance thereof and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
ARTICLE
I
PURCHASE
AND SALE
Section
1.1 Purchase
and Sale of the Common Stock.
Upon
the terms and subject to the conditions set forth herein on the date hereof
the
Company shall issue, sell, assign, transfer and deliver to Purchaser
[XX]
shares
of Common Stock (the “Closing
Shares”),
free
and clear of all Liens, and Purchaser shall acquire and accept the Closing
Shares from the Company, in consideration for a payment by
Purchaser to the Company, to be paid as set forth in Section
2.2,
equal
$1,000,000.00.
ARTICLE
II
CLOSING
Section
2.1 Closing
Dates.
The
closing of the purchase and sale of the Closing Shares pursuant to this
Agreement (the “Closing”)
shall
take place at the offices of Sidley Austin LLP, 000 Xxxx Xxxxx Xxxxxx, Xxx
Xxxxxxx, Xxxxxxxxxx 00000 at 10:00 a.m., local time on the date hereof (the
“Closing
Date”).
Section
2.2 Payments.
(a)
At
the Closing, Purchaser shall pay to the Company
$750,000.00, by wire transfer of immediately available funds to the bank account
of the Company specified on Exhibit
A.
(b) On
November 26, 2007, Purchaser shall pay to the Company $250,000.00, by wire
transfer of immediately available funds to the bank account of the Company
specified on Exhibit
A
Section
2.3 Deliveries
to Purchaser.On
November 23, 2007, the Company shall deliver, or shall cause to be delivered,
to
Purchaser a
copy of
a stock certificate representing three quarters of the Closing Shares in the
name of Purchaser.
On
November 26, 2007, the Company shall deliver, or shall cause to be delivered,
to
Purchaser a copy of a stock certificate representing the remaining Closing
Shares in the name of Purchaser. Original stock certificates shall be
overnighted to Purchaser within two Business Days of issuance.
ARTICLE
III
REPRESENTATIONS
AND WARRANTIES OF THE COMPANY
The
Company hereby represents and warrants to Purchaser that, except as set forth
in
the Disclosure Schedule delivered by the Company to Purchaser (the “Company
Disclosure Schedule”):
Section
3.1 Organization;
Power and Authority.
The
Company is a corporation duly organized, validly existing and in good standing
under the laws of the State of Colorado. The Company is duly qualified to
transact business as a foreign corporation and is in good standing in each
of
the jurisdictions in which the ownership or leasing of its properties and assets
or the conduct of its business requires such qualification, and no other
jurisdiction has demanded, requested or otherwise indicated that the Company
is
required to so qualify. The Company has all requisite corporate power and
authority to own, lease and operate its assets and properties and to conduct
its
businesses and operations as presently being conducted. The Company is in
compliance with the provisions of the Company’s Organizational
Documents.
Section
3.2 Authorization;
Execution and Validity.
The
Company has all requisite corporate power and authority to execute and deliver
this Agreement and perform its obligations hereunder. The execution and delivery
by the Company of this Agreement and the performance by the Company of its
obligations hereunder have been duly and validly authorized by all necessary
corporate action on the part of the Company and no other action on the part
of
the Company or its stockholders is necessary to authorize this Agreement and
the
transactions contemplated hereby. Upon the execution and delivery hereof by
the
Company this Agreement will constitute a valid and binding obligation of the
Company, enforceable against the Company in accordance with its terms, subject
to the Enforceability Exceptions.
Section
3.3 Absence
of Conflicts.
The
execution and delivery by the Company of this Agreement, the performance by
the
Company of its obligations hereunder and the consummation of the transactions
contemplated hereby will not (a) result in any violation or breach of any
provision of the Organizational Documents of the Company, (b) result in any
violation or breach of, or constitute a default under, or constitute an event
creating rights of acceleration, prepayment, termination, amendment, suspension,
revocation or cancellation or a loss of rights under, any term or provision
of
any note, bond, mortgage, indenture, lease, franchise, permit, license, material
contract or other material instrument or document to which the Company is a
party or by which its properties or assets are bound, (c) result in any
violation of any Requirements of Law or any Court Order applicable to the
Company or its properties or assets or (d) result in the creation of, or impose
on the Company any obligation to create, any Lien upon any properties or assets
of the Company.
2
Section
3.4 Governmental
and Third Party Approvals.
There
is
no requirement applicable to the Company to obtain any Consent of, or to make
or
effect any declaration, filing or registration with, any Governmental Authority
or other Person for the valid execution and delivery by the Company of this
Agreement, the due performance by the Company of its obligations hereunder
or
the lawful consummation of the transactions contemplated hereby.
Section
3.5 Capitalization
of the Company.
(a)
The
authorized capital stock of the Company consists of [XX]
shares
of Common Stock.
(b) At
the
close of business on the date of this Agreement, [XX]
shares
of Common Stock were issued and outstanding, including the Closing
Shares.
(c) The
Common Stock constitutes all of the authorized, issued and outstanding Equity
Interests in the Company. The Common Stock (including the Common Stock to be
sold by the Company to Purchaser hereunder) has been duly authorized by all
necessary corporate action on the part of the Company, has been validly issued
and is fully paid and nonassessable. No Common Stock (including the Common
Stock
to be sold by the Company to Purchaser hereunder) was issued in violation of
any
preemptive rights or is subject to any preemptive rights in favor of any other
Person and all of the Common Stock (including the Common Stock to be sold by
the
Company to Purchaser hereunder) has been offered, issued, sold and delivered
by
the Company in compliance with all applicable federal and state securities
laws.
There are no outstanding options, warrants, calls, rights, convertible
securities or other agreements or commitments of any character pursuant to
which
the Company is or may be obligated to issue or sell any issued or unissued
Equity Interests in the Company.
(d) The
Company is not a party to or bound by and, to Company’s Knowledge, there does
not exist any stockholder agreement, voting trust agreement or any other similar
contract, agreement, arrangement, commitment, plan or understanding restricting
or otherwise relating to the voting, dividend, ownership or transfer rights
of
any shares of Common Stock.
(b) There
are
no
accrued
and unpaid dividends (whether or not declared) with respect to the Common Stock
or any other Equity Interests of the Company.
Section
3.6 Financial
Statements. Section
3.6
of the
Company Disclosure Schedule contains (i) the unaudited balance sheets of the
Company as of December 31, 2006 and December 31, 2005, respectively, and the
related income statement for the fiscal years then ended, and (ii) the unaudited
balance sheet of the Company as of July 31, 2007, and the related income
statement of income for the period then ended (collectively, the “Financial
Statements”).
