AGREEMENT
THIS AGREEMENT is made and entered into this 24th day of January 2001
by and between Americas Power Partners, Inc., a Colorado corporation (the
"Company"), Xxxxxx X. Xxxxxx ("Xxxxxx"), the Xxxxxx Family Partnership (the
"CFLP"), Xxxxx Xxx ("Xxx"), and Private Power LLC, an Illinois limited
liability company ("PPL").
RECITALS
X. Xxxxxx, the CFLP and Cox (collectively, the "Shareholders") own
common stock of the Company; and
B. The Company and the Shareholders desire the Company to redeem
certain of the Shareholders' shares in exchange for assets of the
Company subject to certain Company liabilities as provided for
herein; and
C. The Shareholders have agreed to transfer such assets and
liabilities to PPL; and
D. Pursuant to the Shareholders' direction, the Company has agreed
to transfer such assets subject to such liabilities directly to
PPL and PPL has agreed to assume such liabilities and accept such
transfers, all on the terms described herein.
NOW, THEREFORE, in consideration of the Recitals (which are hereby
incorporated herein) and the mutual covenants herein and for other good and
valuable consideration, the receipt and suffering of which is hereby
acknowledged, the parties agree as follows:
1. REDEMPTION OF SHARES. On the date hereof the following parties
shall transfer to the Company the following number of shares of the
Company's Common Stock (the "Shares") held by such party of record by
delivering to the Company certificates for such Shares endorsed in blank or
accompanied by an assignment separate from certificate executed in blank:
PARTY SHARES
Xxxxxx 264,000
CFLP 1,200,000
Cox 235,000
The parties agree that each share has a value of 52 for purposes
of this Agreement as of the date hereof.
2. WARRANTIES REGARDING SHARES. Each of the Shareholders hereby
represents and warrants to the Company in regard to the Shares transferred
by such party the following, which representations and warranties shall be
true and correct on the date hereof and shall survive the closing of the
transactions provided for herein:
a. The Shares are owned beneficially and of record by such
Shareholder and have not been previously transferred,
pledged or hypothicated.
b. The Shares are subject to no claims, liens, encumbrances or
restrictions whatsoever except for the legend printed on the
Shares.
c. CFLP is duly organized, validly existing and in good
standing under the laws of its state of organization and has
all requisite power and authority to transfer the Shares
transferred by it.
d. Each Shareholder has the authority to enter into this
Agreement and transfer the Shares as provided for herein and
no consent is required for such transfer which has not
already been obtained. This Agreement constitutes the valid
and binding obligation of each Shareholder enforceable in
accordance with its terms. Neither the execution nor the
delivery of this Agreement nor the transfer of the Shares to
be transferred by such Shareholder (i) violates, conflicts
with or constitutes a breach of or default under the
provisions of any indenture, agreement, judgment, decree,
order, or other instrument by which the Shareholder is
bound; (ii) results in the imposition of any lien, charge or
encumbrance on the Shares to be transferred; or (iii)
requires any consent, authorization or action of any court,
governmental authority or regulatory body or of any creditor
of such Shareholder.
3. TRANSFER OF ASSETS. In exchange for the Shares, the Company
shall on the date hereof transfer to PPL the following assets of the
Company (the "Transferred Assets"):
a. The furniture on the second floor of the Company's offices
described in Section 6 h as of January 15, 2001.
b. The office supplies, computers, terminals and associated
software, excluding Lotus Notes, owned or licensed by the
Company and used by Casten, Cox, Xxxxxx Xxxxxxxxx
("Xxxxxxxxx") Xxxxxxx Xxxxx ("Xxxxx") and Xxxx XxXxxxxx
("XxXxxxxx") as of January 15, 2001.
c. All accounts receivable, development rights, term
sheets, memoranda of understanding, engineering and
environmental studies, good will and other materials and
assets related to prospects of the Company in the carbon
black and calcinated coke industries (the "Assigned
Business").
d. $342,000 in cash in the form of a check from the Company.
e. A note for $250,000 in the form attached hereto as Exhibit H.
f. The receivable of $8,000 owed by Cox to the Company.
g. The vehicle used by Cox subject to the lease referred to in
Section 4 d.
