SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
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SCHEDULE 13D
Under the Securities Exchange Act of 1934
(Amendment No. 10)(1)
PHOTOCOMM, INC.
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(Name of issuer)
Common Stock, par value $.10 per share
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(Title of class of securities)
719319-10-5
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(CUSIP number)
ILAN K. REICH, ESQUIRE
OLSHAN GRUNDMAN FROME & ROSENZWEIG LLP
505 Park Avenue
New York, New York 10022
(212) 753-7200
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(Name, address and telephone number of person
authorized to receive notices and communications)
AUGUST 16, 1996
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(Date of event which requires filing of this statement)
If the filing person has previously filed a statement on Schedule 13G
to report the acquisition which is the subject of this Schedule 13D, and is
filing this schedule because of Rule 13d-1(b)(3) or (4), check the following box
/ /.
Check the following box if a fee is being paid with the statement / /.
(A fee is not required only if the reporting person: (1) has a previous
statement on file reporting beneficial ownership of more than five percent of
the class of securities described in Item 1; and (2) has filed no amendment
subsequent thereto reporting beneficial ownership of less than five percent of
such class.) (See Rule 13d-7).
Note. six copies of this statement, including all exhibits,
should be filed with the Commission. See Rule 13d-1(a) for other parties to
whom copies are to be sent.
(Continued on following pages)
(Page 1 of 5 Pages)
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(1) The remainder of this cover page shall be filled out for a reporting
person's initial filing on this form with respect to the subject class of
securities, and for any subsequent amendment containing information which would
alter disclosures provided in a prior cover page.
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1 NAME OF REPORTING PERSONS
S.S. OR I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS
The New World Power Corporation
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2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) / /
(b) / /
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3 SEC USE ONLY
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4 SOURCE OF FUNDS*
WC
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5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEM 2(d) OR 2(e) / /
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6 CITIZENSHIP OR PLACE OR ORGANIZATION
Delaware
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NUMBER OF 7 SOLE VOTING POWER
SHARES
BENEFICIALLY 8,112,442
OWNED BY
EACH
REPORTING
PERSON WITH
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8 SHARED VOTING POWER
-0-
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9 SOLE DISPOSITIVE POWER
8,112,442
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10 SHARED DISPOSITIVE POWER
-0-
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11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
8,112,442
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12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN
SHARES* / /
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13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
50.7%
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14 TYPE OF REPORTING PERSON*
CO
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*SEE INSTRUCTIONS BEFORE FILLING OUT!
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This Amendment No. 10 to Schedule 13D (the "Amendment") amends
the Schedule 13D filed with respect to an event on November 10, 1993, as
previously amended by Amendment No. 1 ("Amendment No. 1") filed with respect to
an event on August 30, 1994; Amendment No. 2 ("Amendment No. 2") filed with
respect to an event on October 19, 1994; Amendment No. 3 ("Amendment No. 3")
filed with respect to an event on December 30, 1994; Amendment No. 4 ("Amendment
No. 4") filed with respect to an event on February 10, 1995; Amendment No. 5
("Amendment No. 5") filed with respect to an event on March 10, 1995; Amendment
No. 6 with respect to an event on August 15, 1995; Amendment No. 7 with respect
to an event on January 1, 1996 ("Amendment No. 7") and Amendment No. 8 with
respect to an event on April 11, 1996 ("Amendment No. 8") and Amendment No. 9
with respect to an event on July 31, 1996 ("Amendment No. 9") (collectively, the
"Statement").
Item 4. PURPOSE OF TRANSACTION.
Item 4 is amended by adding the following:
On August 16, 1996, New World entered in a Stock Purchase
Agreement (the "GTC Agreement") with Golden Technologies Company, Inc., a wholly
owned subsidiary of ACX Technologies, Inc., for the sale of all of its shares in
the Issuer. New World also entered into a Waiver Agreement with the Issuer,
Robert R. Kauffman and Programmed Land, Inc., modifying their Stock Purchase
Agreement dated October 15, 1993. The GTC Agreement and Waiver Agreement are
annexed as Exhibits I and J and incorporated herein by reference.
Other than as indicated herein, New World has no present plans
or proposals which relate to or would result in any of the following (although
New World reserves the right to develop such plans or proposals): (i) the
acquisition of additional securities of the Issuer; (ii) an extraordinary
corporate transaction, such as a merger, reorganization or liquidation,
involving the Issuer or any of its subsidiaries; (iii) a sale or transfer of a
material amount of assets of the Issuer or any of its subsidiaries; (iv) any
change in the present board of directors or management of the Issuer, including
any plans or proposals to change the number or term of directors or to fill any
existing vacancies on the Issuer's board of directors; (v) any material change
in the present capitalization or dividend policy of the Issuer; (vi) any other
material change in the business or corporate structure of the Issuer; (vii) any
other material change in the Issuer's articles of incorporation or by-laws or
other actions which may impede the acquisition of control of the Issuer by any
person; (viii) causing a class of securities of the Issuer to be delisted from a
national securities exchange or to cease to be authorized to be quoted in an
inter-dealer quotation system of a registered national securities association;
(ix) a class of equity securities of the Issuer becoming eligible for
termination of registration pursuant to Section 12(g)(4) of the Exchange Act; or
(x) any action similar to any of those enumerated above.
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Item 6. CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR
RELATIONSHIPS WITH RESPECT TO SECURITIES OF THE
ISSUER.
Item 6 is amended by adding the following:
On July 31, 1996, New World entered in a letter of intent with
a New York Stock Exchange listed company for the sale of all of its shares in
the Issuer. The press release describing letter of intent is annexed as Exhibit
H and incorporated herein by reference.
Item 7. MATERIAL TO BE FILED AS EXHIBITS.
A. Stock Purchase Agreement, dated as of October 15, 1993, by and
among New World, Photocomm, Westinghouse, PLI and Mr. Kauffman
(submitted with the initial filing).
B. Voting Agreement, dated as of October 7, 1994, by and between
New World and Mr. Kauffman (submitted with Amendment No. 2).
C. First Amendment to Voting Agreement, dated as of December 30,
1994, by and between New World and Mr. Kauffman (submitted
with Amendment No. 3).
D. Stock Pledge Agreement, dated as of December 30, 1994, by and
among New World, Sundial and Gilmartin, Poster & Shafto, as
escrow holder (submitted with Amendment No. 3).
E. Option Extension Agreement, dated as of December 30, 1994, by
and between New World and PLI (submitted with Amendment No.
3).
