UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
____________
SCHEDULE 13D
UNDER THE SECURITIES EXCHANGE ACT OF 1934
(AMENDMENT NO. 1)
PHOTOCOMM, INC.
_________________________________________________________________
(Name of Issuer)
Common Stock Par Value $.10 Each
_________________________________________________________________
(Title of Class of Securities)
719319-10-5
_________________________________________________________________
(CUSIP Number)
Jill B. W. Sisson, Esq.
General Counsel and Secretary
ACX Technologies, Inc.
16000 Table Mountain Parkway
Golden, Colorado 80403
(303) 271-7000
_________________________________________________________________
(Name, Address and Telephone Number of Person
Authorized to Receive Notices and Communications)
November 19, 1996
_________________________________________________________________
(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 /X/.
Check the following box if a fee is being paid with the statement
/ /.
_________________________________________________________________
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
ACX Technologies, Inc.*
* The Common Stock is being acquired by Golden Technologies
Company, Inc., which is a wholly owned subsidiary of ACX
Technologies, Inc.
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a) / X /
(b) / /
3 SEC USE ONLY
4 SOURCE OF FUNDS
WC; 00
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO
ITEMS 2(d) or 2(e).
/ /
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Colorado
7 SOLE VOTING POWER
- 30,000 -*
NUMBER OF
SHARES 8 SHARED VOTING POWER
BENEFICIALLY - 0 -*
OWNED BY
EACH 9 SOLE DISPOSITIVE POWER
REPORTING - 30,000 -*
PERSON
WITH 10 SHARED DISPOSITIVE POWER
- 0 -*
* See Item 5(b).
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
8,642,447 (see Item 5(a))
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN
SHARES. / /
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
53.1 percent (see Item 5)
14 TYPE OF REPORTING PERSON
CO
_________________________________________________________________
ITEM 1. SECURITY AND ISSUER.
This Amendment No. 1 to the Schedule 13D dated August 16, 1996
(the "Schedule 13D") relates to the common stock par value $.10
(the "Common Stock") of Photocomm, Inc. (the "Company"), whose
principal executive offices are located at 7681 E. Gray Road,
Scottsdale, Arizona 85260. The Company is engaged primarily in
the development, manufacturing and marketing of photovoltaic
(solar electric) power systems and related products.
ITEM 4. PURPOSE OF TRANSACTION
As previously reported on August 16, 1996, Golden Technologies
Company, Inc. ("GTC") entered into an agreement with The New
World Power Corporation ("NWP") to acquire 6,612,447 shares of
Common Stock. That agreement terminated effective November 15,
1996. On November 19, 1996, GTC signed a Stock Purchase
Agreement (the "Agreement") with the Company and NWP pursuant to
which GTC has agreed to acquire, subject to conditions set forth
in the Agreement, 6,612,447 shares of Common Stock of the Company
from NWP and 2,000,000 shares of Common Stock directly from the
Company or, if the Company elects, up to 1,000,000 shares from
certain senior executives of the Company and Programmed Land,
Inc. ("PLI"), a shareholder and the balance from the Company.
GTC understands that it is contemplated that 1,000,000 shares
will be sold by the Company and 450,000 shares of Common Stock
will be sold by each of Robert Kauffman and PLI and 50,000 shares
will be sold by each of Thomas C. LaVoy and Myron Anduri.
Following the acquisition of the Common Stock pursuant to the
Agreement, GTC would own approximately 53.1 percent of the issued
and outstanding Common Stock, if all is a new issue assuming no
additional issuances of Common Stock. The actual percentage may
vary slightly depending upon the number of shares purchased from
the senior executives that are not newly issued and PLI and how
much is purchased from the Company itself.
At the time of closing under the Agreement, it is contemplated
that three board members of the Company that have been designated
by NWP will resign from the Company's board of directors to be
replaced by designees of GTC. One other director will resign and
the Company will have six directors. Accordingly, GTC will have
selected three of six directors. At the Company's 1997 annual
meeting, scheduled for January 1997, GTC and the Company have
agreed that three designees of GTC will be elected to the board,
three of the incumbent directors will be elected and one
additional director selected by the management directors from a
slate of three persons proposed by GTC will be the seventh
director of the Company.
On September 16, 1996, the Company's board of directors purported
to approve a shareholders' rights plan, authorized the issuance
of various shares, entered into employment agreements with
various executives of the Company, granted stock options to
various officers and directors of the Company and others, amended
its bylaws and authorized a Series E preferred stock. GTC and
NWP filed a lawsuit against the Company and certain of its
directors to set aside those transactions. In connection with
the Agreement, the lawsuit will be dismissed and the actions
taken at the September 16 meeting will be rescinded or modified.
ITEM 5. INTEREST IN SECURITIES OF THE ISSUER.
(a) Because within sixty days GTC may acquire 8,612,447 shares
of the Common Stock, amounting to as much as 53.1 percent of the
outstanding shares of Common Stock, pursuant to the terms of the
Agreement, ACX and GTC have filed this Amended Schedule 13D.
Pursuant to Rule 13d-4 under the Act, however, until the purchase
of the shares is consummated, ACX and GTC disclaim beneficial
ownership of all such shares. To the best of the knowledge of
ACX and GTC, none of the directors and officers named in Item 2
of the original Schedule 13D is the beneficial owner of any
shares of the Common Stock except that John D. Beckett owns 8,000
shares which were acquired on August 26, 1996. ACX owns 30,000
shares that were purchased as indicated in the open market.
Date No. of Shares Price per Share
9/10/96 10,000 $2
9/19/96 10,000 $2
9/20/96 10,000 $2
(b) GTC has no power to vote or to direct the vote or to dispose
or to direct the disposition of any shares of the Common Stock to
be purchased pursuant to the Agreement, unless and until the
acquisitions under the Agreement are effected. To the best of
the knowledge of GTC, none of the directors and officers named in
Item 2 has any power to vote or to direct the vote or to dispose
of or to direct the disposition of any shares of the Common Stock
except Mr. Beckett as to 8,000 shares. None has effected any
transactions in shares during the past sixty days.
ITEM 6. CONTRACT, ARRANGEMENTS, UNDERSTANDINGS OR RELATIONSHIPS
WITH RESPECT TO THE SECURITIES OF THE ISSUER.
ACX has agreed to purchase up to 500,000 shares of Common Stock
from Robert Kauffman if his employment with the Company
terminates on the terms set forth in an Executive Compensation
Agreement between Mr. Kauffman and the Company, the form of which
is attached hereto as Exhibit 2.
ITEM 7. MATERIAL TO BE FILED AS EXHIBITS
Exhibit 1 - Stock Purchase Agreement dated November 15, 1996,
among Golden Technologies Company, Inc., the New World Power
Corporation and Photocomm, Inc.
Exhibit 2 - Form of Executive Compensation Agreement between the
Company and Robert R. Kauffman.
SIGNATURES
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.
