SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-Q
[X] QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d)
OF THE SECURITIES AND EXCHANGE ACT OF 1934
For the quarterly period ended June 30, 1998
OR
[ ] TRANSITION REPORT PURSUANT TO SECTION 13 OR
15(d) OF THE SECURITIES EXCHANGE ACT OF 1934
Commission file number 0-12807
Golden Genesis Company
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(Exact name of registrant as specified in its charter)
Delaware 86-0411983
- ------------------------------- --------------------
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
4585 McIntyre St. Golden, CO 80403
-------------------------------------------
(Address of principal executive offices)
(Zip Code)
(303) 271-7465
----------------------------------------------------
(Registrant's telephone number, including area code)
Photocomm, Inc.
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(Former name, former address and former fiscal
year, if changed since last report)
Indicate by check mark whether the registrant (1) has filed all reports
required to be filed by Section 13 or 15(d) of the Securities Exchange Act of
1934 during the preceding 12 months (or for such shorter period that the
registrant was required to file such reports), and (2) has been subject to
such filing requirements for the past 90 days. Yes / / No /X/
At July 24, 1998 16,818,169 shares of the Registrant's Common Stock were
outstanding.
<PAGE>
GOLDEN GENESIS COMPANY
INDEX
PART I Financial Information Page Number
Item 1. Financial Statements
Consolidated Balance Sheets - June 30,
1998 and December 31, 1997 1
Consolidated Statements of Operations -
Three and six months ended June 30,
1998 and 1997 2
Consolidated Statements of Cash Flows -
Six months ended June 30, 1998 and 1997 3
Notes to Consolidated Financial Statements 4
Item 2. Management's Discussion and Analysis
of Financial Condition and Results of
Operations 5
PART II Other Information
Item 4. Submission of Matters to a Vote of Security Holders 9
Item 6. Exhibits and Reports on Form 8-K 10
<PAGE> 1
I. FINANCIAL INFORMATIONITEM
1. FINANCIAL STATEMENTS
GOLDEN GENESIS COMPANY
CONSOLIDATED BALANCE SHEETS
June 30, December 31,
Assets 1998 1997
Current Assets (Unaudited)
Cash and cash equivalents $ 958,268 $ 1,182,307
Accounts receivable, net 8,090,265 7,276,527
Inventories 7,036,531 5,810,400
Property held for sale, net 1,017,779 1,017,779
Deferred tax asset 193,343 193,343
Other current assets 267,883 221,546
Total Current Assets 17,564,069 15,701,902
Property and equipment, net 1,780,094 1,683,560
Deferred tax asset 156,657 156,657
Goodwill, net 2,667,961 1,620,280
Other assets, net 394,646 342,243
---------- ----------
Total Assets $22,563,427 $19,504,642
========== ==========
Liabilities and Stockholders' Equity
Current Liabilities
Current installments of long-term debt $ 81,432 $ 81,787
Accounts payable 4,247,317 2,912,173
Other accrued expenses 1,064,952 654,227
Total Current Liabilities 5,393,701 3,648,187
Long-term debt, less current installments 4,859,944 4,150,479
---------- ---------
Total Liabilities 10,253,645 7,798,666
Commitments and contingencies
Stockholders' Equity
Preferred stock: $.001 par value,
5,000,000 shares authorized
Series A 12% convertible preferred stock,
125,000 shares authorized; 38,972
shares issued and outstanding 39 39
Series AA 11% convertible preferred stock,
200,000 shares authorized; 44,165 shares
issued and outstanding 44 44
Common stock: $.10 par value, 25,000,000
shares authorized; 16,668,044 and
16,245,044 shares issued and
outstanding, respectively 1,666,804 1,624,504
Additional paid-in capital 16,764,913 16,121,249
Accumulated other comprehensive loss (642,338) (439,890)
Accumulated deficit (5,479,680) (5,599,970)
---------- ----------
Total Stockholders' Equity 12,309,782 11,705,976
Total Liabilities and Stockholders' ---------- ----------
Equity $22,563,427 $19,504,642
========== ==========
See accompanying notes to consolidated financial statements.
<PAGE> 2
GOLDEN GENESIS COMPANY
CONSOLIDATED STATEMENTS OF OPERATIONS
(UNAUDITED)
<TABLE>
<CAPTION>
Three Months Ended Six Months Ended
June 30, June 30,
------------------ -----------------
1998 1997 1998 1997
---------- ---------- ---------- ----------
<S> <C> <C> <C> <C>
Sales, net $ 9,534,010 $ 7,865,304 $19,326,335 $14,235,254
Cost of sales 7,599,904 6,580,743 15,503,818 11,455,632
---------- ---------- ---------- ----------
Gross profit 1,934,106 1,284,561 3,822,517 2,779,622
Selling, general and
administrative expenses 1,790,457 2,200,813 3,508,794 3,863,653
---------- ---------- ---------- ----------
Income (loss) from operations 143,649 (916,252) 313,723 (1,084,031)
Other income (expenses):
Interest expense (92,493) (8,943) (180,991) (23,139)
Other income (expense), net 214 7,783 (13,095) 2,010
---------- ---------- ---------- ----------
Income (loss) before income taxes 51,370 (917,412) 119,637 (1,105,160)
Income tax - - - -
---------- ---------- ---------- ----------
Net income (loss) 51,370 (917,412) 119,637 (1,105,160)
Preferred stock dividends 1,169 13,132 2,338 27,651
---------- ---------- ---------- ----------
Net income (loss) applicable to
common stockholders $ 50,201 $ (930,544) $ 117,299 $(1,132,811)
========== ========== ========== ==========
Net income (loss) per basic
share of common stock $ - $ (0.06) $ 0.01 $ (0.07)
========== ========== ========== ==========
Weighted average shares
outstanding - basic 16,665,390 16,218,932 16,610,851 16,192,125
========== ========== ========== ==========
Net income (loss) per diluted
share of common stock $ - $ (0.06) $ 0.01 $ (0.07)
========== ========== ========== ==========
Weighted average shares
Outstanding - diluted 16,979,316 16,375,401 16,808,819 16,457,429
========== ========== ========== ==========
Comprehensive loss $ (27,241) $ (930,550) $ (84,495) $(1,132,231)
========== ========== ========== ==========
See accompanying notes to consolidated financial statements.
</TABLE>
<PAGE> 3
GOLDEN GENESIS COMPANY
CONSOLIDATED STATEMENTS OF CASH FLOWS
(UNAUDITED)
Six Months Ended
June 30,
-----------------
1998 1997
Cash flows from operating activities: ---- ----
Net income (loss) $ 119,637 $(1,105,160)
Adjustments to reconcile net income to
net cash used in operating activities,
net of effects of acquisitions:
Depreciation and amortization 371,378 243,531
Non-cash stock option settlement charge - 650,000
Change in accounts receivable (203,258) 79,383
Change in inventories 650,811 (1,086,049)
Change in accounts payable and
accrued expense (978,305) 225,038
Change in other current assets (46,337) 11,368
--------- ---------
Net cash used in operating activities (86,074) (981,889)
Cash flows from investing activities:
Purchase of property and equipment (311,284) (186,677)
Cash paid for acquisitions and other
assets, net of cash acquired (393,740) (7,988)
--------- ---------
Net cash used in investing activities (705,024) (194,665)
Cash flows from financing activities:
Repayments of debt (217,220) (520,785)
Proceeds from issuance of debt 750,000 2,102,250
Proceeds from issuance of common stock 36,617 59,914
Cash dividends on preferred stock (2,338) (27,651)
--------- ---------
Net cash provided by
financing activities: 567,059 1,613,728
Net (decrease) increase in cash and cash
equivalents (224,039) 437,174
Cash and cash equivalents at beginning
of period 1,182,307 1,377,898
--------- ---------
Cash and cash equivalents at end
of period $ 958,268 $1,815,072
========= =========
Non-cash investing and financing activities:
Stock issued for acquisitions $ 650,000
See accompanying notes to consolidated financial statements.
<PAGE> 4
GOLDEN GENESIS COMPANY
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
June 30, 1998
(UNAUDITED)
NOTE 1. Inventories
Inventories consist of the following:
June 30, December 31,
1998 1997
Raw materials and goods purchased
for resale $6,987,496 $5,702,452
Work-in-process 195,932 209,494
Less allowance for obsolescence (146,897) (101,546)
Total Inventories $7,036,531 $5,810,400
NOTE 2. Reclassifications
Certain reclassifications have been made in the 1997 financial statements to
conform to the classifications used in 1998. In addition, all earnings per
share data presented have been adjusted for the adoption of Statement of
Financial Accounting Standards ("SFAS") No. 128 "Earnings Per Share."
Note 3. Acquisitions
On January 23, 1998 the Company acquired Silicon Energy Corporation, a
California corporation doing business as Utility Power Group ( UPG ). UPG,
headquartered in Chatsworth, California, functions as a value added systems
integrator of solar electric products, specializing in on-grid and off-grid
solar and hybrid power systems. The acquisition was structured as a merger with
Utility Power Group, Inc., a wholly owned subsidiary of Photocomm, Inc. (the
"Company"), as the surviving corporation. The aggregate consideration paid by
the Company in connection with this merger was $1,250,000. The Company issued
400,000 shares of its common stock valued at $650,000 and paid $600,000 in cash.
The Company s principal stockholder financed the cash portion of the merger. The
acquisition of UPG was accounted for as a purchase and has been included in the
Company s results of operations since January 23, 1998. Accordingly, the
purchase price was allocated to the net assets acquired based upon their
estimated fair market values. The excess of purchase price over the fair market
values of net assets acquired of $1,134,102 is being amortized over 20 years
using the straight-line method.
On July 21, 1998 Golden Genesis Company (the "Company") acquired Remote Power,
Inc. ("RPI"), a Colorado corporation. RPI, headquartered in Westminster,
Colorado, is a distributor and systems integrator utilizing solar electric
systems for customers primarily within the oil and gas and railroad industries.
The acquisition was structured as a stock purchase with RPI becoming a wholly
owned subsidiary of the Company and will be accounted for as
<PAGE> 5
a purchase. The aggregate consideration paid by the Company in connection with
this purchase was $456,250. The Company issued 150,000 shares of its common
stock valued at $356,250 and paid $100,000 in cash. Accordingly, the purchase
price will be allocated to the net assets acquired based upon their estimated
fair market values. The excess of purchase price over the fair market values of
net assets acquired will be amortized over 20 years using the straight-line
method.
Note 4. New Accounting Standards
SFAS No. 130, "Reporting Comprehensive Income," was issued in June 1997. The
statement establishes standards for reporting and display of comprehensive
income in financial statements, and was adopted by the Company in the first
quarter of 1998. The Company's comprehensive income consists of net income,
preferred stock dividends and certain foreign currency translation adjustments.
SFAS No. 131, "Disclosures about Segments of an Enterprise and Related
Information," was issued in June 1997. This statement establishes standards for
the way public business enterprises report information about operating segments.
It also establishes standards for related disclosure about products and
services, geographical areas and major customers. This statement is effective
for the Company s financial statements for the year ended December 31, 1998 and
the adoption of this standard is not expected to have a material effect on the
Company s financial statements.
Item 2. Management's Discussion and Analysis of Financial Condition and
Results of Operations
Business Overview
The Company markets, engineers, manufactures and distributes solar electric
systems utilized primarily in remote areas. Areas generally include those where
electric power is needed but access to electricity is not available,
inconvenient or costs are relatively high. Two primary markets compose the
majority of the Company s results from operations: the industrial market and the
distribution market.
The Company services a variety of customers in the industrial market. These
customers have power generation needs for communication systems, traffic signal
systems and remote monitoring systems. In addition, the industrial market
includes customers that use solar electric systems connected directly into power
grids.
The Company s distribution market includes more than 500 solar energy dealers,
which are predominantly located in North and South America. The Company delivers
a wide range of solar modules and related hardware to the dealer network. The
distribution market also includes retail sales through Sunelco, its wholly owned
subsidiary, a system integrator and mail-order design firm,
<PAGE> 6
and direct sales toend users of prepackaged solar systems for recreational
vehicles and boats and water pumping systems for small residential customers or
large agricultural and village applications.
The Company s operating results reflect the strategic decisions to increase
marketing resources to expand current domestic and international sales and
activities to consolidate manufacturing, operations support and administration.
Management believes that the consolidation will allow the Company to serve
customers with higher quality goods and services at a lower overall cost.
Results of Operations
Sales: Sales for the second quarter of 1998 were $9,534,010, a 21% increase
over the $7,865,304 for the second quarter of 1997. The second quarter revenue
included an increase in base business operations of $733,706 or 9% and sales of
$935,000 from the recently acquired Utility Power Group ("UPG") subsidiary.
Year to date sales in 1998 were $19,326,335, a 36% increase over the $14,235,254
in the same period last year. The increase is due to the acquisition of UPG and
several large projects delivered to telecommunications customers including
contracts resulting from the acquisition of certain assets of Integrated Power
Corporation ("IPC") on July 2, 1997.
The Company's sales mix in the second quarter of 1998 was approximately 52%
industrial products and 48% distribution sales as compared to 45% industrial
products and 55% distribution during the second quarter of 1997. The year to
date sales mix was 55% industrial and 45% distribution as compared to 42%
industrial and 58% distribution in the same period of the prior year. The shift
in both the quarter and year to date mix was largely due to the addition of
sales by Utility Power Group, several large projects delivered to
telecommunications customers which are industrial businesses and decreased sales
by the Australia subsidiary which is primarily a distribution business.