4. ASSUMED LIABILITIES. As additional consideration for the
Transferred Assets, PPL assumes as of the date hereof the following
liabilities of the Company (the "Assumed Liabilities"):
a. All accounts payable of the Company regarding the Assigned
Business set forth in Exhibit B hereto as of January 15,
2001.
b. All obligations under the Transferred Assets to be performed
subsequent to January 15, 2001.
c. Any obligation to pay a success, development or referral fee
for the Assigned Business to ERM, ERM-New England, Inc.,
ECAP or any party related to or affiliated with such
entities (the "ERM Fee Obligation").
d. The lease agreement attached hereto as Exhibit F for
the vehicle leased by the Company for the use of Cox. The
Company shall continue to insure this vehicle during the
remaining lease term as required by the lease and PPL shall
promptly reimburse the Ccompany for the cost of such
insurance.
PPL hereby indemnifies and agrees to defend and hold harmless the Company
from and against any of the Assumed Liabilities.
5. WARRANTIES REGARDING TRANSFERRED ASSETS AND ASSUMED LIABILITIES.
The Company hereby represents and warrants to the Shareholders and PPL the
following, which representations and warranties shall be true and correct
on the date hereof and shall survive the closing of the transactions
provided for herein:
a. The Company is the owner of the Transferred Assets free and
clear of any lien or liabilities whatsoever except for the
Assumed Liabilities and has the full right to transfer to
PPL the Transferred Assets subject only to the consent of
the customers to such transfer.
b. The transfer to PPL of the Transferred Assets has been duly
approved by the board of directors of the Company. Such
transfer does not require the approval of the Company's
shareholders or any other party except for the consent of
the customers transferred and as to the leased vehicle, the
lessor.
c. The Company has not previously assigned, pledged,
hypothecated or otherwise transferred the Transferred
Assets or any interest therein.
d. The projects listed in Exhibit A constitute all
projects of the Company in regard to the Assigned Business.
All memorandums of agreement, letters of intent or other
obligations or arrangements in regard to such projects which
are in writing or legally binding as of January 15, 2001 are
attached hereto as Exhibit C. All accounts payable in
regard to the Assigned Business which are unpaid as of
January 15, 2001 are set forth on Exhibit B.
e. The accounts receivable set forth on Exhibit D constitute
all the amounts receivable in regard to the Assigned
Business of January 15, 2001. Such accounts are valid
amounts due from the respective customers and to the
Company's knowledge are collectible in the ordinary course
of business.
f. All written, electronic and oral correspondence or
understandings of the Company in regard to the ERM Fee
Obligation are attached as Exhibit E hereto or, if oral, are
described therein.
6. FUTURE COOPERATION.
a. PPL and the Shareholders shall have the right to invest
on the same basis as offered by the Company to any other
person or entity, subject to any consent or approval rights
of the Company's customer applicable to such investment, in
any over 10 megawatt cogeneration projects developed by the
Company during the three years from the date of this
Agreement for the X.X. Xxxxx Company ("Heinz") Terminal
Island, California facility or for the Pharmacia Kalamazoo,
Michigan facility. The Company shall provide PPL with
written notice of the terms of any such investment prior to
offering such investment to others. The Company may offer
to others on the same terms as offered to PPL and the
Shareholders any portion of such investment PPL and the
Shareholders do not agree to fund within 30 days from
receipt of notice from the Company.
b. On PPL's request, the Company shall provide to PPL data
on all Heinz projects, Western Michigan University projects,
and Pharmacia Michigan prospects which present opportunities
for topping turbines. As to any such projects, PPL shall
have the right, at its sole expense, to identify and propose
topping turbine additions to such projects at a cost (the
"Incremental Cost") 1.18 times PPL's costs for the turbine
generator sets, field services and parts required and all
direct labor and travel and commissions in regard to such
additions. In regard to any such proposal by PPL accepted
by a Company customer which will provide a 15% return on its
Incremental Cost per mutually agreed upon projections, the
Company agrees to either (i) employ PPL to add a topping
turbine to the project and pay PPL the Incremental Cost
therefore; (ii) allow PPL to install the additions at PPL's
own expense in exchange for payment by the Company or its
customer of (x) level monthly payments over the life of the
project that will amortize the Incremental Costs plus 15%
interest thereon, (y) 25% of any savings over conventional
grid purchase of the power the topping turbine generates as
such savings are realized, and (z) market rate fees for
periodic inspection and maintenance; or (iii) pay PPL its
cost incurred in proposing the addition to the project not
to exceed $20,000 per project or such higher maximum amount
as agreed to in writing by the parties in regard to the
project.