Pursuant to Rule 13d-1(f)(2) this Schedule 13D is filed jointly
on behalf of each of ACX Technologies, Inc. and Golden
Technologies Company, Inc.
Dated: November 19, 1996
/s/ Jill B.W. Sisson
____________________________________
ACX Technologies, Inc.
By: Jill B.W. Sisson
/s/ Jerry W. Young
____________________________________
Golden Technologies Company, Inc.
By: Jerry W. Young
EXHIBIT 2.7
ARTICLES AND BYLAWS
NOT INCLUDED
STOCK PURCHASE AGREEMENT
Stock Purchase Agreement (the "Agreement") dated November 15,
1996, among Golden Technologies Company, Inc., a Colorado
corporation ("GTC"), The New World Power Corporation, a Delaware
corporation ("NWP"), and Photocomm, Inc., an Arizona corporation
(the "Company").
RECITALS
A. NWP owns 6,612,447 shares of the outstanding common stock
$.10 par value (the "NWP Stock") of the Company. NWP desires to
sell and GTC desires to purchase the NWP Stock upon and subject
to the terms and conditions set forth herein.
B. The Company desires to grant to GTC the right to purchase
2,000,000 shares of common stock (the "Company Stock") of the
Company from the Company and, at its election, from certain
shareholders of the Company, upon and subject to the terms and
conditions set forth herein. The Company acknowledges that it
would benefit from having GTC as a significant shareholder of the
Company.
C. NWP and GTC entered into a Stock Purchase Agreement dated
as of August 16, 1996. This Agreement supersedes that agreement
in its entirety, and the August 26 agreement, the conditions to
closing under which were not satisfied, is terminated.
D. NWP, GTC and the Company are involved in litigation (the
"Litigation") concerning certain actions of the Company's Board
of Directors on September 16, 1996. All the parties desire to
settle and dismiss the Litigation at the time of closing the
transactions described in this Agreement.
E. The shares of NWP Stock and Company Stock are referred to
in this Agreement as the "Stock."
AGREEMENT
In consideration of and subject to the mutual agreements, terms
and conditions herein contained, the parties agree as follows:
ARTICLE I
PURCHASE AND SALE OF STOCK
1.1 Purchase and Sale, Closing - By the Company. At the
Closing (as defined below), the Company will issue to GTC Company
Stock at a price per Share of $2.75 (the "Per Share Price"). The
Company may, at its election, proportionately reduce its
obligation to issue and sell Company Stock by substituting up to
an aggregate of 1,000,000 shares of common stock owned by senior
executives of the Company and Programmed Land, Inc. (collectively
the "Shareholders"), provided the Shareholders enter into
appropriate agreements with GTC providing the warranties set
forth in Section 2.3, 2.4 and 2.5 below as to themselves and as
to the Stock being sold by them. Upon such substitution of
shares owned by Shareholders, the substituted shares of common
stock shall be deemed to be included in the term "Company Stock."
At Closing the aggregate Per Share Price shall be paid in
immediately available funds to the Company and the Shareholders,
as applicable.
1.2 Purchase and Sale, Closing - By NWP. At the Closing (as
defined below), NWP will sell and deliver all and not less than
all of the NWP Stock to GTC by the delivery of certificates
evidencing such shares, in good delivery form and duly endorsed
for transfer or accompanied by duly signed stock powers with
signature guarantees in exchange for a payment of $11,292,500 for
the NWP Stock in immediately available funds. At the Closing,
GTC will also pay or reimburse NWP for the reasonable expenses of
its counsel incurred in the Litigation.
1.3 Closing. The closing ("Closing") of the sale and
purchase of the Stock (the "Transactions") shall take place at
the offices of Holme Roberts & Owen LLP, 1700 Lincoln Street,
Suite 4100, Denver, Colorado at 10:00 a.m. (Denver time) on
November 21, 1996, or the earliest practicable date thereafter
after the conditions set forth in Article IX are satisfied or
waived, or at such other place, time and date as the parties
hereto may agree upon (the "Closing Date").
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
The Company represents and warrants to GTC as follows:
2.1 Organization and Qualification. The Company 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 Authorized Shares. The Company's authorized capital
consists of 25,000,000 shares of common stock, $.10 par value, of
which 14,272,759 shares are issued and outstanding and 4,024,673
of which are reserved for issuance in connection with existing
options and other obligations to issue shares, and 5,000,000
shares of preferred stock, $.001 par value, of which 109,972
shares of Series A are outstanding and of which 60,965 shares of
Series AA are outstanding.
2.3 Title. The sale of the Company Stock and the delivery of
the certificates representing the Company Stock pursuant to this
Agreement will transfer to GTC good and marketable title to such
Company Stock free and clear of all liens, claims, charges,
encumbrances or rights or interests of others whatsoever.
2.4 Authority. The Company has the full right, power and
authority to enter into this Agreement and a waiver of certain
rights of first refusal with respect to the purchase of the NWP
Stock (the "Waiver") and this Agreement and the Waiver constitute
valid and binding obligations on the Company's part enforceable
against the Company in accordance with their terms, except as
such enforcement may be limited by bankruptcy, insolvency or
similar laws affecting the rights of creditors generally or by
general equitable principles.
2.5 Noncontravention. The execution, delivery and
performance of this Agreement will not, with or without the
giving of notice or the passage of time (i) violate any judgment,
injunction or order of any court, arbitrator or governmental
agency or law applicable to the Company, or (ii) conflict with,
result in the breach of any provision of constitute a default
under or result in rights under any agreement or instrument to
which the Company is a party or by which the Company may be
bound, assuming due compliance with that Stock Purchase Agreement
dated as of October 1993 among NWP, the Company, Westinghouse
Electric Corporation, Programmed Land, Inc. and Robert R.
Kauffman (the "Pcomm Stock Agreement") if required.
2.6 Control Shares and Business Combination Statutes Not
Applicable. The Company has duly taken any and all necessary
action such that the Company is not subject to or governed by
Arizona Revised Statutes ("ARS") 10-2721 through 2727 ("CS/BC
Provisions"), and a Company board of directors committee properly
formed and constituted pursuant to ARS 10-2741(D) has duly
approved (or, prior to the Closing Date, will have duly approved)
ACX Technologies, Inc., a Colorado corporation ("ACX") and parent
of GTC, GTC and any other "subsidiary" of ACX hereafter acquiring
shares of Company capital stock as "interested shareholders" of
the Company such that ARS 10-2741 and 2742 (also "CS/BC
Provisions") do not govern or apply to any transaction involving
any such "interested shareholder" and constituting a "business
combination." Terms appearing in quotation marks in the
preceding sentence have the definitions prescribed by ARS 10-
2701.
2.7 Articles and Bylaws. The Company's current Articles of
Incorporation and Bylaws are attached hereto as Exhibit 2.7.