Except as set forth therein or in the notes thereto (in the case of the Audited
Financial Statements), the Financial Statements fairly present on a cash basis
in all material respects, the financial position and results of operations
of
the Company as of their respective dates and for the respective periods covered
thereby, subject to normal year-end adjustments. The Company has not sponsored
or established any special purpose vehicle or entity that is required to be
consolidated with the Company pursuant to Interpretation No. 46R of the
Financial Accounting Standards Board that has not been so consolidated in the
Financial Statements.
3
Section
3.7 Liabilities.
The
Company is not subject to any material liability (including unasserted claims,
whether known or unknown), whether absolute, contingent, accrued or otherwise,
which is not shown or which is in excess of amounts shown or reserved for on
the
July 31, 2007 Financial Statements, other than liabilities of the same nature
as
those set forth on the July 31, 2007 Financial Statements and the notes thereto
and reasonably incurred in the ordinary course of business consistent with
past
practice after the Balance Sheet Date which are not, individually or in the
aggregate, material.
Section
3.8 Absence
of Certain Changes.
Since
the Balance Sheet Date, other than transactions and potential transactions
with
M.A.G Capital LLC, the business of the Company has been conducted in the
ordinary course of business, and there has not been:
(a) any
Material Adverse Change;
(b) any
material damage, destruction, loss or casualty to, or condemnation or other
taking of, any properties or assets of the Company (whether or not covered
by
insurance);
(c) the
creation of any Lien (other than a Permitted Lien) on any material properties
or
assets of the Company (other than a Lien resulting from a transaction between
Purchaser and the Company or M.A.G Capital LLC and the Company);
(d) the
transfer, lease, license, sale or other disposition of any material properties
or assets of the Company;
(e) any
acquisition or agreement to acquire by merging or consolidating with, or by
purchasing a substantial portion of the assets of or equity in, or by any other
manner, any business or any corporation, partnership, limited liability company,
association or other business organization or division thereof;
(f) any
alteration through merger, liquidation, reorganization, restructuring or in
any
other fashion the Company’s corporate structure or adoption of a plan of
complete or partial liquidation, dissolution, merger, consolidation,
restructuring, recapitalization or other corporate or legal entity
reorganization
(g) (A)
any
declaration, setting aside, or payment of any dividend or other distribution
in
respect of the capital stock of the Company or otherwise make any payments
to
its stockholders in their capacity as such, (B) split, combination or
reclassification of any of the Company’s Equity Interests or issuance, sale or
authorization of the issuance of any other securities in respect of, in lieu
of
or in substitution for any Equity Interests or (C) purchase, redemption or
other
acquisition of any Equity Interests or any other securities of the
Company;
(h) any
material change in any investment, financial reporting, or accounting practice
or policy followed by the Company, or in any assumption underlying such a
practice or policy, or in any method of calculating any contingency or other
reserve for financial reporting purposes or for any other accounting
purposes;
(i) any
amendment to the Organizational Documents of the Company;
4
(j) any
material change in the business or operations of the Company;
(k) the
cancellation of any material debts owed to or claims held by the Company
(including the settlement of any claims or litigation) or waiver of any other
material rights held by the Company other than in the ordinary course of
business consistent with past practice; or
(l) any
commitment or agreement to do any of the foregoing.
Section
3.9 Subsidiaries;
Investments.
The
Company does not (and has not), directly or indirectly, own, of record or
beneficially, or have voting rights with respect to, any capital stock or other
Equity Interests (or any right, contingent or otherwise, to acquire the same)
in
any Person.
Section
3.10 Title
to Tangible Assets; Sufficiency of Assets.
The
Company has good, valid and marketable title to, and is the lawful owner of,
each item of tangible personal property, intangible assets and equipment used
by
them it connection with the conduct of its business, in each case, free and
clear of all Liens, other than Permitted Liens and liens related to the
Company’s existing lines of credit with banks. The Leasehold Property and owned
and leased tangible personal property of the Company are in all material
respects in good condition (subject to normal wear and tear). On the date
hereof, the assets and properties of the Company constitute all of the assets
and properties necessary to own and operate the businesses of the Company as
currently owned and operated, except as would not reasonably be expect to have
a
Material Adverse Effect.
Section
3.11 Contracts.
The
Company is not a party to or bound by:
(a) any
agreement that (i) limits or restricts where the Company may conduct business
or
the right of the Company to sell or distribute any products or services to
any
Person, (ii) contains any covenant or provision prohibiting the Company from
engaging in any line or type of business or (iii) grants any exclusive rights
to
make, sell or distribute the Company’s products or services; or
(b) any
“standstill” or similar agreement that restricts the Company’s right to acquire
any security or business.
Section
3.12 Status
of Contracts.
Each of
the material leases, contracts, licenses and other agreements of the Company
(collectively, the “Company
Agreements”)
constitutes a valid and binding obligation of the parties thereto and is in
full
force and effect and will continue in full force and effect after the Closing
without breaching the terms thereof or resulting in the forfeiture or impairment
of any rights thereunder and without the consent, approval or act of, or the
making of any filing with, any other Person. The Company has fulfilled and
performed its material obligations under each of the Company Agreements, and
the
Company is not in, or alleged to be in, material breach or default under, nor
is
there or is there alleged to be any basis for termination of, any of the Company
Agreements, and no other party to any of the Company Agreements has breached
or
defaulted thereunder, and no event has occurred and no condition or state of
facts exists which, with the passage of time or the giving of notice or both,
would constitute such a default or breach by the Company or by any other such
party. The Company is not currently renegotiating any of the Company Agreements
or paying liquidated damages in lieu of performance thereunder.
5
Section
3.13 Intellectual
Property. a)
The
Company either: (i) owns the entire right, title and interest in and to all
Copyrights, Patent Rights and Trademarks owned by, licensed to or used by the
Company, free and clear of Liens except for Permitted Liens or (ii) has the
perpetual, royalty-free right to use the same. The Company is listed in the
records of the appropriate United States, state or non-U.S. registry as the
sole
current owner of record for each application or registration for all Copyrights,
Patent Rights and Trademarks owned by the Company.
(b) (i)
All
registrations for Copyrights, Patent Rights and Trademarks owned by the Company
are valid and in force, and all applications to register any unregistered
Copyrights, Patent Rights and Trademarks are pending and in good standing,
all
without challenge of any kind; (ii) the Intellectual Property owned by the
Company is valid and enforceable; (iii) the Company has the sole and exclusive
right to bring actions for infringement, misappropriation, dilution, violation
or unauthorized use of the Intellectual Property owned by the Company, and
to
the Company’s Knowledge, there is no basis for any such action; (iv) the Company
has taken all actions reasonably necessary to protect, and where necessary
register, the Copyrights, Trademarks, Software, Patent Rights or Trade Secrets
owned by the Company; and (v) the Company is not in breach of any agreement
affecting the Intellectual Property used by the Company and the Company has
not
taken any action that would impair or otherwise adversely affect its rights
in
the Intellectual Property used by the Company.
