As filed with the Securities and
Exchange Commission on October 26, 1999
File No. 000-24989
SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
AMENDMENT TO FORM 8-K
Current Report
Pursuant to Section 13 or 15(d) of the Exchange Act
Date of Report: October 29, 1999
AMERICAS POWER PARTNERS, INC.
(Exact Name of Registrant as Specified in its Charter)
COLORADO
(State or Other Jurisdiction of Incorporation)
000-24989 05-0499526
(Commission File Number) (I.R.S. Employer Identification No.)
105 East First Street, Hinsdale, IL 60521
(Address of Principal Executive Offices) (Zip code)
(630) 325-9101
(Registrant's Telephone Number, Including Area Code)
CHUHAK &TECSON, P.C.
225 WEST WASHINGTON STREET, SUITE 1300
CHICAGO, IL 60606-3418
---------------------------------------------------
(Name and Address of agent for service)
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FORWARD LOOKING STATEMENTS
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THIS FORM 8-K AND OTHER STATEMENTS ISSUED OR MADE FROM TIME TO TIME BY
AMERICAS POWER PARTNERS, INC. (HEREINAFTER REFERRED TO AS "APPI"AND/OR
"COMPANY" AND/OR "REGISTRANT") OR ITS REPRESENTATIVES CONTAIN STATEMENTS
WHICH MAY CONSTITUTE "FORWARD-LOOKING STATEMENTS" WITHIN THE MEANING OF
THE SECURITIES ACT OF 1933 AND THE SECURITIES EXCHANGE ACT OF 1934, AS
AMENDED BY THE PRIVATE SECURITIES LITIGATION REFORM ACT OF 1995.
FIFTEEN U.S.C.A. SECTIONS 77Z-2 AND 78U-5 (SUPP. 1996). THOSE STATEMENTS
INCLUDE STATEMENTS REGARDING THE INTENT, BELIEF OR CURRENT EXPECTATIONS OF
APPI AND MEMBERS OF ITS MANAGEMENT TEAM AS WELL AS THE ASSUMPTIONS
ON WHICH SUCH STATEMENTS ARE BASED.
PROSPECTIVE INVESTORS ARE CAUTIONED THAT ANY SUCH FORWARD-LOOKING
STATEMENTS ARE NOT GUARANTEES OF FUTURE PERFORMANCE AND INVOLVE RISKS
AND UNCERTAINTIES, AND THAT ACTUAL RESULTS MAY DIFFER MATERIALLY FROM
THOSE CONTEMPLATED BY SUCH FORWARD-LOOKING STATEMENTS. IMPORTANT
FACTORS CURRENTLY KNOWN TO MANAGEMENT THAT COULD CAUSE ACTUAL RESULTS TO
DIFFER MATERIALLY FROM THOSE IN FORWARD-LOOKING STATEMENTS ARE SET FORTH
IN THE SAFE HARBOR COMPLIANCE STATEMENT FOR FORWARD-LOOKING STATEMENTS
INCLUDED AS EXHIBIT 99.1 TO THIS FORM 8-K, AND ARE HEREBY INCORPORATED
HEREIN BY REFERENCE. THE COMPANY UNDERTAKES NO OBLIGATION TO UPDATE OR
REVISE FORWARD-LOOKING STATEMENTS TO REFLECT CHANGED ASSUMPTIONS, THE
OCCURRENCE OF UNANTICIPATED EVENTS OR CHANGES TO FUTURE OPERATING RESULTS
OVER TIME.
INFORMATION INCLUDED IN THIS REPORT
ITEM 1. CHANGES IN CONTROL OF REGISTRANT
(a) Change in Control
Oak Brook Capital II, Inc. (the "Company") was incorporated under the laws of
the State of Colorado on May 15, 1998. It was incorporated as a "blind pool"
or "blank check" company for the purpose of seeking to acquire one or more
properties or businesses. The Company elected to voluntarily file a
registration statement in order to become a reporting company under the
Securities Exchange Act of 1934, as amended (the "34 Act").
On August 17 1999, the Company's sole officers and directors executed a Plan
of Merger Agreement (the "Plan") with Americas Power Partners, Inc., a
Delaware corporation ("APPI") whereby APPI shareholders will agree to receive
one (1) share of newly issued common stock of the Company (the "Shares") for
every one (1) share of APPI each respective APPI shareholder holds. The
transaction with APPI will be a private placement transaction in reliance
upon an exemption from registration under the Securities Act of 1933.
The transaction will result in a change in control of the Company because
following its exchange of the Shares, APPI shareholders will own
approximately 94.039% of the issued and outstanding Common Stock of the
Company.
APPI is acquiring control of the Company in anticipation of operating as a
Section 12 fully reporting company, pursuant to the rules and regulations
promulgated under the Securities Exchange Act of 1934 (the "Exchange Act").
The Plan contemplates a series of transactions which will result in a change
of control of the Company. The transactions include (i) completion of the
issuance of approximately 7,541,693 restricted shares of the Company's common
stock (the "Exchange Shares") to be exchanged for all of the issued and
outstanding common stock of APPI; (ii) an exchange of said 7,541,693 Exchange
Shares with 754.1693 shares of APPI common stock; and (iii) voluntary
surrender of approximately 705,200 shares by the officers and directors of
the Company.
In conjunction with completion of the transactions contemplated by the Plan,
the current directors and officers of the Company will resign, the out-going
directors will appoint successors designated by APPI, and the new directors
will appoint new executive officers.
The following table sets forth the name, age and position of each of the
persons expected to be designated by APPI to be appointed to the Company's
Board of Directors and each of the persons expected to be appointed as an
executive officer of the Company following completion of the transactions
contemplated by the Plan:
<TABLE>
<CAPTION>
Name and Beneficially
Address Owned Shares
<S> <C>
David Pequet 13.69%
105 E. First Street
Hinsdale, IL 60621
Mark Margason 13.69%
105 E. First Street
Hinsdale, IL
Theodore Bogard 9.76%
1030 Eulalia Road, NE
Atlanta, GA 30319
OFFICERS
The names, titles and address of the persons who, upon the effective date of
the Plan, shall constitute the officers of Oak Brook, and who shall hold
office, subject to the By-Laws, until the first meeting of directors
following the next annual meeting of shareholders, are as follows:
Name Title Address
David Pequet Chairman 105 E. First Street, Suite 101
Hinsdale, IL 60521
Mark Margason CEO and Secretary 105 E. First Street, Suite 101
Hinsdale, IL 60521
Tom Smith President 222 West 3rd Street
Hinsdale, IL 60521
Theodore Bogard Vice President 1030 Eulalia Road, NE
Atlanta, GA 30319
</TABLE>
Biographical Information:
David Pequet, Engineering degree from Michigan State University 1974.
Co-founder of MPI Investment Management, Mr. Pequet began his career in the
securities industry in 1976. Mr. Pequet started the advisory firm, MPI
Investment Management in 1986. MPI manages pension fund moneys across the
United States and overseas. Prior to starting MPI, he was a fixed income
broker at Prudential Bache Securities. For the past three years he has
been active in power project development in the United States and South
America. Pequet is a managing partner in MPI Venture Management and Chairman
of the Board of Directors for Americas Power Partners.
Mark Margason, B.S.B.A. degree from the University 1977, MBA in finance from
the University of Denver 1979. Mr. Margason has a fifteen-year banking and
investment banking career in Chicago Illinois with American National Bank and
Trust Company of Chicago, Mellon Bank, and Citicorp North America leveraged
capital division. Mr. Margason has banking and operational management
experience in a broad range of energy industries. Mr. Margason has served on
the Board of Directors of an integrated natural gas resources company and
has directed power plant development for several U.S. and South American
power projects. Margason is a managing partner in MPI Venture Management and
CEO for Americas Power Partners.
Thomas W. Smith, B.S.B.A. degree from Miami University in Oxford, Ohio. Mr.
Smith has over eighteen years experience in the development, project
management, construction, operation and maintenance of power projects
worldwide. He has obtained expert knowledge in equipment technologies for gas
turbines, steam turbines, hydro turbines, reciprocating engines and steam
systems. His project relations include fuel suppliers, engineering companies,
construction firms, equipment manufacturers, O&M organizations, utilities and
environmental agencies. Mr. Smith has served as Partner for Alternative
Energy Consultants, VP of Project Development for Polsky Energy Corporation,
VP of Sales and Marketing for U.S. Turbine Corporation (U.S.T.), National
Sales Manager for International Power Technology (I.P.T.) and in various
capacities for Westinghouse Electric Corporation. Mr. Smith is President of
Americas Power Partners.
Theodore Bogard, B.A. degree from Washington State University 1979, Business
Management and Marketing. Eight years logistics experience on Alaska pipeline
with Alyeska Trans Company and in Sudan Africa with Chevron Overseas Oil
Exploration Group. Four years experience as partner in commercial real estate
development company in Atlanta Georgia. He has three years experience in
power development in South America. Mr. Bogard is Executive Vice President of
Project Development for Americas Power Partners.
(b) Beneficial Ownership
The following table sets forth the beneficial ownership of the ownership of
APPI outstanding common stock on October 29, 1999 by (i) each director and
executive officer of APPI, (ii) all directors and executive officers of APPI
as a group, and (iii) each shareholder who was known by the Company to be the
beneficial owner of more than five percent (5%) of the outstanding shares of
APPI:
Shares of APPI
Common Stock to be
Beneficially Owned Percent
Name and as of the Distribution of
Address Record Date Class
David Pequet 1,189,966 13.69%
105 E. First Street
Hinsdale, IL 60621
Mark Margason 1,189,966 13.69%
105 E. First Street
Hinsdale, IL
Theodore Bogard 848,269 9.76%
1030 Eulalia Road, NE
Atlanta, GA 30319
Thomas W. Smith 1,275,000 14.67%
222 West 3rd Street
Hinsdale, IL 60521
All Officers and
Directors as a Group 4,503,201 51.82%
Management of APPI has advised that they may acquire additional shares of APPI
Common Stock from time to time in the open market at prices prevailing at the
time of such purchases.
ITEM 2. ACQUISITION OR DISPOSITION OF ASSETS
The Plan of Merger was duly adopted by the Boards of Directors of the
respective corporations on August 17, 1999, and approved by the Board of
Directors of OAK BROOK CAPITAL II, INC. on August 17, 1999, and by the
shareholders of AMERICAS POWER PARTNERS, INC., on August 17, 1999, in the
manner prescribed by the Delaware General Corporation Law. The number of
shares voted for the Plan of Share Merger was, with respect to each
corporation, sufficient for approval as set forth below.
The number of shares of OAK BROOK CAPITAL II, INC. outstanding at the time of
such adoption was 1,228,000, and the number of Shares entitled to vote
thereon was:
1,228,000.
The number of shares of AMERICAS POWER PARTNERS, INC. outstanding at the time
of such adoption was 754.1693, and the number of shares entitled to vote
thereon was:
754.1693.
The designation and number of outstanding shares of each class entitled to
vote thereon as a class were:
NONE.
The number of shares voted for such Plan of Merger by OAK BROOK CAPITAL II,
INC. was 1,105,200, and the number of shares voted against such Plan of
Merger was:
NONE.
The number of shares voted for such Plan of Merger by AMERICAS POWER PARTNERS,
INC., was 754.1693, and the number of shares voted against such Plan of
Merger was:
NONE.
CONVERSION OF SHARES IN THE MERGER
The mode of carrying into effect the Merger provided in this Agreement,
and the manner and basis of converting the shares of the Constituent
Corporations into shares of the Surviving Corporation are as follows:
1. Oak Brook Common Stock. No Shares of Common Stock, .001 par value,
of Oak Brook issued and outstanding at the effective time of the Merger shall
be converted as a result of the Merger, and all of such shares shall remain
issued shares of Common Stock of the Surviving Corporation.