Gross Profit: Gross profit increased 51% to $1,934,106 in the second quarter of
1998 from $1,284,561 in the second quarter of 1997. Gross profit margins
increased from 16% in 1997 to 20% in 1998 for the second quarter. Gross profit
increased 38% to $3,822,517 in the first six months of 1998 from $2,779,622 for
the first six months of 1997. Gross profit margins were consistent at 20% for
the first six months of 1998 and 1997. The increase in gross profit margin in
the second quarter was primarily due to an increase in telecommunications
projects shipped during the second quarter of 1998 which had increased margins
over the jobs shipped in the prior year. As the Company enhances its reputation
in the international market through the successful completion of the current
projects the Company believes it will continue to be able to command greater
margins for superior products and services.
Selling, General and Administrative Expenses ("SG&A"): SG&A expenses decreased
19% to $1,790,457 in the second quarter of 1998 from $2,200,813 in the second
quarter of 1997. SG&A expenses decreased to $3,508,794 in the first six months
of 1998 from $3,863,653 in the same period in 1997. SG&A for 1997
<PAGE> 7
included a compensation charge of approximately $800,000 associated
with the severance agreements with former executives of the Company.
Excluding this charge, SG&A increased 28% for the second quarter and
15% year to date in 1998 compared to the same periods in 1997. Excluding
the settlement charge SG&A as a percentage of sales decreased from
19% in the second quarter of 1997 to 18% in the second quarter of
1998 and from 22% in the first six months of 1997 to 18% in the same period
in 1998. The decrease in SG&A as a percentage of sales are a result of
higher sales and the Company's strategy of consolidating operations,
manufacturing and administration in Scottsdale, Arizona.
Other Income (Expense): The Company's non-operating income and expense is
primarily comprised of interest expense and consulting income.
Income Tax: The Company did not recognize any income tax benefit or expense for
the six months ended June 30, 1998 or 1997. Realization of the net operating
losses generated in prior periods is dependent on generation of future taxable
income and limited by ownership changes. At this time, management has determined
that it is more likely than not that $350,000 of the deferred tax asset will be
realized and therefore has provided a valuation allowance for all but $350,000
of the deferred tax asset. The realizability of the deferred tax asset will be
monitored on a quarterly basis.
Net Income (Loss): The Company reported net income of $51,370 or $0.003 per
diluted common share, for the second quarter of 1998 and net income of $119,637
or $0.01 per diluted common share, for the first six months of 1998. In 1997
the Company reported a net loss of $917,412 or $0.06 per diluted common share,
and a net loss of $1,105,160 or $0.07 per diluted common share for the
comparable periods. Increased sales and higher sales margins in 1998 and the
compensation charge recorded in 1997 as discussed above are primarily
responsible for the increase in net income for the second quarter and the first
six months of 1998.
Liquidity and Capital Resources
The Company s liquidity is generated from both internal and external sources and
is used to fund short-term working capital needs, capital expenditures and
acquisitions. Internally generated liquidity is measured by net cash flows from
operations, as discussed below, and working capital. At June 30, 1998, the
Company s working capital (current assets minus current liabilities) was
$12,170,368 with a current ratio (current assets divided by current liabilities)
of 3.26 to 1.
The Company has established an unsecured, $4,750,000 line of credit with ACX
Technologies, Inc. ("ACX"), the parent of the Company s majority shareholder.
This facility bears interest, payable quarterly, at 1% below prime. The
principal balance is due October 31, 2000. At June 30, 1998, the Company had
borrowed $4,750,000 under this line for use in funding working capital needs,
capital expenditures, the July 1997 acquisition of the assets and certain
contracts of IPC and the January 1998 acquisition of UPG.
<PAGE> 8
As shown in the Consolidated Statements of Cash Flows, net cash used by
operations was $86,074 and $981,889 for the first six months of 1998 and 1997,
respectively. The decrease in the use of cash for operations between the first
six months of 1997 and the first six months of 1998 is primarily the result of a
decrease in inventory offset by an increase in accounts receivable and a
decrease in accounts payable and accrued liabilities. The increases and
decreases in current assets and liabilities are exclusive of assets and
liabilities purchased with UPG which is recorded in investing activities and
discussed below. In addition the net income in the first six months of 1998
contributed to the reduction in cash used for operations.
During the first six months of 1998, the Company invested $311,284 in capital
expenditures to upgrade computer equipment and leasehold improvements for the
new Scottsdale facility. This represents an increase of $124,607 over capital
expenditures in the first six months of 1997. The Company invested $369,948 net
of cash acquired for the purchase of UPG in the first quarter of 1998. The UPG
purchase included inventory of $1,977,000, accounts receivable of $710,000 and
liabilities of $2,724,000.
Although no assurances can be made, the Company currently expects that cash
flows from operations and access to its line of credit will be sufficient to
meet the Company s needs for working capital, temporary financing for capital
expenditures and acquisitions.
The impact of inflation on the Company s financial position and results of
operations has been minimal and is not expected to adversely affect future
results.
Year 2000
Management has initiated an enterprise-wide program to prepare the Company's
financial, manufacturing and other critical systems and applications for the
Year 2000. The program involves the Company's upper management as well as
project leaders in the Company's critical departments. The focus of the program
is to identify affected software and hardware, develop a plan to correct that
software or hardware in the most effective manner and implement and monitor that
plan. The program also includes communications with the Company's significant
suppliers and customers to determine the extent to which the Company is
vulnerable to any failures by them to address the Year 2000 issue. The Company
anticipates it will have all modifications and replacements in place before the
end of 1999. However, at this time, the Company is not able to determine the
estimated impact on the operations of the Company should it or one of its
suppliers or customers be unable to successfully address the Year 2000 issue.
The Company expects to incur internal staff costs as well as consulting and
other expenses related to the Year 2000 project. In addition, the Company is
replacing certain older software with new programs and systems. Some of these
upgrades will be in response to the Year 2000 issue, however, many upgrades are
part of the Company's normal business plan. Given the information available at
<PAGE> 9
this time, management currently anticipates that the cost to address the Year
2000 issue should not have a material adverse effect on the Company's liquidity
or results of operations. However, the Company continues to gather information
regarding the total estimated costs and there can be no assurances that these
costs will not be material.
These statements should be read in conjunction with the financial statements and
notes thereto included in the Company's Form 10-K for the year ended December
31, 1997. The accompanying financial statements have not been examined by
independent accountants in accordance with generally accepted auditing
standards, but in the opinion of the management of the Company, such financial
statements include all adjustments necessary to summarize fairly the Company's
financial position and results of operations. All adjustments made to the
interim financial statements presented are of a normal recurring nature. The
results of operations for the three month and six month periods ended June 30,
1998 may not be indicative of results that may be expected for the year ending
December 31, 1998.
Forward-Looking Statements
The statements made in this report that are not historical facts contain
forward-looking information that involves risks and uncertainties. Important
factors that may cause actual results to differ from such forward-looking
statements include, but are not limited to, market demand and acceptance of the
Company's products, the impact of competitive technologies, products and
services, risks associated with any litigation and claims to which the Company
may be a party, availability of critical materials or supply, the effect of
economic and business conditions and other risks detailed from time to time in
the Company's filings with the Securities and Exchange Commission.
PART II. OTHER INFORMATION
Item 4. Submission of Matters to a Vote of Security Holders
(a) The annual meeting of the shareholders was held on May 27, 1998.
(b) At that meeting all nominees for Director included in the Proxy were
elected as follows:
Name For Withhold
- ----------------------------------------------------------------
Joseph Coors, Jr 15,766,699 55,780
John K. Coors 15,773,524 48,955
Jed J. Burnham 15,774,799 47,680
Norman E. Miller 15,775,199 47,280
Gerritt J. Wolfaardt 15,771,399 51,080
John Markle 15,770,899 51,580
(c) At the meeting the shareholders approved the reincorporation of the Company
into a Delaware corporation pursuant to an Agreement and Plan of
<PAGE> 10
Merger with a corporation to be formed by the Company in Delaware. The vote was
as follows:
For 12,505,488
Against 83,500
Abstain 32,791
Broker Non-Vote 3,200,700
At the meeting the shareholders approved the Company's 1998 Stock Option and
Incentive Plan. The vote was as follows:
For 12,287,991
Against 283,603
Abstain 49,815
Broker Non-Vote 3,201,070
At the meeting the shareholders ratified the selection of Price Waterhouse LLP
as the Company's independent auditors for the fiscal year ending December 31,
1998. The vote was as follows:
For 15,767,446
Against 29,570
Abstain 25,463
Item 5. Other Information
On July 21, 1998, the Company acquired Remote Power, Inc. ("RPI"), a Colorado
corporation. RPI is a distributor and integrator of solar packages with their
primary market in the oil and gas and railroad industries. The acquisition was
structured as a stock purchase with RPI as a wholly owned subsidiary of the
Company. The Company paid $100,000 and issued 150,000 shares of its Common
Stock to the RPI shareholders. In addition the Company paid off $81,500 in RPI
indebtedness in connection with the purchase. No additional indebtedness was
incurred to finance the acquisition.
Item 6. Exhibits and Reports on Form 8-K
(a) Exhibits
The following Exhibits are filed as part of this Report:
Exhibit
Number Description Page
3.1 Certificate of Incorporation of Golden Genesis Company 13
3.2 Golden Genesis Company Bylaws adopted June 8, 1998. 29
4.1 Specimen Certificate representing the Common Stock
<PAGE> 11
of the Company (filed as Exhibit 4-A to the Company's
Annual Report on Form 10-KSB for the year ended August
31, 1988 and incorporated herein by reference).
4.2 Specimen Certificate representing the Series A
Convertible Preferred Stock of the Company (filed as
Exhibit 4.2 to the Company's Form S-3 dated September
19, 1994 and incorporated herein by reference).
4.3 Specimen Certificate representing the Series AA
Convertible Preferred Stock of the Company (filed as
Exhibit 4.3 to the Company's Form S-3 dated September
19, 1994 and incorporated herein by reference).
4.4 Specimen Certificate representing the Series B
Convertible Preferred Stock of the Company (filed as
Exhibit 4.4 to the Company's Form S-3 dated September
19, 1994 and incorporated herein by reference).
4.5 Registration Rights Agreement between the Company,
and Golden Technologies, Inc. and ACX Technologies,
Inc. dated November 21, 1996 (filed as Exhibit 4.5 to
the Company s Annual Report on Form 10-KSB for the year
ended August 31, 1996 and incorporated herein by reference).
10.1 Agreement and plan of merger between Photocomm, Inc. and
Silicon Energy Corporation dated January 23, 1998 (filed as
Exhibit 2.1 to Form 8-K on February 18, 1998 and incorporated
herein by reference).
10.2 Agreement and Plan of Merger between Photocomm, Inc., an Arizona
corporation, and Golden Genesis Company, a Delaware corporation,
dated June 9, 1998. 43
10.3 Articles of Merger of Photocomm, Inc., an Arizona corporation,
into Golden Genesis Company, a Delaware corporation, dated
June 9, 1998. 51
10.4 Certificate of Merger of Photocomm, Inc., an Arizona corporation,
into Golden Genesis Company, a Delaware corporation, dated
June 9, 1998. 53
10.5 Share Purchase Agreement between Golden Genesis Company
Remote Power, Inc. and its shareholders dated July 21, 1998. 55
27 Financial Data Schedule 94
(b) Reports on Form 8-K
<PAGE> 12
Form 8-K dated January 23, 1998 Acquisition of Utility Power Group, amended and
restated bylaws and potential litigation.
Form 8-K dated June 9, 1998 Reincorporation of the Company into Delaware and
completion of the name change to Golden Genesis Company.
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
Registrant has duly caused this report to be signed on its behalf by the
undersigned, thereunto duly authorized.
Date: August ??, 1998
PHOTOCOMM, INC.
By: /s/ John K. Coors By: /s/ Jeffrey C. Brines
John K. Coors Jeffrey C. Brines
Chief Executive Officer Chief Financial Officer
(Duly Authorized Officer and
Principal Financial Officer)
<PAGE> 13
Exhibit 3.1
CERTIFICATE OF INCORPORATION
OF
GOLDEN GENESIS COMPANY
ARTICLE 1
NAME
The name of this corporation is GOLDEN GENESIS CORPORATION (the "Corporation").
ARTICLE 2
REGISTERED OFFICE AND AGENT
The registered office of the Corporation shall be located at 1209 Orange Street,
in the City of Wilmington, County of New Castle. The registered agent of the
Corporation at such address shall be The Corporation Trust Company.
ARTICLE 3
PURPOSE AND POWERS
The purpose of the Corporation is to engage in any lawful act or activity for
which corporations may be organized under the General Corporation Law of the
State of Delaware (the "Delaware General Corporation Law"). The Corporation
shall have all power necessary or convenient to the conduct, promotion or
attainment of such acts and activities.
ARTICLE 4
CAPITAL STOCK
4.1. Authorized Shares
The total number of shares of all classes of stock that the Corporation shall
have the authority to issue is THIRTY MILLION (30,000,000), of which TWENTY-FIVE
MILLION (25,000,000) of such shares shall be Common Stock, all of one class,
having a par value of $.10 per share ("Common Stock"), and FIVE MILLION
(5,000,000) of such shares shall be Preferred Stock, having a par value of $.001
per share ("Preferred Stock").