F. Stock Pledge Agreement, dated as of March 10, 1995, by and
among New World, J.A. Jones Construction Company and Control y
Aplicaciones Mexicana, S.A. (submitted with Amendment No. 5).
G. Stock Pledge Agreement, dated as of August 15, 1995, by and
between New World and Robert Fleming & Co., Ltd., as agent
(submitted with Amendment No. 6).
H. Press Release dated August 6, 1996. (Submitted with Amendment
No. 8)
I. Stock Purchase Agreement between New World and Golden
Technologies, Company, Inc. dated August 16, 1996. (Submitted
herewith)
J. Waiver Agreement between New World, the Issuer, Mr. Kauffman
and PLI, dated August 16, 1996. (Submitted herewith)
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After reasonable inquiry and to the best of my knowledge and
belief, I certify that the information set forth in this Statement is true,
complete and correct.
THE NEW WORLD POWER CORPORATION
Dated: August 23, 1996 By: /S/ FREDERIC MAYER
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Frederic Mayer
Acting Chief Financial Officer
EXHIBIT I
STOCK PURCHASE AGREEMENT
Stock Purchase Agreement (the "Agreement") dated August 16, 1996,
between Golden Technologies Company, Inc., a Colorado corporation ("GTC") and
The New World Power Corporation, a Delaware corporation ("NWP").
RECITALS
NWP owns 6,612,447 shares of the outstanding common stock $.10 par
value (the "PComm Stock") of Photocomm, Inc., an Arizona corporation ("Pcomm"),
and has an option to acquire up to 1,500,000 additional shares of Pcomm common
stock (if such option is exercised the shares so acquired shall thereafter be
included in "Pcomm Stock"). NWP also owns 3,345,160,793 shares of the capital
stock (the "Solartec Stock") of Solartec S.A., an Argentine corporation
("Solartec"). The shares of Pcomm Common Stock and Solartec Stock are referred
to in this Agreement as the "Stock."
NWP desires to sell and GTC desires to purchase the Stock on and
subject to the terms and conditions set forth herein.
AGREEMENT
In consideration of and subject to the mutual agreements, terms and
conditions herein contained, the parties agree as follows:
<PAGE>
ARTICLE I
SALE OF STOCK
1.1 PURCHASE PRICE - TRANSFERRED STOCK. At the Closing (as defined
below), NWP will sell, transfer, convey and deliver all and not less than all
the Pcomm Stock and all and not less than all the Solartec Stock to GTC by the
delivery of certificates in good delivery form and duly endorsed for transfer of
accompanies by duly signed stock powers evidencing such shares, and evidence of
registration of the transfer, if required, in exchange for a payment of
$11,292,500 for the Pcomm Stock and a payment of $1,600,000 for the Solartec
Stock, in each case in immediately available funds. Upon such transfer of the
Stock to GTC, GTC will acquire good and marketable title to the Stock free and
clear of all pledges, liens, charges, encumbrances, restrictions, rights or
other adverse claims.
1.2 CLOSING. The closing ("Closing") of the sale and purchase of the
Pcomm Stock and the Solartec Stock (the "Transactions") shall take place at the
offices of Holme Roberts & Owen LLC, 1700 Lincoln Street, Suite 4100, Denver,
Colorado at 10:00 a.m. (Denver time) on September 5, 1996, or at such other
place, time and date as the parties hereto may agree upon (the "Closing Date").
If all conditions precedent to the purchase of the Solartec Stock have occurred,
Closing may first occur as to
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the Solartec Stock and this Agreement shall remain in effect as to the Pcomm
Common Stock and vice-versa.
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF NWP
NWP represents and warrants to GTC as follows:
2.1 ORGANIZATION AND QUALIFICATION. Pcomm is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Arizona with corporate power and authority to own, operate and lease its
properties and to carry on its business as now conducted.
2.2 CAPITAL STOCK. The authorized stock of Pcomm consists of (i)
25,000,000 shares of Common Stock, $.10 par value of which 14,272,759 shares are
issued and outstanding, and (ii) 5,000,000 shares of Preferred Stock, $.001 par
value, of which 109,972 shares of Series A and 69,365 shares of Series AA are
issued and outstanding. Except as set forth in the filings as of the date of
this Agreement of Pcomm (the "Pcomm Filings") with the Securities and Exchange
Commission (the "Commission") under the Securities Exchange Act of 1934 (the
"Exchange Act"), to the knowledge of NWP, there are no outstanding
subscriptions, options, warrants, rights, conversion rights, rights of first
refusal or other agreements or commitments (other than this Agreement)
obligating Pcomm to issue or purchase shares of its capital stock or any
security convertible into its capital stock.
<PAGE>
There are no outstanding subscriptions, options, warrants, rights, conversion
rights, rights of first refusal or other agreements or commitments (other than
this Agreement) obligating Solartec to issue or purchase shares of its capital
stock or any securities convertible into its capital stock. NWP has no
obligations to purchase, sell or transfer any Stock except as described in
Section 2.9(d) below.
2.3 GOVERNMENTAL AUTHORIZATIONS. To the knowledge of NWP, and except as
described in the Pcomm Filings, Pcomm and Solartec hold such material licenses,
permits, consents, authorizations and orders of such governmental or regulatory
authorities as are necessary to carry on their respective businesses as
presently being conducted, and such material licenses, permits, consents,
authorizations and orders are in full force and effect and have been and are
being fully complied with by Pcomm and Solartec, as the case may be.
2.4 FINANCIAL STATEMENTS.
(a) the unaudited consolidated balance sheet of Pcomm as at
May 31, 1996, (the "Pcomm Balance Sheet Date"), and the related
consolidated statements of income, stockholders' equity and changes in
financial position of Pcomm for the period then ended as disclosed in
the Pcomm Filings (the "Pcomm Financial Statements"); and
(b) the unaudited balance sheet of Solartec as at June 30,
1996, (the "Solartec Balance Sheet Date") and the related statements of
income, stockholders' equity and changes in financial position of
Solartec for the period from January 1, 1996 to June 30, 1996, all
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certified by the principal accounting officer of
Solartec (the "Solartec Financial Statements");
fairly present (i) the respective consolidated financial position of Pcomm and
Solartec as of the respective dates of such balance sheets and (ii) the results
of the consolidated operations of Pcomm and Solartec for the fiscal periods
ended on such dates, all in conformity with generally accepted accounting
principles applied on a consistent basis.