2. APPI Common Stock. At the effective time of the Merger, each
share of .001 par value Common Stock of APPI issued and outstanding shall be
converted into and become 10,000 shares of Common Stock of the Surviving
Corporation. Each record holder of outstanding Common Stock of APPI shall be
issued shares of Common Stock of APPI, upon the ratio set forth above. Upon
direction of APPI and receipt by Oak Brook of the stock ledger of APPI, each
APPI shareholder shall be entitled to receive one or more stock certificates
for the full number of shares of Common Stock of Oak Brook into which the
Common Stock of APPI shall have been converted as aforesaid together with any
dividends on the Common Stock of APPI as to which the payment date shall have
occurred on or prior to the date of the surrender of said shares.
The common share allocation (the "Allocation") of the Surviving Corporation
will be as follows:
8,769,694 fully diluted, common shares of Oak Brook will be issued and
outstanding.
APPI shareholders will own approximately 94.039% of the 8,769,694 fully
diluted, common shares of Oak Brook issued and outstanding.
3. Surrender of APPI's Stock Ledger. As soon as practicable after
the Merger becomes effective, the stock ledger representing Common Stock of
APPI issued and outstanding at the time the Merger becomes effective shall be
delivered to Oak Brook, such that shares of the Surviving Corporation may be
issued, as above provided. Until so delivered for exchange, each shareholder
of APPI shall be deemed for all corporate purposes (except for the payment of
dividends, which shall be subject to the exchange of stock as above provided)
to own the number of shares of Common Stock of the Surviving Corporation which
the holder thereof would be entitled to receive upon its surrender to the
Surviving Corporation.
4. Issuance of Shares Subsequent to Merger. As soon as practicable
after the Merger becomes effective, the Surviving Corporation shall issue to
the shareholders of the Disappearing Corporation, on the basis set forth in
Section 2 above, the necessary shares of Common Stock in the Surviving
Corporation.
5. Fractional Interests. No fractional shares of Common Stock of
the Surviving Corporation or certificate or scrip representing the same shall
be issued. In lieu thereof each holder of APPI Common Stock having a
fractional interest arising upon such conversion will be rounded up into one
full additional share of Common Stock of the Surviving Corporation by the
Transfer Agent.
6. Status of Common Stock. All shares of Common Stock of the
Surviving Corporation into which shares of Common Stock of APPI are converted
as herein provided shall be fully paid and non-assessable and shall be issued
in full satisfaction of all rights pertaining to such shares of Common Stock
of APPI.
7. Independent Appraisal, Right to Dissent and Obtain Payment for
Shares; Procedures for Protection of Dissenter's Rights. In order to
establish a "fair value" for the shares of APPI Common Stock which are paid in
cash in lieu of conversion into Oak Brook Common Stock, the Board of Directors
of APPI shall establish the value of APPI's stock prior to the Merger, and
shall afford to such shareholders of APPI all of the rights, and implement the
procedures for protection of dissenters' rights, pursuant to the provisions of
the Delaware General Corporation Law, Section 262, et seq., as amended, the
terms and provisions of which are hereby incorporated by reference and made a
part hereof.
EFFECT OF THE MERGER
At the effective time of the Merger, APPI shall succeed to, without other
transfer, and shall possess and enjoy, all the rights, privileges, immunities,
powers and franchises both of a public and a private nature, and be subject to
all the restrictions, disabilities and duties of Oak Brook, and all the
rights, privileges, immunities, powers and franchises of Oak Brook on whatever
account, for stock subscriptions as well as for all other things in action or
belonging to Oak Brook, shall be vested in APPI; and all property, rights,
privileges, immunities, powers and franchises, and all and every other
interest shall be thereafter as effectually the property of APPI as if it was
Oak Brook, and the title to any real estate vested by deed or otherwise in Oak
Brook shall not revert or be in any way impaired by reason of the Merger;
provided, however, that all rights of creditors and all liens upon any
property of either of said Constituent Corporations shall be preserved
unimpaired, limited in lien to the property affected by such liens at the
effective time of the Merger.
ITEMS 3 THROUGH 4, 6 THROUGH 9 NOT APPLICABLE.
ITEM 5. OTHER EVENTS.
Americas Power Partners, Inc.
Executive Summary of Business Plan
The Company's authorized capital consists of 40,000,000 shares of
Common Stock, without a par value. Each common share is entitled to one vote
at the meetings of shareholders. All Common Shares are equal to each other
with respect to liquidation rights and dividends rights. There are no
preemptive rights to purchase any additional Common Shares. The Articles of
Incorporation of the Company prohibit cumulative voting on the election of
directors.
Americas Power Partners, Inc. will develop, own and operate power plant
systems (steam, electric, compressed air, chilled water and condensate return)
for industrial, institutional, and commercial clients. The Company has formed
strategic alliances with other companies in the areas of fuel supply, power
plant optimization, operations and maintenance and electric power marketing.
The Company's strategic vision is to purchase mid size "in the fence"
power generation facilities from industrial, institutional and commercial
users and provide applicable utility requirements under long term contracts.
The Company optimizes utility costs for the end users by upgrading generation
facilities and providing solution for lower cost utilities. Through our
expert management team and strategic partners we provide the end-user:
monetization of existing power plant systems, competitive cost of power
commodities, utility systems upgraded to "Best in Class", reliable supply of
utilities, and transfer of operations and maintenance services.
The Company responds to these needs by offering our project
implementation services. The Company directly benefits by taking a working
interest participation in the most viable projects. The interactions and
services will develop into strategic partnerships with the most qualified
small developers and independent power proponents.
The Company's corporate headquarters are located at 105 E. First Street,
Hinsdale, IL 60521. The Company's transfer agent is American Securities
Transfer, Inc., 1825 Lawrence Street, Ste 444 Denver, CO 80020 (303) 298-5370.
ITEM 7. FINANCIAL STATEMENTS AND EXHIBITS
(a) Financial Statements.
- ---------------------------------
As of the date of the filing of this Current Report on Form 8 K, the
Registrant's Independent Auditor, Bersch Accounting, sc, has completed the
consolidated audit of the historical financial statements of APPI that is
hereby provided for financial statement requirements prescribed by this
Item 7(a).
In accordance with Item 7(a)(4) of Form 8 K, such financial statements
are set forth as follows:
Americas Power Partners, Inc.
Financial Statements
June 30, 1999
Contents
Independent Auditor's Report 2
Exhibit A - Balance Sheet 3
Exhibit B - Statement of Operations 4
Exhibit C - Statement of Changes in Stockholder's Equity and
Retained Earnings (Deficit) During the Development Stage 5
Exhibit D - Statement of Cash Flows 6
Notes to Financial
Statements 7-10
<PAGE> 2
Independent Auditor's Report
October 17, 1999
To the Board of Directors and Stockholders
Americas Power Partners, Inc.
We have audited the accompanying Balance Sheet of Americas Power Partners,
Inc., (a development stage company), as of June 30, 1999 and the related
Statement of Cash Flows, Statement of Equity and Retained Earnings (Deficit)
During the Development Stage, Statement of Operations, and Statement of
Changes in Financial Position, for the eighteen months then ended. These
financial statements are the responsibility of the Company's management.
Our responsibility is to express an opinion on these financial statements
based on our audit.
We conducted our audit in accordance with generally accepted auditing
standards. Those standards require that we plan and perform the audit to
obtain reasonable assurance about whether the financial statements are free
of material misstatement. An audit includes examining, on a test basis,
evidence supporting the amounts and disclosures in the financial statements. An
audit also includes assessing the accounting principles used and significant
estimates made by management, as well as evaluating the overall financial
statement presentation. We believe that our audit provides a reasonable
basis for our opinion.
In our opinion, the financial statements referred to above present fairly,
in all material respects, the financial position of Americas Power Partners,
Inc. as of June 30, 1999 and the results of its operations and its cash flows
for the years then ended in conformity with generally accepted accounting
principles.
The accompanying financial statements have been prepared assuming the company
will continue as a going concern. As shown in the financial statements, the
Company has incurred considerable cost in organizing its business and
establishing itself in the marketplace during the development stage. Its
ability to remain viable depends on a combination of generating revenue
before exhausting its present investment stake and/or its ability to obtain
additional capital. Management's plans in regard to these matters are
described in Note #1 and Note #4. The financial statements do not contain
any adjustments which may result from the outcome of this uncertainty.
Bersch Accounting s.c.
<PAGE> 3
Americas Power Partners, Inc.
(A Development Stage Company)
Balance Sheet
(With the auditor's report of October 17, 1999)
As of June 30, 1999
Assets
Current Assets
Cash and cash equivalents (Exhibit D)(Note #1C) $ 306,658
Subscriptions receivable 100
Total Assets $ 306,758
Liabilities and Stockholders' Equity
Current Liabilities
Accounts Payable $ 117,492
Commitments & Contingencies (Note #3)
Stockholders' Equity (Exhibit C)
Common stock, no par value, 1,500
shares authorized and 753.9194 shares
subscribed 752,250
Deficit accumulated during the
development state (Exhibit B) (562,984)
Total Stockholders' Equity 189,266
Total Liabilities and Stockholders' Equity $ 306,758
<PAGE> 4
Americas Power Partners, Inc.
(A Development Stage Company)
Statement of Operations
(With the auditor's report of October 17, 1999)
For the eighteen months ended June 30, 1999
Expenses Incurred During the Development Stage
Consulting Fees - Managements $ 247,734
Consulting Fees - Investment Banking 37,773
Consulting Fees - Engineering 49,143
Consulting Fees - Other 31,369
Legal Fees 70,769
Public Relations 57,833
Miscellaneous Office Expense 55,065
Rent 15,000
Total Expenses Incurred During
The Development Stage 564,686
Operating Loss (564,686)
Other Income (Expense)
Interest Income 1,702
Net (Loss) Before Income Taxes $ 562,984
Income Taxes (Note #1D)
Net (Loss) $ 562,984
(Exhibit A)
See Note #2 for expenses
associated with related parties
<PAGE> 5
Americas Power Partners, Inc.
(A Development State Company)
Statement of Changes in Stockholders' Equity and
Retained Earnings (deficit) Accumulated During the Development State
(with the Auditor's report of October 17, 1999)
For the eighteen months ended June 30, 1999
<TABLE>
<CAPTION>
Deficit
Accumulated
Shares During the
Date of Common Paid-in Development Stockholders'
Transaction Stock Capital Stage Equity
<S> <C> <C> <C> <C> <C>
Balance-January 27, 0 0
1998
Stock Subscribed to
Founders 1/27/98 709.7500 $ 100 $ 100
Sale of Stock for Cash
($2.45 per share) 5/4/99 44.1694 752,150 752,150
Net (Loss) 6/30/99 - - $ (562,984) (562,984)
Balance-June 30, 1999 753.9194 $ 752,250 $ (562,984) $ 189,266
(Exhibits B&A) (Exhibit A)
</TABLE>
<PAGE> 6
Americas Power Partners, Inc.
(A Development Stage Company)
Statement of Cash Flows
(With the auditor's report of October 17, 1999)
For the eighteen months ended June 30, 1999
Cash Increase
Or (Decrease)
Cash Flows from Development Stage Activities $ (562,984)
Net (Loss)
Adjustments to reconcile net income to
net cash provided by operating
activities:
Common stock subscribed 100
Increase in:
Accounts payable 117,492
Net cash (Used) by Development Stage Activities (445,392)
Cash Flows from Financing Activities
Stockholders' contributions 752,150
Net Increase in Cash 306,758
Cash and Cash Equivalents-Beginning of Year -
Cash and Cash Equivalents-End of Year $ 306,758
(Exhibit A)
<PAGE> 7
Americas Power Partners, Inc.
(A Development Stage Company)
Notes to Financial Statements
(With the auditor's report of October 17, 1999)
For the eighteen months ended June 30, 1999
Note #1 Nature of Business and Summary of Significant Accounting Policies
A. Nature of Business
Americas Power Partners, Inc. (the Company) has been in the development stage
since its formation on January 27, 1998. Americas Power Partners, Inc. was
formed to develop, optimize, own and operate power plant systems (steam,
electric, compressed air, water, waste water and condensate return) for
industrial and commercial clients. The Company has formed strategic
alliances with two recognized energy companies in the areas of power plant
optimization, operations and maintenance, fuel supply, and electric power
marketing. These two strategic relationships bring key skill sets to the
development process as well as a steady flow of project opportunities from
their established client base. The Company will generate revenue primarily
from fees produced from structuring and financing these energy projects.