4.2. Common Stock
4.2.1. Relative Rights
The Common Stock shall be subject to all of the rights, privileges, preferences
and priorities of the Preferred Stock as set forth in this Certificate of
Incorporation or the certificate of designations filed to establish the
respective series of Preferred Stock. Each share of Common Stock shall have the
same relative rights as and be identical in all respects to all the other shares
of Common Stock.
4.2.2. Dividends
Whenever there shall have been paid, or declared and set aside for payment, to
the holders of shares of any class of stock having preference over the Common
Stock as to the payment of dividends, the full amount of dividends and of
sinking fund or retirement payments, if any, to which such holders are
respectively entitled in preference to the Common Stock, then dividends may be
paid on the Common Stock and on any class or series of stock entitled to
participate therewith as to dividends, out of any assets legally available for
the payment of dividends thereon, but only when and as declared by the Board of
Directors of the Corporation.
4.2.3. Dissolution, Liquidation, Winding Up
In the event of any dissolution, liquidation, or winding up of the Corporation,
whether voluntary or involuntary, the holders of the Common Stock, and holders
of any class or series of stock entitled to participate therewith, in whole or
in part, as to the distribution of assets in such event, shall become entitled
to participate in the distribution of any assets of the Corporation remaining
after the Corporation shall have paid, or provided for payment of, all debts and
liabilities of the Corporation and after the Corporation shall have paid, or set
aside for payment, to the holders of any class of stock having preference over
the Common Stock in the event of dissolution, liquidation or winding up the full
preferential amounts (if any) to which they are entitled.
4.2.4 Voting Rights
Each holder of shares of Common Stock shall be entitled to attend all special
and annual meetings of the stockholders of the Corporation and, share for share
and without regard to class, together with the holders of all other classes of
stock entitled to attend such meetings and to vote (except any class or series
of stock having special voting rights), to cast one vote for each outstanding
share of Common Stock so held upon any matter or thing (including, without
limitation, the election of one or more directors) properly considered and acted
upon by the stockholders.
4.3. Preferred Stock
4.3.1 General
The Board of Directors is authorized, subject to limitations prescribed by the
Delaware General Corporation Law and the provisions of this Certificate of
Incorporation, to provide, by resolution or resolutions from time to time and by
filing a certificate of designations pursuant to the Delaware General
Corporation Law, for the issuance of the shares of Preferred Stock in series, to
establish from time to time the number of shares to be included in each such
series, to fix the powers, designations, preferences and relative,
participating, optional or other special rights of the shares of each such
series and to fix the qualifications, limitations or restrictions thereof.
4.3.2 Series A Convertible Preferred Stock
One Hundred Twenty-Five Thousand (125,000) shares of the authorized Preferred
Stock are hereby designated Series A Convertible Preferred Stock ("Series A
Convertible Preferred Stock"), to be issued from time to time as the Board of
Directors may determine, and shall have the following, preferences, rights and
limitations in addition to those applicable generally to the preferred stock of
the Corporation:
a. Dividends. Holders of shares of Series A Convertible Preferred Stock
shall be entitled to receive, when declared by the Board of Directors, out of
funds and assets of the Corporation legally available therefore, an annual
dividend, paid in cash, at the rate of $.60 per share, payable quarterly on the
dividend payment dates, hereby fixed as the 20th day of March, June, September
and December, to stockholders of record on the respective record dates, not
exceeding fifty days preceding such quarterly dividend payment dates, fixed for
that purpose by the Board of Directors. Dividends on each share of the Series A
Convertible Preferred Stock shall accrue and be cumulative from the date of
issue and shall be appropriately prorated with respect to the period between
such date of issue and the first dividend payment date. Accumulations of
dividends shall not bear interest.
So long as any shares of Series A Convertible Preferred Stock are outstanding,
the Corporation shall not declare and pay or set apart for payment any dividends
or make any other distribution of the Common Stock and shall not redeem,
retire, purchase or otherwise acquire, any shares of common stock or preferred
stock, unless at the time of making such declaration, payment, distribution,
redemption, retirement, purchase or acquisition dividends on all outstanding
shares of Series A Convertible Preferred Stock for all past quarterly dividend
periods shall have been paid or declared and sufficient funds set apart for the
payment thereof.
b. Conversion. The Series A Convertible Preferred Stock shall be convertible
into Common Stock of the Corporation, without the payment of any additional
consideration by the holder thereof and at the option of the holder thereof, at
any time at a conversion price (the "Conversion Price") equal to $1.25 per
common share, subject to readjustment as provided herein below. The right to
convert any shares of Series A Convertible Preferred Stock called for redemption
shall expire at the close of business on the fifth (5th) day prior to the
redemption date thereof.
The holder of a share or shares of Series A Convertible Preferred Stock may
exercise the conversion rights by delivering to the Corporation during regular
business hours, at the office of the transfer agent of the Corporation for the
Series A Convertible Preferred Stock, and if no transfer agent has been
appointed then at the principal office of the Corporation, or at such other
places as may be designated by the Corporation, the certificate or certificates
for the shares to be converted, duly endorsed or assigned in blank or to the
Corporation (if required by it), accompanied in any event by written notice
stating that the holder elects to convert such shares and stating the name or
names (with address) in which the certificate or certificates for Common Stock
are to be issued. Conversion shall be deemed to have been effected on the date
when such delivery is made, and such date is referred to herein as the
"Conversion Date". As promptly as practicable thereafter the Corporation shall
issue and deliver to or upon the written order of such holder, at such office or
other place designated by the Corporation, a certificate or certificates for the
number of full shares of Common Stock to which he is entitled and a check in
respect of any fraction of shares provided below. The person in whose name the
certificate or certificates for Common Stock are to be issued shall be deemed to
have become a holder of Common Stock of record on the Conversion Date unless the
transfer books of the Corporation are closed on that date, in which event he
shall be deemed to have become a holder of Common Stock of Record on the next
succeeding date on which the transfer books are open, but the conversion rate
shall be that in effect on the Conversion Date.
The issuance of Common Stock on conversion of Series A Convertible Preferred
Stock shall be without charge to the converting holder of Series A Convertible
Preferred Stock for any fee, expense or tax in respect of the issuance therefore
but the Corporation shall not be required to pay any fee, expense or tax which
may be payable with respect of any transfer involved in the issuance and
delivery of shares in any name other than that of the holder of record on the
books of the Corporation of the shares of Series A Convertible Preferred Stock
converted, and the Corporation shall not, in any such case, be required to issue
or deliver any certificate for shares of Common Stock unless and until the
person requesting the issuance thereof shall have paid to the Corporation the
amount of such fee, expense or tax or shall have established to the satisfaction
of the Corporation that such fee, expense or tax has been paid.
The Conversion Price and the number of shares of Common Stock deliverable upon
conversion of each share of Series A Convertible Preferred Stock shall be
subject to adjustment from time to time upon the happening of certain events as
follows:
i. Merger, Sale of Assets, Consolidation. If the Corporation at any time
shall consolidate with or merge into or sell or convey all or substantially all
its assets to any other entity, the Series A Convertible Preferred Stock shall
thereafter evidence the right to be converted into capital stock in such number
and kind of securities and property as would have been issuable or distributable
on account of such consolidation, merger, sale or conveyance upon or with
respect to the securities subject to the conversion or purchase right
immediately prior to such consolidation, merger, sale or conveyance. The
foregoing provision shall similarly apply to successive transactions of a
similar nature by any such successor or purchaser. Without limiting the
generality of the foregoing, the anti-dilution provisions of the Series A
Convertible Preferred Stock shall apply to such securities of such successor or
purchaser after any such consolidation, merger, sale or conveyance.
ii. Reclassification. If the Corporation at any time shall, by subdivision,
combination reclassification of securities or otherwise, change any of the
securities then purchasable upon the exercise of the conversion right associated
with the Series A Convertible Preferred Stock into the same or a different
number of securities of any class or classes, the Series A Convertible Preferred
Stock shall thereafter evidence the right to purchase such number and kind of
securities as would have been issuable as the result of such change with respect
to the securities which were subject to the conversion right immediately prior
to such subdivision, combination, reclassification or other change. If shares of
Common Stock are subdivided or combined into a greater or smaller number of
shares of Common Stock, the Conversion Price shall be proportionately reduced in
case of a subdivision of shares, or proportionately increased in the case of a
combination of shares, both cases by the ratio which the total number of shares
of Common Stock outstanding immediately prior to such event.
iii. Share Issuance. If the Corporation at any time shall issue and sell or
otherwise distribute any shares of Common Stock (otherwise than as provided in
subparagraph (ii) above) and except for shares issued pursuant to outstanding
convertible debentures of the Corporation or to qualified and non-qualified
employee stock options, at a price per share less than the Conversion Price in
effect at the time of such issue, or without consideration, then, and thereafter
successively upon each such issue, the Conversion Price shall be adjusted as
follows: the number of shares of Common Stock outstanding immediately prior to
such issue shall be multiplied by the Conversion Price in effect at the time of
such issue and there shall be added to the product so obtained the aggregate
consideration, if any, received by the Corporation upon such issue of additional
shares of Common Stock. The sum so obtained shall be divided by the number of
shares of Common Stock outstanding immediately after such issue, and the
resulting quotient shall be the Adjusted Conversion Price. The Adjusted
Conversion Price shall in all cases be computed to the nearest even cent. The
number of shares of Common Stock purchasable upon exercise of the Series A
Convertible Preferred Stock shall be adjusted as follows: the number of shares
originally specified herein shall be multiplied by the Conversion Price
originally specified herein, and the resulting product shall be divided by the
Adjusted Conversion Price determined as provided above in this subparagraph
(iii). The resulting quotient shall be the adjusted number of shares purchasable
hereunder and shall be computed to the nearest 1/100th of one share. For the
purposes of this subparagraph (iii), the following provisions shall be
applicable:
(a) In the case of the issuance of additional shares of Common Stock for cash,
the consideration received by the Corporation therefor shall be deemed to be the
cash proceeds received by the Corporation for such shares before deducting any
commissions or other expenses paid or incurred by the Corporation for any
underwriting of, or otherwise in connection with, the issuance of such shares.
(b) In case of the issuance of additional shares of Common Stock for a
consideration other than cash or a consideration a part of which shall be other
than cash, the amount of the consideration other than cash received by the
Corporation for such shares shall be deemed to be the value of such
consideration as determined reasonably and in good faith by the Board of
Directors of the Corporation.
(c) In case of the issuance by the Corporation of (i) any other security that
is convertible into shares of Common Stock of the Corporation, (ii) any rights
or options to purchase Common Stock of the Corporation, the Corporation shall be
deemed to have issued the maximum number of shares of Common Stock into which
such convertible security may be converted, and the maximum number of shares of
Common Stock deliverable upon the exercise of such rights or options, for the
consideration received by the Corporation for such convertible security or for
such rights or options (plus the amount of any underwriting discount), as the
case may be, and before deducting therefrom any expenses or commissions incurred
or paid by the Corporation for any underwriting of, or otherwise in connection
with, the issuance of such convertible security or rights or options, plus (i)
any considerations or payment to be received by the Corporation in connection
with such conversion and (ii) the minimum consideration to be received by the
Corporation for the Common Stock issuable upon the exercise of such rights or
options. No further adjustment of the Conversion Price shall be made as a result
of the actual issuance of the shares of Common Stock of the Corporation upon
conversion of any convertible security or exercise of any rights or options
referred to in this clause (c) except that on the exercise of the right to
convert such convertible security or exercise of said right or option, or on
termination or expiration of such rights, options or conversion rights, the
Conversion Price hereunder will be readjusted to such as would have been
obtained had the adjustment made upon the issuance of such convertible security
or upon the issuance of such rights or options been made on the basis of (i) the
number of shares of Common Stock actually issued upon the conversion of such
convertible security or upon the exercise of such rights or options, and (ii)
the consideration actually received by the Corporation upon such conversion or
exercise; providedthat no such readjustment shall affect conversions previously
made.
(d) For purposes hereof, any additional shares of Common Stock issued as a
stock dividend shall be deemed to have been issued for no consideration.
(e) The number of shares of Common Stock at any time outstanding shall exclude
all shares then owned or held by or for the account of the Corporation.
(f) Shares reserved as of the date hereof for issue upon the exercise of
outstanding stock options, warrants and rights shall be deemed to be issued at a
price per share equal to the Conversion Price or Adjusted Conversion Price in
effect at the date of issue.
Whenever any adjustment is required in the number of shares into which each
share of the Series A Convertible Preferred Stock is convertible, the
Corporation shall forthwith file at the office or agency maintained for the
purpose for conversion of the Series A Convertible Preferred Stock a statement
describing in reasonable detail the adjustment and the method of calculation
used.
The Corporation shall at all times keep available for issue and delivery the
full number of shares of stock or other securities into which all outstanding
shares of Series A Convertible Preferred Stock are convertible.
No certificate for a fraction of a share shall be issued upon any conversion,
but in lieu of any fractional share that would otherwise be required to be
issued in accordance with the foregoing provisions, the Corporation shall make a
cash payment for any such fractional share interest upon the basis of the
Conversion Price then in effect.
c. Voting. The holders of shares of Series A Convertible Preferred Stock
shall be entitled to notice of any stockholders' meeting and to vote upon
matters submitted to shareholders for a vote, in the same manner and with the
same effect as the holders of shares of Common Stock, voting together with the
holders of Common Stock as a single class. Holders of Series A Convertible
Preferred Stock shall have that number of votes equal to the number of shares of
Common Stock into which such preferred stock is convertible, as adjusted from
time to time pursuant to paragraph (b) above.
