UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
____________
SCHEDULE 13D
UNDER THE SECURITIES EXCHANGE ACT OF 1934
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)
August 16, 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 / /.
Check the following box if a fee is being paid with the statement /X/.
______________________________________________________________________
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; OO
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
- 0 -*
NUMBER OF
SHARES 8 SHARED VOTING POWER
BENEFICIALLY - 0 -*
OWNED BY
EACH 9 SOLE DISPOSITIVE POWER
REPORTING - 0 -*
PERSON
WITH 10 SHARED DISPOSITIVE POWER
- 0 -*
* See Item 5(b).
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
6,612,447 (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)
46 percent
14 TYPE OF REPORTING PERSON
CO
______________________________________________________________________
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Golden Technologies Company, Inc.*
* Golden Technologies Company, Inc. 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; OO
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
- 0 -*
NUMBER OF
SHARES 8 SHARED VOTING POWER
BENEFICIALLY - 0 -*
OWNED BY
EACH 9 SOLE DISPOSITIVE POWER
REPORTING - 0 -*
PERSON
WITH 10 SHARED DISPOSITIVE POWER
- 0 -*
* See Item 5(b).
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
6,612,447 (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)
46 percent
14 TYPE OF REPORTING PERSON
CO
ITEM 1. SECURITY AND ISSUER.
The class of equity securities to which this Schedule 13D relates is
Common Stock par value $.10 (the "Common Stock").
The issuer of the Common Stock is Photocomm, Inc. (the "Company"),
whose principal executive offices are located at 7681 East 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 2. IDENTITY AND BACKGROUND
(a) ACX Technologies, Inc. ("ACX"), a Colorado Corporation, is a
holding company that owns businesses that produce advanced technical
ceramic products, high performance consumer and industrial packaging,
and flat rolled aluminum sheet products. ACX has announced its
intention to discontinue the flat rolled aluminum sheet business. ACX
also owns Golden Technologies Company, Inc. ("GTC").
GTC, a Colorado Corporation, is primarily a development company
that currently focuses on two primary areas of development:
biodegradable plastics and solar photovoltaics.
ACX and GTC are making a single joint filing pursuant to Rule 13d-1(f)(2).
The directors and executive officers of ACX and GTC are:
ACX GTC
Jeffrey H. Coors Dean A. Rulis
William K. Coors John K. Coors
Joseph Coors* J. Michael Davis
Joseph Coors, Jr. Jerry W. Young
John K. Coors
John D. Beckett
Richard P. Godwin
John H. Mullin, III
John Hoyt Stookey
Jed J. Burnham
Gail A. Constancio
Jill B. W. Sisson
___________________
*Director Emeritus.
(b) The address of the principal business and principal office of
ACX and GTC and business address of each of their respective directors
and officers is c/o ACX Technologies, Inc. and c/o Golden Technologies
Company, Inc., respectively, 16000 Table Mountain Parkway, Golden,
Colorado 80403.
(c) The present principal occupation or employment of each of the
directors and executive officers of ACX and GTC and the name,
principal business and address of any corporation or other
organization in which such employment is conducted is as follows:
ACX Directors and Officers:
Jeffrey H. Coors President (member of the Office of the President)
and a Director of ACX; 16000 Table Mountain
Parkway, Golden, Colorado 80403.
William K. Coors Chairman of the Board of ACX; for principal
business and address, see above;
Chairman of the Board and President of Adolph
Coors Company, holding company for beer business,
Golden, Colorado 80401.
Joseph Coors Director Emeritus.
Joseph Coors, Jr. President (member of the Office of the President)
and a Director of ACX; for principal business and
address, see above.
John K. Coors Director of ACX; for principal business and
address, see above.
John D. Beckett Director of ACX; for principal business and
address, see above.
Richard P. Godwin Director of ACX; for principal business and
address, see above.
John H. Mullin, III Director of ACX; for principal business and
address, see above.
John Hoyt Stookey Director of ACX; for principal business and
address, see above.
Jed J. Burnham Chief Financial Officer and Treasurer of ACX; for
principal business and address, see above.
Gail A. Constancio Controller and Principal Accounting Officer of
ACX; for principal business and address, see
above.
Jill B. W. Sisson General Counsel and Secretary of ACX; for
principal business and address, see above.
GTC Directors and Officers:
Dean A. Rulis President and Director of GTC; 16000 Table
Mountain Parkway, Golden, Colorado 80403.
John K. Coors Vice President of GTC; for principal business and
address, see above.
President of Golden Photon, Inc.; 16000 Table
Mountain Parkway, Golden, Colorado 80403.
J. Michael Davis Vice President of Business Development of GTC;
for principal business and address, see above.
Jerry W. Young Vice President of Finance, Secretary and
Treasurer of GTC; for principal business and
address, see above.
(d) and (e) None of the above named persons has, during the last
five years, (i) been convicted in a criminal proceeding or (ii) been a
party to a civil proceeding and as a result of which was or is subject
to a judgment, decree or final order enjoining future violations of,
or prohibiting or mandating activities subject to, federal or state
securities laws, or a judgment, decree or final order finding any
violations with respect to such laws.
(f) All of the above named individuals are citizens of the United
States of America.
ITEM 3. SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION
GTC intends to obtain the funds to acquire the Common Stock from its
own cash and by advances to it from ACX, its parent. ACX will obtain
the funds from its operations.