The Company is prepared to participate in the private energy market through
two distinct avenues, namely, financing upgrades, or purchasing the
powerhouse assets and selling utilities back to the client through long-term
contracts.
B. Method of Accounting
Assets, liabilities, revenues and expenses are recognized on the accrual basis
method of accounting.
The preparation of financial statements in conformity with generally accepted
accounting principles requires management to make estimates and assumptions
that affect the reported amounts of assets and liabilities and disclosure of
contingent assets and liabilities at the date of the financial statements and
the reported amounts of revenues and expenses during the reporting period.
Actual results could differ from these estimates.
These financial statements have been prepared under the assumption the Company
will continue its development stage activities and eventually emerge as a
going concern. This assumption is conditioned on the Company's ability to
generate revenue before exhausting its original capital stake, and/or
attracting additional capital. Although no revenue producing contracts have
been signed, management is confident that this risk will be ameliorated
because as of audit date the Company has over twenty five separate projects
being negotiated in stages ranging from letters of intent all the way to
final contract proposal with a
<PAGE> 8
Note#1 Nature of Business and Summary of Significant Accounting Policies
(Cont'd)
C. Method of Accounting (Cont'd)
"Fortune 200" company. As described in Note #4, management has also taken
steps to respond to the second risk.
D. Cash and Cash Equivalents
For purposes of the Statement of Cash Flows, the Company considers all short-
term investments in interest-bearing accounts, securities, and other
instruments with an original maturity of three months or less, to be
equivalent to cash.
The Company had funds on deposit at one financial institution as of June 30,
1999 that exceeded the federally insured limit by $268,186.
E. Income Taxes
Generally accepted accounting principles require an asset and liability
approach to financial accounting and reporting for income taxes. The
difference between the financial statement and tax bases of assets and
liabilities is determined annually. Deferred income tax assets and
liabilities are computed for those differences that have future tax
consequences using the currently enacted tax laws and rates that apply to
the periods in which they are expected to affect taxable income. Valuation
allowances are established, if necessary, to reduce the deferred tax
asset to the amount that will more likely than not be realized. Income tax
expense is the current tax payable or refundable for the period plus or
minus the net change in the deferred tax assets and liabilities.
The Company's total deferred tax assets and deferred tax valuation
allowance are as follows at June 30, 1999:
Total Deferred Tax Assets $ 223,000
Less Valuation Allowance (223,000)
Net Deferred Tax Assets $ -
Deferred tax assets are recognized for operating losses that are available
to offset future taxable income. The valuation allowance was established
to reduce the deferred tax asset to the amount that will more than likely
than not be realized.
<PAGE> 9
Note#1 Nature of Business and Summary of Significant Accounting Policies
(Cont'd)
F. Income Taxes (Cont'd)
During the period ended June 30, 1999 the Company's valuation was increased
by $223,000. The allowance is necessary due to the uncertainty of the
Company's ability to utilize all of the tax carryforwards before they expire.
The income tax provision consists of the following:
Current $ -
Deferred (223,000)
Increase in valuation allowance 223,000
Total $ -
A reconciliation of the statutory U.S. federal rate and effective rates is
as follows:
Statutory U.S. federal rate 34.0%
Deferred 6.0%
Increase in valuation allowance (40.0)
At June 30, 1999 the Company has available for future periods, the following
carryforwards for tax purposes:
Net Operating loss of $ (562,984)
Income taxes paid for the year ended June 30, 1999 totaled $0.
<PAGE> 10
Note#1 Nature of Business and Summary of Significant Accounting Policies
(Cont'd)
G. Advertising
The Company follows the policy of charging the costs of advertising to expense
as incurred.
Note #2 Related Party Transactions
The Company has a contract with a management consulting firm owned by two of the
Company's management employees, and outside consulting contracts with three of
the management employees providing for the payment of fees for acquiring,
negotiating, and brokering of contracts associates with the Company's mission
as well as for developing access to capital sources. Under this agreement the
company accrued a fee of $75,000 prior to audit date upon the presentation of
a successful letter of intent to merge with a public company.
During 1999 the company accrued and paid consulting fees and other expenses to
the management of the company relating to:
Consulting Fees $ 130,833
Fees relating to merger 75,000
Reimbursed Expenses 135,707
Total $ 341,540
An additional fee of $75,000 became due on August 17, 1999 when the company
completed a reverse merger as described in Note #4.
<PAGE> 11
Note #3 Commitments
The Company has arranged for transportation equipment under a lease beginning
in 1999 and expiring in 2003. The minimum annual rental payments required
under this lease, having initial or remaining noncancellable terms in excess
of one year, are as follows for the years ending June 30,
2000 7,482
2001 7,482
2002 7,482
2003 6,859
Total 29,305
Rent expense for the year ended June 30, 1999 was $623.
Employment Agreement
The Company entered into an at-will employment agreement with an officer and
stockholder on May 1, 1999. The agreement specifies the amount of compensation
to be paid and the fringe benefits to which the officer is entitled.
Note #4 Subsequent Events
Effective August 17, 1999 the Company completed a reverse merger with Oak Brook
Capital II, a fully reporting 1934 Act public SEC shell company, which changed
its name to Americas Power Partners, Inc. This merger was done specifically
to enhance the company's ability to have several options for future capital
formation and to aid in attracting additional key employees. The NASD 15c211
disclosure form has been filed with the NASD and the company is expecting
to begin trading OTC before year-end 1999. At the time of the merger, shares
of the new company were issued in lieu of the shares subscribed in the old
company.
As of the end of the audit fieldwork, the Company is currently negotiating a
private placement of a $4 million convertible preferred stock issue with an
institutional investor the fourth quarter of 1999.
(b) Pro Forma Financial Information.
The pro forma financial statement required by this Item 7(b) is set forth
as follows:
Pursuant to Rule 11-02b(2) of Regulation S-X of the Act, we herewith submit
the following:
On August 17, 1999 this 8-K was filed to report on the combination of Americas
Power Partners, Inc. and Oak Brook Capital II, Inc.. Oak Brook Capital II, Inc.
was the surviving corporation and changed its name to Americas Power Partners,
Inc. Since Oak Brook Capital II was a "blank check" company prior to the
transaction, and had no assets, one liability, and negative equity according
to the Amended Form 10QSB filed October 19, 1999, and those items were all of
insignificant materiality, the pro forma information necessary to complete the
requirements of Section 7a will be almost identical to the June 30, 1999
audit report.
Balance Sheets
Pro-forma Combined
Oak Brook Americas Power Surviving
Capital II Partners, Inc. Corp. Renamed
6-30-99 6-30-99 @6-30-99
ASSETS
Cash & cash equiv. $ 306,658
Subscription Rec. - 100
- $ 306,758 $ 306,758
LIABILITIES
Accounts payable $ 7,725 $ 117,492 $ 125,217
EQUITY
Common Stock $ 4,200 $ 757,250 $ 756,450
Accumulated Deficit (11,925) (562,984) (574,909)
Total Equity (7,725) 189,266 181,541
Total Liabilities & Equity $ - $ 306,758 $ 306,758
Operating Statements
From Inception to 6-30-99
Oak Brook Americas Power Pro-forma Combined
Capital II Partners, Inc. Surviving
Inception inception Corp. Renamed
5-15-98 1-27-98 @6-30-99
Revenue $ - $ - $ -
Expenses Incurred during
the development stage 11,925 562,984 574,909
Net Loss 11,925 562,984 574,909
Accumulated deficit 11,925 562,984 574,909
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
AMERICAS POWER PARTNERS, INC.
By: /s/ David W. Pequet
________________________________
DAVID W. PEQUET
Chairman
Date: October 29, 1999
Pursuant to the requirements of the Securities Exchange Act of 1934, this
report has been signed below by the following persons in the capacities and
on the dates indicated.
Signature Title Date
/s/David W. Pequet Chairman October 29, 1999
/s/Mark Margason CEO, Secretary October 29, 1999
& Director
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
--------------------------
EXHIBITS
TO
FORM 8-K
CURRENT REPORT FILED PURSUANT TO
THE SECURITIES EXCHANGE ACT OF 1934
---------------------------
AMERICAS POWER PARTNERS, INC.
EXHIBIT INDEX
Exhibit No. Exhibit
x 2.1 Articles of Merger between Oak Brook Capital II, Inc. and
Americas Power Partners, Inc., dated August 17, 1999;
x 2.2 Plan of Merger dated August 17, 1999;
# 3(a) Articles of Incorporation
# 3(b) Bylaws
# 4(a) Agreements Defining Certain Rights of Shareholders
# 4(b) Specimen Stock Certificate
x 5.1 Opinion of Mark T. Thatcher, P.C. regarding the
legality of the securities being offered hereby.
7 Not applicable
9 Not applicable
x 10.1 Issuance of Restricted Shares from Authorized Shares
x 10.2 Opinion to Transfer Agent Authorizing Issuance of
Restricted Shares from Authorized Shares
11 Not applicable
14 Not applicable
16 Not applicable
x 20.1 Board of Director's Resolution's authorizing merger
and name change from Oak Brook Capital II, Inc. to
Americas Power Partners, Inc.;
Exhibit No. Exhibit
21 Not applicable
x 23.1 Consent of Counsel
(contained in Exhibit 5.1)
x 24.1 Consent of Dennis W. Bersch, CPA.
27 Financial Data Schedule
28 Not applicable
# 99.1 Safe Harbor Compliance Statement
____________________________
x filed herewith
# incorporated herein by reference from Registrant's Third
Amendment to Form 10SB12G, filed July 29, 1999.
OAK BROOK CAPITAL II, INC.
and
AMERICAS POWER PARTNERS, INC.
ARTICLES OF MERGER
Pursuant to the provisions of the Colorado Business Corporation Act (CRS
7-7-101, et seq., as amended) the undersigned corporations adopt the
following Articles of MERGER:
FIRST: Attached hereto as Exhibit A is the Plan of Merger of OAK BROOK
CAPITAL II, INC., a Colorado corporation, and AMERICAS POWER PARTNERS, INC.,
a Delaware corporation, a copy of which has been mailed to all respective
shareholders.
SECOND: The Plan of Merger was duly adopted by the Boards of Directors
of the respective corporations on August 17, 1999, and approved by the Board
of Directors and Shareholders of OAK BROOK CAPITAL II, INC. on August 17,
1999, and by the shareholders of AMERICAS POWER PARTNERS, INC., on August 17,
1999, in the manner prescribed by the Delaware General Corporation Law. The
number of shares voted for the Plan of Merger was, with respect to each
corporation, sufficient for approval as set forth below.
(A) The number of shares of OAK BROOK CAPITAL II, INC. outstanding at the
time of such adoption was 1,228,000, and the number of Shares entitled to
vote thereon was:
1,228,000.
The number of shares of AMERICAS POWER PARTNERS, INC. outstanding at the time
of such adoption was 776.4494, and the number of shares entitled to vote
thereon was:
776.4494.
The designation and number of outstanding shares of each class entitled to
vote thereon as a class were:
NONE.
(B) The number of shares voted for such Plan of Merger by OAK BROOK
CAPITAL II, INC. was 1,105,200, and the number of shares voted against such
Plan of Merger was:
NONE.
The number of shares voted for such Plan of Merger by AMERICAS POWER
PARTNERS, INC., was 766.4494, and the number of shares voted against such
Plan of Merger was:
NONE.
IN WITNESS WHEREOF, the following persons have duly executed and verify
these Articles of Merger this 17th day of August, 1999.
