EXHIBIT 10.22
CAPITAL CONTRIBUTION AGREEMENT
AGREEMENT dated as of November 3, 2000 among Nuvera Fuel Cells, Inc., a
Delaware corporation (the "Company"), Arthur D. Little, Inc. ("AD Little"),
Norfin International S.A. ("Norfin International"), Nuvera Fuel Cells Europe
S.r.L. (formerly De Nora Fuel Cells S.p.A.), De Nora New Energy Investments
B.V. and Amerada Hess Corporation ("Amerada Hess") (AD Little, Norfin
International and Amerada Hess are hereinafter referred to collectively as the
"Stockholders").
W I T N E S S E T H :
The parties hereto, intending to be legally bound, hereby agree that the
Stockholders will provide financial support to the Company when needed to
sustain its operations, up to a maximum aggregate of $30,000,000 (the
--ommitment Amount"). If the Company needs financial support to execute its
business plan, it shall notify each Stockholder of the amount needed, and upon
such notice (a "Capital Call") the Stockholder shall promptly make a capital
contribution to the Company in the amount or amounts and at the time or times
specified by the Company, up to a maximum aggregate of the Commitment Amount.
Until AD Little and Norfin International have paid, in the aggregate,
$1,000,000 pursuant to this Agreement, Amerada Hess shall have no obligations
hereunder, and the obligation of AD Little and Norfin International with
respect to any Capital Call shall be as follows:
Norfin
International.............................................50%
AD Little.................................................50%
Thereafter, the obligation of each Stockholder with respect to any Capital
Call shall be as follows:
Norfin
International.............................................46.8%
AD Little.................................................42.2%
Amerada Hess..............................................11.0%
Capital contributions or any other payments made by any Stockholder to the
Company prior to the date hereof shall not under any circumstances be deemed
capital contributions pursuant to this Agreement.
All rights and obligations of Section 7.4(b) of the Investment and
Exchange Agreement, dated as of April 4, 2000, by and among De Nora Fuel
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Cells S.p.A., De Nora New Energy Investments B.V., AD Little and the Company
(formerly Epyx Corporation) not heretofore exercised or discharged are hereby
waived and of no further effect.
This Agreement shall terminate on the earlier of (i) the date of the
consummation of an initial public offering of common stock of the Company with
proceeds to the Company of at least the Commitment Amount, (ii) the date on
which the Stockholders' aggregate capital contributions pursuant to this
Agreement equal or exceed the Commitment Amount or (iii) December 31, 2001.
Each of the Stockholders represents and warrants that it has the financial
ability to satisfy its obligations under this Agreement.
Failure of any party to fulfill any obligation hereunder shall not relieve
such party or any other party of any obligations hereunder.
This Agreement shall be governed by, and construed in accordance with, the
laws of the State of New York, without regard to the conflicts of laws rules of
such state.
EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO
TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATED TO THIS
AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
This Agreement may be executed in any number of counterparts, each of
which shall be deemed to be an original, with the same effect as if the
signatures thereto and hereto were upon the same instrument. This Agreement
shall become effective when each party hereto shall have received counterparts
hereof signed by all of the other parties hereto.
This Agreement constitutes the entire agreement among the parties hereto
and shall supersede any remaining obligations under Section 7.4 of the
Investment and Exchange Agreement dated as of April 4, 2000 by and among De
Nora Fuel Cells S.p.A., De Nora New Energy Investments B.V., AD Little and Epyx
Corporation and Section 9.2 of the Investment Agreement dated as of March 30,
2000 by and among Amerada Hess, AD Little and Epyx Corporation.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed by their respective authorized officers as of the day and year
first above written.
NUVERA FUEL CELLS, INC.
By: /s/ Anne Troutman
-------------------------------------------
Name: Anne Troutman
Title: Secretary and Acting General Counsel
ARTHUR D. LITTLE, INC.
By: /s/ Mark A. Brodsky
-------------------------------------------
Name: Mark A. Brodsky
Title: Executive Vice President
NORFIN INTERNATIONAL S.A.
By: /s/ Franco Mazzucchi
-------------------------------------------
Name: Franco Mazzucchi
Title: Director
NUVERA FUEL CELLS EUROPE S.R.L.
By: /s/ Franco Ladavas
-------------------------------------------
Name: Franco Ladavas
Title: President
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DE NORA NEW ENERGY INVESTMENTS B.V.
By: /s/ Franco Mazzucchi
-------------------------------------------
Name: Franco Mazzucchi
Title: Director
AMERADA HESS CORPORATION
By: /s/ J. Barclay Collins II
-------------------------------------------
Name: J. Barclay Collins II
Title: Executive Vice President
and General Counsel
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