So long as any shares of the Series A Convertible Preferred Stock are
outstanding, the Corporation shall not, without the affirmative vote or written
consent of the holders of at least two thirds of the aggregate number of shares
at the time outstanding of the Series A Convertible Preferred Stock:
i. authorize, create or increase any class of capital stock ranking prior to
the Series A Convertible Preferred Stock as to dividends or upon liquidation,
dissolution or winding-up; or
ii. alter or change any of the powers, preferences or special rights given to
the Series A Convertible Preferred Stock so as to affect the same adversely.
d. Redemption. The Corporation may, at the option of the Board of Directors,
redeem all or any part of the outstanding Series A Convertible Preferred Stock
at the redemption price of $5.00 per share, plus accrued unpaid dividends, if
any, provided that notice of redemption is sent by certified mail to the holders
of record of the Series A Convertible Preferred Stock to be redeemed at least
forty-five, but not more than ninety days prior to the date of redemption
specified in such notice, addressed to each such holder at his address as it
appears in the records of the Corporation. On or after the redemption date each
holder of shares of Series A Convertible Preferred Stock to be redeemed shall
present and surrender his certificate or certificates for such shares to the
Corporation at the place designated in such notice and thereupon the redemption
price of such shares shall be paid to or on the order of the person whose name
appears on such certificate or certificates as the owner thereof and each
surrendered certificate shall be canceled. In case less than all of the shares
represented by any such certificates are redeemed, a new certificate shall be
issued representing the unredeemed shares. From and after the redemption date
(unless default shall be made by the Corporation in the payment of the
redemption price) all dividends on the shares of Series A Convertible Preferred
Stock designated for redemption in such notice shall cease to accrue, and all
rights of the holders thereof as stockholders of the Corporation, except the
right to receive the redemption price thereof upon the surrender of the
certificates representing the same, without interest, shall cease and terminate
and such shares shall not thereafter be transferred (except with the consent of
the Corporation) on the books of the Corporation, and such shares shall not be
deemed to be outstanding for any purpose whatsoever.
In case of the redemption of a part only of the Series A Convertible Preferred
Stock, the shares of such series to be redeemed shall be selected pro rata or by
lot or in such other manner as the Board of Directors may determine. The Board
of Directors shall have full power and authority to prescribe the manner in
which and subject to the provisions and limitations herein contained, the terms
and conditions upon which such stock shall be redeemed from time to time.
e. No Sinking Fund. The shares of the Series A Convertible Preferred Stock
shall not be entitled to benefit of any sinking or purchase fund to be applied
to the redemption or purchase of such stock.
f. Liquidation. In the event of any voluntary or involuntary liquidation,
dissolution or winding-up of the Corporation, holders of Series A Convertible
Preferred Stock shall be entitled to be paid out of the assets of the
Corporation available for distribution to its stockholders before any payment
shall be made in respect of any class or series of stock which shall rank
subordinate thereto as to assets the fixed sum of $5.00 for each share of Series
A Convertible Preferred Stock held by them plus accrued and unpaid dividends, if
any, thereon.
If upon any voluntary or involuntary liquidation, dissolution or winding-up of
the Corporation, the assets of the Corporation available for distribution to its
Series A Convertible Preferred Stock holders shall be insufficient to pay the
holders of Series A Convertible Preferred Stock the full amount to which they
are entitled hereunder, the holders of Series A Convertible Preferred Stock
shall share ratably in any distribution of assets according to the respective
amounts which would be payable in respect of the shares of Series A Convertible
Preferred Stock held by them upon such distribution if all amounts payable on or
with respect to such stock were paid in full. If upon any voluntary or
involuntary liquidation, dissolution or winding-up of the Corporation, payments
shall have been made to the holders of the Series A Convertible Preferred Stock
of the full amount to which they shall respectively be entitled hereunder, such
holders shall not be entitled to any further participation in the distribution
of the remaining assets of the Corporation available for distribution to its
stockholders.
Neither the merger or consolidation of the Corporation into or with another
corporation nor the merger or consolidation of any other corporation into or
with the Corporation, nor the sale, transfer or lease of all or substantially
all of the assets of the Corporation, shall be deemed to be a voluntary or
involuntary liquidation, dissolution or winding-up of the Corporation.
g. Redeemed Shares. Shares of the Series A Convertible Preferred Stock
redeemed or purchased by the Corporation or surrendered to the Corporation on
the conversion thereof into shares of Common Stock as hereinabove provided shall
upon appropriate filing and recording to the extent required by law, have the
status of authorized and unissued shares of Series A Convertible Preferred
Stock.
4.3.3 Series AA Convertible Preferred Stock
Two Hundred Thousand (200,000) shares of the authorized Preferred Stock are
hereby designated Series AA Convertible Preferred Stock ("Series AA Convertible
Preferred Stock"), to be issued from time to time as the Board of Directors may
determine, and shall have the following, preferences, rights and limitations in
addition to those applicable generally to the preferred stock of the
Corporation:
a. Priority. The Series AA Convertible Preferred Stock shall have a priority
ranking superior to the Common Stock of the Corporation and subordinate to the
Series A Convertible Preferred Stock of the Corporation with respect to payment
of dividends and upon dissolution, liquidation and winding-up of the
Corporation.
b. Dividends. Holders of shares of Series AA Convertible Preferred Stock
shall be entitled to receive, when declared by the Board of Directors, out of
funds and assets of the Corporation legally available therefore, an annual
dividend (calculated on the $6.00 per share liquidation preference of each share
of Series AA Convertible Preferred Stock) of eleven (11%) percent per annum,
payable quarterly on the dividend payment dates, hereby fixed as the 20th day of
March, June, September and December, to stockholders of record on the respective
record dates, not exceeding fifty days preceding such quarterly dividend payment
dates, fixed for that purpose by the Board of Directors. Dividends on the Series
AA Convertible Preferred Stock shall be paid in cash. Dividends on each share of
the Series AA Convertible Preferred Stock shall accrue and be cumulative from
the date of issue and shall be appropriately prorated with respect to the period
between such date of issue and the first dividend payment date. Accumulations of
dividends shall not bear interest.
So long as any shares of Series AA Convertible Preferred Stock are outstanding,
the Corporation shall not declare and pay or set apart for payment any dividends
or make any other distribution on the Common Stock and shall not redeem, retire,
purchase or otherwise acquire, any shares of common stock or preferred stock,
unless at the time of making such declaration, payment, distribution,
redemption, retirement, purchase or acquisition dividends on all outstanding
shares of Series AA Convertible Preferred Stock for all past quarterly dividend
periods shall have been paid or declared and sufficient funds set apart for the
payment thereof.
c. Conversion. The Series AA Convertible Preferred Stock shall be
convertible into Common Stock of the Corporation, without the payment of any
additional consideration by the holder thereof and at the option of the holder
thereof, at any time at a conversion price (the "Conversion Price") determined
by dividing the $6.00 per share liquidation preference of the Series AA
Convertible Preferred Stock by 4, resulting in a Conversion Price equal to $1.50
per common share, subject to readjustment as provided herein below. The right to
convert any shares of Series AA Convertible Preferred Stock called for
redemption shall expire at the close of business on the fifth (5th) day prior to
the redemption date thereof.
The holder of a share or shares of Series AA Convertible Preferred Stock may
exercise the conversion rights by delivering to the Corporation during the
regular business hours, at the office of the transfer agent of the Corporation
for the Series AA Convertible Preferred Stock, and if no transfer agent has been
appointed then at the principal office of the Corporation, or at such other
places as may be designated by the Corporation, the certificate or certificates
for the shares to be converted, duly endorsed or assigned in blank or to the
Corporation (if required by it), accompanied in any event by written notice
stating that the holder elects to convert such shares and stating the name or
names (with address) in which the certificate or certificates for Common
delivery is made, and such date is referred to herein as the "Conversion Date".
As promptly as practicable thereafter the Corporation shall issue and deliver to
or upon the written order of such holder, at such office or other place
designated by the Corporation, a certificate or certificates for the number of
full shares of Common Stock to which he is entitled and a check in respect of
any fraction of shares provided below. The Person in whose name the certificate
or certificates for Common Stock are to be issued shall be deemed to have become
a holder of Common Stock of record on the Conversion Date unless the transfer
books of the Corporation are closed on that date, in which event he shall be
deemed to have become a holder of Common Stock of Record on the next succeeding
date on which the transfer books are open, but the conversion rate shall be that
in effect on the Conversion Date.
The issuance of Common Stock on conversion of Series AA Convertible Preferred
Stock shall be without charge to the converting holder of Series AA Convertible
Preferred Stock for any fee, expense or tax in respect of the issuance
therefore, but the Corporation shall not be required to pay any fee, expense or
tax which may be payable with respect of any transfer involved in the issuance
and delivery of shares in any name other than that of the holder of record on
the books of the Corporation of the shares of Series AA Convertible Preferred
Stock converted, and the Corporation shall not, in any such case, be required to
issue or deliver any certificate for shares of Common Stock unless and until the
person requesting the issuance thereof shall have paid to the Corporation the
amount of such fee, expense or tax or shall have established to the satisfaction
of the Corporation that such fee, expense or tax has been paid.
The Conversion Price and the number of shares of Common Stock deliverable upon
conversion of each share of Series AA Convertible Preferred Stock shall be
subject to adjustment from time to time upon the happening of certain events as
follows:
i. Merger, Sale of Assets, Consolidation. If the Corporation at any time
shall consolidate with or merge into or sell or convey all or substantially all
its assets to any other entity, the Series AA Convertible Preferred Stock shall
thereafter evidence the right to be converted into capital stock in such number
and kind of securities and property as would have been issuable or distributable
on account of such consolidation, merger, sale or conveyance upon or with
respect to the securities subject to the conversion or purchase right
immediately prior to such consolidation, merger, sale or conveyance. The
foregoing provision shall similarly apply to successive transactions of a
similar nature by any such successor or purchaser. Without limiting the
generality of the foregoing, the anti-dilution provisions of the Series AA
Convertible Preferred Stock shall apply to such securities of such successor or
purchaser after any such consolidation, merger, sale or conveyance.
ii. Reclassification. If the Corporation at any time shall, by subdivision,
combination reclassification of securities or otherwise, change any of the
securities then purchasable upon the exercise of the conversion right associated
with the Series AA Convertible Preferred Stock into the same or a different
number of securities of any class or classes, the Series AA Convertible
Preferred Stock shall thereafter evidence the right to purchase such number and
kind of securities as would have been issuable as the result of such change with
respect to the securities which were subject to the conversion right immediately
prior to such subdivision, combination, reclassification or other change. If
shares of Common Stock are subdivided or combines into a greater or smaller
number of shares of Common Stock, the Conversion Price shall be proportionately
reduced in case of a subdivision of shares or proportionately increased in the
case of a combination of shares, both cases by the ratio which the total number
of shares of Common Stock to be outstanding immediately after such event bears
to the total number of shares of Common Stock outstanding immediately prior to
such event.
Whenever any adjustment is required in the number of shares into which each
share of the Series AA Convertible Preferred Stock is convertible, the
Corporation shall forthwith file at the office or agency maintained for the
purpose for conversion of the Series AA Convertible Preferred Stock a statement
describing in reasonable detail the adjustment and the method of calculation
used.
The Corporation shall at all times keep available for issue and delivery the
full number of shares of Common Stock into which all outstanding shares of
Series AA Convertible Preferred Stock are convertible.
No certificate for a fraction of a share shall be issued upon any conversion,
but in lieu of any fractional share that would otherwise be required to be
issued in accordance with the foregoing provisions, the Corporation shall make a
cash payment for any such fractional share interest upon the basis of the
Conversion Price then in effect.
d. Voting. The holders of shares of Series AA Convertible Preferred Stock
shall be entitled to notice of any stockholders' meeting and to vote upon
matters submitted to shareholders for a vote, in the same manner and with the
same effect as the holders of shares of Common Stock, voting together with the
holders of Common Stock as a single call. Holders of Series AA Convertible
Preferred Stock shall have that number of votes equal to the number of shares of
Common Stock into which such preferred stock is convertible, as adjusted from
time to time pursuant to paragraph (b) above.