2.5 NO ADVERSE CHANGES. Since the respective Pcomm and Solartec Balance
Sheet Dates, there have been no (a) changes in the business, results of
operations, financial conditions or prospects of Pcomm from that set forth in
the Pcomm Financial Statements or of Solartec from that set forth in the
Solartec Financial Statements or (b) any events or conditions affecting the
assets, properties, business or operations of Pcomm or Solartec from those in
effect on their respective Balance Sheet Dates, other than, with respect to both
clauses (a) and (b) hereof, charges or events or conditions in the ordinary
course of business the effect of which has not been, and is not anticipated to
be, in the aggregate, materially adverse to the respective financial condition,
results of operations, assets, properties, business, operations or prospects of
Pcomm or Solartec.
2.6 ABSENCE OF CERTAIN CHANGES. Since the respective Pcomm and Solartec
Balance Sheet Dates, no event has occurred with respect to Pcomm or Solartec
which, if it had occurred after the
<PAGE>
execution hereof, would have constituted a violation of Section 4.5 of this
Agreement (without regard to the introductory clause thereof).
2.7 AUTHORIZATION OF AGREEMENT - NO VIOLATION - CONSENTS. Subject to
the delivery of certain waivers of rights contained in agreements described in
Section 2.9(d) and except as provided in this Section 2.7, NWP has full power
and authority to sell the Stock and has the capacity and authority to make the
representations, warranties, covenants and agreements made herein. Neither the
execution or delivery of this Agreement nor the consummation of the transactions
contemplated herein will conflict with or result in a breach, default or
violation of any agreement, document, instrument, judgment, decree, order,
governmental permit, certificate, license, law, statute, rule or regulation by
which NWP is bound or affected. Except for compliance with such agreements and
necessary filings under the Hart-Scott-Rodino Antitrust Improvements Act of 1976
(the "Hart- Scott Act"), no consent, notice, action, approval or authorization
of, or registration, declaration or filing with, any governmental department,
commission, agency or other instrumentality or any other person or entity is
required to authorize, or its otherwise required in connection with the
execution and delivery of this Agreement by NWP or its performance of the terms
of this Agreement by NWP or the validity
<PAGE>
or enforceability of this Agreement against NWP. No indebtedness
of Solartec to NWP has been assigned or pledged.
2.8 BROKERAGE AGREEMENTS. NWP has not entered (directly or indirectly)
into any agreement with any person, firm or corporation for the payment of any
commission, brokerage or "finder's fee" in connection with the transactions
contemplated herein that could under any circumstances be the obligation of GTC
or any of its affiliates companies.
2.9 NO DEFAULT. Neither the execution or delivery of this Agreement nor
the consummation of the transactions contemplated herein will (a) conflict with
or result in a breach, default or violation of (i) any of the terms, provisions
or conditions of the Certificate of Incorporation or Bylaws of NWP or (ii) any
agreement, document, instrument, judgment, decree, order, governmental permit,
certificate, license, law, statute, rule or regulation to which NWP is a party
or to which it is subject, or (b) result in the creation of any lien, charge or
other encumbrance on any property or assets of NWP, or (c) require NWP to obtain
the consent of any private non-governmental third party, or (d) be subject to
any right of first refusal, first offer or other right except (i) with respect
to Pcomm, that Stock Purchase Agreement dated as of October 1993 among NWP,
Pcomm, Westinghouse Electric Corporation, Programmed Land, Inc. and Robert R.
Kaufmann (the "Pcomm Stock Agreement") (which has been
<PAGE>
validly waived subject to the payment of sums described therein) and (ii) with
respect to Solartec, an agreement dated June 27, 1994, as amended July 1, 1994
(the "Solartec Stock Agreement"), and agreements to waive the rights in the
Pcomm Stock Agreement have been obtained which are subject only to payments by
NWP described in such agreements. Notwithstanding the preceding provisions of
this Section 2.9, consents of certain NWP's lenders are required to consummate
the Transactions.
2.10 PCOMM FILINGS. To the knowledge of NWP, the Pcomm Filings
(including all exhibits and schedules thereto and documents incorporated by
reference therein) did not contain any untrue statement of a material fact or
omit to state a material fact required to be stated therein or necessary in
order to make the statements made, in light of the circumstances under which
they were made, not misleading.
2.11 DISCLOSURE. All information and documents provided prior to the
date of this Agreement and all information and documents subsequently provided
by NWP, its agents, officers, directors and employees, to GTC or their
representatives, by or on behalf of NWP, are or contain or will be or will
contain as to subsequently provided information or documents, true, accurate and
complete information with respect to the subject matter thereof and are, or will
be as to subsequently provided
<PAGE>
information or documents, fully responsible to any specific request made by or
on behalf of GTC or its representatives.
2.12 COMPLIANCE WITH STOCK AGREEMENTS. Appropriate agreements have been
received with respect to the Pcomm Stock Agreement, the effect of which will be,
upon payment of sums described therein, to waive all requirements in the Pcomm
Stock Agreement as to any right of first refusal or other right of any party
thereto to acquire all or any portion of the Pcomm Stock (including any stock
acquired pursuant to the option described in Section 4.6), and GTC will acquire
the Pcomm Stock free from any claim by any party to the Pcomm Stock Agreement.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF GTC
GTC represents and warrants to NWP as follows:
3.1 ORGANIZATION AND GOOD STANDING. GTC is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Colorado with corporate power to own, operate and lease its properties and to
carry on its business as now conducted. 3.2 INVESTMENT PURPOSE. GTC is acquiring
the Stock for its own account and not with a view to a sale or distribution
thereof in violation of any securities law, and it has no present intention of
selling or distributing any Stock in violation of any securities laws.
<PAGE>
3.3 AUTHORIZATION OF AGREEMENT. GTC has the corporate power to enter
into this Agreement and to carry out its obligations hereunder. When approved by
GTC's board of directors and the board of directors of ACX Technologies, Inc.
("ACX"), GTC's parent company, this Agreement will have been approved by all
requisite corporate action on the part of GTC and will have been duly executed
and delivered on behalf of GTC. This Agreement will be submitted for
consideration by the ACX board of directors on or before August 20, 1996. The
execution and delivery of this Agreement and the consummation of the
transactions contemplated hereby will not conflict with, or result in a breach
of the terms, conditions or provisions of, or constitute a default under the
Articles of Incorporation or Bylaws of GTC or any agreement or instrument by
which GTC is bound or affected, which conflict or breach would prevent GTC from
performing its obligations under this Agreement.
