EXHIBIT 10.1
CLOSING AGREEMENT
This Closing Agreement (the "Agreement") is made as of September 8, 2004,
by and among Navidec, Inc., a Colorado corporation ("Navidec"), Navidec Merger
Corp., a Colorado corporation ("Merger Corp."), and BPZ Energy, Inc., a Texas
Corporation ("BPZ").
RECITALS
A. The parties entered into that certain Merger Agreement dated as of July
8, 2004 (the "Merger Agreement"), pursuant to which Merger Corp. will merge with
and into BPZ. All capitalized terms that are used but not defined herein shall
have the meanings given such terms in the Merger Agreement.
B. Pursuant to this Agreement, the parties desire to set forth their
understanding and final agreement with respect to certain issues associated with
the merger transaction contemplated by the Merger Agreement (the "Merger").
AGREEMENT
For and in consideration of the mutual promises contained herein and in the
Merger Agreement and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereby agree as
follows:
1. Effective Date. For all purposes under this Agreement, the term
"Effective Date" shall mean the date of this Agreement.
2. Post-Effective Date Option Exercises. Any funds received by Navidec
after the Effective Date as proceeds from the exercise of any options for
Navidec common stock outstanding on the Effective Date as set forth on Exhibit A
shall be paid by Navidec to Navidec Financial Services, Inc., a Colorado
corporation ("NFS"), upon their receipt by Navidec. Any funds received by NFS
pursuant to the exercise of the Navidec stock options shall be retained by NFS
and the executed exercise notice shall be forwarded to Navidec to permit
issuance of the shares. Upon each option exercise, Navidec shall account to NFS
for the funds received and the shares issued pursuant to the exercise notice.
3. Increase in Outstanding Shares at Effective Date. Notwithstanding
anything to the contrary contained in the Merger Agreement, the parties agree
that 5,200,000 shares of Navidec common stock and/or options for their purchase,
exclusive of shares issued or subscribed for in the private placement required
as a condition to the closing of the Merger (the "Private Placement"), will be
outstanding on the Effective Date.
4. Piggyback Registration Rights. It has been agreed that upon consummation
of the Merger, and in consideration for the assumption by NFS of the pre-Merger
liabilities of Navidec as a condition to the closing of the Merger, Navidec
shall issue to NFS a number of Navidec common shares equal to the difference
between 5,000,000 shares and the sum of: (i) the number of then issued and
outstanding Navidec common shares, plus (ii) the number of then unexercised
options for Navidec common shares. Navidec is required to register the shares so
issued to NFS in the same manner and at the same time as Navidec registers the
shares issued pursuant to the Private Placement.
5. Consents. As soon as practicable after the Effective Date, Navidec and
NFS shall cooperate to obtain, or cause to be obtained, any consent or amendment
required to novate or assign all pre-Merger liabilities of Navidec to NFS, to
the extent such consents have not been obtained by the Effective Date.
6. Share Issuance. As: (i) the parties desire to close the Merger effective
September 8, 2004, and (ii) the Navidec shareholder record date for purposes of
effecting the spin-off of NFS is September 9, 2004, and (iii) the former BPZ
shareholders are not permitted to receive NFS common shares in the NFS spin-off,
the parties, therefore, agree that pursuant to the Merger: (a) pursuant to the
instructions to the Navidec stock transfer agent attached hereto as Exhibit B,
which are hereby ratified and approved, the transfer agent is instructed not to
issue to BPZ shareholders their shares until September 10, 2004, and (b) the
share certificates reflecting their ownership of Navidec common shares shall
bear that date, and (c) they shall become Navidec shareholders of record as of
that date.