OAK BROOK CAPITAL II, INC.,
a Colorado corporation
Attest:
/s/ Gerard Werner /s/ Mark T. Thatcher
_____________________ By:______________________
GERARD WERNER, MARK T. THATCHER,
SecretaryPresident
AMERICAS POWER PARTNERS, INC.,
a Delaware corporation
Attest:
/s/ Mark A. Margason /s/ David W. Pequet
_____________________ By:______________________
MARK A. MARGASON, DAVID W. PEQUET,
Secretary President
PLAN OF MERGER
OAK BROOK CAPITAL II, INC.
AND
AMERICAS POWER PARTNERS, INC.
THIS PLAN AND AGREEMENT OF MERGER (hereinafter called "this Agreement"),
dated as of August 17, 1999, is by and between OAK BROOK CAPITAL II, INC., a
Colorado corporation (hereinafter referred to as "Oak Brook" and/or "Surviving
Corporation"), and AMERICAS POWER PARTNERS, INC., a Delaware corporation
(hereinafter called "APP" and/or "Disappearing Corporation"), said
corporations being hereafter sometimes collectively referred to as the
"Constituent Corporations", and Mark T. Thatcher ("Thatcher"), and Gerard
Werner ("Werner").
WITNESSETH:
WHEREAS, Oak Brook is a corporation duly organized and existing under the
laws of the State of Colorado, having been incorporated in 1998, and APP is a
corporation duly organized and existing under the laws of the State of
Delaware, having been incorporated in 1998; and
WHEREAS, the authorized capital stock of Oak Brook consists of FORTY
MILLION (40,000,000) shares of .001 par value Common Stock, of which ONE
MILLION TWO HUNDRED TWENTY-EIGHT THOUSAND (1,228,000) shares are outstanding,
and TEN MILLION (10,000,000) shares of Preferred Stock, $100.00 par value, of
which ZERO (0) shares are outstanding; and
WHEREAS, the authorized capital stock of APP consists of ONE THOUSAND
FIVE HUNDRED (1,500) shares of Common Stock, no par value, of which SEVEN
HUNDRED FIFTY FOUR AND ONE THOUSAND SIX HUNDRED NINETY-THREE ONE
THOUSANDTHS (754.1693) shares are issued and outstanding, in ledger form; and
WHEREAS, the Boards of Directors of the Constituent Corporations deem it
advisable for the general welfare and advantage of the Constituent
Corporations and their respective shareholders that the Constituent
Corporations merge pursuant to this Agreement and pursuant to the applicable
provisions of the laws of the States of Colorado and Delaware; and
WHEREAS, Werner and Thatcher each own 552,600 shares of the issued and
outstanding common stock of Oak Brook;
NOW, THEREFORE, in consideration of the premises and of the mutual
agreements herein contained, the parties hereby agree, in accordance with the
applicable provisions of the laws of the States of Colorado and Delaware, that
the Constituent Corporations shall merge, to wit: Americas Power Partners,
Inc., a Delaware corporation, one of the Constituent Corporations, which is
not a new corporation, and which shall cease its existence under the laws of
the State of Delaware pursuant to the Merger (said corporation hereafter being
sometimes called the "Disappearing Corporation"), and the terms and conditions
of the Merger hereby agreed upon (hereafter called the "Merger") which the
parties covenant to observe, keep and perform and the mode of carrying the
same into effect are and shall be as hereafter set forth:
ARTICLE I
CONDITIONS
The Merger shall be subject to the following conditions:
(a)the approval of the boards of directors of both Constituent
Corporations;
(b)the approval of that number of shareholders of both Constituent
Corporations, as required by the by-laws, articles of incorporation, and/or
the law of the States of Colorado and Delaware, as applicable.
ARTICLE II
EFFECTIVE TIME OF THE MERGER
At the effective time of the Merger, the separate existence of APP shall
cease and Oak Brook shall become the surviving corporation. Consummation of
this Agreement shall be effected on the date on which a Certificate and
Articles of Merger in substantially the form annexed hereto is filed in the
office of the Secretaries of State of the State of Colorado and State of
Delaware, all after satisfaction of the respective requirements of the
applicable laws of each of said states prerequisite to such filings.
ARTICLE III
GOVERNING LAW; ARTICLES OF INCORPORATION
The laws which are to govern the Surviving Corporation are the laws of
the State of Colorado. The Articles of Incorporation of Oak Brook, as
heretofore amended, shall, prior to the effective time of the Merger, be amended
to the extent set forth in Paragraph Third of the Articles of Merger,
attached hereto, to amend the name of Oak Brook to Americas Power Partners,
Inc. As so amended, such Articles of Incorporation shall remain in effect
thereafter until the same shall be further amended or altered in accordance
with the provisions thereof.
ARTICLE IV
BY-LAWS
The By-Laws of Oak Brook, at the effective time of the Merger shall be
the By-Laws of the Surviving Corporation until the same shall be altered or
amended in accordance with the provisions thereof.
ARTICLE V
DIRECTORS AND OFFICERS
1. Directors. On and after the Effective Date, the Directors of Oak
Brook at the effective time of the Merger shall be as set forth below, until
their respective successors are duly elected and qualified at the next annual
meeting of shareholders of Oak Brook. As of the effective time of the Merger,
the previous directors of Oak Brook shall resign.
The names and addresses of the Directors of the Surviving Corporation,
Oak Brook, are as follows:
Name Address
David W. Pequet 105 E. First Street, Hinsdale, IL 60521
Theodore Bogard 1030 Eulalia Rd., Atlanta, GA 30319
Mark Margason 105 E. First Street, Hinsdale, IL 60521
Officers. The names, titles and addresses of the persons who, upon the
Effective Date, shall constitute the officers of Oak Brook, and who shall hold
office, subject to the By-Laws, until the first meeting of directors following
the next annual meeting of shareholders, are as follows:
Name Title Address
David W. Pequet President 105 E. First Street
Hinsdale, IL
Mark Margason Secretary & Vice President 105 E. First Street
Hinsdale, IL
Theodore Bogard Vice President 1030 Eulalia Rd.
Atlanta, GA 30319
ARTICLE VI
CONVERSION OF SHARES IN THE MERGER
The mode of carrying into effect the Merger provided in this Agreement,
and the manner and basis of converting the shares of the Constituent
Corporations into shares of the Surviving Corporation are as follows:
1. Oak Brook Common Stock. No Shares of Common Stock, .001 par value,
of Oak Brook issued and outstanding at the effective time of the Merger shall
be converted as a result of the Merger, and all of such shares shall remain
issued shares of Common Stock of the Surviving Corporation.
2. APP Common Stock. At the effective time of the Merger, each share
of no par value Common Stock of APP issued and outstanding shall be converted
into and become 10,000 shares of Common Stock of the Surviving Corporation.
Each record holder of outstanding Common Stock of APP shall be issued shares
of Common Stock of APP, upon the ratio set forth above. Upon direction of APP
and receipt by Oak Brook of the stock ledger of APP, each APP shareholder
shall be entitled to receive one or more stock certificates for the full
number of shares of Common Stock of Oak Brook into which the Common Stock of
APP shall have been converted as aforesaid together with any dividends on the
Common Stock of APP as to which the payment date shall have occurred on or
prior to the date of the surrender of said shares.
The common share allocation (the "Allocation") of the Surviving Corporation
will be as follows:
8,769,694 fully diluted, common shares of Oak Brook will be issued and
outstanding.
APP shareholders will own approximately 94.039% of the 8,769,694 fully
diluted, common shares of Oak Brook issued and outstanding, inclusive of the
shares to be transferred pursuant to Section 8 hereof.
3. Surrender of APP's Stock Ledger. As soon as practicable after the
Merger becomes effective, the stock ledger representing Common Stock of APP
issued and outstanding at the time the Merger becomes effective shall be
delivered to Oak Brook, such that shares of the Surviving Corporation may be
issued, as above provided. Until so delivered for exchange, each shareholder
of APP shall be deemed for all corporate purposes (except for the payment of
dividends, which shall be subject to the exchange of stock as above provided)
to own the number of shares of Common Stock of the Surviving Corporation which
the holder thereof would be entitled to receive upon its surrender to the
Surviving Corporation.
4. Issuance of Shares Subsequent to Merger. As soon as practicable
after the Merger becomes effective, the Surviving Corporation shall issue to
the shareholders of the Disappearing Corporation, on the basis set forth in
Section 2 above, the necessary shares of Common Stock in the Surviving
Corporation. Thatcher and Werner agree to personally cause such action to be
taken by the Surviving Corporation.
5. Fractional Interests. No fractional shares of Common Stock of
the Surviving Corporation or certificate or scrip representing the same shall
be issued. In lieu thereof each holder of APP Common Stock having a
fractional interest arising upon such conversion will be rounded up into one
full additional share of Common Stock of the Surviving Corporation by the
Transfer Agent.
6. Status of Common Stock. All shares of Common Stock of the
Surviving Corporation into which shares of Common Stock of APP are converted
as herein provided shall be fully paid and non-assessable and shall be issued
in full satisfaction of all rights pertaining to such shares of Common Stock
of APP.
7. Independent Appraisal, Right to Dissent and Obtain Payment for
Shares; Procedures for Protection of Dissenter's Rights. In order to establish
a "fair value" for the shares of APP Common Stock which are paid in cash in
lieu of conversion into Oak Brook Common Stock, as provided above in this
Article VI, the Board of Directors of APP shall establish the value of APP's
stock prior to the Merger, and shall afford to such shareholders of APP all of
the rights, and implement the procedures for protection of dissenters' rights,
pursuant to the provisions of the Delaware General Corporation Law, Section
262, et seq., as amended, the terms and provisions of which are hereby
incorporated by reference and made a part hereof.
8. Shares of Werner and Thatcher. Werner and Thatcher agree to cause
seven hundred five thousand two hundred (705,200) shares of Oak Brook owned by
them to be transferred to such person or persons as APP shall direct in
writing prior to the effective time of the Merger.
ARTICLE VII
EFFECT OF THE MERGER
At the effective time of the Merger, the Surviving Corporation shall
succeed to, without other transfer, and shall possess and enjoy, all the
rights, privileges, immunities, powers and franchises both of a public and a
private nature, and be subject to all the restrictions, disabilities and
duties of the Disappearing Corporation, and all the rights, privileges,
immunities, powers and franchises of the Disappearing Corporation on whatever
account, for stock subscriptions as well as for all other things in action or
belonging to the Disappearing Corporation, shall be vested in the Surviving
Corporation; and all property, rights, privileges, immunities, powers and
franchises, and all and every other interest shall be thereafter as
effectually the property of the Surviving Corporation as if it was the
Disappearing Corporation, and the title to any real estate vested by deed or
otherwise in the Disappearing Corporation shall not revert or be in any way
impaired by reason of the Merger; provided, however, that all rights of
creditors and all liens upon any property of either of said Constituent
Corporations shall be preserved unimpaired, limited in lien to the property
affected by such liens at the effective time of the Merger.
ARTICLE VIII
ACCOUNTING MATTERS
The assets and liabilities of the Disappearing Corporation as at the
effective time of the Merger shall be taken up on the books of the Surviving
Corporation at the amounts they are carried at that time on the books of the
Surviving Corporation. The amount of capital of the Surviving Corporation
after the Merger shall be equal to the sum of the aggregate amount of the
stated and paid-in capital of the Disappearing Corporation and of the
aggregate stated and paid-in capital of the Surviving Corporation. The
surplus of the Surviving Corporation after the Merger, including any surplus
arising in the Merger, shall be available to be used for any legal purposes
for which surplus may be used.
ARTICLE IX
SHAREHOLDER APPROVAL;
FILING OF CERTIFICATE AND ARTICLES OF MERGER
This Agreement shall be submitted to the shareholders of each of the
Constituent Corporations for approval. If such requisite shareholder approval
is obtained, Articles of Merger in substantially the form annexed hereto as
Exhibit A shall be signed, verified and delivered to the Secretary of State of
the State of Colorado as provided by Section 7-111-105 of the Colorado
Business Corporation Act., and a Certificate of Merger in substantially the
form annexed hereto as Exhibit B shall be signed, verified and delivered to
the Secretary of State of the State of Delaware as provided by Section 252 of
Delaware General Corporation Law.