So long as any shares of the Series AA Convertible Preferred Stock are
outstanding, the Corporation shall not, without the affirmative vote or written
consent of the holders of at least two thirds of the aggregate number of shares
at the time outstanding of the Series AA Convertible Preferred Stock:
i. authorize, create or increase any class of capital stock ranking prior the
Series AA Convertible Preferred Stock as to dividends or upon liquidation,
dissolution or winding-up;
ii. alter or change any of the powers, preferences or special rights given to
the Series AA Convertible Preferred Stock so as to affect the same adversely.
e. Redemption. The Corporation may, at the option of the Board of Directors,
redeem all or any part of the outstanding Series AA Convertible Preferred Stock
at any time after the fifth (5th) anniversary of the date of issuance of the
shares to be redeemed, at the redemption price of $6.00 per share, plus accrued
unpaid dividends, if any, provided that notice of redemption is sent by
certified mail to the holders of record of the Series AA Convertible Preferred
Stock to be redeemed at least forty-five, but not more than ninety days prior to
the date of redemption specified in such notice, addressed to each such holder
at his address as it appears in the records of the Corporation. On or after the
redemption date each holder of shares of Series AA Convertible Preferred Stock
to be redeemed shall present and surrender his certificate or certificates for
such shares to the Corporation at the place designated in such notice and
thereupon the redemption price of such shares shall be paid to or on the order
of the person whose name appears on such certificate or certificates as the
owner thereof and each surrendered certificate shall be canceled. In case less
than all of the shares represented by any such certificates are redeemed, a new
certificate shall be issued representing the unredeemed shares. From and after
the redemption date (unless default shall be made by the Corporation in the
payment of the redemption price) all dividends on the shares of Series AA
Convertible Preferred Stock designated for redemption in such notice shall cease
to accrue, and all rights of the holders thereof as stockholders of the
Corporation, except the right to receive the redemption price thereof upon the
surrender of the certificates representing the same, without interest, shall
cease and terminate and such shares shall not thereafter be transferred (except
with the consent of the Corporation) on the books of the Corporation, and such
shares shall not be deemed to be outstanding for any purpose whatsoever.
In case of the redemption of a part only of the Series AA Convertible Preferred
Stock, the shares of such series to be redeemed shall be selected pro rata or by
lot or in such other manner as the Board of Directors may determine. The Board
of Directors shall have full power and authority to prescribe the manner in
which and subject to the provisions and limitations herein contained, the terms
and conditions upon which such stock shall be redeemed from time to time.
f. No Sinking Fund. The shares of the Series AA Convertible Preferred Stock
shall not be entitled to benefit of any sinking or purchase fund to be applied
to the redemption or purchase of such stock.
g. Liquidation. In the event of any voluntary or involuntary liquidation,
dissolution or winding-up of the Corporation, holders of Series AA Convertible
Preferred Stock shall be entitled to be paid out of the assets of the
Corporation available for distribution to its stockholders before any payment
shall be made in respect of any class or series of stock which shall rank
subordinate thereto as to assets the fixed sum of $6.00 for each share of Series
AA Convertible Preferred Stock held by them plus accrued and unpaid dividends,
if any, thereon.
If upon any voluntary or involuntary liquidation, dissolution or winding-up of
the Corporation, the assets of the Corporation available for distribution to its
Series AA Convertible Preferred Stock holders shall be insufficient to pay the
holders of Series AA Convertible Preferred Stock the full amount to which they
are entitled hereunder, the holders of Series AA Convertible Preferred Stock
shall share ratably in any distribution of assets according to the respective
amounts which would be payable in respect of the shares of Series AA Convertible
Preferred Stock held by them upon such distribution if all amounts payable on or
with respect to such stock were paid in full. If upon any voluntary or
involuntary liquidation, dissolution or winding-up of the Corporation payments
shall have been made to the holders of the Series AA Convertible Preferred Stock
of the full amount to which they shall respectively be entitled hereunder, such
holders shall not be entitled to any further participation in the distribution
of the remaining assets of the Corporation available for distribution to its
stockholders.
Neither the merger or consolidation of the Corporation into or with another
corporation nor the merger or consolidation of any other corporation into or
with the Corporation, nor the sale, transfer or lease of all or substantially
all of the assets of the Corporation, shall be deemed to be a voluntary or
involuntary liquidation, dissolution or winding-up of the Corporation.
h. Redeemed Shares. Shares of the Series AA Convertible Preferred Stock
redeemed or purchased by the Corporation or surrendered to the Corporation on
the conversion thereof into shares of Common Stock as hereinabove provided
shall, upon appropriate filing and recording to the extent required by law, have
the status of authorized and unissued shares of Series AA Convertible Preferred
Stock.
ARTICLE 5
INCORPORATOR
The name and mailing address of the incorporator (the "Incorporator") are The
Corporation Trust Company, 1209 Orange Street, Wilmington, Delaware 19801. The
powers of the Incorporator shall terminate upon the filing of this Certificate
of Incorporation.
ARTICLE 6
BOARD OF DIRECTORS
6.1. Initial Directors; Number; Election
The following persons, having the following mailing addresses, shall serve as
the directors of the Corporation until the first annual meeting of the
stockholders of the Corporation or until their successors are elected and
qualified:
NAME MAILING ADDRESS
Jed J. Burnham 4585 McIntyre Street
Golden, Colorado 80403
John K. Coors 4585 McIntyre Street
Golden, Colorado 80403
Joseph Coors, Jr. 4585 McIntyre Street
Golden, Colorado 80403
John Markle 4585 McIntyre Street
Golden, Colorado 80403
Norman E. Miller 4585 McIntyre Street
Golden, Colorado 80403
Gerrit J. Wolfaardt 4585 McIntyre Street
Golden, Colorado 80403
The number of directors of the Corporation shall be such number as from time to
time shall be fixed by, or in the manner provided in, the bylaws of the
Corporation. Unless and except to the extent that the bylaws of the Corporation
shall otherwise require, the election of directors of the Corporation need not
be by written ballot. Except as otherwise provided in this Certificate of
Incorporation, each director of the Corporation shall be entitled to one vote
per director on all matters voted or acted upon by the Board of Directors.
6.2. Management of Business and Affairs of the Corporation
The business and affairs of the Corporation shall be managed by or under the
direction of the Board of Directors.
6.3. Limitation of Liability
No director of the Corporation shall be liable to the Corporation or its
stockholders for monetary damages for breach of fiduciary duty as a director,
provided that this provision shall not eliminate or limit the liability of a
director (a) for any breach of the director's duty of loyalty to the Corporation
or its stockholders; (b) for acts or omissions not in good faith or which
involve intentional misconduct or a knowing violation of law; (c) under Section
174 of the Delaware General Corporation Law; or (d) for any transaction from
which the director derived an improper personal benefit. Any repeal or
modification of this Article 6.3 shall be prospective only and shall not
adversely affect any right or protection of, or any limitation of the liability
of, a director of the Corporation existing at, or arising out of facts or
incidents occurring prior to, the effective date of such repeal or modification.
ARTICLE 7
BUSINESS COMBINATIONS WITH INTERESTED STOCKHOLDERS
The Corporation by this provision hereby elects to be governed by Section 203 of
the Delaware General Corporation Law; provided, however, that pursuant to
paragraph (b)(7) of such Section 203, any business combination (as defined in
such Section 203) between the Corporation and ACX Technologies, Inc. or its
affiliates shall not be subject to the restrictions imposed by such Section 203.
ARTICLE 8
COMPROMISE OR ARRANGEMENTS
Whenever a compromise or arrangement is proposed between the Corporation and its
creditors or any class of them and/or between the Corporation and its
stockholders or any class of them, any court of equitable jurisdiction within
the State of Delaware may, on the application in a summary way of the
Corporation or of any creditor or stockholder thereof or on the application of
any receiver or receivers appointed for the Corporation under the provisions of
Section 291 of Title 8 of the Delaware Code or on the application of trustees in
dissolution or of any receiver or receivers appointed for the Corporation under
the provisions of Section 279 of Title 8 of the Delaware Code order a meeting of
the creditors or class of creditors, and/or of the stockholders or class of
stockholders of the Corporation, as the case may be, to be summoned in such
manner as the said court directs. If a majority in number representing three-
fourths in value of the creditors or class of creditors, and/or of the
stockholders or class of stockholders of the Corporation, as the case may be,
agree to any compromise or arrangement and to any reorganization of the
Corporation as a consequence of such compromise or arrangement, the said
compromise or arrangement and the said reorganization shall, if sanctioned by
the court to which the said application has been made, be binding on all the
creditors or class of creditors, and/or on all the stockholders or class of
stockholders, of the Corporation, as the case may be, and also on the
Corporation.
ARTICLE 9
AMENDMENT OF BYLAWS
In furtherance and not in limitation of the powers conferred by the Delaware
General Corporation Law, the Board of Directors of the Corporation is expressly
authorized and empowered to adopt, amend and repeal the bylaws of the
Corporation.
ARTICLE 10
RESERVATION OF RIGHT TO AMEND CERTIFICATE OF INCORPORATION
The Corporation reserves the right at any time, and from time to time, to amend,
alter, change, or repeal any provision contained in this Certificate of
Incorporation, and other provisions authorized by the laws of the State of
Delaware at the time in force may be added or inserted, in the manner now or
hereafter prescribed by law; and all rights, preferences, and privileges of any
nature conferred upon stockholders, directors, or any other persons by and
pursuant to this Certificate of Incorporation in its present form or as
hereafter amended are granted subject to the rights reserved in this Article 10.
IN WITNESS WHEREOF, the undersigned, being the Incorporator hereinabove named,
for the purpose of forming a corporation pursuant to the Delaware General
Corporation Law, hereby certifies that the facts hereinabove stated are truly
set forth, and accordingly executes this Certificate of Incorporation this 8th
day of June, 1998.
THE CORPORATION TRUST COMPANY
Incorporator
By: /s/ CT Corporation Representative
<PAGE> 29
Exhibit 3.2
BYLAWS
OF
GOLDEN GENESIS COMPANY
1. OFFICES
1.1. Registered Office
The initial registered office of the Corporation shall be 1209 Orange Street,
Wilmington, Delaware 19801, County of New Castle, and the name of the registered
agent shall be The Corporation Trust Company.
1.2. Other Offices
The Corporation may also have offices at such other places, both within and
without the State of Delaware, as the Board of Directors may from time to time
determine or as may be necessary or useful in connection with the business of
the Corporation.
2. MEETINGS OF STOCKHOLDERS
2.1. Place of Meetings
All meetings of the stockholders shall be held at such place as may be fixed
from time to time by the Board of Directors, the Chairman of the Board or the
President.
2.2. Annual Meetings
The Corporation shall hold annual meetings of stockholders, on such date and at
such time as shall be designated from time to time by the Board of Directors,
the Chairman of the Board or the President, at which stockholders shall elect a
Board of Directors and transact such other business as may properly be brought
before the meeting.
2.3. Special Meetings
Special meetings of the stockholders, for any purpose or purposes, unless
otherwise prescribed by statute, may be called by the Board of Directors, the
Chairman of the Board or the President.
2.4. Notice of Meetings
Notice of any meeting of stockholders, stating the place, date and hour of the
meeting, and (if it is a special meeting) the purpose or purposes for which the
meeting is called, shall be given to each stockholder entitled to vote at such
meeting not less than ten nor more than sixty days before the date of the
meeting (except to the extent that such notice is waived or is not required as
provided in the General Corporation Law of the State of Delaware (the "Delaware
General Corporation Law") or these Bylaws). Such notice shall be given in
accordance with, and shall be deemed effective as set forth in, Section 222 (or
any successor section) of the Delaware General Corporation Law.
2.5. Waivers of Notice
Whenever the giving of any notice is required by statute, the Certificate of
Incorporation or these Bylaws, a waiver thereof, in writing and delivered to the
Corporation, signed by the person or persons entitled to said notice, whether
before or after the event as to which such notice is required, shall be deemed
equivalent to notice. Attendance of a stockholder at a meeting shall constitute
a waiver of notice (1) of such meeting, except when the stockholder at the
beginning of the meeting objects to holding the meeting or transacting business
at the meeting, and (2) (if it is a special meeting) of consideration of a
particular matter at the meeting that is not within the purpose or purposes
described in the meeting notice, unless the stockholder objects to considering
the matter at the beginning of the meeting.
2.6. Business at Special Meetings
Business transacted at any special meeting of stockholders shall be limited to
the purposes stated in the notice (except to the extent that such notice is
waived or is not required as provided in the Delaware General Corporation Law
or these Bylaws).
2.7. List of Stockholders
After the record date for a meeting of stockholders has been fixed, at least ten
days before such meeting, the officer who has charge of the stock ledger of the
Corporation shall make a list of all stockholders entitled to vote at the
meeting, arranged in alphabetical order and showing the address of each
stockholder and the number of shares registered in the name of each stockholder.
Such list shall be open to the examination of any stockholder for any purpose
germane to the meeting, during ordinary business hours, for a period of at least
ten days prior to the meeting, either at a place in the city where the meeting
is to be held, which place is to be specified in the notice of the meeting, or
at the place where the meeting is to be held. Such list shall also, for the
duration of the meeting, be produced and kept open to the examination of any
stockholder who is present at the time and place of the meeting.[NOTE14]
2.8. Quorum at Meetings
Stockholders may take action on a matter at a meeting only if a quorum exists
with respect to that matter. Except as otherwise provided by statute or by the
Certificate of Incorporation, the holders of a majority of the shares entitled
to vote at the meeting, and who are present in person or represented by proxy,
shall constitute a quorum at all meetings of the stockholders for the
transaction of business. Where a separate vote by a class or classes is
required, a majority of the outstanding shares of such class or classes, present
in person or represented by proxy, shall constitute a quorum entitled to take
action with respect to that vote on that matter. Once a share is represented
for any purpose at a meeting (other than solely to object (1) to holding the
meeting or transacting business at the meeting, or (2) (if it is a special
meeting) to consideration of a particular matter at the meeting that is not
within the purpose or purposes described in the meeting notice), it is deemed
present for quorum purposes for the remainder of the meeting and for any
adjournment of that meeting unless a new record date is or must be set for the
adjourned meeting. The holders of a majority of the voting shares represented
at a meeting, whether or not a quorum is present, may adjourn such meeting from
time to time.