3.4 NO CONSENT. Except for filings under the Hart-Scott Act, no
consent, action, approval or authorization of, or registration, declaration or
filing with, any governmental department, commission, agency or other
instrumentality or any other person or entity is required to authorize, or is
otherwise required in connection with, the execution and delivery of this
Agreement by GTC or its performance of the terms of this Agreement or the
validity or enforceability of this Agreement
<PAGE>
which, if not obtained or made, would prevent GTC from performing its
obligations under this Agreement.
3.5 BROKERAGE AGREEMENTS. GTC has not entered (directly or indirectly
into any agreement with any person, firm or corporation for the payment of any
commission, brokerage or "finder's fee" in connection with the transactions
contemplated herein that will under any circumstances be the obligation of NWP.
3.6 GTC FINANCIAL ABILITY. GTC has, or has access from its
shareholder to sufficient funds to purchase the Stock.
ARTICLE IV
COVENANTS OF NWP
NWP agrees, except as approved by GTC in writing, that from the date
hereof through the Closing Date:
4.1 FURTHER ASSURANCES. NWP agrees to use all reasonable efforts to
take, or cause to be taken, all actions and to do, or cause to be done, all
things necessary, proper or advisable to consummate and make effective as
promptly as practicable the Transactions, and to cooperate with GTC in
connection with the foregoing, including, but not limited to using reasonable
efforts (a) to obtain promptly all necessary consents, approvals from other
parties, (b) to obtain promptly all necessary consents, approvals and
authorizations as are required to be obtained under any federal, state or
foreign law or regulations, (c) to defend
<PAGE>
all lawsuits or other legal proceedings challenging this Agreement or the
Transactions, (d) to lift or rescind any injunction or restraining order or
other order adversely affecting the ability of the parties to consummate the
Transactions, (e) to effect promptly all necessary filings, including, but not
limited to, filings with the Commission, filings under the Hart-Scott Act and
filing that are required under the rules or regulations of any other
governmental authorities, (f) to fulfill promptly all conditions to the
obligations of GTC under Section 6.2 of this Agreement and to keep GTC
reasonably apprised of the status of all such efforts, and (g) to assure that
Solartec and Pcomm are operated in the ordinary course of business and in
compliance with this Agreement.
4.2 NO SOLICITATION
(a) NWP and its respective directors, officers, and agents
shall not, and shall not authorize or direct any other person to,
directly or indirectly, (i) solicit from or encourage or (ii)
participate in discussions or negotiations with or provide any
confidential information regarding Pcomm or Solartec to any person for
the person of soliciting, encouraging, or enabling another person to
propose an acquisition of
<PAGE>
the Pcomm Stock or Solartec Stock (collectively, an "Acquisition
Proposal").
(b) If NWP receives an Acquisition Proposal or any
communication with respect thereto from another person or if NWP takes
any action described in Section 4.2(a), NWP shall immediately give to
GTC written notice of the substance of such Acquisition Proposal or
communication, or the nature and substance of the information furnished
or the action taken, as the case may be, and thereafter keep GTC fully
informed with respect thereto.
4.3 NOTIFICATION OF CERTAIN MATTERS. NWP shall give prompt notice to
GTC of (a) the occurrence, or failure to occur, of any event which occurrence or
failure would be likely to cause any representation or warranty contained in
this Agreement to be untrue or inaccurate in any material respect at any time
from the date hereof to the Closing Date, (b) any material failure of NWP or any
of its respective affiliates, as the case may be, or of any of its respective
officers, directors, employees or agents, to comply with or satisfy any
covenant, condition or agreement to be complied with or satisfied by it under
this Agreement, (c) any material claims, actions, proceedings or investigations
commenced or, to the best of its knowledge, threatened involving or affecting
NWP or Pcomm or Solartec or any of their properties or
<PAGE>
assets, or, to the best of its knowledge, against any employee, consultant,
director, officer or stockholder of either Pcomm or Solartec, in his, her or its
capacity as such, (d) any material adverse change in the condition (financial or
otherwise), business or prospects of NWP or either Pcomm or Solartec, or the
occurrence of an event known to NWP which, so far as reasonably can be foreseen
at the time of its occurrence, would result in any such change; provided,
however, that no such notification shall affect the representations or
warranties of NWP or the conditions to the obligations of GTC hereunder, and (e)
any matter being submitted to a vote of the shareholders of Pcomm or Solartec.
4.4 ACCESS TO INFORMATION. From the date hereof to the Closing Date,
NWP shall, and to the extent it reasonably can (including by issuing appropriate
instructions to directors of Pcomm or Solartec selected by NWP), shall cause
Pcomm and Solartec and the officers, directors, employees and agents of NWP and
Pcomm and Solartec, to afford to the officers, employees, advisors and agents of
GTC complete access at all reasonable times to their respective officers,
employees, agents, properties, books, records and contracts, and shall furnish
GTC with such operations and other data and information as it may reasonably
request.
<PAGE>
4.5 CONDUCT OF BUSINESS OF PCOMM AND SOLARTEC. NWP shall use its best
efforts to cause Pcomm and Solartec to observe the following (including by
issuing appropriate instructions to directors of Pcomm and Solartec selected by,
NWP).
(a) The business of Pcomm and Solartec shall be operated only
in the ordinary course of business and consistent with past practice
and, consistent with such operations, NWP will use reasonable efforts
to preserve intact the present organization of Pcomm and Solartec and
their relationships with persons having relationships with them;
(b) No change shall be made in the Charters or
Bylaws of Pcomm or Solartec;
(c) No change shall be made in the number of shares of
authorized or issued capital stock of either Pcomm or Solartec except
with respect to sales to GTC; nor shall any option, warrant, call,
right, commitment, conversion right, right of first refusal, or
agreement of any character be granted or made by Pcomm or Solartec
relating to the authorized or issued capital stock thereof; nor shall
either issue, grant or sell any securities or obligations convertible
into shares of the capital stock of Pcomm or Solartec; nor shall Pcomm
or Solartec make any declaration, setting aside
<PAGE>
or payment of any dividend or distribution of assets (in cash, kind or
otherwise) in respect of its capital stock, nor repurchase or agree to
repurchase any share of such capital stock;
(d) Pcomm and Solartec shall duly comply in all material
respects with all laws applicable to them and all laws applicable to
the transactions contemplated by this Agreement;
(e) Neither Pcomm nor Solartec shall incur any obligation
except in the ordinary course of business and shall not transfer or
encumber any asset; and
(f) Neither Pcomm nor Solartec shall take, or knowingly permit
to be taken, any action or do, or knowingly permit to be done, anything
in the conduct of the business of Pcomm or Solartec that would be
contrary to or in breach of any of the terms or provisions of this
Agreement or that would cause any of the representations contained
herein to be or to become untrue. 4.6 OPTION. NWP shall exercise its
option (the "Option") to acquire up to 1,500,000 shares of Pcomm common
stock pursuant to the Pcomm Stock Agreement if requested to do so by
GTC, upon GTC's advance of the exercise price to NWP or to Pcomm on
behalf
<PAGE>
of NWP. The shares of Pcomm so acquired shall promptly be transferred
to GTC for no additional consideration.