2.8 Conduct of Business. Since May 31, 1996, except for
matters disclosed in writing to GTC or ACX, the business of the
Company has been conducted in the ordinary course. Without
limiting the generality of the preceding sentence, since May 31,
1996, none of the Company or any subsidiary of the Company has
(i) declared or paid any dividend, (ii) issued any equity
security or rights to acquire any equity security, (iii) suffered
any material adverse change in its business or prospects
(financial or otherwise), (iv) entered into any material
transaction that was not in the ordinary course, (v) changed the
compensation of any executive, except as disclosed to GTC, (vi)
become aware of any claim against the Company or a subsidiary,
which if decided adversely to the Company or such subsidiary
would have a material adverse effect on the Company on a
consolidated basis, or (vii) entered into any material contract.
2.9 Financial Statements. The unaudited consolidated balance
sheet of the Company as at May 31, 1996, (the "Balance Sheet
Date"), and the related consolidated statements of income,
stockholders' equity and changes in financial position of the
Company for the period then ended fairly present (i) the
consolidated financial position of the Company as of the
respective date of such balance sheets and (ii) the results of
the consolidated operations of the Company for the fiscal periods
ended on such dates, all in conformity with generally accepted
accounting principles applied on a consistent basis.
2.10 Disclosure. All filings by the Company with the
Securities and Exchange Commission pursuant to the Securities
Exchange Act of 1934 (including all exhibits and schedules
thereto and documents incorporated by reference therein)
("Company Filings") have been and will be timely filed and did
not and will not prior to Closing 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. All information and documents provided prior to the
date of this Agreement and all information and documents
subsequently provided by the Company, its agents, officers,
directors and employees, to GTC or its representatives, by or on
behalf of the Company 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
information or documents, fully responsive to any specific
request made by or on behalf of GTC or its representatives.
2.11 No Other Agreements. The Company has no agreements with
respect to its equity securities except the Pcomm Stock
Agreement, this Agreement, certain employee stock option
agreements and a waiver of certain rights under the Pcomm Stock
Agreement.
2.12 No Brokers. The Company has not entered into any
agreement with any person, firm or corporation for the payment of
any commission, brokerage or "finders fee" in connection with the
transactions contemplated hereunder.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF NWP
NWP represents and warrants to GTC as follows:
3.1 Organization and Qualification. NWP is a corporation
duly organized, validly existing and in good standing under the
laws of the State of Delaware with corporate power and authority
to own, operate and lease its properties and to carry on its
business as now conducted.
3.2 Authorization of Agreement - No Violation - No Consents.
Except as provided in this Section 3.2, NWP has full power and
authority to sell the NWP Stock and has the capacity and
authority to enter into this agreement and 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
or enforceability of this Agreement against NWP.
3.3 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 affiliated companies.
3.4 No Default. Neither the execution nor 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 under the Pcomm Stock Agreement
(which rights have been validly waived subject only to the
payment of sums, if any, described in such waiver).
Notwithstanding the preceding provisions of this Section 3.4,
consents of certain of NWP's lenders are required to consummate
the transactions.
3.5 Company Filings. To the knowledge of NWP, the Company
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.
3.6 Title. The sale of the NWP Stock and the delivery of the
certificates representing the NWP Stock pursuant to this
Agreement will transfer to GTC good and marketable title to the
NWP Stock free and clear of all liens, claims, charges,
encumbrances as rights or interests of others whatsoever.
3.7 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 its 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 information or documents,
fully responsive to any specific request made by or on behalf of
GTC or its representatives.
3.8 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 NWP Stock, and GTC will acquire
the NWP Stock free from any claim by any party to the Pcomm Stock
Agreement, and NWP has waived its rights to acquire any of the
Company Stock pursuant to the Pcomm Stock Agreement.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF GTC
GTC represents and warrants to NWP and the Company as follows:
4.1 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.
4.2 Investment Purpose. GTC is acquiring the Stock for its
own account and not with a view to a sale or distribution of the
Stock in violation of any securities law, and it has no present
intention of selling or distributing any Stock in violation of
any securities laws.
4.3 Authorization of Agreement. GTC has the corporate power
to enter into this Agreement and to carry out its obligations
hereunder. 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 it is bound or affected, which conflict or breach would
prevent it from performing its obligations under this Agreement.
4.4 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
which, if not obtained or made, would prevent GTC from performing
its obligations under this Agreement.
4.5 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
or the Company.
4.6 GTC Financial Ability. GTC has, or has access from its
shareholder to, sufficient funds to purchase the Stock.
ARTICLE V
COVENANTS OF THE COMPANY
The Company hereby covenants and agrees with GTC, for the benefit
of GTC only, that without the prior consent of GTC from the date
hereof until the Closing:
5.1 Noninterference. The Company will not enter into any
transaction, take any action or, to the extent reasonably
practicable by inaction permit any event to occur, that would
result in any of the representations or warranties of the Company
contained herein not being true and correct or each covenant of
the Company not to have been performed or observed. The Company
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.
5.2 Best Efforts. The Company shall use its best efforts to
cause each of the conditions to the obligation of GTC set forth
in Sections 9.1 and 9.2 of this Agreement to be fulfilled
promptly.
5.3 Reservation. The Company will at all times reserve out
of its authorized but unissued stock a number of shares equal to
the Shares.
5.4 Access. The Company shall afford to the officers,
employees, advisors and agents of GTC complete access at all
reasonable times to its 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. The information so obtained will be held on
the terms of the Confidentiality Agreement of even date between
GTC and the Company.
5.5 Notice. The Company will promptly notify GTC of any
material event with respect to the Company that might constitute
a breach of this Agreement or affect the Company's ability to
carry out its obligations hereunder.
5.6 Stockholder Agreement. The Company agrees to terminate
the Pcomm Stock Agreement as of Closing.
5.7 Board Membership. Upon the Closing as to the NWP Stock
and resignation of the three designees of NWP on the Company's
Board of Directors, the three vacancies shall be filled by three
designees of GTC. At the same time, one additional director of
the Company shall resign and the Board of Directors of the
Company shall have only six members until the Annual Meeting of
Shareholders described in Section 5.8 below. Any director who
resigns or otherwise ceases to serve prior to the Annual Meeting
shall be replaced by the Board with a nominee selected in the
same manner as was the person who is no longer a director. Until
the Annual Meeting (defined in Section 5.8) the Board of
Directors of the Company will meet only if all directors are
present in person or by telephone.
5.8 Annual Meeting.
(i) The Company shall promptly take all action necessary
in accordance with Arizona law and its Articles of Incorporation
and Bylaws to convene an annual meeting (the "Annual Meeting") of
the shareholders of the Company on a date no later than January
31, 1997, to consider and vote upon the election of directors and
for no other purpose. The Company shall nominate for election at
the Annual Meeting three directors selected by directors of the
Company not affiliated with GTC ("Management Directors"), and
three directors selected by GTC. In addition, the Company shall
nominate one and only one additional director which shall be
selected by Management Directors from a proposed slate of three
directors proposed by GTC, all of whom shall be "disinterested"
as defined in A.R.S. 10-2741 D. and none of whom shall have a
direct material financial relationship with GTC or its affiliates
or be an immediate relative of an executive officer or director
of GTC or ACX, which list will be provided to the Company in
sufficient time for information concerning the director to be
included in the information or proxy statement.