c. Both the Company and the Shareholders and PPL shall use
reasonable efforts to assist each other in regard to
supplying information and other missing data in regard to
their respective projects.
d. The Company agrees that the Company has no right to preclude
PPL or the Shareholders from working with Xxxxxxxxx
International, its subsidiaries and affiliates ("Xxxxxxxxx")
or pursuing combined heat and power and topping turbine
prospects in cooperation with Xxxxxxxxx and Xxxxxxxxx'x
sales representatives.
e. The Shareholders and PPL shall provide the Company with the
right to use on a nonexclusive basis without charge and
without any warranty or other maintenance obligations
whatsoever the project evaluation software supplied by
Xxxxxx to the Company as of January 15, 2001 and any
software developed by Cox, Xxxxxxxxx or Xxxxx on or before
January 15, 2001 while employed by the Company.
f. The Company agrees that in soliciting equity for the
Company or its projects the Company will not refer to
Xxxxxx, Cox, Weber, Xxxxxxxxx or XxXxxxxx or represent that
they have any connection with the Company. The Company
agrees that the equity sources previously contacted by
Xxxxxx in regard to a possible investment in the Company
represent Xxxxxx'x own contacts and are not required to be
divulged by him to the Company. Xxxxxx and Cox represent
and warrant that no confidential information regarding the
Company has been provided by them or by Xxxxx and Xxxxxxxxx
to third parties other than those who have executed
confidentiality agreements, copies of which have been
previously provided to the Company's general counsel.
g. All press releases or other announcements relating to any of
the transactions between the parties provided for in this
Agreement shall require the prior approval of both Xxxxxx
and Xxxxxx Xxxxx or their respective designees.
h. For the period commencing with the date hereof and ending on
April 1, 2001, PPL shall sublease from the Company the
entire second floor of the building currently occupied by
the Company at 000 Xxxxx Xxxx Xxxx in Hinsdale, Illinois for
a rental of $2,750 per month; which rent shall include heat,
gas and electricity and janitorial services. Rent shall be
paid in advance on the date hereof (prorated for a partial
month), on February 1, 2001, and March 1, 2001.
7. NONCOMPETES.
a. To protect the value of the transferred Assets, the
Company agrees that, during the period beginning on the date
hereof and ending on the date two years from the date hereof
(the "Noncompete Period"), the Company shall not, directly
or indirectly, within the United States and Canada engage in
the Assigned Business or own an interest in, manage,
contract, participate in, consult with, or render services
for any business competing with PPL in regard to the
Assigned Business in the United States and Canada.
b. During the Noncompete Period, PPL shall not directly or
indirectly offer bids in competition with the Company as to
any Heinz location, Xxxx Refining in Corpus Chritsti, Texas,
National/Armour Swift Echrich locations in Lufkin, Texas,
Hastings, Nebraska, Indianapolis, Indiana and Quincy,
Michigan, Cargill in St. Clair, Michigan, Pharmacia plants
in Michigan or Italy, Xxxxxx Laboratories locations in Texas
or Kalamazoo, Michigan, or Western Michigan University in
Kalamazoo, Michigan or aid or assist or render services to
any business so competing except as provided in Section 6 a
above as to topping turbines additions to Company projects.
c. If a court should hold that the duration, scope or area of
any restrictions provided for in this Section 7 are
unreasonable, the maximum duration, scope or area reasonable
shall be substituted by the court for the stated duration,
scope or area.
d. In the event of any breach or threatened breach by a party
of any provisions of this Section 7, the other party, in
addition to any other rights or remedies to which such party
is entitled as a result of such breach shall be entitled to
an injunction against the violation of the provisions of
this Section 7 by a court of competent jurisdiction without
being required to post any bond or other security in regard
thereto.
8. TERMINATION OF EMPLOYMENT.
a. On the date hereof but effective as of January 15, 2001,
Xxxxxx and Cox hereby resign as officers and directors of
the Company and terminate their employment with the Company.
Cox and Xxxxxx and the Company hereby agree that all written
and oral agreements regarding their employment by the
Company are hereby terminated, including without limitation
the Executive Employment Agreement and the Non-Qualified
Deferred Compensation Agreement both dated September 13,
2000 between the Company and Xxxxxx, and that no obligations
of either party under such agreements shall survive
termination except for the following regardless of any
provision to the contrary in any such agreements.