4.7 OBTAINING CONSENTS. NWP will use all reasonable efforts to obtain
and to assist GTC in obtaining all consents, authorizations and approvals and
making all filings necessary for the consummation of the transactions
contemplated by this Agreement.
4.8 HART-SCOTT ACT COMPLIANCE. NWP will use all reasonable efforts to
assist in filings with the Department of Justice and the Federal Trade
Commission the premerger notifications required by the Hart-Scott Act with
respect to the transactions contemplated by this Agreement.
4.9 COMPLIANCE WITH STOCK AGREEMENTS. NWP shall comply in all respects
with the terms of the Pcomm Stock Agreement and the Solartec Stock Agreement and
shall take any additional action to assure compliance with such agreements as
GTC may reasonably request (but any such request by GTC shall not affect NWP's
obligations hereunder).
4.10 INTERCOMPANY DEBT. On the Closing Date, NWP shall cancel all
indebtedness and obligations of Pcomm and of Solartec to NWP except intercompany
indebtedness of Solartec to NWP in the amount of not more than $259,000, which,
if verified by GTC, shall be prepaid at Closing at its present value determine
by a 12% discount rate.
<PAGE>
4.11 RIGHT OF FIRST REFUSAL. NWP shall obtain or assist GTC in
obtaining a prompt waiver of the rights of first refusal contained in the Pcomm
Stock Agreement and Solartec Stock Agreement if deemed necessary by GTC. NWP
shall pay all sums required by the agreements with parties to the Pcomm Stock
Agreement to obtain their waivers of all rights to acquire the Pcomm Stock.
4.12 SELECTION OF DIRECTORS. At the request of GTC, at the time of
Closing, the directors of Pcomm selected by NWP shall resign and NWP shall
select designees of GTC to be promptly elected to the board of NWP pursuant to
the Pcomm Stock Agreement.
ARTICLE V
COVENANTS OF GTC
GTC agrees, except as provided by NWP in writing, that from the date
hereof through the Closing Date:
5.1 OBTAINING CONSENTS. GTC will use all reasonable efforts to obtain
and to assist NWP in obtaining all consents, authorizations and approvals and
making all filing necessary for the consummation of the transactions
contemplated by this Agreement.
5.2 HART-SCOTT ACT COMPLIANCE. GTC will use all reasonable efforts (i)
to file as promptly as possible with the Department of Justice and the Federal
Trade Commission the premerger
<PAGE>
notifications required by the Hart-Scott Act with respect to the transactions
contemplated by this Agreement and (ii) to respond promptly to inquiries from
the Federal Trade Commission or the Department of Justice resulting from the
filing of premerger notifications. GTC shall bear its own costs and expenses
(including fees and disbursements of counsel) in connection with the
application. In the event a suit is threatened or instituted challenging the
Transactions as violative of any antitrust laws, each party shall use reasonable
efforts to avoid the filing of, resist or resolve such suit.
5.3 CONFIDENTIALITY. Until the transactions contemplated hereby have
been consummated (and if for any reason such transactions are not consummated,
at all times hereafter), neither GTC nor any employee or other representative or
agent of GTC will disclose or use any information obtained in the course of its
investigation under Section 4.4, the negotiation of this Agreement or otherwise
or set forth in any schedule hereto, except (i) in connection with the
consummation hereof, (ii) as required by law, (iii) as may be necessary to the
prosecution or defense of any claim or suit brought to enforce rights under this
Agreement, (iv) to the extent that the same may become public other than through
the action of GTC, or the representatives, agents or employees of GTC or (v) as
may be disclosed by GTC in discussions with Pcomm and its affiliates. If the
transactions
<PAGE>
contemplated hereby are not consummated and this Agreement terminates, GTC, its
employees and other representatives and agents promptly will return all copies
of documents, contracts or records and other properties furnished pursuant to
this Agreement.
5.4 NO EMPLOYEE SOLICITATION. For a period ending two years after the
Closing Date GTC shall not directly or indirectly solicit for employment or hire
any person who at the time is employed in the United States by NWP.
5.5 PAYMENT OF INTERCOMPANY DEBT. If GTC requests NWP to exercise the
option described in Section 4.6, GTC will attempt to cause Solartec to prepay,
at its discounted value, as promptly as is practicable the intercompany
indebtedness described in Section 4.10.
ARTICLE VI
CONDITIONS TO THE CLOSING
6.1 CONDITIONS TO OBLIGATION OF EACH PARTY. The respective obligations
of each party to effect the transactions contemplated by this Agreement shall be
subject to the fulfillment or waiver at or prior to the Closing of the following
conditions:
(a) HART-SCOTT ACT. Any waiting period (and any extension thereof)
applicable to the consummation of the sale of Pcomm Stock under the
Hart-Scott Act shall have expired or been terminated.
<PAGE>
(b) THIRD-PARTY CONSENTS. NWP and GTC shall have obtained consents
or waivers to the transactions contemplated by this Agreement from the
parties to contracts, agreements, understandings, franchise permissions
and commitments.
6.2 CONDITIONS TO OBLIGATION OF GTC. The obligation of GTC to effect
the transactions contemplated by this Agreement is subject to the following
additional conditions:
(a) REPRESENTATIONS AND WARRANTIES OF NWP TO BE TRUE. Except as
contemplated by this Agreement, (i) the representations and warranties
of NWP hereunder shall be made again at and as of the Closing and shall
be true in all material respects as of the Closing, (ii) NWP shall have
performed in all material respects all covenants required of it by this
Agreement as of the Closing and (iii) NWP shall have furnished GTC at
the Closing a certificate of two of its officers to such effect.
(b) REQUIREMENTS; LITIGATION. All statutory requirements for the
valid consummation of the transactions contemplated herein shall have
been fulfilled and all necessary governmental consents, approvals or
authorizations shall have been obtained, and there shall not be any
actual or threatened
<PAGE>
litigation (including any investigation by any governmental agency) to
restrain or invalidate the transactions contemplated herein, the
defense of which would, in the judgment of GTC, made in good faith and
based upon the advice of counsel, involve expense or lapse of time that
would be materially adverse to the interests of GTC.