(c) (i)
No
infringement, misappropriation, dilution or violation of any Intellectual
Property right of any other Person has occurred or results in any way from
the
operations, activities, products, Software, equipment, machinery or processes
used in the Company’s business; (ii) no claim of any infringement,
misappropriation, dilution or violation of any Intellectual Property right
of
any other Person has been made or asserted in respect of the operations of
the
Company’s business; (iii) no claim of invalidity of any Copyright, Trademark,
Patent Right, Software or Trade Secret owned by the Company has been made;
(iv)
no proceedings are pending or, to the Company’s Knowledge, threatened, which
challenge the validity, ownership or use of any Intellectual Property owned
by
the Company; and (v) the Company has not received notice of any claim that
the
operations, activities, products, Software, equipment, machinery or processes
used in the Company’s business infringe, misappropriate, dilute or violate any
Intellectual Property right of any other Person and, to the Company’s Knowledge,
there is no basis for any such claim.
(d) The
Company has not granted to any third Person any ownership rights, exclusive
rights or any rights to sublicense any of the products it develops or sells
or
any Intellectual Property relating to such products to any third
Persons.
Section
3.14 Litigation.
There
are no Legal Proceedings pending or, to the Company’s Knowledge, threatened
against the Company or any of its properties, assets or business or any of
its
officers, directors, managers, employees, agents or stockholders nor, to the
Company’s Knowledge, is there any reasonable and valid basis for any of the same
or that (a) relate to this Agreement or any action taken or to be taken by
the
Company in connection with, or which seek to enjoin or obtain monetary damages
in respect of, this Agreement, (b) would reasonably be expected to adversely
affect in any material respect the ability of the Company to perform its
obligations under and consummate the transactions contemplated by this Agreement
or (c) would reasonably be expected to adversely affect in any material respect
the Company or its business.
6
Section
3.15 Employee
Benefits. The
Company has performed and complied in all material respects with all obligations
under or with respect to the Company Plans. No Company Plan is a defined
contribution or benefit plan or arrangement. No Company Plan is, nor has the
Company or any ERISA Affiliate of the Company at any time sponsored, maintained,
contributed to, or had any liability or obligation under any benefit plan,
program or arrangement that is, (i) a “multiemployer plan” (within the meaning
of Section 3(37) of ERISA), (ii) a “multiple employer plan” (within the meaning
of Section 413(c) of the Code), (iii) any single employer plan or other pension
plan that is subject to Title IV or Section 302 of ERISA or Section 412 of
the
Code, or (iv) a “multiple employer welfare arrangement” (as defined in Section
3(40)(A) of ERISA). All of the Company Plans are sponsored and maintained by
the
Company.
Section
3.16 Taxes.
(a) (i)
(A) All Tax Returns required to be filed by or with respect to the Company
have
been timely filed, (B) all such Tax Returns are complete and accurate and
disclose all Taxes required to be paid by the Company for the periods covered
thereby, (C) all Taxes owed by the Company have been paid in full, (D) all
Tax
withholding and deposit requirements imposed on or with respect to the Company
have been satisfied in full in all respects, and (E) there are no Liens on
any
of the assets of the Company that arose in connection with any failure (or
alleged failure) to pay any Tax assessments (other than Liens for taxes not
yet
due);
(ii) (A)
no
claim has been made against the Company for any unpaid Taxes, (B) no assessment,
deficiency or adjustment has been asserted, proposed, or threatened in writing
with respect to any Tax Return filed by or with respect to the Company, and
(C)
no federal, state, local, or foreign audits, examinations, investigations,
or
other administrative proceedings or court proceedings are presently pending
with
regard to any Taxes owed by, or Tax Returns filed by or with respect to, the
Company;
(iii) there
is
not in force (A) any extension of time with respect to the due date for the
filing of any Tax Return of or with respect to the Company or (B) any waiver
of
any statute of limitations in respect of, or agreement for any extension of
time
for the assessment or payment of, any Tax of the Company;
(iv) the
Company does not have any liability for Taxes of another Person under Treasury
Regulations § 1.1502-6 (or any similar provision of state, local or foreign
law), and the Company has never had any direct or indirect Equity Interest
in
any entity;
7
(v) (A)
none
of the property of the Company is subject to a safe-harbor lease (pursuant
to
section 168(f)(8) of the Internal Revenue Code of 1954 as in effect after the
Economic Recovery Tax Act of 1981 and before the Tax Reform Act of 1986) or
is
“tax-exempt use property” (within the meaning of section 168(h) of the Code) or
“tax-exempt bond financed property” (within the meaning of section 168(g)(5) of
the Code), (B) none of the property of the Company is properly treated as owned
by persons other than the Company for income Tax purposes, and (C) the Company
is not properly treated as the owner of any property for income Tax purposes
that is owned by any other Person for non-income Tax purposes;
(vi) (A)
the
Company will not be required to include any amount in income for any taxable
period beginning after the Closing Date as a result of a change in accounting
method for any taxable period ending on or before the Closing Date and (B)
there
are no Tax rulings, requests for rulings, or closing agreements relating to
the
Company, which could affect the Company’s liability for Taxes for any taxable
period ending after the Closing Date;
(vii) there
are
no Tax credits, grants or similar amounts that are or will be subject to
“clawback” or recapture as a result of (A) the transactions contemplated by this
Agreement or (B) a failure by the Company to satisfy any requirement on which
such credit, grant or similar amount is or was conditioned;
(viii) the
Company is not a party to any Tax sharing, Tax indemnity, or other agreement
or
arrangement with any Person that has not been terminated or will not be
terminated as of the Closing Date; and
(ix) the
Company is not, and has never been, required to make any disclosure to the
IRS
with respect to any “listed transaction,” as defined in Treasury Regulations §
1.6011-4(b)(2).
(b) No
transaction contemplated by this Agreement is subject to withholding under
Section 1445 of the Code and no stock transfer Taxes, sales Taxes, use Taxes,
real estate transfer or gains Taxes, or other similar Taxes will be imposed
on
the transactions contemplated by this Agreement.