ARTICLE X
OAK BROOK REPRESENTATIONS AND WARRANTIES
Oak Brook, Werner and Thatcher, jointly and severally, represent and
warrant to APP, as follows:
1. Organization, Etc. Oak Brook is a corporation duly organized,
validly existing and in good standing under the laws of the State of
Colorado. Oak Brook has corporate power to carry on its business as it is now
being conducted and is qualified to do business in every jurisdiction in which
the character and location of the assets owned by it or the nature of the
business transacted by it require qualification.
2. Capitalization. Oak Brook's capitalization consists of FORTY
MILLION (40,000,000) authorized shares, .001 par value Common Stock, of which
ONE MILLION TWO HUNDRED TWENTY-EIGHT THOUSAND (1,228,000) shares are
outstanding, and TEN MILLION (10,000,000) shares of Preferred Stock, $100.00
par value, of which ZERO (0) shares are outstanding as of the date hereof.
Each issued share is validly issued, fully paid, non-assessable and each
outstanding share is entitled to one vote.
3. List of Information. Oak Brook has delivered to APP a list of
information concerning Oak Brook and its subsidiaries dated the date hereof.
The information set forth in such list and the copies of documents referred
to in such list and furnished to APP are complete and accurate.
4. Further Warranties and Representations:
(a) Oak Brook has and on the closing date will have good and marketable
title to all tangible/intangible assets in its records and books of account,
free and clear of all liens, encumbrances and charges and except for current
taxes and assessments not delinquent and liens, encumbrances and charges shown
in its records and books of account which are not substantial in character or
amount, and do not materially detract from the value or interfere with the
use of properties subject thereto or affected thereby.
(b) Oak Brook has and on the closing date will have good and marketable
title to the machinery, equipment, merchandise, materials, supplies and other
property of every kind, tangible or intangible, or shown as assets in its
records and books of account, free and clear of all liens, encumbrances and
charges and except for liens, encumbrances and charges, in any, which do not
materially detract from the value of or interfere with the use of the
properties subject thereto or affected thereby.
(c) There are no pending claims, all taxes imposed by the U.S. or by any
foreign country or by any state, municipality, subdivision or instrumentality
of the U.S. or of any foreign county or by any other taxing authority, which
are due or payable by Oak Brook, and all price redetermination or
renegotiation claims asserted or that may be asserted against it, have been
paid in full or are adequately provided for by reserves shown in the records
and books of account of Oak Brook's and will be so paid or provided for on the
closing date. Oak Brook has no knowledge of any unassessed tax deficiency
proposed or threatened against it.
(d) Except for agreements described in and appended to the Disclosure
Schedule, if any, none of which materially and adversely affects the earnings,
business, properties, or assets of Oak Brook, Oak Brook is not a party to:
(1)any sales agency agreement not subject to termination without
liability on notice of sixty (60) days or less;
(2)any pension, retirement or profit sharing plan or agreement not
cancelable within sixty (60) days without liability;
(3)any management or consultation agreement not terminable at will
without liability;
(4)any union agreement or loan agreement;
(5)any contract, accepted order or commitment for the purchase of
materials, products or supplies having a total contract price in excess of
$50,000; or
(6)any other agreement which materially affects the business,
properties or assets of Oak Brook's, or which was entered into other than in
the ordinary and usual course of business.
Adequate reserves will be provided and set up on the books of account of Oak
Brook, and will continue to be so provided and set up throughout the expansion
of the project, for any contract, order or commitment expected to be
performed.
(e) Oak Brook is enjoying and on the closing date will enjoy good
working relationships under all of the agreements, dealer, sales
representation and other agreements necessary to the normal operation of its
business. All or substantially all of the real and personal properties used
in the business of Oak Brook are and on the closing date will be in good and
operable condition. Oak Brook is adequately insured with respect to risks
normally insured against by companies similarly situated. The "Disclosure
Schedule" shall contain a list, and be accompanied by copies, of all existing
insurance policies of Oak Brook's, including but not limited to group
insurance and pension plans. All such policies are in full force and
effect.
(f) The Disclosure Schedule shall also contain a list of all claims for
insured losses filed by Oak Brook during the three (3) year period immediately
preceding the date of this Agreement, including but not limited to workmen's
compensation, automobile and general and product liability.
(g) Except for liabilities to be discharged at the closing of the
Merger, Oak Brook has no liabilities whether known, unknown or contingent.
5. Litigation and Proceedings. There is no suit, action or legal or
administrative proceeding pending, or to the knowledge of Oak Brook
threatened, against it or any of its consolidated subsidiaries, which, if
adversely determined, might materially and adversely affect the financial
condition of Oak Brook or the conduct of its businesses nor is there any
decree, injunction or order of any court, governmental department or agency
outstanding against Oak Brook or any of its consolidated subsidiaries having
any such effect.
6. Material Contracts. Oak Brook is not in default in any respect
under the terms of any material outstanding contract, agreement, lease or
other commitment.
7. No Conflict with Other Instruments. At the effective time of the
Merger, the consummation of the transactions contemplated by this Agreement
will not result in the breach of any term or provision of or constitute a
default under any indenture, mortgage, deed of trust or other material
agreement or instrument to which Oak Brook or any of its subsidiaries is a
party.
8. Governmental Authorizations. Oak Brook has all licenses,
franchises, permits and other governmental authorizations which are valid and
sufficient for all businesses presently carried on by Oak Brook and its
consolidated subsidiaries.
9. Exchange Act of 1934, Section 12 Reporting. Oak Brook has a class
of securities reported under Section 12(g) of the Securities Exchange Act of
1934, as amended (the "Exchange Act"), is (and covenants that, prior to the
Effective Date, it will remain) current in its reporting obligations under
Section 13, 14 and 15(d) of the Exchange Act, has timely filed all documents
required to be filed by it with the Securities and Exchange Commission and has
conducted (and covenants that, prior to the Effective Date, it will continue
to conduct) its operation according to its ordinary and usual course of
business consistent with its status as a reporting company under the Exchange
Act..
10. Absence of Certain Changes or Events. From January 1, 1999 to
the date hereof, there has not been:
(i) Any change in the corporate status, businesses, operations or
financial condition of Oak Brook, other than changes in the ordinary course
of business.
(ii) any declaration, setting aside or payment of any dividend or
other distribution with respect to Oak Brook's Common Stock; or any purchase,
redemption or acquisition of such stock by Oak Brook; and
(iii) any other event or condition of any character which has
materially and adversely affected the corporate status, businesses, operations
or financial condition of Oak Brook and its consolidated subsidiaries taken
as a whole.
11. Liabilities. Oak Brook covenants and agrees to discharge all of
its liabilities prior to closing of the transaction contemplated herein.
12. Financial Statements. Oak Brook has delivered to APP copies of
its audited consolidated balance sheet as at December 31, 1998, and related
statements of consolidated earnings and earnings retained in the business for
the fiscal year ended on such date, in each case including the notes thereto.
All of such financial statements are true and complete and have been prepared
in accordance with generally accepted accounting principles consistently
followed throughout the periods indicated, except as otherwise indicated in
the notes thereto. Each of such balance sheets presents a true and complete
statement as of its date of the corporation's financial condition and assets
and liabilities subject to year-end adjustments. Except as and to the extent
reflected or reserved against therein (including the notes thereto), Oak Brook
did not have, as of the date thereof, any liabilities or obligations (whether
accrued, absolute, contingent or otherwise) of a nature customarily reflected
in a consolidated corporate balance sheet or the notes thereto, prepared in
accordance with generally accepted accounting principles. Each of such
statements of earnings and earnings retained in the business presents a true
and complete statement of the results of operations of Oak Brook for the
period indicated.
13. Start Up. Oak Brook is a start up company and has had no sales,
has not conducted operations, and does not now have or ever had any debt for
borrowed funds, any inventory or employees.
14. S-8 Registration. Oak Brook shall have filed an S-8 Registration
for 510,000 shares of Common Stock issued pursuant to the 1998 Consultation
Services Agreement Plan of Oak Brook ("S-8 Registration"). The shares issued
pursuant to the S-8 Registration will be fully transferable in compliance
with the Securities Act of 1933.
ARTICLE XI
APP'S REPRESENTATIONS AND WARRANTIES
APP represents and warrants to Oak Brook, as follows:
1. Organization. APP is a corporation duly organized, validly
existing and in good standing under the laws of the State of Delaware. APP
has corporate power to carry on its business as it is now being conducted and
is qualified to do business in every jurisdiction in which the character and
location of the assets owned by it or the nature of the business transacted
by it require qualification.
2. Capitalization. APP's capitalization consists of ONE THOUSAND
FIVE HUNDRED (1,500) shares of Common Stock, no par value, of which SEVEN
HUNDRED FIFTY-FOUR AND ONE THOUSAND SIX HUNDRED NINETY-THREE ONE THOUSANDTHS
(754.1693) shares are outstanding. Each issued share is validly issued, fully
paid, non-assessable and each outstanding share is entitled to one vote.
3. Shares to be Issued. At the effective time of the Merger, each
share of no par value Common Stock of APP shall be converted into and become
shares of Common Stock of the Surviving Corporation, pursuant to the
conversion terms of Article VI. Upon surrender to Oak Brook of the stock
ledger of APP, each APP shareholder shall be entitled to receive one or more
stock certificates for the full number of shares of Common Stock of Oak Brook
into which the Common Stock of APP so surrendered shall have been converted as
aforesaid together with any dividends on the Common Stock of APP as to which
the payment date shall have occurred on or prior to the date of the surrender
of said shares.
4. Financial Statements. APP has retained the services of an
independent certified public accounting firm known as Bersch & Associates, of
Milwaukee, Wisconsin for the purpose of preparing audited financial
statements, including a balance sheet, consolidated statement of income and
statement of sources and uses of funds, for the period ending June 30, 1999.
APP agrees to deliver to Oak Brook on or before sixty (60) days from the date
of this Agreement a true and correct copy of the audit report for its period
ending June 30, 1999 as prepared by the independent certified public
accountants.
5. Further Warranties and Representations:
(a) APP has and on the closing date will have good and marketable
title to all tangible/intangible assets in its records and books of account,
free and clear of all liens, encumbrances and charges and except for current
taxes and assessments not delinquent and liens, encumbrances and charges shown
in its records and books of account which are not substantial in character or
amount, and do not materially detract from the value or interfere with the
use of properties subject thereto or affected thereby.
(b) APP has and on the closing date will have good and marketable
title to the machinery, equipment, merchandise, materials, supplies and other
property of every kind, tangible or intangible, or shown as assets in its
records and books of account, free and clear of all liens, encumbrances and
charges and except for liens, encumbrances and charges, in any, which do not
materially detract from the value of or interfere with the use of the
properties subject thereto or affected thereby.
(c) There are no pending claims, all taxes imposed by the U.S. or
by any foreign country or by any state, municipality, subdivision or
instrumentality of the U.S. or of any foreign country or by any other taxing
authority, which are due or payable by APP, and all price redetermination or
renegotiation claims asserted or that may be asserted against it, have been
paid in full or are adequately provided for by reserves shown in the records
and books of account of APP and will be so paid or provided for on the closing
date. APP has no knowledge of any unassessed tax deficiency proposed or
threatened against it.
(d) Except for agreement described in and appended to the
Disclosure Schedule, if any, none of which materially and adversely affects
the earnings, business, properties, or assets of APP, APP is not a party to:
(1)any sales agency agreement not subject to termination
without liability on notice of sixty (60) days or less;
(2)any pension, retirement or profit sharing plan or agreement
not cancelable within sixty (60) days without liability;
(3)any union agreement or loan agreement;
(e) APP is enjoying and on the closing date will continue to enjoy
good working relationships under all agreements, dealer, sales representation
and other agreements necessary to the normal operation of its business. All or
substantially all of the real and personal properties used in the business of
APP are and on the closing date will be in good and operable condition. APP
is adequately insured with respect to risks normally insured against by
companies similarly situated.