(c) OPINION OF COUNSEL. GTC shall have received from Olshan
Grundman Frome & Rosenzweig LLP, counsel to NWP, an opinion dated the
Closing Date, in form and substance satisfactory to GTC and its
counsel. In giving the foregoing opinion, such counsel shall be
entitled to rely upon certificates of public officials and officers of
NWP with respect to the accuracy of factual matters that are not
independently established. GTC shall also have received opinions
satisfactory to GTC and its counsel, (i) from counsel licensed in
Arizona and acceptable to GTC to the effect that Pcomm is not governed
by the provisions of ss. 10-1201 through ss. 10-1223 of the Arizona
Revised Statutes, and (ii) from counsel licensed in Delaware and
acceptable to GTC as to the compliance with applicable Delaware law by
NWP in connection with the Transactions.
<PAGE>
(d) CANCEL DEBT AND AGREEMENT. NWP shall have
canceled or released all indebtedness and obligations
of Pcomm and Solartec to NWP except the intercompany
indebtedness described in Section 4.10. NWP shall
cause its subsidiary New World Power Investment S.A. to
terminate without penalty its management agreement with
Solartec.
(e) STOCK CERTIFICATES. NWP shall have delivered to GTC at the
Closing one or more stock certificates representing the Stock, in good
delivery form and duly endorsed for transfer or accompanied by duly
executed stock powers evidencing all of the Stock, and shall have taken
all other action necessary to complete the transfer of the Stock to
GTC.
(f) ACX APPROVAL. This Agreement and the Transactions shall
have been approved by the board of directors of ACX.
(g) COVENANTS OBSERVED. The covenants as to Solartec and Pcomm
set forth in Section 4.5 shall have been observed in all material
respects (without regard to the best efforts of NWP as provided in the
introductory clause) and there shall have been no material adverse
change in the condition, financial or
<PAGE>
otherwise, of Pcomm or Solartec or any material change
in their capitalization or capital structure.
(h) RESIGNATIONS. All designees of NWP on the board of
directors of Pcomm and Solartec and the Consejo de Vialancia of
Solartec shall resign and shall have been replaced by designees of GTC
and all of them shall waive any right to compensation for past
services.
(i) INSTRUCTION. NWP shall instruct the
Argentine Notary to release all Solartec Class B Shares
from Escrow.
(j) SHAREHOLDER AGREEMENT. The parties to the
Pcomm Stock Agreement shall have consented to its
termination as of the Closing.
6.3 CONDITIONS TO OBLIGATIONS OF NWP. The obligations of NWP to effect
the transactions contemplated by this Agreement shall be subject to the
following additional conditions:
(a) REPRESENTATIONS AND WARRANTIES OF GTC TO BE TRUE. Except
as contemplated in this Agreement, (i) the representations and
warranties of GTC hereunder shall be made again at the Closing and
shall be true in all material respects as of the Closing Date, (ii) GTC
shall have performed in all material respects all covenants required of
it by this Agreement as of the
<PAGE>
Closing Date and (iii) GTC shall have furnished NWP at the Closing a
certificate of two of its officers to such effect.
(b) STATUTORY REQUIREMENTS; LITIGATION. All statutory
requirements for the valid consummation of the transactions
contemplated herein shall have been fulfilled and all necessary
governmental consents, approvals or authorizations shall have been
obtained and there shall not be any actual or threatened litigation
(including any investigation by any governmental agency) to restrain or
invalidate the transactions contemplated herein, the defense of which
would, in the judgment of NWP, made in good faith and based upon the
advice of counsel, involve expense or lapse of time that would be
materially adverse to the interests of NWP.
(c) OPINION OF COUNSEL TO GTC. NWP shall have received from
Holme Roberts & Owen LLC an opinion dated the Closing, in form and
substance satisfactory to NWP and its counsel. In giving the foregoing
opinion, such counsel shall be entitled to rely upon certificates of
public officials and officers of GTC with respect to the accuracy of
factual matters that are not independently established.
<PAGE>
(d) PAYMENT OF PURCHASE PRICE. GTC shall have
paid the purchase price for the Stock to NWP at the
Closing.
ARTICLE VII
TERMINATION, AMENDMENT AND WAIVER
7.1 TERMINATION. This Agreement may be terminated at any
time prior to the Closing.
(a) By mutual written consent of the Boards of
Directors of NWP and GTC; and
(b) By NWP or GTC if (i) the Closing shall have occurred on or
before January 30, 1997, or (ii) any of the conditions to the
obligation of the terminating party set forth in Article VI hereof
shall not be met at the Closing Date; provided, however, that the right
to terminate this Agreement under this Section 7.1(b) shall not be
available to any party whose failure to fulfill any obligation under
this Agreement has been the cause of, or resulted in, the failure of
the Closing to occur on or before such date.
(c) By NWP:
(i) If GTC fails to perform in any material
respect any of its obligations under this Agreement;
<PAGE>
(ii) If the representations and warranties of GTC set
forth in this Agreement are not true and correct in any
material respect at any time prior to the Closing; or (d) By
GTC:
(i) If NWP fails to perform in any material
respect any of its obligations under this
Agreement;
(ii) If the representations and warranties of
NWP set forth in this Agreement are not true and
correct in any material respect at any time prior
to the Closing;
(iii) If there occurs, or NWP enters into or publicly
announces its intention to enter into an agreement with
another person with respect to an Acquisition Proposal;
(iv) If the Note and Warrant Agreement, as amended,
between NWP and certain of NWP's lenders shall be materially
breached and not cured or rescinded within 15 days or shall be
terminated; or
(v) If there shall be commenced any proceedings under
the Bankruptcy Code or other laws for the relief of debtors by
or against NWP.
<PAGE>
7.2 EFFECT OF TERMINATION. In the event of the termination of this
Agreement as provided in Section 7.1, this Agreement shall forthwith become void
and there shall be no liability or obligation on the part of NWP or GTC or their
affiliates except (i) as set forth in Section 9.3, and (ii) that a party shall
be liable for willful defaults of its obligations hereunder.