2.9. Voting and Proxies
Unless otherwise provided in the Delaware General Corporation Law or in the
Corporation's Certificate of Incorporation, and subject to the other provisions
of these Bylaws, each stockholder shall be entitled to one vote on each matter,
in person or by proxy, for each share of the Corporation's capital stock that
has voting power and that is held by such stockholder. No proxy shall be voted
or acted upon after three years from its date, unless the proxy provides for a
longer period. A duly executed appointment of proxy shall be irrevocable if the
appointment form states that it is irrevocable and if, and only as long as, it
is coupled with an interest sufficient in law to support an irrevocable power.
2.10. Required Vote
When a quorum is present at any meeting of stockholders, all matters shall be
determined, adopted and approved by the affirmative vote (which need not be by
ballot) of the holders of a majority of the shares present in person or
represented by proxy at the meeting and entitled to vote with respect to the
matter, unless the proposed action is one upon which, by express provision of
statutes or of the Certificate of Incorporation, a different vote is specified
and required, in which case such express provision shall govern and control with
respect to that vote on that matter. Where a separate vote by a class or
classes is required, the affirmative vote of the holders of a majority of the
shares of such class or classes present in person or represented by proxy at the
meeting shall be the act of such class. Notwithstanding the foregoing,
directors shall be elected by a plurality of the votes of the shares present in
person or represented by proxy at the meeting and entitled to vote on the
election of directors.
2.11. Action Without a Meeting
Any action required or permitted to be taken at a stockholders' meeting may be
taken without a meeting, without prior notice and without a vote, if the action
is taken by persons who would be entitled to vote at a meeting and who hold
shares having voting power equal to not less than the minimum number of votes
that would be necessary to authorize or take the action at a meeting at which
all shares entitled to vote were present and voted. The action must be
evidenced by one or more written consents describing the action taken, signed by
the stockholders entitled to take action without a meeting, and delivered to the
Corporation in the manner prescribed by the Delaware General Corporation Law for
inclusion in the minute book. No consent shall be effective to take the
corporate action specified unless the number of consents required to take such
action are delivered to the Corporation within sixty days of the delivery of the
earliest-dated consent. Written notice of the action taken shall be given in
accordance with the Delaware General Corporation Law to all stockholders who do
not participate in taking the action who would have been entitled to notice if
such action had been taken at a meeting having a record date on the date that
written consents signed by a sufficient number of holders to take the action
were delivered to the Corporation.
3. DIRECTORS
3.1. Powers
The business and affairs of the Corporation shall be managed by or under the
direction of the Board of Directors, which may exercise all such powers of the
Corporation and do all such lawful acts and things, subject to any limitation
set forth in the Certificate of Incorporation or as otherwise may be provided in
the Delaware General Corporation Law.
3.2. Number and Election
The number of directors which shall constitute the whole board shall not be
fewer than three nor more than nine persons. Within the limits above specified,
the number of directors shall be determined from time to time by resolution of
the Board of Directors.
3.3. Nomination of Directors
The Board of Directors shall nominate candidates to stand for election as
directors; and other candidates also may be nominated by any Corporation
stockholder, provided such other nomination(s) are submitted in writing to the
Secretary of the Corporation no later than 90 days prior to the meeting of
stockholders at which such directors are to be elected, together with the
identity of the nominator and the number of shares of the Corporation's stock
owned, directly or indirectly, by the nominator. The directors shall be elected
at the annual meeting of the stockholders, except as provided in Section 3.4
hereof, and each director elected shall hold office until such director's
successor is elected and qualified or until the director's earlier death,
resignation or removal. Directors need not be stockholders.
3.4. Vacancies
Vacancies and newly created directorships resulting from any increase in the
authorized number of directors elected by all of the stockholders having the
right to vote as a single class may be filled by the affirmative vote of a
majority of the directors then in office, although fewer than a quorum, or by a
sole remaining director. Whenever the holders of any class or classes of stock
or series thereof are entitled to elect one or more directors by the provisions
of the Certificate of Incorporation, vacancies and newly created directorships
of such class or classes or series may be filled by the affirmative vote of a
majority of the directors elected by such class or classes or series thereof
then in office, or by a sole remaining director so elected. Each director so
chosen shall hold office until the next election of directors of the class to
which such director was appointed, and until such director's successor is
elected and qualified, or until the director's earlier death, resignation or
removal. In the event that one or more directors resign from the Board,
effective at a future date, a majority of the directors then in office,
including those who have so resigned, shall have power to fill such vacancy or
vacancies, the vote thereon to take effect when such resignation or resignations
shall become effective, and each director so chosen shall hold office until the
next election of directors, and until such director's successor is elected and
qualified, or until the director's earlier death, resignation or removal.
3.5. Meetings
3.5.1. Regular Meetings
Regular meetings of the Board of Directors may be held without notice at such
time and at such place as shall from time to time be determined by the Board of
Directors.
3.5.2. Special Meetings
Special meetings of the Board may be called by the Chairman of the Board or
President on one day's notice to each director, either personally or by
telephone, express delivery service (so that the scheduled delivery date of the
notice is at least one day in advance of the meeting), telegram or facsimile
transmission, and on five days' notice by mail (effective upon deposit of such
notice in the mail). The notice need not describe the purpose of a special
meeting.
3.5.3. Telephone Meetings
Members of the Board of Directors may participate in a meeting of the board by
any communication by means of which all participating directors can
simultaneously hear each other during the meeting. A director participating in
a meeting by this means is deemed to be present in person at the meeting.
3.5.4. Action Without Meeting
Any action required or permitted to be taken at any meeting of the Board of
Directors may be taken without a meeting if the action is taken by all members
of the Board. The action must be evidenced by one or more written consents
describing the action taken, signed by each director, and delivered to the
Corporation for inclusion in the minute book.
3.5.5. Waiver of Notice of Meeting
A director may waive any notice required by statute, the Certificate of
Incorporation or these Bylaws before or after the date and time stated in the
notice. Except as set forth below, the waiver must be in writing, signed by the
director entitled to the notice, and delivered to the Corporation for inclusion
in the minute book. Notwithstanding the foregoing, a director's attendance at
or participation in a meeting waives any required notice to the director of the
meeting unless the director at the beginning of the meeting objects to holding
the meeting or transacting business at the meeting and does not thereafter vote
for or assent to action taken at the meeting.
3.6. Quorum and Vote at Meetings
At all meetings of the board, a quorum of the Board of Directors consists of a
majority of the total number of directors prescribed pursuant to Section 3.2 of
these Bylaws. The vote of a majority of the directors present at any meeting at
which there is a quorum shall be the act of the Board of Directors, except as
may be otherwise specifically provided by statute or by the Certificate of
Incorporation or by these Bylaws.
3.7. Committees of Directors
The Board of Directors may designate one or more committees, each committee to
consist of one or more directors. The Board may designate one or more directors
as alternate members of any committee, who may replace any absent or
disqualified member at any meeting of the committee. If a member of a committee
shall be absent from any meeting, or disqualified from voting thereat, the
remaining member or members present and not disqualified from voting, whether or
not such member or members constitute a quorum, may, by unanimous vote, appoint
another member of the Board of Directors to act at the meeting in the place of
such absent or disqualified member. Any such committee, to the extent provided
in the resolution of the Board of Directors, shall have and may exercise all the
powers and authority of the Board of Directors in the management of the business
and affairs of the Corporation, and may authorize the seal of the Corporation to
be affixed to all papers which may require it; but no such committee shall have
the power or authority in reference to approving or adopting, or recommending to
the stockholders, any action or matter expressly required by the Delaware
General Corporation Law to be submitted to stockholders for approval or
adopting, amending or repealing any bylaw of the Corporation; and unless the
resolution designating the committee, these bylaws or the Certificate of
Incorporation expressly so provide, no such committee shall have the power or
authority to declare a dividend, to authorize the issuance of stock, or to adopt
a certificate of ownership and merger pursuant to Section 253 of the Delaware
General Corporation Law. Such committee or committees shall have such name or
names as may be determined from time to time by resolution adopted by the Board
of Directors. Each committee shall keep regular minutes of its meetings and
report the same to the Board of Directors, when required. Unless otherwise
specified in the Board resolution appointing the Committee, all provisions of
the Delaware Genral Corporation Law and these Bylaws relating to meetings,
action without meetings, notice (and waiver thereof), and quorum and voting
requirements of the Board of Directors apply, as well, to such committees and
their members.
3.8. Compensation of Directors
The Board of Directors shall have the authority to fix the compensation of
directors. No such payment shall preclude any director from serving the
Corporation in any other capacity and receiving compensation therefor.
4. OFFICERS
4.1. Positions
The officers of the Corporation shall be a Chairman of the Board, a President, a
Secretary and a Treasurer, and such other officers as the Board of Directors (or
an officer authorized by the Board of Directors) from time to time may appoint,
including one or more Vice Presidents, Assistant Secretaries and Assistant
Treasurers. Each such officer shall exercise such powers and perform such
duties as shall be set forth below and such other powers and duties as from time
to time may be specified by the Board of Directors or by any officer(s)
authorized by the Board of Directors to prescribe the duties of such other
officers. Any number of offices may be held by the same person, except that in
no event shall the President and the Secretary be the same person. Each of the
Chairman of the Board, President, and/or any Vice President may execute bonds,
mortgages and other documents under the seal of the Corporation, except where
required or permitted by law to be otherwise executed and except where the
execution thereof shall be expressly delegated by the Board of Directors to some
other officer or agent of the Corporation.
4.2. Chairman of the Board
The Chairman of the Board shall (when present) preside at all meetings of the
Board of Directors and stockholders, and shall ensure that all orders and
resolutions of the Board of Directors and stockholders are carried into effect.
The Chairman of the Board may execute bonds, mortgages and other contracts,
under the seal of the Corporation, if required, except where required or
permitted by law to be otherwise signed and executed and except where the
signing and execution thereof shall be expressly delegated by the Board of
Directors to some other officer or agent of the Corporation.
4.3. President
The President shall be the chief executive officer of the Corporation and shall
have full responsibility and authority for management of the day-to-day
operations of the Corporation, subject to the authority of the Board of
Directors and Chairman of the Board. The President may execute bonds, mortgages
and other contracts, under the seal of the Corporation, if required, except
where required or permitted by law to be otherwise signed and executed and
except where the signing and execution thereof shall be expressly delegated by
the Board of Directors to some other officer or agent of the Corporation.
4.4. Vice President
In the absence of the President or in the event of the President's inability or
refusal to act, the Vice President (or in the event there be more than one Vice
President, the Vice Presidents in the order designated, or in the absence of any
designation, then in the order of their election) shall perform the duties of
the President, and when so acting shall have all the powers of, and be subject
to all the restrictions upon, the President.
4.5. Secretary
The Secretary shall have responsibility for preparation of minutes of meetings
of the Board of Directors and of the stockholders and for authenticating records
of the Corporation. The Secretary shall give, or cause to be given, notice of
all meetings of the stockholders and special meetings of the Board of Directors.
The Secretary or an Assistant Secretary may also attest all instruments signed
by any other officer of the Corporation.
4.6. Assistant Secretary
The Assistant Secretary, or if there be more than one, the Assistant Secretaries
in the order determined by the Board of Directors (or if there shall have been
no such determination, then in the order of their election), shall, in the
absence of the Secretary or in the event of the Secretary's inability or refusal
to act, perform the duties and exercise the powers of the Secretary.
4.7. Treasurer
The Treasurer shall have responsibility for the custody of the corporate funds
and securities and shall see to it that full and accurate accounts of receipts
and disbursements are kept in books belonging to the Corporation. The Treasurer
shall render to the Chairman of the Board, the President, and the Board of
Directors, upon request, an account of all financial transactions and of the
financial condition of the Corporation.
4.8. Assistant Treasurer
The Assistant Treasurer, or if there shall be more than one, the Assistant
Treasurers in the order determined by the Board of Directors (or if there shall
have been no such determination, then in the order of their election), shall, in
the absence of the Treasurer or in the event of the Treasurer's inability or
refusal to act, perform the duties and exercise the powers of the Treasurer.
4.9. Divisional Officers
The Board of Directors may from time to time establish and abolish one or more
operating divisions of the Corporation. The Board of Directors may appoint a
President of any such division who shall, subject to the direction of the Board
of Directors, the Chairman of the Board and the President of the Corporation,
supervise and control the business of such division and all officers, agents,
and employees of the corporation whose principal duties are in connection with
the business of such division. The Board of Directors may also appoint one or
more Vice Presidents, a Secretary, a Treasurer, and one or more Assistant
Secretaries or Treasurers of any such division, who shall hold their offices for
such terms and exercise such powers and perform such duties as shall be
determined by the Board of Directors or by the President of such division.
Persons so appointed by the Board of Directors as President, Vice President,
Treasurer, Secretary, Assistant Secretary or Assistant Treasurer of a division
need not also be officers of the Corporation.
4.10. Term of Office
The officers of the Corporation shall hold office until their successors are
chosen and qualify or until their earlier resignation or removal.[NOTE70] Any
officer may resign at any time upon written notice to the Corporation.[NOTE71]
Any officer elected or appointed by the Board of Directors may be removed at any
time, with or without cause, by the affirmative vote of a majority of the Board
of Directors.
4.11. Compensation
The compensation of officers of the Corporation shall be fixed by the Board of
Directors or by any officer(s) authorized by the Board of Directors to prescribe
the compensation of such other officers.