Section
3.17 Permits;
Compliance with Laws. b)
The
Company owns, holds or possesses all permits, licenses, franchises, exemptions,
classifications, privileges, variances, immunities, approvals and other
authorizations from Governmental Authorities that are necessary to entitle
it to
own or lease, operate and use its properties and assets and to carry on and
conduct its business as currently conducted (collectively, the “Permits”).
(b) (i)
The
Company has fulfilled and performed, in all material respects, its obligations
under each Permit, and no event has occurred or condition or state of facts
exists that constitutes or, after notice or lapse of time or both, would
constitute a material breach or default under any such Permit or that Permits
or, after notice or lapse of time or both, would permit revocation or
termination of any such Permit or that might adversely affect the rights of
the
Company under any such Permit; (ii) no notice of cancellation, of default or
of
any dispute concerning any Permit, or of any event, condition or state of facts
described in the preceding clause, has been received by, or is known to, the
Company; and (iii) each of the Permits is valid, subsisting and in full force
and effect and will continue in full force and effect after the consummation
of
the transactions contemplated by this Agreement, in each case without (x) the
occurrence of any breach, default or forfeiture of rights thereunder or (y)
the
consent, approval or act of, or the making of any filing with, any Governmental
Authority.
8
(c) The
Company has conducted its operations in compliance with all Requirements of
Law
(including Requirements of Law related to employment, employment practices,
wages, hours, and terms and conditions of employment), other than instances
of
non-compliance that would not, individually or in the aggregate, have a Material
Adverse Change.
(d) The
Company has not received any inquiries from Governmental Authorities outside
of
the ordinary course of business or objecting to the Company’s actions in any
way.
Section
3.18 Environmental
Laws.
The
properties, assets and past and present operations of the Company have been
and
are in compliance with all Environmental Laws, and no condition exists or event
has occurred which, with or without notice or the passage of time or both,
would
constitute a violation of or give rise to any Lien under any Environmental
Law.
Without limiting the generality of the foregoing:
(a) To
the
Company’s Knowledge, any asbestos-containing material which is on or part of any
owned real property or leased real property of the Company is in good repair
according to the current standards and practices governing such material, and
its presence or condition does not violate any currently applicable
Environmental Law;
(b) there
is
not now, nor to the Company’s Knowledge has there ever been, on or in any owned
real property or leased real property of the Company (i) any treatment,
recycling, storage or disposal of any hazardous substance, hazardous waste,
as
that term is defined under 40 C.F.R. Part 261 or any state equivalent, that
requires or required a Permit pursuant to Section 3005 of RCRA or (ii) any
underground storage tank or surface impoundment or landfill or waste
pile;
(c) the
Company has obtained or filed applications for all material Permits required
under applicable Environmental Laws to operate their facilities and conduct
their respective businesses as they are currently being operated or conducted,
and is in full compliance with all of the requirements and limitations included
in such Permits;
(d) no
written notification, demand, request for information, citation or order under
any Environmental Law has been issued to or filed against the Company;
(e) the
Company has timely filed all reports and notifications required to be filed
with
respect to all of its properties and facilities and has generated and maintained
all required records and data under all applicable Environmental Laws;
(f) to
the
Company’s Knowledge, no condition has existed or event has occurred with respect
to any property or asset that was at any time owned or leased, or any direct
or
indirect subsidiary that was at any time owned, by the Company, any predecessor
to the Company or any Person that is or was an Affiliate of the Company, which
property or asset has been sold, transferred or disposed or for which any lease
has terminated, that in any case could, with or without notice, passage of
time
or both, give rise to any present or future liability of the Company pursuant
to
any Environmental Law; and
9
(g) no
investigation or review is pending or, to the Company’s Knowledge, threatened
against the Company by any Governmental Authority under any applicable
Environmental Law.
Section
3.19 Insurance.
The
Company maintains policies of fire and casualty, liability (general, products
and other liability), workers’ compensation and other forms of insurance and
bonds in such amounts and against such risks and losses as are prudent and
insured against by companies engaged in the same or a similar business. All
of
such policies are in full force and effect and the Company is not in material
default of any provision thereof or has received notice of cancellation or
termination thereof. Such policies will continue in effect after the
consummation of the transactions contemplated by this Agreement until the
termination or expiration thereof in accordance with their respective
terms.
Section
3.20 Transactions
with Affiliates. c)
For
purposes of this Section
3.20,
the
term “Affiliated
Person”
means
(i) any holder of capital stock of the Company, (ii) any director or officer
of
the Company, (iii) any Person that directly or indirectly controls, is
controlled by or is under common control with the Company or any holder of
capital stock of the Company or (iv) any member of the immediate family of
any
of such Persons and any Person that directly or indirectly controls, is
controlled by or is under common control with any such immediate family
member.
(b) Since
January 1, 2005, the Company has not, in the ordinary course of business or
otherwise, (i) purchased, leased or otherwise acquired any material property
or
assets or obtained any services from, (ii) sold, leased or otherwise disposed
of
any material property or assets or provided any services to (except with respect
to remuneration for services rendered in the ordinary course of business as
director, officer or employee of the Company), (iii) entered into or modified
in
any manner any contract with or (iv) borrowed any money from, or made or
forgiven any loan or other advance (other than expenses or similar advances
made
in the ordinary course of business) to, any Affiliated Person.
(c) (i)
The
contracts of the Company do not include any obligation or commitment between
the
Company, on the one hand, and any Affiliated Person, on the other hand, (ii)
the
assets of the Company do not include any receivable or other obligation or
commitment from an Affiliated Person to the Company and (iii) the liabilities
of
the Company do not include any payable or other obligation or commitment from
the Company to any Affiliated Person except for such obligations or commitments
incurred in the ordinary course of business or that are not
material.
(d) To
the
Company’s Knowledge, no Affiliated Person is a party to any contract with any
customer or supplier of the Company that affects in any material manner the
business of the Company.
10
Section
3.21 Fees.
The
Company has not paid or become obligated to pay any fee or commission to any
broker, finder or intermediary in connection with the transactions contemplated
hereby.
Section
3.22 Improper
and Other Payments.
Neither
the Company, its Affiliates, any of its directors, officers, employees, agents
or representatives acting on behalf of any of them, nor any other Person acting
on behalf of any of them, has (a) made, paid or received any bribes, kickbacks
or other similar payments to or from any Person, whether lawful or unlawful,
(b)
made or paid, directly or indirectly, contributions to a domestic or foreign
political party or candidate, or (c) made or paid improper foreign payments
(as
defined in the Foreign Corrupt Practices Act).