(ii) In connection with the Annual Meeting, the Company,
as promptly as practicable, shall prepare and file an information
or proxy statement with the Securities and Exchange Commission
(the "Commission"), shall notify GTC promptly of any comments
from the Commission or its staff or any requests by the
Commission or its staff for amendments or supplements to the
information or proxy statement or for additional information with
respect to the information or proxy statement, and will supply to
GTC copies of all correspondence between the Company and the
Commission and its staff with respect to the Annual Meeting. The
Company will promptly prepare and file any amendment or
supplement to the information or proxy statement as necessary to
assure that the information or proxy statement at all times
complies with applicable law and will not distribute or file the
information or proxy statement or any amendments or supplements
thereto to which GTC reasonably objects. The information or
proxy statement and each amendment or supplement thereto shall be
reviewed before filing by counsel for GTC.
(iii) At the Annual Meeting all proxies as to which no
direction is made by the shareholder shall be voted for the
election of the seven nominees and no other persons and the
Company agrees to cumulate votes as to which it has discretion in
such a manner that the slate of seven persons is elected.
(iv) The Chairman of the Annual Meeting will agree with
GTC as to the agenda, the voting procedures and other matters
within his discretion and shall conduct the meeting in such a
manner that GTC's rights to vote and otherwise participate in the
meeting will not be impaired.
(v) Immediately following the Annual Meeting, the
Company's Board of Directors shall hold an organizational
meeting.
5.9 Repeal of Certain Actions. The Company shall, on or
prior to November 18, 1996, duly and validly take the following
actions with respect to certain matters approved at its September
16, 1996, Board of Directors' meeting (the "September Meeting"):
(i) all Rights heretofore issued pursuant to the
Company's Stockholder Right's Plan shall be effectively redeemed
and the Rights Plan shall be duly terminated;
(ii) each of the Executive Compensation Agreements
approved at the September Meeting shall be duly and validly
rescinded and appropriate consents to termination shall be
obtained from any employee who has signed or has beneficial
rights under any such agreement; and such agreements may be
replaced by agreements in the form attached hereto;
(iii) all grants of options pursuant to the Photocomm,
Inc. 1996 Stock Option Plan adopted at the September Meeting,
shall be canceled and all grantees of options pursuant to that
plan shall validly surrender any right to options pursuant to
such plan, provided that options may be granted at fair market
value on the terms set forth on Schedule 6.9(iii);
(iv) all determinations of the Board of Directors with
respect to certain acquisitions approved at the September Meeting
shall be rescinded;
(v) Section 3.02 of the Company's Bylaws shall be
reinstated to its form prior to the September Meeting; and
(vi) all authorized shares of Series E Preferred Stock
shall be canceled and the creation of such series rescinded.
5.10 Ordinary Course. Except as expressly permitted
hereunder, the Company will conduct its business in the ordinary
course, will not buy or sell any assets except in the ordinary
course and will not issue any shares of equity or documents
convertible into or carrying the right to purchase equity
securities of the Company. The Company may grant normal salary
increases.
5.11 Articles and Bylaws. The Company shall not amend its
Articles or Bylaws except as provided in Schedule 9.2.
5.12 Litigation Expenses. The Company will pay the
reasonable fees and expenses of counsel to the Company in the
Litigation based on prevailing rates in the Phoenix, Arizona
area.
ARTICLE VI
COVENANTS OF NWP
NWP hereby covenants and agrees with GTC, for the benefit of GTC
only, that without the prior consent of GTC from the date hereof
until the Closing:
6.1 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
purchase and sale of the NWP Stock, and to cooperate with GTC in
connection with the foregoing, including, but not limited to
using reasonable efforts (a) to obtain promptly all necessary
waivers, consents and 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 all lawsuits or other legal
proceedings challenging this Agreement or the purchase and sale
of the NWP Stock, (d) to lift or rescind any injunction or
restraining order or other order adversely affecting the ability
of the parties to consummate the purchase and sale of the NWP
Stock, (e) to effect promptly all necessary filings, including,
but not limited to, filings with the Commission, filings under
the Hart-Scott Act and filings that are required under the rules
or regulations of any other governmental authorities, and (f) to
fulfill promptly all conditions to the obligations of GTC under
Sections 9.1 and 9.3 of this Agreement and to keep GTC reasonably
apprised of the status of all such efforts.
6.2 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 the Company to any
person for the purpose of soliciting, encouraging, or enabling
another person to propose an acquisition of the NWP 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 6.2(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.
6.3 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 the Company or any of their properties or
assets, or, to the best of its knowledge, against any employee,
consultant, director, officer or stockholder of the Company, 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 the Company, 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 the Company.
6.4 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.
6.5 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.
6.6 Compliance with Stock Agreements. NWP shall comply in
all respects with the terms of the Pcomm Stock Agreement and
shall take any additional action to assure compliance with such
agreement as GTC may reasonably request (but any such request by
GTC shall not affect NWP's obligations hereunder). NWP shall
obtain or assist GTC in obtaining a prompt waiver of the rights
of first refusal contained in the Pcomm 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 NWP Stock.
6.7 Selection of Directors. At the request of GTC, at the
time of Closing, the directors of the Company 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 VII
ADDITIONAL COVENANTS OF THE COMPANY
7.1 CS/BC, Etc. The Company will not take or recommend or
permit to be taken any action that would cause the Stock or any
other shares of the Company's common stock owned by GTC or its
affiliates to be subject to the CS/BC Provisions, or adopt any
shareholder right's plan or similar plan or take or recommend to
its shareholders any other action that would impose limitations
on the legal rights of GTC or its affiliates in their capacity as
a security holder of the Company, including without limitation,
any action that would impose restrictions based upon the size of
security holdings, the acquisition of additional security
holdings, or any other consideration that would apply to GTC and
its affiliates and not to security holders generally, or that
would include or result in the issuance of or proposal to issue
any class of equity securities having voting power
disproportionately greater than the equity investment in the
Company represented by the common stock of the Company.
7.2 Preemptive Right. GTC shall have the preemptive right
(effective as of Closing) to subscribe for a proportionate part
of all equity offerings of the Company after the date of this
Agreement including, without limitation, offerings of securities
convertible into or exercisable for equity securities, so long as
ACX and its subsidiaries own at least 20% of the issued and
outstanding stock of the Company, or 6,000,000 shares (as
adjusted pursuant to Article VIII) if less.