ITEM 4. PURPOSE OF TRANSACTION
The acquisition of the Common Stock will be made pursuant to a Stock
Purchase Agreement dated August 16, 1996, between GTC and The New
World Power Company ("NWP") pursuant to which GTC will acquire
6,612,447 shares of Common Stock of the Company. ACX is negotiating
with the Company to acquire 2,000,000 shares of Common Stock directly
from the Company. No definitive agreement has been signed with
respect to such purchase by ACX from the Company. Following the
acquisition of the Common Stock from NWP, GTC will own approximately
46 percent of the issued and outstanding Common Stock and if ACX
acquires 2,000,000 Shares of Common Stock from the Company, ACX and
GTC together will own approximately 54 percent of the issued and
outstanding Common Stock, assuming no additional issuances of Common
Stock.
At the time of closing under the agreement with NWP it is
contemplated that three board members of the Company selected by NWP
will resign from the Company's board of directors to be replaced by
designees of GTC. Accordingly, GTC will have selected three of seven
directors. At the ensuing annual meeting, GTC will have sufficient
votes (assuming it purchases only the shares of Common Stock from NWP
and no other shares are issued) to elect three directors, and
depending upon the number of other shares voted at the meeting under
the Company's cumulative voting system, the possibility of electing
four or more directors.
In the event ACX does not acquire the additional 2,000,000 shares
from the Company (described above), ACX or GTC may from time to time
buy additional shares of the Company's Common Stock in the market, so
that together they would own a majority of Common Stock in the
Company. Except as described herein, GTC and ACX have no present plan
or proposal that relates or would result in:
(a) the acquisition by any person of additional securities of the
Company, or the disposition of securities of the Company, except as
referenced above;
(b) an extraordinary corporate transaction, involving the Company or
any of its subsidiaries;
(c) a sale or transfer of a material amount of assets of the Company
or any of its subsidiaries;
(d) any change in the present board of directors of the Company or
management of the Company, except as referenced above;
(e) any material change in the present capitalization or dividend
policy of the Company;
(f) any material change in the Company's business or corporate
structure;
(g) any change in the Company's Charter or bylaws, or other action
which may impede the acquisition of control of the Company by any
person;
(h) causing a class of securities of the Company to be delisted from
a national securities exchange;
(i) a class of equity securities of the company becoming eligible
for termination of registration pursuant to Section 12(g)(4) of the
Act; or
(j) any action similar to any of the foregoing.
ITEM 5. INTEREST IN SECURITIES OF THE ISSUER.
(a) Because, within 60 days, GTC may acquire 6,612,447 shares of the
Common Stock, amounting to 46 percent of the outstanding shares of
Common Stock, pursuant to the terms of the Stock Purchase Agreement
described in Item 4 hereof, ACX and GTC, respectively, may be deemed
to be the beneficial owner of such shares pursuant to Rule 13d-3 under
the Act. Pursuant to Rule 13d-4 under the Act, however, until the
purchase is consummated, ACX and GTC disclaim beneficial ownership of
all such shares.
To the best of the knowledge of each of ACX and GTC, none of the
directors and officers named in Item 2 is the beneficial owner of any
shares of the Common Stock.
(b) Neither ACX nor GTC 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, unless and until the acquisition under the Stock
Purchase Agreement described in Items 4 is effected.
To the best of the knowledge of each of ACX and 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.
(c) Neither ACX nor GTC has effected any transactions in shares of
the Common Stock during the past 60 days.
To the best of the knowledge of each of ACX and GTC, none of the
directors and officers named in Item 2 has effected any transactions
in any shares of the Common Stock during the past 60 days.
(d) Each of ACX and GTC affirms that to the best of their knowledge
no other person has the right to receive or the power to direct the
receipt of dividends from, or the proceeds from the sale of, the
Common Stock.
(e) Not applicable.
ITEM 6. CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR RELATIONSHIPS WITH
RESPECT TO SECURITIES OF THE ISSUER.
Except as described herein, no filing person is a party to any
contract, arrangement or understanding with respect to the Common
Stock of the Company.
ITEM 7. MATERIAL TO BE FILED AS EXHIBITS
Exhibit 1 - Stock Purchase Agreement dated August 16, 1996, between
Golden Technologies Company, Inc. and The New World Power Corporation.
Exhibit 2 - Joint filing statement (included in signature page)
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: August 26, 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
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 Stock and of 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:
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 of the Pcomm Stock and all and not
less than all of the Solartec Stock to GTC by the delivery of
certificates in good delivery form and duly endorsed for transfer or
accompanied 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 the Solartec Stock and this
Agreement shall remain in effect as to the Pcomm 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 capital
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. There are no outstanding subscriptions, options,
warrants, rights, conversion rights, rights of 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 obligation
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
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
condition 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, changes
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 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 - No 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 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 affiliated 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. Kauffman (the "Pcomm Stock Agreement") (which has been
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 of 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 information or documents,
fully responsive 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.
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 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 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
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 filings 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 purpose of soliciting, encouraging,
or enabling another person to propose an
acquisition of 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 assets, or, to the best of its
knowledge, against any employee, consultant, director, officer or
stockholder of either of 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 of
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.
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 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
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 determined by a 12%
discount rate.
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 approved 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 filings
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
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 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.
(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 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 Sec. 10-1201 through
Sec. 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.
(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
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 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 of officers of GTC with respect to
the accuracy of factual matters that are not
independently established.
(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;
or
(b) By NWP or GTC 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
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;
(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.
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.
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 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 2.7, 2.8, 2.10, 2.11 (but only with respect
to 2.11 if NWP had knowledge of the falsity of the representations 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 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 8.2 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
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 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 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 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 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 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, CO 80403
Attention: Jill B.W. Sisson, Esq.
FAX: (303) 271-7055
and
Holme 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
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 the exercise of
rights of first refusal in the Solartec Stock
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 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
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, 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 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
Title: Vice President
THE NEW WORLD POWER CORPORATION
By: /s/
John D. Kuhns
Title: Chairman