Section
3.23 Customers.
The
Company has not received any notice (written or oral) that any of its ten
largest customers (measure by gross sales in either the twelve-month period
ended December 31, 2006 or the nine-month period ended September 30, 2007)
intends or expects to terminate, cancel, limit or adversely modify its business
relationship with the Company or significantly reduce its level of purchases
from the Company. To the extent such Company’s customers are recurring
customers, to the Knowledge of the Company, no such customer intends or expects
to terminate, cancel, limit or adversely modify its business relationship with
the Company or significantly reduce its level of purchases from the
Company.
Section
3.24 Accuracy
of Statements.
Neither
this Agreement nor any schedule, exhibit, statement, list, document, certificate
or other information furnished or to be furnished by or on behalf of the Company
to Purchaser or any representative or Affiliate of Purchaser in connection
with
this Agreement or any of the transactions contemplated hereby contains or will
contain any untrue statement of a material fact or omits or will omit to state
a
material fact necessary to make the statements contained herein or therein,
in
light of the circumstances in which they are made, not misleading.
ARTICLE
IV
REPRESENTATIONS
AND WARRANTIES OF PURCHASER
Purchaser
hereby represents and warrants to the Company that:
Section
4.1 Organization;
Power and Authority.
Purchaser is a corporation duly organized, validly existing and in good standing
under the laws of the State of Delaware. Purchaser has all requisite corporate
power and authority to own and operate its properties and assets and conduct
its
business and operations as presently being conducted.
Section
4.2 Authorizations;
Execution and Validity.
Purchaser has all requisite power and authority to execute and deliver this
Agreement, perform its obligations hereunder and consummate the transactions
contemplated hereby. The execution and delivery of this Agreement by Purchaser,
the performance by Purchaser of its obligations hereunder and the consummation
by Purchaser of the transactions contemplated hereby have been duly authorized
by all necessary action on the part of Purchaser. This Agreement has been duly
and validly executed and delivered by Purchaser, constitutes the valid and
binding obligation of Purchaser and is enforceable against Purchaser in
accordance with its terms, subject to the Enforceability
Exceptions.
11
Section
4.3 Absence
of Conflicts.
The
execution and delivery by Purchaser of this Agreement, the performance by
Purchaser of its obligations hereunder and the consummation by Purchaser of
the
transactions contemplated hereby will not (a) result in any violation or breach
of any provision of the Organizational Documents of Purchaser, (b) result in
any
violation or breach of, or constitute a default under or an event creating
rights of acceleration, termination, amendment, suspension, revocation or
cancellation or a loss of rights under, any term or provision of any note,
bond,
mortgage, indenture, lease, franchise, permit, license, contract or other
material instrument or document to which Purchaser is a party or by which its
properties or assets are bound or (c) result in any violation of any
Requirements of Law or any Court Order applicable to Purchaser or its properties
or assets, except for any of the matters referred to in clauses (a) through
(c)
above which would not reasonably be expected to prevent, impede or otherwise
affect in any material respect the transactions contemplated by this
Agreement.
Section
4.4 Governmental
and Third Party Approvals.
There is
no requirement applicable to Purchaser to obtain any Consent of, or to make
or
effect any declaration, filing or registration with, any Governmental Authority
or other Person for the valid execution and delivery by Purchaser of this
Agreement, the due performance by Purchaser of its obligations hereunder or
the
lawful consummation by Purchaser of the transactions contemplated
hereby.
Section
4.5 Litigation.
There
are no Legal Proceedings pending or, to the knowledge of Purchaser, threatened
against Purchaser (a) that relate to this Agreement or any action taken or
to be
taken by Purchaser in connection with, or which seek to enjoin or obtain
monetary damages in respect of, this Agreement or (b) that would reasonably
be
expect to adversely affect in any material respect the ability of Purchaser
to
perform its obligations under and consummate the transactions contemplated
by
this Agreement.
ARTICLE
V
INDEMNIFICATION
Section
5.1 General
Indemnification by the Company. (a) From
and
after the Closing, the Company agrees to indemnify and hold harmless
each
Purchaser Group Member from and against any and all Losses and Expense suffered,
incurred or sustained by any such Purchaser Group Member (up to an aggregate
of
$1,000,000 for all Purchaser Group Members) relating to, in connection with
or
arising from:
(i) any
breach by the Company of any of its covenants hereunder, or any failure of
the
Company to perform any of its obligations, in this Agreement; or
(ii) any
breach of any warranty or the inaccuracy of any representation of the Company
contained or referred to in this Agreement.
(b) The
indemnification provided for in Section
5.1(a)(ii)
shall
terminate on the thirty
(30) month anniversary
of the
Closing Date (and no claims shall be made by any Purchaser Group Member under
Section
5.1(a)(ii)
thereafter), except that the indemnification of Purchaser Group Members shall
continue as to:
12
(i) the
representations and warranties set forth in Sections
3.1,
3.2,
3.5,
3.9
and
3.21,
as to
all of which no time limit shall apply;
(ii) the
representations and warranties set forth in Section
3.16
as to
which shall survive for the applicable statute of limitations; and
(iii) any
Loss
or Expense of which any Purchaser Group Member has notified the Company on
or
prior to the date such indemnification would otherwise terminate in accordance
with this Section
5.1,
as to
which the right of the Purchaser Group Member to be indemnified shall continue
until the liability shall have been determined pursuant to this Article
V
and, if
applicable, all Purchaser Group Members shall have been reimbursed for the
full
amount of such Loss and Expense in accordance with this Article
V.
(c) Purchaser
acknowledges that, from and after the Closing Date, its sole and exclusive
remedy with respect to any and all claims and causes of action relating to
this
Agreement and the transactions contemplated hereby shall be pursuant to the
indemnification provisions set forth in this Section
5;
provided,
that
nothing in this Agreement shall limit either party’s right to recover against
the other party with respect to any claim arising from the other party’s
fraudulent acts, bad faith or intentional misrepresentation.
ARTICLE
VI
GENERAL
PROVISIONS
Section
6.1 Survival
of Obligations.
All
representations, warranties, covenants and obligations contained in this
Agreement shall survive the consummation of the transactions contemplated by
this Agreement; provided,
however,
that,
except as otherwise provided in Article
V,
the
representations and warranties contained in Articles
III
and
IV
shall
terminate on the thirty
(30) month anniversary
of the
Closing Date. Except as otherwise provided herein, no claim shall be made for
the breach of any representation or warranty contained in Article
III
or
IV
or under
any certificate delivered with respect thereto under this Agreement after the
date on which such representations and warranties terminate as set forth in
this
Section
6.1.
Section
6.2 Amendments.
This
Agreement may only be amended, modified or supplemented by an instrument in
writing executed by an authorized representative of each of Purchaser and the
Company.