ARTICLE VIII
ADJUSTMENTS
The respective numbers of Shares to be sold by NWP or the
Shareholders or issued and sold by the Company to GTC pursuant to
this Agreement shall in each case be adjusted in the event of any
change in the Company's capital stock on or before the Closing by
reason of the issuance by the Company of any equity securities,
the declaration or payment of stock or other non-cash dividends
or extraordinary cash dividends or the declaration or conclusion
of split-ups, mergers, recapitalizations, combinations,
subdivisions, conversions, exchanges of shares or the like after
the date of this Agreement, such that, in each case GTC shall
receive on the Closing the number and class of shares or other
securities or property that would have been received in respect
of a share if the Closing had occurred immediately prior to such
event, or the record date therefor, as applicable.
ARTICLE IX
CONDITIONS TO CLOSING
9.1 Conditions to Obligations of All Parties. The respective
obligations all parties to proceed with Closing shall be subject
to the satisfaction of the following conditions prior to the
Closing:
(i) any waiting periods under any applicable laws shall
have expired or been terminated and any required governmental
approvals shall have been obtained;
(ii) no order, statute, rule, regulation, executive
order, stay, decree, judgment or injunction shall have been
enacted, entered, issued, promulgated or enforced by any court or
governmental authority, subsequent to the date of this Agreement,
which prohibits or restricts the effectuation of any of the
transactions contemplated by this Agreement; and
(iii) the Litigation shall have been dismissed with
prejudice and the parties shall have exchanged mutual general
releases except as to obligations under this Agreement as of the
time of completion of the Closings, each party to bear its own
costs, except as provided herein.
9.2 Additional Conditions to GTC's Closing Obligations with
the Company. In addition to the conditions specified in Section
9.1, the obligations of GTC to proceed with Closing as to the
Company shall also be subject to the satisfaction of the
following conditions at the time of such Closing (except to the
extent waived by GTC, in its sole discretion):
(i) the Company shall have performed and complied in all
material respects with the covenants, agreements and obligations
contained in this Agreement that are required to be performed and
complied with by the Company at or prior to the date of the
Closing;
(ii) the representations and warranties of the Company
contained in this Agreement shall be true and correct in all
material respects as of the date hereof, and shall be deemed to
have been made again at and as of the Closing and shall then be
true and correct in all material respects, and GTC shall have
received an officer's certificate to that effect;
(iii) no litigation shall be pending or overtly
threatened to restrain or prohibit the transactions contemplated
by this Agreement or that would limit in any manner the rights of
GTC or its affiliates with respect to any or all of the Stock or
to own or operate any part of the business of the Company and its
subsidiaries;
(iv) there shall have been no material adverse change in
the Company's financial condition or its prospects;
(v) GTC shall have received opinions of one or more
counsel (A) as to the corporate authorizations set forth in
Section 2.6, (B) that the Company duly adopted Section 2.03 of
its Bylaws, (C) as to the matters in Section 2.1 through 2.5 of
this Agreement, (D) as to the validity of certain actions
required to be taken pursuant to Section 5.9 and (E) such other
matters as GTC may reasonably request;
(vi) all rights of first refusal under the Pcomm Stock
Agreement to acquire Stock shall have been waived and the Pcomm
Stock Agreement shall have terminated effective as of Closing
with no remaining claims thereunder that could affect the
ownership by GTC of the Stock;
(vii) GTC shall have closed the acquisition of shares of
NWP Stock from NWP;
(viii) the Company and GTC shall have entered into a
registration rights agreement covering the Shares and all other
shares of the Company that GTC or its affiliates may own,
granting two demand registrations and unlimited piggyback
registration rights, provided GTC shall pay one half of the costs
of any demand registration; and
(ix) the Company's Bylaws shall have been amended as set
forth in Schedule 9.2.
9.3 Additional Conditions to GTC's Closing Obligations with
NWP. In addition to the conditions specified in Section 9.1, the
obligation of GTC to proceed with Closing as to NWP shall also be
subject to the satisfaction of the following conditions at the
time of such Closing (except to the extent waived by it in its
sole discretion).
(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 an officer to such effect.
(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.
(c) Representations of the Company. The representations
of the Company as provided in Sections 2.1, 2.2, 2.4, 2.5, 2.6,
2.8 and 2.9 shall be true in all material respects as of the
Closing.
(d) 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 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.
(e) 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 from counsel licensed in Arizona and
acceptable to GTC to the effect of the corporate authorizations
set forth in Section 2.6.
(f) Resignations. All designees of NWP on the board of
directors of Pcomm shall resign and shall have been replaced by
designees of GTC and all of them shall have waived any right to
compensation for past services.
(g) Shareholder Agreement. The parties to the Pcomm
Stock Agreement shall have consented to its termination as of the
Closing shall have waived all rights to acquire any of the Stock
thereunder and there shall be no claims thereunder by NWP or
persons claiming through NWP or that would affect GTC's ownership
of the Stock.
(h) Simultaneous Closing. The Closing of the purchase
of the Company Shares shall occur simultaneously with the Closing
of the purchase of the NWP Shares.
9.4 Additional Conditions to Company's Closing Obligations.
In addition to the conditions specified in Section 9.1, the
obligations of the Company to proceed with a Closing shall also
be subject to the satisfaction of the following conditions
(except to the extent waived by the Company, in its sole
discretion):
(i) GTC shall have performed and complied in all
material respects with the covenants, agreements and obligations
contained in this Agreement that are required to be performed and
complied with by it at or prior to the date of the Closing;
(ii) the representations and warranties of GTC contained
in this Agreement shall be true and correct in all material
respects as of the date hereof, and shall be deemed to have been
made again at and as of the Closing and shall then be true and
correct in all material respects, and GTC shall have furnished an
officer's certificate to that effect; and
(iii) the fees payable pursuant to certain waiver
agreement dated August 16, 1996, with respect to the Pcomm Stock
Agreement among NWP, Robert R. Kauffman, Programmed Land, Inc.
and the Company shall have been paid.
9.5 Additional Conditions to the Obligation of NWP. In
addition to the conditions specified in Section 9.1, the
obligation of NWP to proceed with the Closing shall also be
subject to the satisfaction of the following conditions (except
to the extent that they are waived by NWP in its sole
discretion):
(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
Closing Date and (iii) GTC shall have furnished NWP at the
Closing a certificate of an officer 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 LLP 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 of officers of GTC
with respect to the accuracy of factual matters that are not
independently established.
ARTICLE X
TERMINATION, AMENDMENT AND WAIVER
10.1 Termination. This Agreement may be terminated at any
time prior to the Closing:
(a) By consent of the Boards of Directors of NWP and GTC
as to the purchase of the NWP Stock;
(b) By consent of the Boards of Directors and the
Company and ACX as to the purchase of the Company Stock; or
(c) By any party if (i) the Closing shall not have
occurred on or before [January 30, 1997], or (ii) any of the
conditions to the obligation of the terminating party set forth
hereof shall not be met at the Closing Date; provided, however,
that the right to terminate this Agreement under this Section
10.1(c) 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.