4.12. Fidelity Bonds
The Corporation may secure the fidelity of any or all of its officers or agents
by bond or otherwise.
5. CAPITAL STOCK
5.1. Certificates of Stock; Uncertificated Shares
The shares of the Corporation shall be represented by certificates, provided
that the Board of Directors may provide by resolution that some or all of any or
all classes or series of the Corporation's stock shall be uncertificated shares.
Any such resolution shall not apply to shares represented by a certificate until
such certificate is surrendered to the Corporation. Notwithstanding the
adoption of such a resolution by the Board of Directors, every holder of stock
represented by certificates, and upon request every holder of uncertificated
shares, shall be entitled to have a certificate (representing the number of
shares registered in certificate form) signed in the name of the Corporation by
the Chairman of the Board, President or any Vice President, and by the
Treasurer, Secretary or any Assistant Treasurer or Assistant Secretary of the
Corporation. Any or all the signatures on the certificate may be facsimile. In
case any officer, transfer agent or registrar whose signature or facsimile
signature appears on a certificate shall have ceased to be such officer,
transfer agent or registrar before such certificate is issued, it may be issued
by the Corporation with the same effect as if such person were such officer,
transfer agent or registrar at the date of issue.
5.2. Lost Certificates
The Board of Directors, Chairman of the Board, President or Secretary may direct
a new certificate of stock to be issued in place of any certificate theretofore
issued by the Corporation and alleged to have been lost, stolen or destroyed,
upon the making of an affidavit of that fact by the person claiming that the
certificate of stock has been lost, stolen or destroyed. When authorizing such
issuance of a new certificate, the board or any such officer may, as a condition
precedent to the issuance thereof, require the owner of such lost, stolen or
destroyed certificate or certificates, or such owner's legal representative, to
advertise the same in such manner as the board or such officer shall require
and/or to give the Corporation a bond or indemnity, in such sum or on such terms
and conditions as the board or such officer may direct, as indemnity against any
claim that may be made against the Corporation on account of the certificate
alleged to have been lost, stolen or destroyed or on account of the issuance of
such new certificate or uncertificated shares.
5.3. Record Date
5.3.1. Actions by Stockholders
In order that the Corporation may determine the stockholders entitled to notice
of or to vote at any meeting of stockholders, the Board of Directors may fix a
record date, which record date shall not precede the date upon which the
resolution fixing the record date is adopted by the Board of Directors, and
which record date shall not be more than sixty days nor less than ten days
before the date of such meeting. If no record date is fixed by the Board of
Directors, the record date for determining stockholders entitled to notice of or
to vote at a meeting of stockholders shall be the close of business on the day
next preceding the day on which notice is given, or, if notice is waived, at the
close of business on the day next preceding the day on which the meeting is
held. A determination of stockholders of record entitled to notice of or to
vote at a meeting of stockholders shall apply to any adjournment of the meeting,
unless the Board of Directors fixes a new record date for the adjourned meeting.
In order that the Corporation may determine the stockholders entitled to consent
to corporate action in writing without a meeting, the Board of Directors may fix
a record date, which record date shall not precede the date upon which the
resolution fixing the record date is adopted by the Board of Directors, and
which record date shall not be more than ten days after the date upon which the
resolution fixing the record date is adopted by the Board of Directors. If no
record date has been fixed by the Board of Directors, the record date for
determining stockholders entitled to consent to corporate action in writing
without a meeting, when no prior action by the Board of Directors is required by
the Delaware General Corporation Law, shall be the first date on which a signed
written consent setting forth the action taken or proposed to be taken is
delivered to the Corporation in the manner prescribed by Section 213(b) of the
Delaware General Corporation Law. If no record date has been fixed by the Board
of Directors and prior action by the Board of Directors is required by the
Delaware General Corporation Law, the record date for determining stockholders
entitled to consent to corporate action in writing without a meeting shall be at
the close of business on the day on which the Board of Directors adopts the
resolution taking such prior action.
5.3.2. Payments
In order that the Corporation may determine the stockholders entitled to receive
payment of any dividend or other distribution or allotment of any rights or the
stockholders entitled to exercise any rights in respect of any change,
conversion or exchange of stock, or for the purpose of any other lawful action,
the Board of Directors may fix a record date, which record date shall not
precede the date upon which the resolution fixing the record date is adopted,
and which record date shall be not more than sixty days prior to such action.
If no record date is fixed, the record date for determining stockholders for any
such purpose shall be at the close of business on the day on which the Board of
Directors adopts the resolution relating thereto.
5.4. Stockholders of Record
The Corporation shall be entitled to recognize the exclusive right of a person
registered on its books as the owner of shares to receive dividends, to receive
notifications, to vote as such owner, and to exercise all the rights and powers
of an owner. The Corporation shall not be bound to recognize any equitable or
other claim to or interest in such share or shares on the part of any other
person, whether or not it shall have express or other notice thereof, except as
otherwise may be provided by the Delaware General Corporation Law.
5.5. Transfer Agent and Registrar
The Board of Directors may appoint one or more transfer clerks or one or
more transfer agents and one or more registrars, and may require all
certificates of stock to bear the signature or signatures of any of them.
6. INDEMNIFICATION; INSURANCE
6.1. Authorization of Indemnification
Each person who was or is a party or is threatened to be made a party to or is
involved in any threatened, pending or completed action, suit or proceeding,
whether civil, criminal, administrative or investigative and whether by or in
the right of the Corporation or otherwise (a "proceeding"), by reason of the
fact that he or she, or a person of whom he or she is the legal representative,
is or was a director or officer of the Corporation or is or was serving at the
request of the Corporation as a director, officer, employee, partner (limited or
general) or agent of another corporation or of a partnership, joint venture,
limited liability company, trust or other enterprise, including service with
respect to an employee benefit plan, shall be (and shall be deemed to have a
contractual right to be) indemnified and held harmless by the Corporation (and
any successor to the Corporation by merger or otherwise) to the fullest extent
authorized by, and subject to the conditions and (except as provided herein)
procedures set forth in the Delaware General Corporation Law, as the same exists
or may hereafter be amended (but any such amendment shall not be deemed to limit
or prohibit the rights of indemnification hereunder for past acts or omissions
of any such person insofar as such amendment limits or prohibits the
indemnification rights that said law permitted the Corporation to provide prior
to such amendment), against all expenses, liabilities and losses (including
attorneys' fees, judgments, fines, ERISA taxes or penalties and amounts paid or
to be paid in settlement) reasonably incurred or suffered by such person in
connection therewith; provided, however, that the Corporation shall indemnify
any such person seeking indemnification in connection with a proceeding (or part
thereof) initiated by such person (except for a suit or action pursuant to
Section 6.2 hereof) only if such proceeding (or part thereof) was authorized by
the Board of Directors of the Corporation. Persons who are not directors or
officers of the Coporation and are not so serving at the request of the
Corporation may be similarly indemnified in respect of such service to the
extent authorized at any time by the Board of Directors of the Corporation. The
indemnification conferred in this Section 6.1 also shall include the right to be
paid by the Corporation (and such successor) the expenses (including attorneys'
fees) incurred in the defense of or other involvement in any such proceeding in
advance of its final disposition; provided, however, that, if and to the extent
the Delaware General Corporation Law requires, the payment of such expenses
(including attorneys' fees) incurred by a director or officer in advance of the
final disposition of a proceeding shall be made only upon delivery to the
Corporation of an undertaking by or on behalf of such director or officer to
repay all amounts so paid in advance if it shall ultimately be determined that
such director or officer is not entitled to be indemnified under this Section
6.1 or otherwise; and provided further, that, such expenses incurred by other
employees and agents may be so paid in advance upon such terms and conditions,
if any, as the Board of Directors deems appropriate.
6.2. Right of Claimant to Bring Action Against the Corporation
If a claim under Section 6.1 is not paid in full by the Corporation within sixty
days after a written claim has been received by the Corporation, the claimant
may at any time thereafter bring an action against the Corporation to recover
the unpaid amount of the claim and, if successful in whole or in part, the
claimant shall be entitled to be paid also the expense of prosecuting such
action. It shall be a defense to any such action (other than an action brought
to enforce a claim for expenses incurred in connection with any proceeding in
advance of its final disposition where the required undertaking, if any is
required, has been tendered to the Corporation) that the claimant has not met
the standards of conduct which make it permissible under the Delaware General
Corporation Law for the Corporation to indemnify the claimant for the amount
claimed or is otherwise not entitled to indemnification under Section 6.1, but
the burden of proving such defense shall be on the Corporation. The failure of
the Corporation (in the manner provided under the Delaware General Corporation
Law) to have made a determination prior to or after the commencement of such
action that indemnification of the claimant is proper in the circumstances
because he or she has met the applicable standard of conduct set forth in the
Delaware General Corporation Law shall not be a defense to the action or create
a presumption that the claimant has not met the applicable standard of conduct.
Unless otherwise specified in an agreement with the claimant, an actual
determination by the Corporation (in the manner provided under the Delaware
General Corporation Law) after the commencement of such action that the claimant
has not met such applicable standard of conduct shall not be a defense to the
action, but shall create a presumption that the claimant has not met the
applicable standard of conduct.
6.3. Non-exclusivity
The rights to indemnification and advance payment of expenses provided by
Section 6.1 hereof shall not be deemed exclusive of any other rights to which
those seeking indemnification and advance payment of expenses may be entitled
under any by-law, agreement, vote of stockholders or disinterested directors or
otherwise, both as to action in his or her official capacity and as to action in
another capacity while holding such office.
6.4. Survival of Indemnification
The indemnification and advance payment of expenses and rights thereto provided
by, or granted pursuant to, Section 6.1 hereof shall, unless otherwise provided
when authorized or ratified, continue as to a person who has ceased to be a
director, officer, employee, partner or agent and shall inure to the benefit of
the personal representatives, heirs, executors and administrators of such
person.
6.5. Insurance
The Corporation shall have power to purchase and maintain insurance on behalf of
any person who is or was a director, officer, employee or agent of the
Corporation, or is or was serving at the request of the Corporation as a
director, officer, employee, partner (limited or general) or agent of another
corporation or of a partnership, joint venture, limited liability company, trust
or other enterprise, against any liability asserted against such person or
incurred by such person in any such capacity, or arising out of such person's
status as such, and related expenses, whether or not the Corporation would have
the power to indemnify such person against such liability under the provisions
of the Delaware General Corporation Law.
7. GENERAL PROVISIONS
7.1. Inspection of Books and Records
Any stockholder, in person or by attorney or other agent, shall, upon written
demand under oath stating the purpose thereof, have the right during the usual
hours for business to inspect for any proper purpose the Corporation's stock
ledger, a list of its stockholders, and its other books and records, and to make
copies or extracts therefrom. A proper purpose shall mean a purpose reasonably
related to such person's interest as a stockholder. In every instance where an
attorney or other agent shall be the person who seeks the right to inspection,
the demand under oath shall be accompanied by a power of attorney or such other
writing which authorizes the attorney or other agent to so act on behalf of the
stockholder. The demand under oath shall be directed to the Corporation at its
registered office or at its principal place of business.
7.2. Voting of Securities by the Corporation
Unless otherwise ordered by the Board of Directors, the Chairman of the Board,
the president or any Vice President of the Corporation shall have full power and
authority on behalf of the Corporation to vote (and to execute proxies, written
consents and other instruments with respect to) any securities and interests in
other corporations and entities owned or held by the Corporation and to
represent the Corporation as such at any meeting of the holders of such
securities or interests and, at any such meeting, shall possess and may exercise
(whether in person or by proxy given by such officer to any other person) any
and all rights and powers incident to the ownership of such securities, which as
the owner thereof the Corporation might have possessed and exercised, if
present. The Board of Directors by resolution from time to time may confer like
powers upon any other person or persons.
7.3. Dividends
The Board of Directors may declare dividends upon the capital stock of the
Corporation, subject to the provisions of the Certificate of Incorporation and
the laws of the State of Delaware.
7.4. Reserves
The directors of the Corporation may set apart, out of the funds of the
Corporation available for dividends, a reserve or reserves for any proper
purpose and may abolish any such reserve.
7.5. Execution of Instruments
All checks, drafts or other orders for the payment of money, and promissory
notes of the Corporation shall be signed by such officer or officers or such
other person or persons as the Board of Directors may from time to time
designate.
7.6. Fiscal Year
The fiscal year of the Corporation shall be fixed by resolution of the Board of
Directors.
7.7. Seal
The corporate seal shall be in such form as the Board of Directors shall
approve. The seal may be used by causing it or a facsimile thereof to be
impressed or affixed or otherwise reproduced.[NOTE101]
* * * * *
The foregoing Bylaws were adopted by the Board of Directors on June 8, 1998.
/s/ Jeffrey C. Brines
Secretary
<PAGE> 43
Exhibit 10.2
AGREEMENT AND PLAN OF MERGER
AGREEMENT AND PLAN OF MERGER made as of the 9th day of June, 1998, by and
between PHOTOCOMM, INC., an Arizona corporation (hereinafter referred to as "Old
Company" or as a "Constituent Corporation"), and GOLDEN GENESIS COMPANY, a
Delaware corporation (hereinafter referred to as "New Company" or as a
"Constituent Corporation").
