AMERICAS POWER PARTNERS, INC.
SUBSCRIPTION AGREEMENT
AMERICAS POWER PARTNERS, INC.
105 East First Street
Hinsdale, Illinois 60125
Ladies and Gentlemen:
1. Although we have not been provided a formal prospectus
or offering memorandum describing the business or operation of Americas Power
Partners, Inc. (the "Company"), we have been given access to all information
that we believe is material to make an investment decision concerning One
Million Two Hundred Thousand (1,200,000) shares of Common Stock (the
"Securities") of the Company.
2. We hereby agree to purchase and hereby subscribe for, on the
terms and conditions set forth herein, the Securities at a price of One Dollar
and 25/100th ($1.25) per share.
3. The aggregate purchase price for the Securities is One
Million Five Hundred Thousand Dollars ($1,500,000) ("Purchase Price"). The
undersigned shall pay the Purchase Price in cash upon execution of this
Subscription Agreement.
4. We understand that the Securities are suitable only for
sophisticated investors and that the Securities are being offered and sold
pursuant to an exemption under the Securities Act of 1933, as amended, and state
securities laws, for private offerings. We make the following representation,
declarations and warranties with the intent that the same be relied upon in
determining my suitability as an investor in the Company and the availability of
the exemptions for the offering.
a. CHECK ALL THE APPLICABLE FOLLOWING BOXES:
i. /X / The Undersigned's net worth, or joint net worth
with spouse, exceeds $1,000,000.
ii. /X / The Undersigned's income exceeded $200,000 in each
of the last two years, or joint income with my
spouse exceeded $300,000 in each of these years,
and is expected to do so again in the current
year.
iii. /_ / The Undersigned's is a bank, as defined in Section
3(a)(2) of the Securities Act of 1933 (whether
acting in an individual or fiduciary capacity): a
broker or dealer registered pursuant to Section 15
of the Securities Exchange Act of 1934; and
insurance company, as defined in Section 2 (13) of
the Securities Act of 1933; an investment company
registered under the Investment Company Act of
1940, or a business development company, as
defined in Section 2(a)(48) of the Act; a Small
Business Investment Company, licensed by the Small
Business Administration under Section 301(c) or
(d) of the Small Business Investment Act of 1958;
a bank, savings and loan association, insurance
company, or registered investment adviser making
the investment decision as a plan fiduciary (as
defined in Section 3 (21) of the Employee
Retirement Income Security Act of 1974) of an
employee benefit plan within the meaning of Title
I of that Act: such and employee benefit plan,
which has total assets in excess of $5,000,000; or
such an employee benefit plan which is
self-directed with investment decisions made
solely by persons who are accredited investors
under any category under this paragraph 3(a).
<PAGE>
iv. /_/ The Undersigned is a private business development
company, as defined in Section 202(a)(22) of the
Investment Advisers Act of 1940.
v. /_/ The Undersigned is an organization described in
Section 501(c)(3) of the Internal Revenue Code,
corporation, Massachusetts or similar business
trust, or partnership, not formed for the specific
purpose of acquiring the Shares with total assets
in excess of $5,000,000.
vi. /_/ The Undersigned is a trust, with total assets in
excess of $5,000,000, not formed for the specific
purpose of acquiring the Shares, whose purchase is
directed by a person who has such knowledge and
experience in financial and business matters that
he is capable of evaluating the merits and risks
of the investment in the Shares.
vii. /_/ The Undersigned is an entity in which all of the
equity owners are accredited investors under any
category under this Paragraph 4(a).
viii. /_/ The Undersigned is a Director, executive officer
or general partner of the Company.
ix. /_/ The Undersigned is not an accredited investor
under any category under this Paragraph 4(a).
b. We represent that we have adequate means of providing for
the current needs and possible personal contingencies and that we have no need
for liquidity in this investment. By reason of our business and financial
experience or the business and financial experience of those persons we have
retained to advise us with respect to our investment in the Securities, we are
capable of evaluating the merits and risks of an investment in the Securities
and have the capacity to protect our own interest in investments of this nature.
We have made our own examination of the investment, accounting and tax aspects
of this transaction and will depend on the advice of our own counsel and
accountants, and we agree that you have no responsibility with respect to such
matters or such advice.
<PAGE>
c. The Securities hereby subscribed for are being acquired by
us in good faith for our own personal account, for investment purposes only and
not with a view to the distribution or resale thereof.
d. We understand that this transaction has not been scrutinized
by the Securities and Exchange Commission.
e. We have relied upon independent investigations made by us or
our representatives in making our decision to purchase the Securities hereby
subscribed for, and we have a full understanding and appreciation of the risks
described in the purchase of the Securities. In connection with such
investigation you have advised and we understand that all documents, records and
books pertaining to this investment have been made and are available to our
attorney, our accountant and ourselves upon request. We have had the
opportunity to ask question of, and receive answers from, representatives of the
Company concerning the terms and conditions of this transaction, as well as to
obtain any additional information requested. Any questions raised by us have
been raised in writing and have been answered to our satisfaction. We
understand that we could lose our entire investment in the Company.