(d) By NWP as to the purchase of the NWP Stock:
(i) If GTC fails to perform in any material respect
any of its obligations under this Agreement;
(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
(e) By the Company as to the purchase of the Company
Stock:
(i) If GTC fails to perform in any material respect
any of its obligations under this Agreement;
(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;
(f) By GTC:
(i) As to the purchase of NWP Stock, if NWP fails
to perform in any material respect any of its obligations under
this Agreement;
(ii) As to the purchase of NWP Stock, 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) As to the purchase of the Company Stock, if
the Company fails to perform in any material respect any of its
obligations under this Agreement;
(iv) As to the purchase of Company Stock, if the
representations and warranties of the Company set forth in this
Agreement are not true and correct in any material respect at any
time prior to the Closing;
(v) 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;
(vi) 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
(vii) If there shall be commenced any proceedings
under the Bankruptcy Code or other laws for the relief of debtors
by or against NWP.
10.2 Effect of Termination. In the event of the termination
of this Agreement as provided in Section 10.1, this Agreement
shall forthwith become void as to the purchase specified and
there shall be no liability or obligation on the part of the
parties except (i) as set forth in Section 12.3, and (ii) that a
party shall be liable for willful defaults of its obligations
hereunder.
ARTICLE XI
SURVIVAL OF REPRESENTATIONS AND
WARRANTIES; INDEMNIFICATION
11.1 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 3.1, 3.2, 3.3, 3.4, 3.6, 3.7
and 3.8 and claims for breach of the covenants by NWP in Article
V 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.
11.2 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
action, 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's representations or warranties in Sections 3.1, 3.2, 3.3,
3.4, 3.6, 3.7 and 3.8 (but only with respect to 3.7 if NWP had
knowledge of the falsity of the representations in Section 3.7)
and 3.8 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 of any Indemnified Party
to so notify NWP shall not relieve NWP of its obligation to
indemnify in respect to such action under this Section 11.2 and
shall not relieve NWP of any other liability that it 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 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 11.2 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 such losses, and not only the amount
of any such excess, and its aggregate liability shall not exceed
the purchase price for the Stock.
ARTICLE XII
GENERAL PROVISIONS
12.1 Public Statements. No party will issue any press
release or make any public announcements as to the transactions
contemplated by this Agreement except as are required to satisfy
its legal obligation as a public company. NWP will confer with
GTC as to any announcement that it intends to make, the Company
will confer with GTC as to any announcement that it intends to
make, and GTC will confer with NWP and the Company as to any
announcement it intends to make 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 give to the other party sufficient
opportunity to review any such press release or other public
announcement in advance of release.
12.2 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 addresses 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 Technologies Company, Inc.
16000 Table Mountain Parkway
Golden, Colorado 80403
Attention: Jed J. Burnham
FAX: (303) 271-7174
and
ACX Technologies, Inc.
16000 Table Mountain Parkway
Golden, CO 80403
Attention: Jill B.W. Sisson, Esq.
FAX: (303) 271-7055
with a copy to:
Holme Roberts & Owen LLP
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: Vitold Jordan
FAX: (860) 435-0505
with a copy to:
Olshan Grundman Frome & Rosenzweig LLP
505 Park Avenue
New York, New York 10022
Attention: Ilan Reich, Esq.
FAX: (212) 755-1467
(c) If to the Company:
Photocomm, Inc.
7681 East Road
Scottsdale, Arizona 85260
Attention: Robert R. Kauffman
FAX: (602) 483-6431
with a copy to:
Oman, Schulenburg & Politan, P.L.C.
4801 E. Greenway Road
Scottsdale, Arizona 85254
Attention: Steven P. Oman
FAX: (602) 953-2900
The sending party shall have the burden of proving receipt.
12.3 Fees and Expenses.
(a) Except as provided in Section 12.3(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 the exercise of rights of first refusal in the Pcomm
Stock Agreement) by GTC pursuant to Section 10.1(f)(v), 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 all or a substantial portion of the Stock,
NWP shall, within five business days after consummation of the
transaction 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 10.1(f)(v).
12.4 Right of First Refusal in Favor of the Company.
(a) The Company will have, and GTC hereby grants to the
Company, until January 1, 2001, a right of first refusal to
purchase all of the Company Stock that GTC and subsidiaries may
from time to time propose to sell to a party not affiliated with
GTC. Transfers to affiliates of GTC shall not be subject to this
section provided that any transferee agrees to be bound by the
provisions of this section. No other shares of the Company owned
by GTC or its affiliates shall be subject to this provision. If
GTC receives a bona fide offer ("Offer") to sell any of the
Company Stock and it wants to accept the Offer, it shall deliver
to the Company a written notice setting forth the terms of the
Offer. Such notice shall constitute an irrevocable offer to sell
the Company Stock proposed to be sold to the Company on the terms
of the Offer. The Company shall have 20 days after its receipt
of an Offer with which to notify GTC in writing of the Company's
election to purchase all, but not less than all of the Company
Stock subject to the Offer. The Company may assign the right to
purchase the Company Stock subject to the Offer, provided the
assignee agrees to be bound by the terms of this Section and the
Company remains liable to purchase all Company Stock subject to
the Offer. The Company's election to purchase shall be
irrevocable and shall be binding upon GTC. Directors of the
Company affiliated with GTC shall not participate in the decision
of the Company to exercise or assign the option.
(b) Within 20 days of receiving the election, GTC shall
deliver to the Company, against receipt from the Company of a
certified or bank cashier's check in the amount of the purchase
price therefor, a certificate or certificates or other
instruments representing the Company Stock, properly endorsed for
transfer and with all necessary transfer and documentary stamps,
if any, affixed or stock transfer taxes, if any, paid.
(c) In the event that the Company fails to exercise its
right of first refusal within said period, GTC shall have 120
days thereafter to sell the Company Stock upon the terms of the
Offer. If GTC has not sold the Company Stock to the designated
offeree on the terms of the Offer within said 120-day period, GTC
shall not thereafter sell the Company Stock without first
offering them to the Company in the manner provided above.
12.5 Specific Performance. The parties hereto agree that
irreparable harm would occur if any of the provisions of this
Agreement were not performed by the Company or NWP in accordance
with their specific terms or conditions or were otherwise
breached and that money damages are an inadequate remedy for
breach of this Agreement because of the difficulty of
ascertaining the amount of damage that will be suffered by GTC in
the event that this Agreement is not performed in accordance with
its terms or conditions or is otherwise breached. It is
accordingly agreed that GTC shall be entitled to an injunction or
injunctions to prevent breaches of this Agreement by the Company
or NWP and to enforce specifically the terms and provisions
hereof in any federal court of the United States having
jurisdiction or any other court that it may select, this being in
addition to any other remedy to which GTC is entitled at law or
in equity.
12.6 Headings, Counterparts. 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.
This Agreement may be signed in counterparts all of which will
constitute one agreement.