6. Litigation and Proceedings. There is no suit, action or legal or
administrative proceeding pending, or to the knowledge of APP threatened,
against it or any of its consolidated subsidiaries, which, if adversely
determined, might materially and adversely affect the financial condition of
APP and its consolidated subsidiaries or the conduct of their businesses nor
is there any decree, injunction or order of any court, governmental department
or agency outstanding against APP or any of its consolidated subsidiaries
having any such effect.
7. Material Contracts. APP is not in default in any material respect
under the terms of any material outstanding contract, agreement, lease or other
commitment.
8. No Conflict with Other Instruments. At the effective time of the
Merger, the consummation of the transactions contemplated by this Plan will
not result in the breach of any term or provision or constitute a default
under any indenture, mortgage, deed of trust or other material agreement or
instrument to which APP or any of its subsidiaries is a party.
9. Governmental Authorizations. APP and each of its consolidated
subsidiaries have all licenses, franchises, permits and other governmental
authorizations which are valid and sufficient for all businesses presently
carried on by APP and its consolidated subsidiaries.
10. Brokers. All negotiations relative to this Agreement and the
transactions contemplated hereby have been carried on by APP directly with
David Pequet and Mark Margason, and without the intervention of any other
person.
11. Covenants and Obligations of Breaching Party. Each party agrees
to indemnify and hold harmless the other party for and from all liability,
loss, cost, damage or expense, including reasonable attorneys fees and costs
of litigation, which the other party may sustain or incur or which the other
party may be threatened by reason of or arising out of any breach or any
untrue or misrepresented statement of fact contained in the warranties,
representations and agreements set forth in this Agreement, or any omission
therein of a material fact necessary to make the statements contained therein
accurate or the breach by a party of any representation made under or in
connection with this Agreement or the transactions contemplated hereby or the
nonfulfillment of any covenant or agreement on the part of the party under or
in connection with this Agreement or the transactions contemplated hereby.
The non-breaching party shall promptly notify the breaching party in writing
of any claims for indemnification and provide the breaching party the
opportunity to cure claims for indemnification or defend indemnifiable claims
by third parties at the expense of the breaching party.
12. Nature and Survival of Representations. All statements contained
in any certificate or other instrument delivered by or on behalf of either
party pursuant hereto, or in connection with the transactions contemplated
hereby, shall be deemed to be representations and warranties by such
disclosing party to the receiving party. All representations, warranties,
rights to indemnification and agreements made by each party in this
Agreement, or pursuant hereto, shall survive the closing.
ARTICLE XII
CONDUCT OF BUSINESSES PENDING THE MERGER
From and after the date of this Agreement and prior to the effective time
of the Merger, neither of the Constituent Corporations will, without the
prior written consent of the other:
1. Amend its Certificate of Incorporation or By-Laws except, in the
case as may be necessary to enable them to carry out the provisions of this
Agreement;
2. Engage in any material activity or transaction or incur any
material obligation (by contract or otherwise) except in the ordinary course
of business;
3. Issue rights or options to purchase or subscribe to any shares of
its capital stock or subdivide or otherwise change any such shares;
4. Issue or sell any shares of its capital stock or securities
convertible into shares of its capital stock; or
5. Declare or pay any dividends on or make any distributions in
respect of any shares of its capital stock.
6. From and after the date of this Agreement and prior to the
effective time of the Merger, APP will use its best efforts to preserve its
business organizations; to keep available to Oak Brook the services of APP's
present officers and employees; and to preserve for Oak Brook the goodwill of
APP's suppliers, customers and others having business relations with any of
them. During the same period, APP will not put into effect any material
increase in the compensation or other benefits applicable to officers or
other key personnel.
7. Oak Brook shall not engage in any business and will not enter into
any contracts or commitment, borrow any money or retain any employees.
ARTICLE XIII
ADDITIONAL AGREEMENTS
The Constituent Corporations further agree as follows:
1. Access and Information. Oak Brook and APP hereby agree that each
will give to the other and to the other's accountants, counsel and other
representatives full access during normal business hours throughout the period
prior to the Merger to all of its properties, books, contracts, commitments
and records, and that each will furnish the other during such period with all
such information concerning its affairs as such other party may reasonably
request. In the event of the termination of this Agreement each party will
deliver to the other all documents, work papers and other material obtained
from the other relating to the transactions contemplated hereby, whether so
obtained before or after the execution hereof, and will use its best efforts
to have any information so obtained and not heretofore made public kept
confidential.
2. Expenses. Upon a termination of this Agreement as provided in
Section C of Article XIV hereof, each party will pay all costs and expenses of
its performance of and compliance with all agreements and conditions contained
herein to be performed or complied with, including fees, expenses and
disbursements of its accountants and control.
3. Further Assurances. If at any time the Disappearing Corporation
shall consider or be advised that any further assignment or assurance in law
or other action is necessary or desirable to vest, perfect, or confirm, of
record or otherwise, in the Disappearing Corporation, the title to any
property or rights of APP acquired or to be acquired by or as a result of the
Merger, the proper officers and directors of Oak Brook and the Disappearing
Corporation, respectively, shall be and they hereby are severally and fully
authorized to execute and deliver such proper deeds, assignments and
assurances in law and take such other action as may be necessary or proper in
the name of Oak Brook or the Disappearing Corporation to vest, perfect or
confirm title to such property or rights in the Disappearing Corporation and
otherwise carry out the purposes of this Agreement.
ARTICLE XIV
CONDITIONS PRECEDENT; TERMINATION; GENERAL PROVISIONS
A. Conditions Precedent to APP's Obligations. The obligations of APP
to effect the Merger shall be subject to the following conditions (which may
be waived in writing by APP):
1. The representations and warranties of Oak Brook, Thatcher and
Werner herein contained shall be true as of and at the effective time of the
Merger with the same effect as though made at such time; Oak Brook, Thatcher
and Werner shall have performed all obligations and complied with all
covenants required by this Agreement to be performed or complied with by them
prior to the effective time of the Merger; and Oak Brook shall have delivered
to APP a certificate, dated the effective date of the Merger and signed by its
President or one of its Vice Presidents and its Secretary or one of its
Assistant Secretaries, to such effect.
2. No material changes in the corporate status, businesses,
operations or financial condition of Oak Brook, and its consolidated
subsidiaries shall have occurred since January 1, 1999 (whether or not covered
by insurance), other than changes in the ordinary course of business, none of
which has been materially adverse in relation to Oak Brook and its
subsidiaries, taken as a whole, and no other event or condition of any
character shall have occurred or arisen since that date which shall have
materially and adversely affected the corporate status, businesses, operations
or financial condition of Oak Brook, and its subsidiaries, taken as a whole.
3. APP shall have received such written consents and confirmations
(or opinions of counsel to the effect that such consents or confirmations are
not required), as it may reasonably request to the effect that the Surviving
Corporation will succeed upon consummation of the Merger to all of APP's
right, title and interest in and to its material contracts, agreements, leases
and other commitments and that the Surviving Corporation shall possess and
enjoy all material licenses, franchises, permits and other governmental
authorizations possessed by APP at the date hereof.
4. Oak Brook, acting through its Board of Directors, shall, subject
to and in accordance with applicable law and its Certificate of Incorporation
and its By-Laws, (i) promptly and duly call, give notice of, convene and hold
as soon as practicable a meeting of the holders of Oak Brook Common Stock for
the purpose of voting to approve and adopt this Agreement and the transactions
contemplated hereby, and (ii) recommend approval and adoption of this
Agreement and the transactions contemplated hereby, by the stockholders of the
Company and include the Proxy Statement such recommendations and (iii) take
all reasonable action to solicit and obtain such approval.
Oak Brook shall, as promptly, as practicable (or at such other time
as may be mutually agreed by Oak Brook and APP), cause the definitive Proxy
Statement to be mailed to the stockholders of Oak Brook.
As of the effective time of the Merger the Oak Brook stockholders
will have voted to approve and adopt this Agreement and the transactions
contemplated hereby and such vote has not been rescinded.
5. Oak Brook is a fully reporting company under the Exchange Act and
is in full compliance with the requirements of the Exchange Act.
6. The shares issued pursuant to the S-8 Registration are fully
transferable in compliance with the Securities Act of 1933.
B. Conditions Precedent to Oak Brook's Obligations. The obligations
of Oak Brook to effect the Merger shall be subject to the following
conditions (which may be waived in writing by Oak Brook):
1. The representations and warranties of APP herein contained shall
be true as of and at the effective time of the Merger with the same effect as
though made at such time; APP shall have performed all obligations and
complied with all covenants required by this Agreement to be performed or
complied with by it prior to the effective time of the Merger; and APP shall
have delivered to Oak Brook a Certificate, dated the effective date of the
Merger; and signed by its Chairman of the Board and President or one of its
Vice Presidents and its Secretary or one of its Assistant Secretaries, to
such effect.
2. Oak Brook shall have received such written consents and
confirmations (or opinions of counsel to the effect that such consents or
confirmations are not required), as it may reasonably request to the effect
that the Surviving Corporation will succeed upon consummation of the Merger to
all of APP's right, title and interest in and to its material contracts,
agreements, leases and other commitments and that the Surviving Corporation
shall possess and enjoy all material licenses, franchises, permits and other
governmental authorizations possessed by Oak Brook at the date hereof.
3. The APP stockholders have voted to approve and adopt this
Agreement and the transactions contemplated hereby.
C. Termination and Abandonment. Anything herein or elsewhere to the
contrary notwithstanding, this Agreement may be terminated and abandoned at
any time before the effective time of the Merger, whether before or after
adoption or approval of this Agreement by the Directors of the Constituent
Corporations under any one or more of the following circumstances:
1. By the mutual consent of the Boards of Directors of the
Constituent Corporations;
2. By APP if, prior to the effective time of the Merger, each of the
conditions set forth in Paragraphs 1 through 5, inclusive, of Section A of
this Article XIV shall not have been met;
3. By Oak Brook if, prior to the effective time of the Merger, each
of the conditions set forth in Paragraphs 1 through 4 inclusive of Section B
of this Article XIV shall not have been met;
4. By either of the Constituent Corporations if any action or
proceeding before any court or other governmental body or agency shall have
been instituted or threatened to restrain or prohibit the Merger and such
Constituent Corporation deem it advisable to proceed with the Merger; or
5. By either of the Constituent Corporations if the Certificate of
Merger shall not have been filed as provided in Article II hereof on or
before August 15, 1999.
Upon any such termination and abandonment, neither party shall have any
liability or obligation hereunder to the other.
D. General. The headings in this Agreement shall not affect in
anyway its meaning or interpretation. This Agreement may be executed
simultaneously in two or more counterparts, each of which shall be deemed an
original, but all of which together shall constitute one and the same
instrument. So long as the basic intent of the Merger is not obviated, in
the event that any provision of this Plan of Merger is held to be invalid or
illegal for any reason, such determination shall not effect the remaining
provisions which shall be construed and enforced as if such illegal or invalid
provision had never been included. All section headings, titles and subtitles
contained herein are inserted for convenience and reference only and are to
be ignored in any construction of the provisions hereof.
E. Amendments. Any of the terms or conditions of this Agreement may
be modified or waived at any time before the effective time of the Merger by
the party which is, or the shareholders of which are, entitled to the benefit
thereof upon the authority of the Board of Directors of such party, provided
that any such modification or waiver shall in the judgment of the party making
it not affect substantially or materially or adversely the benefits to such
party or its shareholders intended under this Agreement.
This Agreement has been signed by the Chairman or President of each of
the Constituent Corporations and attested by the signature of its Secretary
or an Assistant Secretary, all as of the day and year first above written.