5. We shall indemnify the Company, its affiliates, controlling
persons, attorneys and accountants, and hold them harmless from and against any
and all loss, damage, liability or expense, including costs and reasonable
attorneys' fees to which they may be put or which they may incur by reason of or
in connection with any misrepresentations made by us, any breach of any of our
warranties or our failure to fulfill any of our covenants or agreements, under
this Agreement. This Agreement and the representations and warranties contained
herein shall be binding upon our agent, officers, employees, heirs, executors,
administrators, successors and assigns.
6. No representations or promises have been made concerning the
marketability or value of the Securities. We further acknowledge that, because
the Securities have not been registered under the Securities Act of 1933 and
state laws, and cannot be resold unless they are subsequently registered under
said Act and applicable state laws or until the Company receives and opinion of
counsel reasonably satisfactory to it that an exemption from registration is
available, we must continue to bear the economic risk of our investment in the
Securities for an indefinite period of time. Except as provided herein, the
Company has not agreed or represented to us that the Securities will be
purchased or redeemed from us at any time in the future that the Securities will
be registered for resale, or that the Company will necessarily become a "public
company". We further understand that the certificates representing the
Securities will contain a legend stating that the Securities have not been
registered under the Securities Act of 1933 or state law and referring to the
restrictions on transferability and sale of such Securities and that a notation
will be made on the appropriate records of the Company so that transfers of
Securities will not be effected on those records without compliance with the
restrictions referred to above.
7. We understand that the representation of the Company by any
accounting firm, law firm or investment banking firm, or the presence of any
other person as an investor in the Company, is not a recommendation by that
<PAGE>
person that we should invest in the Company and have not based our investment
decision on the involvement of such person with the Company.
8. This subscription shall be governed by and construed in
accordance with the internal laws of the State of Illinois. This subscription
contains the entire agreement between the parties with respect to matters
described herein. We acknowledge that we may not assign any of our rights or
interest in and under this Agreement without prior written consent of the
Company and any attempted assignment without such consent shall be void and
without effect.
9. We are authorized to do business in the state listed below
as our address and warrant that the offer of the Securities was made to us only
in that State.
10. Notice. Any notice required to be given hereunder shall be
deemed to be effective and validly given if it contains the information required
by the relevant provisions hereof and is personally delivered or is sent by
United States registered or certified mail, postage prepaid, to the person or
entity to whom the notice is iven at such address as is set forth in this
Agreement or at such other address as is designated in writing by one party to
the other. The date of deposit in the mail or the date of personal delivery
shall be deemed the effective date of the notice.
11. Registration Rights. On the earlier of (i) the third
anniversary of this Subscription Agreement, or (ii) the termination of
employment of Thomas A. Casten ("Casten") pursuant to that certain employment
agreement by and between the Company and Casten dated of even date herewith
("Employment Agreement") the undersigned shall have the following rights:
a. "Piggy-Back" Registration Rights.
i. If the Company proposes to register any securities after
the date hereof, under the Securities Act of 1933 (the
"Act") and applicable state securities laws (the "State
Acts"), the Company shall give prompt written notice to
the undersigned of its intention to do so, and, upon the
written request of the undersigned made within fifteen
(15) days after the receipt of any such notice, which
written request shall specify the number of shares the
undersigned desires to register, the Company shall use
its reasonable efforts to cause all such shares to be
registered under the Act. Notwithstanding anything
contained herein to the contrary, the Company shall have
the right to discontinue any registration of such shares
of the undersigned at any time prior to the effective
date of such registration if the registration of other
securities giving rise to such registration is
discontinued. The Company shall pay all expenses
incident to its performance or compliance with the
provisions of this subparagraph.
ii. If the undersigned shall request inclusion of any shares
held by it in the registration of other securities of
the Company and such proposed registration by the
<PAGE>
Company is, in whole or in part, an underwritten public
offering, and if the managing underwriter determines and
advises the Company in writing that inclusion in such
registration of all proposed securities (including
securities being offered by or on behalf of the Company
and securities covered by requests for registration)
would adversely affect the marketability of the offering
of the securities proposed to be registered by the
Company, then the undersigned shall be entitled to
participate pro-rata with the other stockholders having
similar incidental registration rights with respect to
such registration to the extent the managing underwriter
determines that such shares may be included without such
adverse effect. The undersigned shall be subject to
reasonable and customary lockup agreements, provided
other stockholders agree to the same of similar lockup
agreements.
b. Demand Registration Rights. Provided the Company is a
reporting company, the Company shall, upon receipt of a written request from the
undersigned, prepare and file under the Act a registration statement in respect
of such shares. In the event the undersigned demands registration, the
undersigned shall pay all expenses of the Company incident to the Company's
performance of or compliance with the provisions of this subparagraph.
IN WITNESS WHEREOF, we have executed this Agreement the 13th Day of
September, 2000.
SUBSCRIPTION ACCEPTED:
By: /s/ Thomas R. Casten AMERICAS POWER PARTNERS, INC.
THOMAS R. CASTEN
By: /s/ David Pequet
8 East Third Street Its: Chairman
(Mailing Address of Subscriber)
Hinsdale, IL 60521
(City, State and Zip)
(Taxpayer or ID No.)