Section
6.3 Waivers.
The
observance of any term of this Agreement may be waived (either generally or
in a
particular instance and either retroactively or prospectively) by the party
entitled to the benefits of such term, but such waiver shall be effective only
if it is in a writing signed by the party entitled to the benefits of such
term
and against which such waiver is to be asserted. Unless otherwise expressly
provided in this Agreement, no delay or omission on the part of any party in
exercising any right or privilege under this Agreement shall operate as a waiver
thereof, nor shall any waiver on the part of any party of any right or privilege
under this Agreement operate as a waiver of any other right or privilege under
this Agreement nor shall any single or partial exercise of any right or
privilege preclude any other or further exercise thereof or the exercise of
any
other right or privilege under this Agreement.
13
Section
6.4 Notices.
Any
notices or other communications required or permitted hereunder shall be in
writing and shall be sufficiently given (and shall be deemed to have been duly
given upon receipt) if sent by overnight mail, registered mail or certified
mail, postage prepaid, or by hand, to the parties at the following addresses
(or
at such other address for a party as shall be specified by like
notice):
If
to
Purchaser to:
Allegro
Biodiesel Corporation
0000
Xxxx
Xxxxxxx Xxxxxxxxx
Xxxxx
0000
Xxx
Xxxxxxx, Xxxxxxxxxx 00000
Attention:
President
Facsimile:
(000) 000-0000
With
a
copy to (which shall not constitute effective notice):
Sidley
Austin LLP
000
Xxxx
Xxxxx Xxxxxx
Xxx
Xxxxxxx, Xxxxxxxxxx 00000
Attention:
Xxxxxxx X. Xxxxxx
Facsimile:
(000) 000-0000
If
to the
Company to:
Community
Power Corporation
0000
Xxxxxxx Xxxxxxx, Xxxxx 000
Xxxxxxxxx,
XX 00000
Attention:
Xxxx Xxxx
Facsimile:
(000) 000-0000
with
a
copy (which shall not constitute effective notice) to:
Holland
& Xxxx LLP
000
00xx
Xxxxxx, Xxxxx 0000
Xxxxxx,
XX 00000
Attention:
Xxxxxxx Xxxxxx
or
to
such other address as such party may indicate by a notice delivered to the
other
party hereto.
14
Section
6.5 Successors
and Assigns; Parties in Interest.
This
Agreement shall be binding upon and shall inure solely to the benefit of the
parties hereto and their respective successors, legal representatives and
permitted assigns. Neither this Agreement nor any rights or obligations
hereunder may be assigned without the written consent of the other party;
provided,
that
Purchaser may assign its rights under this Agreement in whole or in part to
one
or more of its Affiliates except M.A.G Capital LLC; provided,
further,
that,
no assignment shall relieve any party hereto from any of its obligations under
this Agreement. Nothing in this Agreement, express or implied, is intended
to or
shall confer upon any Person, other than the parties hereto and the Purchaser
Group Members (with respect to the provisions of Article
V),
any
rights, benefits or remedies of any nature whatsoever under or by reason of
this
Agreement, and no other Person shall be deemed a third-party beneficiary under
or by reason of this Agreement.
Section
6.6 Severability.
If any
provision of this Agreement or the application of any such provision to any
Person or circumstance, shall be declared judicially to be invalid,
unenforceable or void, such decision shall not have the effect of invalidating
or voiding the remainder of this Agreement, it being the intent and agreement
of
the parties that this Agreement shall be deemed amended by modifying such
provision to the extent necessary to render it valid, legal and enforceable
while preserving its intent or, if such modification is not possible, by
substituting therefor another provision that is valid, legal and enforceable
and
that achieves the same objective.
Section
6.7 Entire
Agreement.
This
Agreement (including the Disclosure Schedules and the Exhibits hereto, and
the
documents and instruments executed and delivered in connection herewith)
constitute the entire agreement among the parties hereto with respect to the
subject matter hereof and supersede all prior and contemporaneous agreements
and
understandings, whether written or oral, among the parties or any of them with
respect to the subject matter hereof, and there are no representations,
understandings or agreements relating to the subject matter hereof that are
not
fully expressed in this Agreement and the documents and instruments executed
and
delivered in connection herewith. All Exhibits and Disclosure Schedules attached
to this Agreement are expressly made a part of, and incorporated by reference
into, this Agreement.
Section
6.8 Governing
Law.
This
Agreement shall be governed by and construed in accordance with the laws of
the
State of California for
contracts made and to be fully performed in such state, without giving effect
to
any choice-of-law rules that would require the application of the laws of
another jurisdiction.
Section
6.9 Remedies.
Each of
the parties hereto acknowledges and agrees that (i) the provisions of this
Agreement are reasonable and necessary to protect the proper and legitimate
interests of the other party hereto and (ii) the other party hereto would be
irreparably damaged if any of the provisions of this Agreement were not
performed in accordance with their specific terms or were otherwise breached.
It
is accordingly agreed that the parties hereto shall be entitled to preliminary
and permanent injunctive relief to prevent breaches of the provisions of this
Agreement by other party hereto without the necessity of proving actual damages
or of posting any bond, and to enforce specifically the terms and provisions
hereof, which rights shall be cumulative and in addition to any other remedy
to
which the parties hereto may be entitled hereunder or at law or
equity.
15
Section
6.10 Disputes.
Each
party hereto hereby irrevocably submits to the exclusive jurisdiction of any
state or federal court located within the State of California for the purposes
of any suit, action or other proceeding arising out of this Agreement or any
transaction contemplated hereby. Each party hereto further hereby irrevocably
and unconditionally waives any objection to the laying of venue of any action,
suit or proceeding arising out of this Agreement or the transactions
contemplated hereby in such courts, and hereby irrevocably and unconditionally
waives and agrees not to plead or claim in any such court that any such action,
suit or proceeding brought in any such court has been brought in an inconvenient
forum or that such party is not subject to personal jurisdiction in such
court.
Section
6.11 Expenses.
Except
as otherwise expressly provided herein, each of the parties hereto shall bear
its own costs and expenses (including fees and disbursements of its counsel,
accountants, experts and other financial, legal, accounting or other advisors),
incurred by it or its Affiliates in connection with the preparation,
negotiation, execution, delivery and performance of this Agreement and each
of
the other documents and instruments executed in connection with or contemplated
by this Agreement and the consummation of the transactions contemplated hereby
and thereby.
Section
6.12 Further
Assurances.