OAK BROOK CAPITAL II, INC.,
a Colorado corporation
ATTEST:
/s/ Gerard Werner /s/ Mark T. Thatcher
_____________________________ __________________________________
Gerard Werner, Secretary Mark T. Thatcher, Chairman
AMERICAS POWER PARTNERS, INC.,
a Delaware corporation:
ATTEST:
/s/ Mark A. Margason David W. Pequet
_____________________________ __________________________________
Mark A. Margason, Secretary David W. Pequet
THATCHER:
/s/ Mark T. Thatcher
__________________________________
Mark T. Thatcher
WERNER:
/s/ Gerard Werner
__________________________________
Gerard Werner
August 17, 1999
CONFIDENTIAL
Office of Small Business Policy
Division of Corporation Finance
United States Securities and Exchange Commission
450 Fifth Street, N.W.
Washington, D.C. 20549
Re: Oak Brook Capital II, Inc.-
Opinion re Legality of Securities to be Issued
Ladies and Gentlemen:
I have acted as special counsel to Americas Power Partners, Inc.., a
Delaware corporation (the "Registrant"), in connection with the execution,
delivery and performance of a Plan of Merger executed between the Registrant
and Oak Brook Capital II, Inc. (hereinafter referred to as "Disappearing
Corporation"), whose corporate address is 360 Thames Street, Newport, 02840.
In connection with this matter, I have examined the originals or copies
certified or otherwise identified to my satisfaction of the following:
(a) Articles of Incorporation of the Registrant and Disappearing Corporation,
as amended to date;
(b) By-laws of the Registrant and Disappearing Corporation, as amended to
date;
(c) Certificates from the Secretary of State of the States of Delaware and
Colorado, dated as of a recent date, stating that the Registrant and the
Disappearing Corporation are duly incorporated and in good standing in their
respective states of incorporation;
(d) Certificates from the Secretary of State of the State of Delaware and
Colorado, dated as of a recent date, stating that the Registrant and the
Disappearing Corporation are duly qualified to do business and are in good
standing in their respective states of incorporation and have filed all
required reports and paid all taxes due;
Page 2
S.E.C.
August 17, 1999
- ---------------------
(e) Certificates from the Secretary of State of the States of Delaware and
Colorado dated as of a recent date for the Registrant and the Disappearing
Corporation listing all charter documents on file, attaching a copy of each
charter document so listed, and certifying as to the true nature of each
such copy;
(f) Certificate of the Registrant and the Disappearing Corporation, dated the
date hereof, described in the Plan of Merger between the Disappearing
Corporation and the Registrant;
(g) Certificate of the Secretary of the Registrant and the Disappearing
Corporation, dated the date hereof, relating to various matters of fact;
(h) Resolutions of the Board of Directors of the Registrant adopted on August
17, 1999, authorizing the issuance of seven million five hundred forty-one
thousand six hundred ninety-three (7,541,693) of Registrant shares, the
execution and delivery of the Plan of Merger between the Disappearing
Corporation and the Registrant, the filing of said documents, and
establishing the market value per share for the shares that will be issued;
(i) Executed copy of the Plan of Merger;
In addition to the foregoing, I have also relied as to matters of fact upon
the representations made by the Registrant in compliance with due diligence
requirements submitted by my office and related certificates and upon
representations made by the Registrant. Based upon and in reliance upon the
foregoing, and after examination of such corporate and other records,
certificates and other documents and such matters of law as I have deemed
applicable or relevant to this opinion, it is my opinion that:
1. The Registrant and the Disappearing Corporation have been duly
incorporated and are validly existing as corporations in good standing under
the laws of the jurisdiction of their incorporation and have full corporate
power and authority to own their properties and conduct their businesses; the
Registrant and the Disappearing Corporation are duly qualified as foreign
corporations and are in good standing in Delaware and Colorado and in each
other jurisdiction in which the ownership or leasing of property requires such
qualification (except for those jurisdictions in which the only material
consequence of a failure to be so qualified, other than potential penalties
not individually or in the aggregate material to the Registrant or the
Disappearing Corporation taken as a whole, is that actions may not be brought
in the courts of such jurisdictions by the Registrant until its failure to so
qualify, if required, has been cured);
Page 3
S.E.C.
August 17, 1999
- ---------------------
2. The authorized capital stock of the Registrant consists of 40,000,000
shares of Common Stock, .001 par value, of which there are outstanding
8,769,694 shares. Proper corporate proceedings have been taken validly to
authorize such authorized capital stock; all the outstanding shares of such
capital stock (including the Shares) have been duly and validly issued and are
fully paid and nonassessable; the shareholders of the Registrant have no
preemptive rights with respect to the Common Stock of the Registrant;
3. The Registrant timely files reports and is current with respect to all
reports required to be filed on behalf of the Registrant, pursuant to Section
12, 13 and/or 15 of the Securities Exchange Act of 1934 (the "Exchange Act")
and, to the best of my knowledge, no stop order suspending the effectiveness
of any registration statement, Exchange Act filing, or suspending or preventing
trading on the Over-the-Counter ("OTC") Bulletin Board is in effect and no
proceedings for that purpose have been instituted or are pending or
contemplated by the N.A.S.D.;
4. The Registrant's reports (except as to the financial statements contained
therein, as to which I express no opinion) comply as to form in all material
respects with the requirements of the Exchange Act and with the rules and
regulations of the Securities and Exchange Commission thereunder;
5. On the basis of information developed and made available to me, the
accuracy or completeness of which has not been independently verified by me, I
have no reason to believe that the Plan of Merger or the Exchange Act reports
(except as to the financial statements contained therein, as to which I
express no opinion) contains any untrue statement of a material fact or omits
to state any material fact required to be stated therein or necessary in
order to make the statements therein not misleading;
6. The information required to be set forth in the Plan of Merger is, to the
best of my knowledge, accurately and adequately set forth therein in all
material respects or no response is required with respect to such items, and,
to the best of my knowledge, the description of the Registrant's plans and
agreements granted thereunder accurately and fairly represents the information
required to be shown with respect to said plans, agreements, and reports by
the Exchange Act and the rules and regulations of the Securities and Exchange
Commission thereunder;
7. The terms and provisions of the capital stock of the Registrant conform to
the description thereof contained in all filed reports under the caption
"Description of Common Stock" and have been reviewed by me and insofar as such
statements constitute a summary of the law or documents
Page 4
S.E.C.
August 17, 1999
_____________________
referred to therein, are correct in all material respects, and the forms of
certificates evidencing the Common Stock comply with the Colorado and
Delaware law;
8. The descriptions in the filed reports and Plan of Merger of material
contracts and other material documents are fair and accurate in all material
respects; and I do not know of any franchises, contracts, leases, licenses,
documents, statutes or legal proceedings, pending or threatened, which in my
opinion is of a character required to be described in the filed reports and
Plan of Merger or to be filed as exhibits to the reports or Plan of Merger,
which are not described and filed as required;
9. The Plan of Merger has been duly authorized, executed, and delivered by
the Registrant and constitutes the valid and legally binding obligation of the
Registrant except as the indemnity provisions thereof may be limited by the
principles of public policy;
10. The issuance of 7,541,693 Shares of the Registrant as contemplated by the
Plan of Merger will not conflict with, or result in a breach of, any material
agreement or instrument known to me which the Registrant is a party or by
which it is bound, or any applicable law or regulation, or, so far as is known
by us, any order, writ, injunction or decree applicable to the Registrant of
any jurisdiction, court or governmental instrumentality, or the Articles of
Incorporation or By-laws of the Registrant;
11. To the best of my knowledge and belief after due inquiry, there are no
holders of Common Stock or other securities of the Registrant having
registration rights with respect to such securities on account of the filing
of a registration statement who have not effectively waived such rights; and
12. No consent, approval, authorization, or order of any court or
governmental agency or body is required for the consummation by the Registrant
of the transactions on its part contemplated by the Plan of Merger, except
such as have been obtained under the Exchange Act and such as may be required
under state or other securities or blue sky laws in connection with the
distribution of the Shares to the shareholders of the Disappearing
Corporation.
Page 5
S.E.C.
August 17, 1999
_____________________
In addition, I have participated in conferences with representatives of the
Disappearing Corporation and the Registrant and accountants for the
Disappearing Corporation at which the contents of the Plan of Merger were
discussed. Although I have not verified the accuracy or completeness of the
statements contained in the Plan of Merger (other than the caption
"Description of Common Stock"), I advise you that on the basis of foregoing, I
have no reason to believe that the Plan of Merger, as of the effective date,
contained any untrue statements of a material fact or omitted to state any
material fact required to be stated therein or necessary to make the
statements therein not misleading (except in each such case for the financial
statements or other financial data contained in the Plan of Merger as to
which I am not called upon to and do not express any opinion).
This letter is furnished to you as for filing purposes on behalf of the
Company, and is solely for the benefit of the United States Securities and
Exchange Commission.
Respectfully,
/s/ Mark T. Thatcher
Mark T. Thatcher, Esq.
Atty Reg. No. 25-275 CO
Atty Reg. No. 453658 DC
UNANIMOUS WRITTEN CONSENT OF
THE BOARD OF DIRECTORS OF
OAK BROOK CAPITAL II, INC.
The undersigned being all of the directors of Oak Brook Capital II, Inc. (the
"Company"), hereby adopt the following resolutions:
RESOLVED, that the Company hereby agrees to merge with Americas Power
Partners, Inc., a Delaware corporation ("Merger"); and
RESOLVED FURTHER, that in connection with the Merger, the Company hereby
agrees to issue 7,541,693 restricted shares of its common stock to the former
shareholders of Americas Power Partners, Inc.; and
RESOLVED FURTHER, that the form of Certificate of Merger attached to this
Written Consent as Exhibit A to be filed with the State of Colorado to
consummate the Merger and in connection with the Merger, the Company hereby
agrees to issue 7,541,693 restricted shares of its common stock to the former
shareholders of Americas Power Partners; and the form of the Articles of
Merger attached to this Written Consent as Exhibit B to be filed with the
State of Colorado to consummate the Merger, are hereby adopted and confirmed;
and
RESOLVED FURTHER, that the corporate officers of the Company are hereby
authorized and directed to implement the foregoing resolutions.
Dated: August 17, 1999
/s/ Mark T. Thatcher
_____________________________
MARK T. THATCHER, Chairman
/s/ Gerard Werner
____________________________
GERARD WERNER, Secretary
August 17, 1999
CONFIDENTIAL
American Securities Transfer, Inc.
As Representative of Americas Power Partners, Inc.
938 Quail Street, Suite 101
Lakewood, CO 80215-5513
Re: Oak Brook Capital II, Inc. ("Brook") -
Restricted Issuance of 7,541,693 common shares of Oak Brook to
the shareholders of Americas Power Partners, Inc.
Ladies and Gentlemen:
This office represents Oak Brook Capital II, Inc. ("Oak Brook"). I am in
receipt of various communications from Oak Brook relating to the proposed
issuance of 7,541,693 shares of Oak Brook common stock to the shareholders of
Americas Power Partners (the "Disappearing Corporation"), pursuant to a Plan
of Merger and Section 4(2) of the Securities Act of 1933.
Based on representations contained in these documents, copies of which are
attached hereto, it is my opinion that you may issue the 7,541,693 shares of
common stock from the authorized, but un-issued, common shares of Oak Brook
in reliance upon the exemption from registration provided for in Section 4(2).
All shares, when issued, should bear a restricted legend in standard form and
should not be further transferred without the prior written consent of Brook.
In rendering the above opinion, I have excluded from consideration state
securities or blue sky laws, except as specifically noted. My opinion is
limited to the federal laws of the United States, the laws of the State of
Colorado and Delaware and the General Corporation Law of the States of
Colorado and Delaware, and I can assume no responsibility with respect to the
applicability or effect of the laws of any other jurisdiction. I disclaim any
obligation to notify you or any other person or entity if any change in fact
and/or law should change my opinion with respect to any matter on which I am
expressing an opinion herein.
Page 2
American Securities Transfer, Inc.
August 17, 1999
_________________________________
The foregoing opinion is furnished by me as counsel for the Registrant and is
solely for your benefit and may not be relied upon by any other person unless
my prior written consent is obtained.