12.7 Prior Agreements. This Agreement shall supersede all
prior agreements, documents or other instruments with respect to
the matters covered hereby.
12.8 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. Except as provided in Section 11.1, 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.
12.9 Amendment, Counterparts. This Agreement may not be
amended except by an instrument in writing signed by the party
charged with such amendment.
12.10 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 except that GTC may assign their
rights to purchase Stock to and direct or indirect subsidiary of
ACX, but that assignment shall not relieve any party of its other
obligations hereunder. 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
rights, remedies or obligations under or by reason of this
Agreement.
12.11 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.
12.12 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:
_________________________________________
John K. Coors
Title: Vice President
THE NEW WORLD POWER CORPORATION
By:
_________________________________________
Vitold Jordan
Title: _________________________
PHOTOCOMM, INC.
By:
_________________________________________
Robert R. Kauffman
Title: President, CEO
The Shareholders join this Agreement for the purpose of
affirming, to the best of their knowledge, the representations
and warranties of the Company, and making, severally, as to
themselves and the Company Stock sold by them, the
representations in Sections 2.3, 2.4 and 2.5 below. Programmed
Land, Inc. and Robert R. Kauffman also reaffirm the waiver
agreement dated August 16, 1996 with respect to the Pcomm Stock
Agreement.
________________________________________________
Myron Anduri
________________________________________________
Thomas C. LaVoy
________________________________________________
Robert R. Kauffman
PROGRAMMED LAND, INC.
By:
____________________________________________
Donald E. Anderson
Title: President
TERMS OF NEW PHOTOCOMM STOCK OPTION GRANTS
PROPOSED RESOLUTIONS TO BE CONSIDERED BY THE BOARD OF DIRECTORS
OF PHOTOCOMM, INC.
1996 Stock Option Grants
WHEREAS, the Board believes it to be in the best interests of the
Corporation to provide its employees, officers and agents with
performance incentives in the form of Non-Statutory Stock Options
pursuant to the 1996 Stock Option Plan;
WHEREAS, the Board finds that the fair market value of the
Company's Common Stock for purposes of granting options to
purchase such stock on the Grant Date described below is the
average of the trading high and low prices as reported by NASDAQ
for the period beginning November 15, 1996 and ending December
15, 1996 (the "Fair Market Value");
THEREFORE, BE IT RESOLVED, that the following individuals shall
be granted the number Non-Statutory Stock Options indicated below
under the Company's 1996 Stock Option Plan with an exercise price
equal to the Fair Market Value of the Company's Common Stock as
above indicated, and with a Grant Date of January 1, 1997:
Number of Non-Statutory
Name Stock Options
Robert Kauffman 400,000
Donald Anderson 100,000
Thomas C. LaVoy 150,000
Myron Anduri 40,000
Robert Spotts 40,000
Walter M. Baker 10,000
All Other Employees 100,000
(as Selected by President)
TOTAL 940,000
BE IT FURTHER RESOLVED, that the form of Non-Statutory Stock
Option Agreement attached hereto shall be used with respect to
each of the above option grants, which agreement sets forth the
term and vesting schedule for the options as well as other
exercise requirements.
NON-STATUTORY STOCK OPTION AGREEMENT
BY THIS STOCK OPTION AGREEMENT ("Agreement") made and entered
into this 1st day of January, 1996 ("Grant Date"), PHOTOCOMM,
INC., an Arizona corporation (the "Company"), and
____________________ a key employee or director of the Company
(the "Optionee") hereby state, confirm, represent, warrant and
agree as follows:
I
RECITALS
1.1 The Company, through it Board of Directors (the "Board"),
has determined that in order to attract and retain the best
available personnel for positions of substantial responsibility
to provide successful management of the Company's business, it
must offer a compensation package that provides key employees and
directors of the Company a change to participate financially in
the success of the Company by developing an equity interest in
it.
1.2 The Company adopted the 1996 Stock Option Plan (the "Plan")
on September 16, 1996.
1.3 By this Agreement, the Company and the Optionee desire to
establish the terms upon which the Company is willing to grant to
the Optionee, and upon which the Optionee is willing to accept
from the Company, an option to purchase shares of common stock of
the Company ("Common Stock").
II
AGREEMENTS
2.1 Grant of Non-Statutory Stock Option. Subject to the terms
and conditions hereinafter set forth and those provisions set
forth in the Plan, the Company grants to the Optionee the right
and option (the "Option") to purchase from the Company all or any
part of an aggregate number of ____________________ (___________)
shares of Common Stock, authorized but unissued or, at the option
of the Company, treasury stock if available (the "Optioned
Shares").
2.2 Exercise of Option. Subject to the terms and conditions of
this Agreement and those of the Plan, the Option may be exercised
only by completing and signing a written notice to the Company
who shall confirm that the exercise is valid, in substantially
the following form:
I hereby exercise the Option granted to me by Photocomm, Inc. and
elect to purchase ______________ shares of $.10 par value Common
Stock of Photocomm, Inc. for [the purchase price set forth in
Paragraph 2.3 of this Stock Option Agreement].
2.3 Purchase Price. The price to be paid for the Optioned
Shares (the "Purchase Price") shall be $____________ per share.
2.4 Payment of Purchase Price. Payment of the Purchase Price
may be made as follows:
(a) In United States dollars in cash or by check, bank draft or
money order payable to the Company; or
(b) At the discretion of the Board, through the delivery of
shares of Common Stock with an aggregate fair market value at the
date of such delivery, equal to the Purchase Price; or
(c) By a combination of both (a) and (b) above.
The Board shall determine acceptable methods for tendering Common
Stock as payment upon exercise of an Option and may impose such
limitations and conditions on the use of Common Stock to exercise
an Option as it deems appropriate. At the election of the
Optionee pursuant to Section 16 of the Plan, and subject to the
acceptance of such election by the Board, to satisfy the
Company's withholding obligations, it may retain such number of
shares of Common Stock subject to the exercised Option which have
an aggregate Fair Market Value (as defined in the Plan) on the
date of exercise equal to the Company's aggregate federal, state,
local and foreign tax withholding and FICA and FUTA obligations
with respect to the exercise of the Option by the Optionee.
2.5 Exercisability of Option. The Option shall become
exercisable in increments if the Optionee is continuously
employed from the Grant Date through the following vesting dates.