On and
after the Closing Date each party hereto shall take such other actions and
execute such other documents and instruments reasonably requested by the other
party as are reasonably necessary to effectuate the purposes of this Agreement,
including the conveyance and transfer of the Common Stock to Purchaser in
accordance with the terms of this Agreement.
Section
6.13 No
Public Announcement.
No party
hereto shall, except to the extent required by applicable Requirements of Law,
without the approval of the other party hereto, make any press release or other
public announcement concerning the transactions contemplated by this
Agreement.
Section
6.14 Interpretation.
For
purposes of this Agreement: (i) the words “include,” “includes” and “including”
shall be deemed to be followed by the words “without limitation,” (ii) the word
“or” is not exclusive and (iii) the words “herein,” “hereof,” “hereby,” “hereto”
and “hereunder” refer to this Agreement as a whole. Unless the context otherwise
requires, references herein: (i) to Articles, Sections, Exhibits and Schedules
mean the Articles and Sections of and the Exhibits and Schedules attached to
this Agreement; (ii) to an agreement, instrument or other document means such
agreement, instrument or other document as amended, supplemented and modified
from time to time to the extent permitted by the provisions thereof and by
this
Agreement; and (iii) to a statute means such statute as amended from time to
time and includes any successor legislation thereto and any rules and
regulations promulgated thereunder. The Schedules and Exhibits referred to
herein shall be construed with and as an integral part of this Agreement to
the
same extent as if they were set forth verbatim herein. Titles to Articles and
headings of Sections are inserted for convenience of reference only and shall
not be deemed a part of or to affect meaning or interpretation of this
Agreement. This Agreement shall be construed without regard to any presumption
or rule requiring construction or interpretation against the party drafting
an
instrument or causing any instrument to be drafted.
The
parties expressly disclaim the holding of, and any interpretative conclusions
or
determinations reached in, IBP,
Inc. x. Xxxxx Foods, Inc.,
No.
CIV.A. 18373, 2001 Del. Ch. LEXIS 81 (Del. Ch. June 15, 2001), including any
requirement that a Material Adverse Change be “durationally significant” or
measured over a period of years rather than months.
16
Section
6.15 Counterparts.
This
Agreement may be executed in multiple counterparts, each of which shall be
deemed an original and all of which taken together shall constitute one
instrument binding on the parties, notwithstanding that all the parties are
not
signatories to the original or the same counterpart.
ARTICLE
VII
DEFINITIONS
Section
7.1 Definitions.
In this
Agreement, the following terms have the meanings specified or referred to in
this Section
7.1
and
shall be equally applicable to both the singular and plural forms.
“Affiliate”
means,
with respect to any Person, any other Person which directly or indirectly
controls, is controlled by or is under common control with such
Person.
“Affiliated
Person”
has the
meaning specified in Section
3.20(a).
“Agreement”
has the
meaning specified in the first paragraph of this agreement.
“Audited
Financial Statements”
has the
meaning specified in Section
3.6.
“Balance
Sheet Date”
means
July 31, 2007.
“Business
Day”
means
any day except a Saturday, Sunday or United States federal holiday.
“CERCLA”
means
the Comprehensive Environmental Response, Compensation and Liability Act, 42
U.S.C. §§ 9601 et seq.
“Closing”
has the
meaning specified in Section
2.1.
“Closing
Date”
has the
meaning specified in Section
2.1.
“Closing
Shares”
has the
meaning specified in Section
1.1.
“Code”
means
the Internal Revenue Code of 1986.
“Common
Stock”
has the
meaning specified in the first recital of this Agreement.
“Company”
has the
meaning specified in the first paragraph of this Agreement.
“Company
Agreements”
has the
meaning specified in Section
3.12.
“Company
Disclosure Schedule”
has
the
meaning specified in Article
III.
17
“Company
Plan”
means all
existing bonus, incentive, deferred compensation, pension, retirement, thrift,
savings, employee ownership, equity-based arrangement or award, severance,
welfare and fringe benefit plans, unemployment benefits, sick leave, vacation
pay, salary continuation for disability, scholarship program, employment or
severance contracts and all similar practices, policies and arrangements in
which any current or former employee, consultant, limited partner or director
of
the Company participates or to which any is a party, or under which the Company
has any liability or obligation.
“Company’s
Knowledge”
means,
as to a particular matter, the knowledge of each of Xxxx Xxxx and Art Xxxxxx.
The foregoing individuals shall be deemed to have “knowledge” of a particular
fact or matter if such individual is actually aware of such fact or matter,
or
if the performance of such individual’s duties would, in the normal course of
the Company’s affairs, result in such individual having knowledge of such fact
or matter.
“Consent”
means
any consent, waiver, license, approval or authorization required to be obtained
from any Governmental Authority of any third Person.
“Copyrights”
means
United States and foreign copyrights, copyrightable works and mask works,
whether registered or unregistered, and pending applications to register the
same.
“Court
Order”
means
any judgment, order, award or decree of any foreign, federal, state, local
or
other court or tribunal and any award in any arbitration
proceeding.
“Enforceability
Exceptions”
means,
with reference to the enforcement of the terms and provisions of this Agreement
or any other contract, that the enforcement thereof is or may be subject to
the
effect of (i) applicable bankruptcy, receivership, insolvency, reorganization,
moratorium, fraudulent conveyance, fraudulent transfer and other similar laws
relating to or affecting the enforcement of the rights and remedies of creditors
or parties to executory contracts generally; (ii) general principles of equity
(regardless of whether such enforceability is considered in a proceeding at
law
or in equity) and the exercise of equitable powers by a court of competent
jurisdiction; and (iii) applicable law or public policy limiting the enforcement
of provisions providing for the indemnification of any Person.
“Environmental
Laws”
means
any and all past, present and future applicable laws (including statutes,
regulations and common law) of the United States, any state, any political
subdivision of either of them or any other national or political subdivision
for
the protection of the environment or human health and safety, including
judgments, awards, decrees, regulations, rules, standards, requirements, orders
and Permits issued by any court, administrative agency or commission or other
Governmental Authority under such laws, and shall include CERCLA, the Clean
Air
Act (42 U.S.C. §§ 7401 et seq.),
RCRA,
the Clean Water Act (33 U.S.C. §§ 1251 et seq.),
the
Occupational Safety and Health Act (29 U.S.C. §§ 651 et seq.),
the
Toxic Substance Control Act (15 U.S.C. §§ 2601 et seq.)
and the
Safe Drinking Water Act (42 U.S.C. §§ 300f et seq.)
as well
as any and all state or local laws that relate to pollution, contamination
of
the environment, human health or safety and all future amendments to such laws,
and all past, present and future regulations, rules, standards, requirements,
orders and Permits issued thereunder.