Respectfully,
/s/ Mark T. Thatcher
Mark T. Thatcher, Esq.
Atty. Reg. No. 25-275
MTT/jet
cc: David W. Pequet
Mark A. Margason
MINUTES OF A SPECIAL MEETING OF
DIRECTORS OF OAK BROOK CAPITAL II, INC.
ADOPTING A PLAN OF MERGER
Pursuant to the provisions of the Colorado Business Corporation Act, as
amended, a Special Meeting of the Directors of OAK BROOK CAPITAL II, INC.
(the "Corporation") was held, pursuant to written notice as required by
Sections 7-7-106, 7-4-123 and 7-3-124 of the Colorado Revised Statutes on
August 17, 1999, at 10:00 a.m. at the Corporation's offices at 360 Thames
Street, Newport, Rhode Island 02840.
Mr. Mark T. Thatcher, President of the Corporation, served as Chairman of the
meeting, and asked Mr. Gerard Werner to serve as Secretary of the meeting.
There were two (2) shareholders present at the meeting, including Mr. Werner,
together with Mr. Thatcher. Mr. Thatcher reported that written notice of the
meeting had been duly given, according to the requirements of Colorado law,
to all shareholders of the Corporation. He further reported that there were
currently ONE MILLION TWO HUNDRED TWENTY-EIGHT THOUSAND (1,228,000)
shares of the Corporation outstanding, and the number of shares entitled to
vote was the same. He stated that ONE MILLION ONE HUNDRED FIVE
THOUSAND TWO HUNDRED (1,105,200) shares were represented in person
at the meeting, and that none were represented by written proxy.
Mr. Werner then stated that a quorum was present, and that the only
business of the meeting was to consider a Plan of Merger with AMERICAS
POWER PARTNERS, INC., as set forth in the Notice to Shareholders of Special
Meeting, which had been mailed to all shareholders of record of the
Corporation on or about July 14, 1999. Whereupon, upon motion duly made,
seconded and carried, with 1,105,200 shares voting for, 122,800 shares
abstaining, and no shares voting against, it was:
1.RESOLVED, that the Directors of this Corporation hereby determine that the
merger of the Corporation with AMERICAS POWER PARTNERS, INC., a
Delaware corporation, pursuant to the provisions of CRS Section 7-7-106, as
amended, and upon the terms and conditions set forth in the written Plan of
Merger, dated August 17, 1999, as submitted to and as attached to the
minutes of this meeting, is advisable and generally to the advantage of and
for the benefit of this Corporation and its shareholders; and
2.RESOLVED, that the Plan of Merger dated August 17, 1999 presented to
the meeting and the merger therein provided for be and the same are hereby
approved, and the execution of the said Plan of Merger by the members of the
Board of Directors and by proper officers of this Corporation is hereby
approved and authorized; and
3.FURTHER RESOLVED, that the proper officers, counsel, and accountants for
the Corporation, in collaboration with the officers, counsel, and accountants
for AMERICAS POWER PARTNERS, INC., be and they hereby are, authorized and
directed to take all further steps necessary or desirable to implement the
Plan of Merger, in accordance with its terms; and
4.FURTHER RESOLVED, that inasmuch as said Plan of Merger has now been
duly adopted by the directors and approved by the shareholders of this
Corporation, pursuant to the laws of the State of Colorado and by the
directors and shareholders of AMERICAS POWER PARTNERS, INC., the
President or any Vice President and the Secretary or any Assistant Secretary
of this Corporation be, and each of them hereby is, authorized to certify the
fact of such adoption of said Plan of Merger, and that, when said Plan of Merger
shall have been so certified on behalf of this Corporation and have been
similarly certified on behalf of AMERICAS POWER PARTNERS, INC., the
proper officers of this Corporation be and they hereby are, authorized and
directed to cause Articles of Merger to be filed with the Secretary of
State of Colorado pursuant to the provisions of the Colorado Business
Corporation Act, 1973 C.R.S. Section 7-7-104, as amended; and
5.FURTHER RESOLVED, that the proper officers and directors of this Corporation
be, and they hereby are, authorized and directed to execute, in the name and
on behalf of this Corporation and under its corporate seal or otherwise, and
to deliver any and all agreements, certificates, applications or other
instruments and to take from time to time any and all such other action
necessary or desirable to carry out the purposes of the foregoing resolutions.
Whereupon there being no further business, the meeting was adjourned.
/s/ Mark T. Thatcher
________________________________
MARK T. THATCHER, Director
/s/ Gerard Werner
________________________________
GERARD WERNER, Director
<PAGE>
UNANIMOUS CONSENT MINUTES OF
BOARD OF DIRECTORS OF OAK BROOK CAPITAL II, INC.
ADOPTING A PLAN OF MERGER
Pursuant to the provisions of the Colorado Business Corporation Act, as
amended, the following actions were taken by the Board of Directors of
OAK BROOK CAPITAL II, INC. (hereinafter referred to as "Oak Brook" and/or
the "Corporation") by the unanimous written consent of each of the directors
of the Corporation as of August 17, 1999:
1.RESOLVED, that the Board of Directors of this Corporation hereby determines
that the merger of the Corporation with AMERICAS POWER PARTNERS, INC., a
Delaware corporation, pursuant to the provisions of CRS Section 7-7-106, as
amended, and upon the terms and conditions set forth in the written Plan of
Merger, dated August 17, 1999, as submitted to the Board and as attached to
the minutes of this meeting, is advisable and generally to the advantage of
and for the benefit of this Corporation and its shareholders; and
2.FURTHER RESOLVED, that the Plan of Merger presented to the meeting
and the merger therein provided for be and the same are hereby approved, and
the execution of the said Plan of Merger by the members of this Board and
by proper officers of this Corporation is hereby approved and authorized; and
3.FURTHER RESOLVED, that the proper officers, counsel, and accountants for the
Corporation, in collaboration with the officers, counsel, and accountants for
OAK BROOK CAPITAL II, INC., be and they hereby are, authorized and directed
to take all further steps necessary or desirable to implement the Plan of
Merger, in accordance with its terms; and
4.FURTHER RESOLVED, that inasmuch as said Plan of Merger has been duly
adopted by the directors of this Corporation, pursuant to the laws of the
State of Colorado and by the directors of OAK BROOK CAPITAL II, INC., the
President or any Vice President and the Secretary or any Assistant Secretary
of this Corporation be, and each of them hereby is, authorized to certify the
fact of such adoption by the Board of Directors of this Corporation of said
Plan of Share Merger; and
5.FURTHER RESOLVED, that the proper officers of this Corporation be and they
hereby are authorized and directed to submit the Plan of Merger, and to
give notice to all shareholders of the Corporation, pursuant to the statutory
requirements of Sections 7-7-106, 7-4-123 and 7-4-124 of the Colorado Revised
Statutes.
/s/ Mark T. Thatcher
________________________________
MARK T. THATCHER, Director
/s/ Gerard Werner
________________________________
GERARD WERNER, Director
OAK BROOK CAPITAL II, INC.
Board of Directors' Resolution Authorizing
NAME CHANGE OF CORPORATION TO "AMERICAS POWER PARTNERS, INC."
Pursuant to the provisions of the Colorado Business Corporation Act, the
undersigned, being all of the Directors of OAK BROOK CAPITAL II, INC.
(hereinafter referred to as "OAK BROOK" or the "Corporation") do hereby waive
any and all notice that may be required to be given with respect to a meeting
of the Directors of the Corporation and do hereby unanimously take, ratify,
confirm and approve the following action, as of August 17, 1999:
RESOLVED: That a majority of the entire Board of Directors of the
Corporation does hereby authorize and approve the change in the corporate name
of "Oak Brook Capital II, Inc." to "AMERICAS POWER PARTNERS, INC." and
that the proper officers of the Corporation be and they are hereby authorized
and directed for and on behalf of the Corporation to amend the name as an
amendment to the Corporation's Articles of Incorporation and to do and perform
any and all other necessary and proper acts incident thereto.
RESOLVED, that all other actions taken by the officers of the Corporation
since the date of the last Annual Minutes of the Board of Directors are
hereby ratified, approved and confirmed.
IN WITNESS WHEREOF, the undersigned Directors have evidenced their approval
of the above proceedings as of the date first above mentioned.
/s/ Mark T. Thatcher
________________________________
MARK T. THATCHER,
Chairman
DATED: August 17, 1999
DENNIS W. BERSCH
CERTIFIED PUBLIC ACCOUNTANTS
CONSENT FOR INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
Oak Brook Capital II, Inc.
(Predecessor corporation to APPI)
Dated: June 22, 1999
I hereby consent to the incorporation by reference in this Registration
Statement on Form S-8 of my report dated February 25, 1999 appearing on page
F-2 of Oak Brook Capital II, Inc. Registration Statement on Form 10SB12G for
the year ended December 31, 1998. I also consent to the reference to me
under the heading "Exhibits" in such Registration Statement.
/s/Dennis W. Bersch
------------------------------------
Dennis W. Bersch
CONSENT OF COUNSEL
I hereby consent to the incorporation by reference of my consent dated May 16,
1999 appearing in the Oak Brook Capital II, Inc. Registration Statement on
Form 10SB12G, Third Amendment, filed July 29, 1999. I also consent to the
reference to me under the heading "Exhibits" in such Registration Statement.
MARK T. THATCHER, P.C.
/s/ Mark T. Thatcher
By:_______________________
MARK T. THATCHER, ESQ.
Newport, RI
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<PERIOD-TYPE> YEAR
<FISCAL-YEAR-END> JUN-30-1998
<PERIOD-END> DEC-31-1998
<CASH> 0
<SECURITIES> 0
<RECEIVABLES> 0
<ALLOWANCES> 0
<INVENTORY> 0
<CURRENT-ASSETS> 0
<PP&E> 0
<DEPRECIATION> (3,675)
<TOTAL-ASSETS> 0
<CURRENT-LIABILITIES> 7,725
<BONDS> 0
0
0
<COMMON> 4,200
<OTHER-SE> 0
<TOTAL-LIABILITY-AND-EQUITY> (11,925)
<SALES> 0
<TOTAL-REVENUES> 0
<CGS> 0
<TOTAL-COSTS> 4,200
<OTHER-EXPENSES> 0
<LOSS-PROVISION> (4,200)
<INTEREST-EXPENSE> 0
<INCOME-PRETAX> 0
<INCOME-TAX> 0
<INCOME-CONTINUING> 0
<DISCONTINUED> 0
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</TABLE>
EXHIBIT 99.1
PRIVATE SECURITIES LITIGATION REFORM ACT OF 1995
SAFE HARBOR COMPLIANCE STATEMENT
FOR FORWARD-LOOKING STATEMENTS
In passing the Private Securities Litigation Reform Act of 1995 (the
"Reform Act"), 15 U.S.C.A. Sections 77z-2 and 78u-5 (Supp. 1996), Congress
encouraged public companies to make "forward-looking statements" by creating a
safe harbor to protect companies from securities law liability in connection
with forward-looking statements. Americas Power Partners, Inc. ("APPI" or the
"Company") intends to qualify both its written and oral forward-looking
statements for protection under the Reform Act and any other similar safe
harbor provisions.
"Forward-looking statements" are defined by the Reform Act. Generally,
forward-looking statements include expressed expectations of future events and
the assumptions on which the expressed expectations are based. All
forward-looking statements are inherently uncertain as they are based on various
expectations and assumptions concerning future events and they are subject to
numerous known and unknown risks and uncertainties which could cause actual
events or results to differ materially from those projected. Due to those
uncertainties and risks, the investment community is urged not to place undue
reliance on written or oral forward-looking statements of APPI. The Company
undertakes no obligation to update or revise this Safe Harbor Compliance
Statement for Forward-Looking Statements (the "Safe Harbor Statement") to
reflect future developments. In addition, APPI undertakes no obligation
to update or revise forward-looking statements to reflect changed assumptions,
the occurrence of unanticipated events or changes to future operating results
over time.