The Optioned Shares shall be divided into two halves with the
first half vesting in accordance with one schedule and the second
half vesting on a delayed schedule. To that end, except as
otherwise provided in Paragraph 2.6 and 2.8, the Option may be
exercised by the Optionee, in whole or in part from time to time,
for such number of shares as is equal to the percentage of the
Optioned Shares indicated below ("Vested Shares"):
Date Percentage of Optioned Shares Vested
First Half Second Half Of Total Cumulative Total
1/1/1997 25 12.5 12.5
1/1/1998 25 25 25 37.5
1/1/1999 50 25 37.5 75
1/1/2000 50 25 100
2.6 Termination of Option. The Option shall not be exercisable
as to any shares and will automatically terminate if the
continuous employment requirement is not satisfied regardless of
the circumstances under which the Optionee's employment by the
Company is terminated. Vested Shares, to the extend not
exercised, shall terminate upon the first to occur of the
following dates:
(a) The tenth (10th) anniversary of the Grant date (the "Option
Term"); or
(b) The date on which the Optionee's employment is terminated
for criminal activity or for purposely or recklessly failing to
perform the Optionee's duties with the Company; or
(c) The date 36 months from the date the Optionee retires from
employment by the Company or that the Optionee becomes disabled
and unable to continue employment; or
(d) The date 15 months from the date the Optionee dies; or
(e) The date 3 months from the date the Optionee's employment is
terminated for other than (b), (c), or (d).
[In the case of Mr. Kauffman substitute 30 months for 3 months in
(e) and in the case of Mr. LaVoy 24 months.]
2.7 Adjustments. In the event of any stock split, reverse stock
split, stock dividend, combination or reclassification of shares
of Common Stock or any other increase or decrease in the number
of issued shares of Common Stock effected without receipt of
consideration by the Company, the number and kind of Optioned
Shares (including any Option outstanding after termination of
employment or death) and the Purchase Price per share shall be
proportionately and appropriately, adjusted without any change in
the aggregate Purchase Price to be paid therefor upon exercise of
the Option. The determination by the Board as to the terms of
any of the foregoing adjustments shall be conclusive and binding.
2.8 Liquidation, Sale of Assets or Merger. In the event of a
proposed dissolution or liquidation of the Company, the Option
will terminate immediately prior to the consummation of such
proposed action, unless otherwise provided by the Board. In the
event of a proposed sale of all or substantially all of the
assets of the Company, or the merger of the Company with or into
another corporation, the option shall be assumed or an equivalent
option shall be substituted by such successor corporation, unless
the Board determines that the Optionee shall have the right to
exercise the Option as to all of the Common Stock subject to the
Option, including shares as to which the Option would not
otherwise be exercisable. If the Board makes an Option fully
exercisable, the Board shall notify the Optionee that the Option
shall be fully exercisable for a period of thirty(30) days from
the date of such notice (but not later than the expiration of the
Option term under paragraph 2.6), and the Option will terminate
upon the expiration of such period. In the event the thirtieth
(30th) day referred to in this paragraph shall fall on a day that
is not a business day, then the thirtieth (30th) day shall be the
next following business day.
2.9 Notices. Any notice to be given under the terms of the
Agreement ("Notice") shall be addressed to the Company in care of
its Secretary at Photocomm, Inc., 7681 East Gray Road,
Scottsdale, Arizona 85260, or at its then current corporate
headquarters. Notice to be given to the Optionee shall be
addressed to him or her at his or her then current residential
address as appearing on the payroll records of the Company.
Notice shall be deemed duly given when enclosed in a properly
sealed envelope and deposited by certified mail, return receipt
requested, in a post office or branch post office regularly
maintained by the United States Government.
2.10 Transferability of Option. The Option shall not be
transferable by the Optionee otherwise than by the will or the
laws of descent and distribution and may be exercised during the
life of the Optionee only by the Optionee.
2.11 Optionee Not a Shareholder. The Optionee shall not be
deemed for any purposes to be a shareholder of the Company with
respect to any of the Optioned Shares except to the extent that
the Option herein granted shall have been exercised with respect
thereto and a stock certificate issued therefor.
2.12 Not a Contract of Employment. Nothing contained in the
Plan or in any Option Agreement executed pursuant to the Plan
shall be deemed to confer upon any individual to whom an Option
may be granted hereunder any right to remain in the employ or
service of the Company or a parent or subsidiary corporation of
the Company.
2.13 Disputes or Disagreements. As a condition of the granting
of the Option herein granted, the Optionee agrees, for himself
and his personal representatives, that any disputes or
disagreement which may arise under or as a result of or pursuant
to this agreement shall be determined by the Board in its sole
discretion, and that any interpretation by the Board of the terms
of this Agreement shall be final, binding and conclusive.
IN WITNESS WHEREOF, the Company has caused this instrument to be
executed by its duly authorized officer, and the Optionee has
hereunto affixed his or her signature.
PHOTOCOMM, INC.
an Arizona corporation
By: _______________________
Its: ____________________
OPTIONEE:
___________________________
SCHEDULE 9.2
PHOTOCOMM BYLAW AMENDMENTS TO BE MADE
1. Section 3.02 of the Bylaws shall be amended to read as
follows:
3.02 Special Meeting. Special meetings of the shareholders may
be held whenever and wherever called for by the Board of
Directors or by the written demand of the holders of ten percent
(10%) of all issued and outstanding shares of stock, regardless
of class. The business which may be conducted at any such
special meeting will be confined to the purposes stated in the
notice thereof, and to such additional matters as the chairman of
such meeting may rule to be germane to such purpose.
2. Section 4.02 of the Bylaws shall be amended to read as
follows:
4.02 Membership. The business and affairs of the Corporation
shall be managed by its Board of Directors, consisting of six (6)
directors until the January, 1997 Annual Meeting of Shareholders
and sever (7) directors thereafter. At the first annual meeting
of shareholders and at each annual meeting thereafter, the
shareholders shall elect Directors to hold office until the next
succeeding annual meeting. Each Director shall hold office until
his successor is elected and qualified, or until his earlier
resignation or removal. The Directors need not be shareholders
or residents of the state of incorporation.
3. Section 4.05 of the Bylaws shall be amended to read as
follows:
4.05 Meetings. A regular annual meeting of the Directors shall
be held immediately after the adjournment of each annual
shareholders' meeting at the place at which such shareholders'
meeting was held. Other meetings of the Board of Directors,
regular or special, may be held either within or without this
state, and may be held by means of conference telephone or
similar communications equipment by means of which all persons
participating in the meeting can hear each other, and
participation in a meeting so held shall constitute presence in
person at such meeting. Any director shall be entitled to
participate by conference telephone or similar communication
equipment, provided, however, the directors by resolution may
preclude any person who is not a director from participating or
listening to any meeting of the Board by such telephone or other
equipment or otherwise. Regular meetings other than annual
meetings may be held without notice at regular intervals at such
places and such times as the Board of Directors may from time to
time provide. Special meetings of the Board of Directors may be
held whenever and wherever (within the continental United States)
called for by the Chairman of the Board, the President, or the
number of Directors required to constitute a quorum.
4. Section 11.01 of the Bylaws shall be amended to read as
follows:
11.01 Repeal, Alteration, or Amendment. These Bylaws may be
repealed, altered, or amended, or substitute bylaws may be
adopted at any time, only be resolution duly adopted by at least
two-thirds (2/3) of the entire Board of Directors, subject to
repeal or change by action of the shareholders.