7. Disbursement of Private Placement Funds. The parties have confirmed that
in accordance with the terms of the Merger Agreement, at least $3.0 million US
dollars have been subscribed to and collected pursuant to the Private Placement
as of the Effective Date. The available funds in the escrow account established
pursuant to the Private Placement shall be disbursed or retained as follows
immediately following the closing of the Merger: (i) payment of brokers'
commissions earned from participation on the Private Placement, (ii) payment to
NFS of agreed fees payable to date under the Business Consulting Agreement by
and between BPZ and NFS, (iii) payment of attorneys' fees to Ballard, Spahr,
Xxxxxxx & Xxxxxxxxx, LLP, earned though the Effective Date as provided in Merger
Agreement, (iv) repayment of Secured Promissory Note with stated principal
amount of $400,000, dated July 15, 2004, payable by BPZ to Navidec, (v) other
mutually agreed to amounts shall be retained to cover additional identified
expenses, and (vi) the balance shall be payable to BPZ via wire transfer to its
operating account in Houston, Texas per written instructions from BPZ to
Navidec.
8. Other Actions. Each of the Parties hereto agrees to execute and deliver
such other documents, certificates, agreements and other writings and to take
such other actions as may be necessary or desirable to consummate the
transactions contemplated by this Agreement.
9. Entire Agreement; Waiver and Amendment. The Merger Agreement, as
supplemented and amended by this Agreement, contains the entire agreement by and
among Navidec, Merger Corp. and BPZ with respect to the transactions
contemplated hereby. Any and all prior discussions, negotiations, commitments
and understandings relating to the subject matter of this Agreement are
superseded by this Agreement. This Agreement may not be modified, amended or
terminated except by a written agreement specifically referring to this
Agreement signed by all of the parties hereto. No waiver of any breach or
default hereunder shall be considered valid unless in writing signed by the
party giving such waiver, and no such waiver shall be deemed a waiver of any
subsequent breach or default of the same or similar nature.
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10. Applicable Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Colorado without regard to its
principles of conflicts of laws.
11. Descriptive Headings. The descriptive headings are for convenience of
reference only and shall not affect in any way the meaning or interpretation of
this Agreement.
12. Notices. All notices or other communications hereunder shall be in
writing and shall be deemed to have been duly given if delivered personally or
sent by registered or certified mail postage prepaid, addressed as follows:
If to Navidec: Navidec Financial Services, Inc.
0000 X Xxxxxxxx Xxxxx Xxxxxx Xxxxx #000
Xxxxxxxxx Xxxxxxx, Xxxxxxxx 00000
With a copy to: Xxxxxxx Xxxxx Xxxxxxx & Xxxxxxxxx, LLP
0000 00xx Xxxxxx Xxxxx 0000
Xxxxxx, Xxxxxxxx 00000
Attn: Xxxxx X. Xxxxxxxx
If to BPZ: BPZ Energy Inc.
Shareholder Representatives
00000 Xxxx Xxxxxxx Xxxxx 000
Xxxxxxx, Xxxxx 00000
With a copy to: BPZ Energy Inc.
0000 Xxxx Xxxxxxx 000
Xxxxxx, Xxxxx 00000
Attn: Xxxxxx Xxxx
12. Counterparts. This Agreement may be executed by facsimile and in any
number of counterparts, each of which shall be deemed to be an original, but all
of which together shall constitute but one agreement.
13. Binding Effect. This Agreement will be binding upon and will inure to
the benefit of the parties and their respective heirs, personal representatives,
successors and permitted assigns. Except as herein provided, no party will have
the right to assign this Agreement, or any of such party's rights hereunder,
without the prior written consent of the other parties.
[Signature page to follow]
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IN WITNESS WHEREOF, this Agreement has been duly executed and delivered by
the duly authorized officers of the Parties hereto as of the date first
hereinabove written.
NAVIDEC, INC.
By: /s/ Xxxx X. XxXxxxx
-----------------------------------------
Name: Xxxx X. XxXxxxx
Title: President
NAVIDEC MERGER CORP.
By: /s/ Xxxx X. XxXxxxx
-----------------------------------------
Name: Xxxx X. XxXxxxx
Title: President
BPZ ENERGY, INC.
By: /s/ Xxxxxx Xxxxx Xxxxxx Pflucker
-----------------------------------------
Name: Xxxxxx Xxxxx Xxxxxx Pflucker
Title: President
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