(i) Cox shall be paid his base salary through January 15,
2001.
(ii) All vested options of Cox to purchase the Company's
stock shall be exercisable for 90 days subsequent to
his termination of employment by the Company pursuant
to the terms of the Company's 2000 Equity Incentive
Plan.
(iii) Xxxxxx and Cox shall continue to observe and be bound
by all obligations of confidentiality owed by the
Company and its employees to the Company's customers as
of the date hereof.
b. On the date hereof, the Shareholders shall procure from
each of Xxxxxxxxx, XxXxxxxx and Xxxxx Resignations and
Releases in the form attached hereto as Exhibit G. The
Company shall accept such resignations and release such
employees in the form set forth in Exhibit G by executing
such acceptances.
9. SATISFACTION OF NOTE. On the date hereof, the Company shall
accept in full satisfaction of the Promissory Note dated September 13, 2000
by Xxxxxx to the Company (the "Note") the 1,200,000 shares of the Company's
common stock pledged as security therefor and shall deliver to Xxxxxx the
Note marked canceled. On the date hereof the Company shall cancel the
certificates evidencing the pledged shares.
10. MUTUAL RELEASE.
a. Cox, Casten, and PPL, individually and for their respective
heirs, executives, administrators, successors and assigns
hereby release and forever discharges Company, its
directors, officers and employees from all manner of
actions, causes of action, suits, claims and demands
whatsoever which such party ever had or now has or may ever
have against Company, its directors, officers and employees
for, or by reason of, any matter, cause or thing whatsoever
arising out of Xxx'x or Xxxxxx'x purchase of or ownership of
stock of the Company prior to the date hereof or service as
an officer, director or employee of the Company or
termination of such services; provided that this release
shall not apply to any rights under this Agreement or any
right to indemnification for the Company against actions by
third parties based on Xxx'x or Xxxxxx'x actions or
inactions as a director, officer or employee of the Company,
which rights shall survive the transactions provided for in
this Agreement.
b. The Company for itself and its officers, directors,
employees, successors and assigns hereby releases and
forever discharges Casten, Cox, PPL and their respective
heirs, executors, successors and assigns from all manner of
actions, causes of action, suits, claims, and demands
whatsoever which the Company ever had or now has or may ever
have against Casten, Cox, PPL and their respective heirs,
executors, successors and assigns for, upon or by reason of
any matter, cause or thing whatsoever arising prior to the
date of this Agreement; provided that this release shall not
apply to any rights under this Agreement.
11. GENERAL.
a. This Agreement and the exhibits hereto to be executed and
delivered at the same time as this Agreement constitute the
entire understanding between the parties hereto and may only
be altered, amended or a right hereunder waived by a writing
executed by all parties affected by such alteration,
amendment or waiver.
b. This Agreement shall be binding and inure the benefit of the
respective successors and assigns of the parties hereto.
c. This Agreement shall be governed by and be construed in
accordance with the internal laws of the State of Illinois.
d. All notices provided for or authorized herein shall be in
writing and shall be effective when delivered to the last
address of the party to be notified known to the notifying
party.
e. This Agreement may be executed in multiple
counterparts, each of which shall be deemed an original, but
all of which together shall constitute a single agreement.
IN WITNESS WHEREOF the parties have executed this Agreement as of the
date first above written.
Americas Power Partners, Inc.
By: /s/ Xxxx X. Xxxxx
XXXX X. XXXXX
Its: Secretary
/s/ Xxxxxx X. Xxxxxx
XXXXXX X. XXXXXX
/s/ Xxxxx Xxx
XXXXX XXX
Private Power LLC
By: /s/ Xxxxxx X. Xxxxxx
Its: XXXXXX X. XXXXXX, Member
Xxxxxx Family Partnership
By: /s/ Xxxxxx X. Xxxxxx
Its: XXXXXX X. XXXXXX, GENERAL PARTNER
EXHIBITS
EXHIBT DESCRIPTION REFERENCE
A Project List 5 d
B Accounts Payable 4 a., 5 d
C Letters of Intent, 5 d
etc.
D Accounts Receivable 5 e
E ERM Fee Obligation 5 x
X Xxx Vehicle Lease 4 d
G Resignation and Release 8 b
H Promissory Note 3 e