ARTICLE VIII
SURVIVAL OF REPRESENTATIONS AND
WARRANTIES; INDEMNIFICATION
8.1 SURVIVAL OF REPRESENTATIONS AND WARRANTIES. All statements
contained in any certificate, schedule, exhibit, financial statement or other
document or instrument delivered by or on behalf of NWP pursuant to or in
connection with this Agreement for the purposes of this Agreement shall be
deemed to be representations and warranties hereunder. The representations and
warranties contained in Sections 2.7, 2.8, 2.10, 2.11 and 2.12 and claims for
breach of the covenants by NWP in Article IV shall survive the Closing Date and
any investigation of any of the parties with respect thereto. All other
representations and warranties shall terminate as of the Closing Date, but in no
event shall GTC have any remedy for a violation of the representations and
warranties in Sections 2.1 through 2.7 and Section 2.10, except termination of
this Agreement prior to Closing.
<PAGE>
8.2 INDEMNIFICATION. NWP agrees to defend, indemnify and hold harmless
GTC its successors and assigns ("Indemnified Party") from and against any and
all claims, demands, causes of cation, liabilities, losses, damages, costs and
expenses, including litigation costs and reasonable attorneys' and experts' fees
(all of the foregoing are hereinafter referred to as "losses") which losses may
accrue to or be sustained by each Indemnified Party by, or arising out of, or as
a result of, any of NWP' representations or warranties in Sections 2.7, 2.8,
2.10, 2.11 (but only with respect to 2.11 if NWP had knowledge of the falsity of
the representation in Section 2.11) and 2.12 or the covenants or agreements
contained in or related to this Agreement being incorrect, untrue, or breached.
Any Indemnified Party will, promptly after receipt of notice of the commencement
of any action against any of them in respect of which indemnity may be sought
hereunder, notify NWP in writing of the commencement thereof. The failure or any
Indemnified Party to so notify NWP shall not relieve NWP of its obligation to
indemnify in respect to such action under this Section 8.2 and shall not relieve
NWP of any other liability that if may have to any Indemnified Party. In the
event of the commencement of any such action as to which any Indemnified Party
notifies NWP as aforesaid, NWP will be entitled to participate therein and
assume the defense thereof at NWP's expense with counsel satisfactory to NWP and
to each
<PAGE>
Indemnified Party; provided NWP shall promptly notify each Indemnified Party of
its election so to assume the defense thereof and acknowledge its
indemnification obligations pursuant to this Agreement in writing to each
Indemnified Party and further provided that no settlement of any such action be
reached without the consent of any Indemnified Party. Notwithstanding anything
to the contrary herein, no amount shall be payable to an Indemnified Party in
indemnification under this Section 8.2 unless the aggregate amount of losses to
the Indemnified Party exceeds $100,000. In the event that such aggregate amount
of losses exceeds $100,000, NWP shall be liable for indemnification for all
losses, and not only the amount of any such excess, and its aggregate liability
shall not exceed the purchase price for the Stock.
ARTICLE IX
GENERAL PROVISIONS
9.1 PUBLIC STATEMENTS. NWP will only issue any press release or make
any public announcements as to the Transactions as are required to satisfy its
legal obligation as a public company. The parties agree to consult with each
other and their respective counsel prior to issuing any press release or public
announcement with respect to this Agreement or the transactions contemplated
hereby. Each shall use all reasonable efforts to
<PAGE>
give to the other party sufficient opportunity to review any such press release
or other public announcement in advance of release.
9.2 NOTICES. All notices and other communications hereunder shall be in
writing, shall be delivered personally or sent by U.S. mail, fax, or overnight
delivery service, to the parties at the following addresses or at such other
address as shall be specified by the parties by like notice, and shall be deemed
given when received by the party for whom intended:
(a) If to GTC:
Golden Technology Company, Inc.
16000 Table Mountain Parkway
Golden, Colorado 80403
Attention: Jed J. Burnham
FAX: (303) 271-7174
with a copy to:
ACX Technologies, Inc.
16000 Table Mountain Parkway
Golden, Colorado 80403
Attention: Jill B. W. Sisson, Esq.
FAX: (303) 271-7055
and
Holmes Roberts & Owen LLC
1700 Lincoln, Suite 4100
Denver, Colorado 80203
Attention: W. Dean Salter, Esq.
FAX: (303) 866-0200
(b) If to NWP:
The New World Power Corporation
558 Lime Rock Road
Lime Rock, Connecticut 06039
Attention: John D. Kuhns
FAX: (860) 435-0505
<PAGE>
with a copy to:
Olshan Grundman Frome & Rosenzweig LLP
505 Park Avenue
New York, New York 10022
Attention: Thomas J. Fleming, Esq.
FAX: (212) 755-1467
The sending party shall have the burden of proving receipt.
9.3 FEES AND EXPENSES.
(a) Except as provided in Section 9.3(b), all costs and
expenses incurred in connection with this Agreement and the
transactions contemplated hereby shall be paid by the party incurring
such expenses.
(b) If (i) this Agreement is terminated (except by reason of
exercise of rights of first refusal in the Solartec Agreement or the
Pcomm Stock Agreement) by GTC pursuant to Section 7.1(d)(iii), and (ii)
within one year from the date of termination of this Agreement, any
corporation, partnership, person, entity or "group" (as that term is
used in Section 13(d)(3) of the Exchange Act), including NWP but
excluding GTC or any of its affiliates and excluding any group of which
GTC or any of its affiliates is a member, and also excluding any lender
with a security interest in the Stock as of the date of this Agreement
who forecloses upon such Stock or acquires such Stock in lieu of
foreclosure, shall have acquired or agreed to acquire
<PAGE>
all or a substantial portion of the Stock, NWP shall, within five
business days after consummation of the transactions referred to in
this clause (ii), pay to GTC (by transfer of same-day funds to an
account designated by GTC for such purpose) an amount equal to
$750,000. The preceding shall be the only remedy in the event GTC
terminates this Agreement pursuant to Section 7.1(d)(iii).
9.4 JURISDICTION, ETC. NWP and GTC irrevocably and unconditionally (a)
agree that any suit, action or other legal proceeding arising out of this
Agreement or any instrument or agreement delivered or entered into pursuant
hereto may be brought in the United States District Court for Colorado or, if
such court does not have jurisdiction or will not accept jurisdiction, in any
court of general jurisdiction in Jefferson County, Colorado; and (b) consent to
the jurisdiction of any such court in any such suit, action or proceeding; and
thus waive any objection which such party may have to the laying of venue of any
such suit, action or proceeding in any such court.