18
“Equity
Interests”
means
(i) with respect to any corporation, all shares, interests, participations
or
other equivalents of capital stock of such corporation, however designated,
and
(ii) with respect to any partnership or limited liability company, all
partnership or limited liability company interests, units, participations or
equivalents of partnership or limited liability company interests of such
partnership or limited liability company, however designated.
“ERISA”
means
the Employee Retirement Income Security Act of 1974.
“ERISA
Affiliate”
means
any trade or business (whether or not incorporated) which would be considered
a
single employer with the Company pursuant to Section 414(b), (c), (m) or (o)
of
the Code and Treasury Regulations promulgated under those sections or pursuant
to Section 4001(b) of ERISA and the Treasury Regulations promulgated
thereunder.
“Expenses”
means
any and all expenses incurred in connection with investigating, defending or
asserting any claim, action, suit or proceeding incident to any matter
indemnified against hereunder (including court filing fees, court costs,
arbitration fees or costs, witness fees and reasonable fees and disbursements
of
legal counsel, investigators, expert witnesses, accountants and other
professionals).
“Financial
Statements”
has the
meaning specified in Section
3.6.
“Governmental
Authority”
means
any foreign, federal, state, provincial, local or other governmental authority
or regulatory body and any of their respective subdivisions, agencies,
instrumentalities, authorities or tribunals.
“Intellectual
Property”
means
Copyrights, Patent Rights, Trademarks and Trade Secrets.
“Legal
Proceeding”
means
any judicial, administrative or arbitral action, suit or proceeding (whether
public or private and whether civil, criminal or administrative) by or before
any court, panel, tribunal, commission or other Governmental
Authority.
“Lien”
means
any lien, claim, charge, security interest, mortgage, pledge, easement,
conditional sale or other title retention agreement, defect in title or other
restriction of any kind.
“Losses”
means
any and all losses, costs, obligations, liabilities, settlement payments,
awards, judgments, fines, penalties, damages, expenses, deficiencies or other
charges.
“Material
Adverse Change”
means an
effect, event, development or change that, individually or in the aggregate,
(i)
is, or would reasonably be expected to be, materially adverse to the business,
properties, assets, results of operations, prospects or condition (financial
or
otherwise) of the Company or (ii) affecting the Company that would reasonably
be
expected to prevent impede or otherwise affect in any material respect the
consummation of the transactions contemplated by this Agreement.
19
“Organizational
Documents”
means in
the case of any Person that is an entity, its certificate or articles of
incorporation or formation, bylaws, limited liability company agreement,
partnership agreement or similar charter document, as the case may
be.
“Patent
Rights”
means
United States and foreign patents, patent applications, continuations,
continuations-in-part, divisions, reissues, patent disclosures, inventions
(whether or not patentable or reduced to practice) and improvements
thereto.
“Permits”
has the
meaning specified in Section
3.17(a).
“Permitted
Liens”
means
(a) liens for Taxes and other governmental charges and assessments arising
in
the ordinary course of business which are not yet due and payable, (b) liens
of
landlords and liens of carriers, warehousemen, mechanics and materialmen and
other like liens arising in the ordinary course of business for sums not yet
due
and payable and (c) other liens or imperfections on property which are not
material in amount, do not interfere with and are not violated by the
consummation of the transactions contemplated by this Agreement and do not
materially detract from the value or marketability of, or materially impair
the
existing use of, the property affected by such lien or
imperfection.
“Person”
means
any individual, corporation, partnership, limited liability company, joint
venture, association, joint-stock company, trust, unincorporated organization
or
Governmental Authority.
“Purchaser”
has the
meaning specified in the first paragraph of this Agreement.
“Purchaser
Group Member”
means
(a) Purchaser and its Affiliates, (b) their respective directors, officers,
employees, agents, attorneys and consultants and (c) successors and assigns
of
the foregoing.
“RCRA”
means
the Resource Conservation and Recovery Act, 42 U.S.C. §§ 6901 et seq.
“Requirements
of Law”
means
any foreign, federal, state and local laws, statutes, regulations, rules, codes
or ordinances enacted, adopted, issued or promulgated by any Governmental
Authority (including those pertaining to electrical, building, zoning,
subdivision, land use and Environmental Laws) or common law.
“Software”
means
computer software programs and software systems, including all databases,
compilations, tool sets, compilers, higher level or “proprietary” languages, and
related documentation and materials, whether in source code, object code or
human readable form.
“Tax”
(and,
with correlative meaning, “Taxes”)
means
(A) any federal, state, local or foreign net income, gross income, gross
receipts, windfall profit, severance, property, production, sales, use, license,
excise, franchise, employment, payroll, withholding, alternative or add-on
minimum, ad valorem, value-added, transfer, stamp, or environmental tax
(including taxes under section 59A of the Code), escheat payments or any other
tax, custom, duty, governmental fee or other like assessment or charge of any
kind whatsoever, together with any interest or penalty, addition to tax or
additional amount imposed by any Governmental Authority and (B) any liability
for the payment of amounts determined by reference to amounts described in
clause (A) as a result of being a member of an affiliated, consolidated,
combined or unitary group, or as a result of any obligation under any Tax
sharing or indemnity arrangement.
20
“Tax
Return”
means
any return, report or similar statement required to be filed with respect to
any
Tax (including any attached schedules), including any information return, claim
for refund, amended return or declaration of estimated Tax.
“Trade
Secrets”
means
confidential ideas, trade secrets, know-how, concepts, methods, processes,
formulae, reports, data, customer lists, mailing lists, business plans or other
proprietary information.
“Trademarks”
means
United States, state and foreign trademarks, service marks, logos, trade dress
and trade names (including all assumed and fictitious names under which the
Company is conducting business or has within the previous five years conducted
business), whether registered or unregistered, and pending applications to
register the foregoing.
*
* * * *
*
21
IN
WITNESS WHEREOF,
the
parties hereto have caused this Agreement to be executed as of the day and
year
first above written.
|
ALLEGRO
BIODIESEL CORPORATION
|
|||||
|
By:
|
/s/
Xxxxx Xxxxx
|
||||
|
Name:
|
Xxxxx
Xxxxx
|
||||
|
Title:
|
Chief
Executive Officer
|
||||
|
COMMUNITY
POWER CORPORATION
|
|||||
|
By:
|
/s/
Xxxxxx X. Xxxxxx
|
||||
|
Name:
|
Xxxxxx
X. Xxxxxx
|
||||
|
Title:
|
Chairman
|
||||