9.5 HEADINGS. The descriptive headings of the several Articles and
Sections of this Agreement are inserted for convenience only and do not
constitute a part of the Agreement. 9.6 PRIOR AGREEMENTS. This Agreement shall
supersede all prior agreements (including the letter of intent dated July 31,
<PAGE>
1996), documents or other instruments with respect to the matters
covered hereby.
9.7 WAIVER. At any time prior to the Closing, any party hereto may (i)
extend the time for the performance of any of the obligations or other acts of
any other party hereto or (ii) waive compliance with any of the agreements of
any other party or with any conditions to its own obligations. Any agreement on
the part of a party hereto to any such extension or waiver shall be valid if set
forth in an instrument in writing signed on behalf of such party. The
consummation of the transactions contemplated hereby shall not be deemed a
waiver of the right any party may have hereunder with respect to any other
parties, representations, warranties, covenants or agreements contained in or
related to this Agreement being incorrect, untrue or breached.
9.8 AMENDMENT. This Agreement may not be amended except by
an instrument in writing signed by each of the parties hereto.
9.9 ASSIGNMENT. This Agreement and all of the provisions hereof shall
be binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns, but neither this Agreement nor any of the
rights, interests or obligations hereunder shall be assigned without the prior
written consent of the other party. Nothing in this Agreement, express or
implied, is intended to confer upon any person other than the parties hereto and
their respective successors and assigns, any
<PAGE>
rights, remedies or obligations under or by reason of this Agreement.
9.10 INDEPENDENT COVENANTS. The covenants contained herein are
independent and separate, and in the event that any provision contained herein
is declared invalid or illegal, the other provisions hereof shall not be
affected or impaired thereby and shall remain valid and enforceable.
9.11 GOVERNING LAW. This Agreement shall be governed by
Colorado law without regard to the conflicts of laws provisions
thereof.
Signed as of the date written in the Preamble.
GOLDEN TECHNOLOGIES COMPANY, INC.
By: /S/ JOHN K. COORS
---------------------
John K. Coors
Title: Vice President
THE NEW WORLD POWER CORPORATION
By: /S/ JOHN D. KUHNS
---------------------
John D. Kuhns
Title: Chairman
EXHIBIT J
WAIVER AGREEMENT
This Waiver Agreement (hereinafter referred to as the
"Agreement") is entered into this 16th day of August, 1996 by and between The
New World Power Corporation, a Delaware corporation, whose principal place of
business is 558 Lime Rock Road, Lime Rock, Connecticut 06039 (hereinafter
referred to as "New World") as one party; Photocomm, Inc., an Arizona
corporation with its principal place of business at 7681 East Gray Road,
Scottsdale, Arizona 85260 (hereinafter referred to as "the Company"); Robert R.
Kauffman, an individual, with an address at c/o 7861 East Gray Road, Scottsdale,
Arizona 85260; and Programmed Land Inc., a Minnesota corporation with offices at
9414 East San Salvador, Scottsdale, Arizona 85258 (the Company, Kauffman and
Programmed Land, Inc. hereinafter collectively referred to as the "Waiving
Party") as the second party.
W I T N E S S E T H:
WHEREAS, New World and the Waiving Party did enter into a
Stock Purchase Agreement dated October 15, 1993 (hereinafter referred to as "the
Stock Purchase Agreement"); and
WHEREAS, Section 7.3 did give the Waiving Party certain rights
including a Right of First Refusal if New World were to sell such stock as it
purchased under that Agreement; and
WHEREAS, New World desires to sell all of its stock to Golden
Technologies Company, Inc. (hereinafter referred to as "GTC"); and
WHEREAS, the Waiving Party for the offering of $1 of
consideration, the receipt of which is hereby acknowledged, is prepared to waive
all of the Right of First Refusal contained in Section 7.3 of the noted Stock
Purchase Agreement on such stock as is currently owned by New World; and
WHEREAS, New World is prepared to offer such consideration in
order to obtain the waiver of this Right of First Refusal by the Waiving Party,
NOW THEREFORE, the parties hereto intending to be legally
bound as of the date first noted above in consideration of the mutual covenants
and promises hereinafter recited agree as follows:
The Waiving Party acknowledges that its Right of First Refusal
contained in Section 7.3 of the Stock Purchase Agreement of October 15, 1993 is
deemed satisfied in all respects and they hereby agree to waive all their rights
relative to those shares which New World proposes to sell to GTC upon payment of
the consideration.
<PAGE>
In consideration for the waiver from the Waiving Party, New
World shall pay to the Waiving Party the sum of $600,000 cash at the Closing of
the contemplated purchase of New World's Photocomm shares by GTC. Such
consideration shall be paid as follows:
to Robert Kauffman - $300,000
to Programmed Land, Inc. - $300,000.
The Waiving Party agrees to use all reasonable efforts to take
or cause to be taken, all actions and to do, or cause to be done, all things
necessary, proper or advisable to consummate and make effective as promptly as
practicable the proposed sale of shares by New World to GTC and to cooperate
with New World and GTC in connection with the foregoing. Such actions
specifically include the prompt filing of any and all forms, information, etc.
required under the Hart-Scott-Rodino Act (15 U.S.C. 18(c)). Nothing contained
herein, however, shall require the Waiving Party to consummate any agreement
with GTC concerning issuance of additional shares of the Company or governance
of the Company.
The Waiving Party agrees to the cancellation of the Stock
Purchase Agreement simultaneous with the closing of the GTC transaction.
If the proposed sale of shares by New World to GTC is not
consummated by January 30, 1997, then this Agreement shall be null and void. The
Waiver only applies to the sale of shares by New World to GTC.
This Agreement (and the Waiver) shall automatically terminate
if New World exercises its option to purchase 1.5 million shares of Photocomm
stock pursuant to the terms of the Stock Purchase Agreement.
This Agreement is not effective until executed by all parties.
IN WITNESS WHEREOF, the parties have caused this Agreement to
be signed by the respective duly authorized officers or individuals as of the
date first above written.
NEW WORLD POWER CORPORATION
By: /S/ VITOLD JORDAN
---------------------
Name: Vitold Jordan
Title: Interim Chief Executive
Officer
PHOTOCOMM, INC.
By: /S/ ROBERT R. KAUFFMAN
--------------------------
Name: Robert R. Kauffman
Title: President, CEO
PROGRAMMED LAND, INC.
By: /S/ DONALD E. ANDERSON
--------------------------
Name: Donald E. Anderson
Title: President
ROBERT R. KAUFFMAN
By: /S/ ROBERT R. KAUFFMAN
--------------------------
Robert R. Kauffman