WHEREAS, Old Company has determined that it is in the best interest of Old
Company to change its incorporation from the State of Arizona to the State of
Delaware; and
WHEREAS, Old Company has caused New Company to be formed and desires to merge
with and into New Company for the purpose of accomplishing such change, and New
Company desires to merge (the "Merger") with Old Company pursuant to Delaware
General Corporation Law Section 251(f), incorporated by reference in Section
252(e) of the Delaware General Corporation Law, upon the terms, and subject to
the conditions, set forth in this Agreement and Plan of Merger (hereinafter
called the "Agreement") in accordance with the laws of the State of Delaware and
the State of Arizona; and
WHEREAS, the authorized capital stock of Old Company consists of Twenty-Five
Million (25,000,000) shares of common stock, par value $.10 per share (the "Old
Company Common Stock"), of which Sixteen Million Seven Hundred Forty-Nine
Thousand Six Hundred and Eighty-One (16,749,681) shares are issued and
outstanding; Five Million (5,000,000) shares of preferred stock, par value $.001
per share, (the "Old Company Preferred Stock"), from which Old Company Preferred
Stock the Old Company has designated One Hundred and Twenty-Five Thousand
(125,000) shares as Series A Convertible Preferred Stock, of which Thirty-Eight
Thousand Nine Hundred Seventy-Two (38,972) are issued and outstanding; and from
which Old Company Preferred Stock, the Old Company has designated Two Hundred
Thousand (200,000) shares as Series AA Convertible Preferred, of which Forty-
Four Thousand One Hundred and Sixty-Five (44,165) are issued and outstanding;
and
WHEREAS, the authorized capital stock of New Company consists of Twenty-Five
Million (25,000,000) shares of common stock, par value $0.10 per share (the "New
Company Common Stock") and Five Million (5,000,000) shares of preferred stock,
par value $.001 per share (the "New Company Preferred Stock"), including One
Hundred and Twenty-Five Thousand (125,000) shares of New Company Preferred Stock
designated as Series A Convertible Preferred Stock (the "New Series A Preferred
Stock") and Two Hundred Thousand (200,000) shares of New Company Preferred Stock
designated as Series AA Convertible Preferred Stock (the "New Series AA
Preferred Stock"), none of which shares are outstanding as of the date hereof;
and
WHEREAS, the Boards of Directors of Old Company and New Company by resolutions
duly adopted have approved the terms of this Agreement and Plan of Merger and
have directed the submission of this Agreement to the stockholders of Old
Company for approval;
NOW THEREFORE, in consideration of the premises and the mutual agreements,
covenants, and provisions herein contained, the parties hereto agree as follows:
ARTICLE I
THE MERGER
Section 1.1 At the Effective Time as defined in Section 4.1 hereof, Old
Company shall be merged with and into New Company which shall be the surviving
corporation. The corporate existence of New Company with all its purposes,
powers and objects shall continue unaffected and unimpaired by the Merger and
New Company as it shall be constituted after the Effective Time is herein called
the "Surviving Corporation." The Surviving Corporation shall from and after the
Effective Time, possess all of the rights, privileges, powers and franchises of
a public, as well as a private, nature and be subject to and liable for all the
restrictions, disabilities, debts, liabilities, obligations, penalties and
duties of each of the Constituent Corporations and all of the rights,
privileges, powers and franchises of each of the Constituent Corporations in all
property, real, personal, or mixed and all debts due either of the Constituent
Corporations on whatever accounts, including stock subscriptions and other
things in action and all or every other interest of or belonging to either of
the Constituent Corporations shall be vested in the Surviving Corporation
without further act or deed; and the title to any real estate, whether vested by
deed or otherwise in either of the Constituent Corporations, shall not revert or
be in any way impaired by reason of the Merger, and no liability or obligations
due or to become due at the Effective Time or any claim or demand for any cause
then existing or action or proceeding pending by or against either of the
Constituent Corporations or any shareholder, officer or director thereof shall
be released or impaired by the Merger; and all rights of creditors and liens
upon property of either of the Constituent Corporations shall be preserved
unimpaired, all in accordance with, and with the effect stated in, Section 259
of the Delaware General Corporation Law, as amended. The separate existence and
corporate organization of Old Company shall cease upon the Effective Time and
thereupon Old Company and New Compan shall be a single corporation, New Company.
Section 1.2 If at any time after the Effective Time the Surviving Corporation
shall consider or be advised that any further assignment, assurances in law or
any other things are necessary or desirable to vest, perfect or confirm of
record or otherwise in the Surviving Corporation the title to any property or
right of Old Company acquired or to be acquired by reason of or as a result of
the Merger, Old Company and its proper officers and directors will, upon notice,
execute and delivery such proper deeds, assignments and assurances reasonably
requested by the Surviving Corporation and do all things necessary or advisable
to vest, perfect or confirm title to such property or rights in the Surviving
Corporation and otherwise to carry out the intent and purposes of this Agreement
and the proper officers and directors of the Surviving Corporation are fully
authorized in the name of Old Company or otherwise to take any and all such
action.
ARTICLE II
CERTIFICATE OF INCORPORATION; BYLAWS;
BOARD OF DIRECTORS; OFFICERS
Section 2.1 The Certificate of Incorporation of New Company as in effect at
the Effective Time shall be the Certificate of Incorporation of the Surviving
Corporation.
Section 2.2 The Bylaws of New Company as in effect at the Effective Time
shall be the Bylaws of the Surviving Corporation until the same shall thereafter
be altered, amended or repealed in accordance with law, the Certificate of
Incorporation of the Surviving Corporation or said Bylaws.
Section 2.3 From and after the Effective Time, the officers and directors of
Surviving Corporation shall be the following individuals, each to serve in their
respective capacities as the officers and directors of the Surviving Corporation
until his respective successor shall have been duly elected and qualified:
(a) Officers:
John K. Coors,
President and Chief Executive Officer
4585 McIntyre Street
Golden, Colorado 80403
Jeffrey Brines,
Vice President, Secretary and Chief
Financial Officer
4585 McIntyre Street
Golden, Colorado 80403
Jon Michael Davis,
Vice President and Chief Operating Officer
7812 East Acoma Drive
Scottsdale, Arizona 85260
Myron D. Anduri,
Vice President-Marketing and Sales
7812 East Acoma Drive
Scottsdale, Arizona 85260
Ronald Kennedi,
Vice President of Distribution
7812 East Acoma Drive
Scottsdale, Arizona 85260
Thomas P. Dyer
Vice President-Manufacturing and
Operations
7812 East Acoma Drive
Scottsdale, Arizona 85260
Michael Stern
Vice President-Utilities
7812 East Acoma Drive
Scottsdale, Arizona 85260
(b) Directors:
John K. Coors
4585 McIntyre Street
Golden, Colorado 80403
Jed J. Burnham
4585 McIntyre Street
Golden, Colorado 80403
Norman E. Miller
4585 McIntyre Street
Golden, Colorado 80403
Joseph Coors, Jr.
4585 McIntyre Street
Golden, Colorado 80403
Gerritt J. Wolfaardt
4585 McIntyre Street
Golden, Colorado 80403
John Markle
4585 McIntyre Street
Golden, Colorado 80403
Section 2.4 The laws which are to govern the Surviving Corporation are the
laws of the State of Delaware.
ARTICLE III
CONVERSION OF SHARES
Section 3.1 At the Effective Time, (a) each share of Old Company Common Stock
issued and outstanding immediately prior to the Effective Time then held by each
Old Company shareholder of record shall, by virtue of the Merger and without any
action on the part of the holder thereof, be converted into one (1) share of New
Company Common Stock, (b) each share of Old Series A Preferred Stock issued and
outstanding immediately prior to the Effective Time then held by each Old
Company Shareholder of record shall, by virtue of the Merger and without any
action on the part of the holder thereof, be converted into one (1) share of New
Series A Preferred Stock and (c) each share of Old Series AA Preferred Stock
issued and outstanding immediately prior to the Effective Time then held by each
Old Company Shareholder of record shall, by virtue of the Merger and without any
action on the part of the holder thereof, be converted into one (1) share of New
Series AA Preferred Stock.
Section 3.2 All agreements of any kind governing the Old Company Common Stock
are adopted by New Company at the Effective Time and shall apply to and burden
and benefit the New Company Common Stock.
(a) The Surviving Corporation hereby adopts and assumes the "Photocomm, Inc.
Stock Option Plan as amended through January 19, 1996" (the "Plan"), subject to
the following: from and after the Effective Time, the term "Stock" under the
Plan shall mean authorized but unissued or reacquired common stock ($.10 par
value) of the Surviving Corporation, and the number of shares available for
usage under the Plan pursuant to Section 3 of the Plan shall be 2,895,000 shares
of New Company Stock.
(b) The Surviving Corporation hereby adopts and assumes the "Photocomm, Inc.
Non-Employee Directors Stock Option Plan" (the "Non-Employee Directors Plan"),
subject to the following: from and after the Effective Time, the term "Stock"
under the Non-Employee Plan shall mean authorized but unissued or reacquired
common stock ($.10 par value) of the Surviving Corporation, and the number of
shares available for usage under the Non-Employee Plan pursuant to Section 2 of
the Non-Employee Plan shall be 100,000 shares of New Company Common Stock.
(c) The Surviving Corporation hereby adopts and assumes the "Photocomm, Inc.
1998 Stock Option and Incentive Plan" (the "1998 Plan"), subject to the
following: from and after the Effective Time, the term "Stock" under the 1998
Plan shall mean authorized but unissued or reacquired common stock ($.10 par
value) of the Surviving Corporation, and the number of shares available for
usage under the 1998 Plan pursuant to Section 4 of the 1998 Plan shall be
1,305,828 shares of New Company Common Stock.
(d) All stock option grants by the Old Company under the Plan and Non-Employee
Directors Plan are hereby assumed and adopted at the Effective Time and,
pursuant to Sections 11 and 8 of the Plan and Non-Employee Plan, respectively,
at the Effective Time each one (1) share of Old Company Common Stock subject to
an outstanding option immediately prior to the Effective Time then held by each
Old Company grantee of record shall, by virtue of the Merger and without any
action on the part of the holder thereof, be converted into one (1) share of New
Company Common Stock subject to such option, and the exercise price of each one
(1) share of New Company Common Stock shall be equal to the exercise price for
one (1) share of Old Company Common Stock under the option. References to the
"Corporation" or "Company" in the applicable option grant letter and the Plan
shall be to the Surviving Corporation; and the terms and conditions of the
option grant shall otherwise remain the same in all respects. Under no
circumstances shall such options in New Company Common Stock give the holders of
such options additional benefits which they did not have under the options
granted by Old Company.
(e) All warrants for the purchase of Old Company Common Stock granted by the
Old Company are hereby assumed and adopted at the Effective Time and, at the
Effective Time, each one (1) share of Old Company Common Stock subject to an
outstanding option or warrant immediately prior to the Effective Time shall, by
virtue of the Merger and without any action on the part of the holder thereof,
be converted into one (1) share of New Company Common Stock subject to such
option or warrant, and the exercise price for one (1) share of Old Company
Common Stock under the option or warrant. References to the "Corporation" or
"Company" in the applicable option grant letter or warrant shall be to the
Surviving Corporation; and the terms and conditions of the option grant or
warrant shall otherwise remain the same in all respect. Under no circumstance
shall such options or warrants in New Company Common Stock give the holders of
such options or warrants additional benefits which they did not have under the
options or warrants granted by Old Company.
(f) All warrants for the purchase of Old Company Preferred Stock granted by
the Old Company are hereby assumed and adopted at the Effective Time and, at the
Effective Time, each one (1) share of Old Company Preferred Stock subject to an
outstanding warrant immediately prior to the Effective Time shall, by virtue of
the Merger and without any action on the part of the holder thereof, be
converted into one (1) share of New Company Preferred Stock subject to such
warrant, and the exercise price for each one (1) share of New Company Preferred
Stock shall be equal to the exercise price fore one (1) share of Old Company
Preferred Stock under the warrant. References to the "Corporation" or "Company"
in the applicable warrant shall be to the Surviving Corporation; and the terms
and conditions of the warrant shall otherwise remain the same in all respects.
Under no circumstance shall such warrants in New Company Preferred Stock give
the holders of such warrants additional benefits which they did not have under
the warrants granted by Old Company.
Section 3.3 Within a reasonable time after the Effective Time, each holder of
Old Company Common Stock prior to the Merger shall surrender to the Surviving
Corporation each certificate (the "Certificates") representing such Old Company
Common Stock prior to the Merger and shall receive in exchange therefor a
certificate or certificates representing the shares of stock of the Surviving
Corporation into which such Old Company Common Stock shall have been converted.
Except as otherwise provided by law, at and after the Effective Time, each
holder of a Certificate shall cease to have any rights as a shareholder of Old
Company, except for the rights to surrender such Certificate in exchange for
shares of stock of the Surviving Corporation as provided herein.
ARTICLE IV
PROCEDURE TO EFFECT MERGER
Section 4.1 The term "Effective Time" as used herein shall mean the time on
the day on which this Agreement shall become effective in accordance with the
laws of the State of Delaware. Each of the Constituent Corporations hereby
agrees to do promptly all of such acts, and to take promptly all such measures
as may be appropriate to enable it to perform as early as practicable the
covenants and agreements herein provided to be performed by it.
Section 4.2 This Agreement may be terminated by the mutual consent of the
Boards of Directors of the Constituent Corporations whether before or after
approval of this Agreement by the stockholders of Old Company.
Section 4.3 A copy of this Agreement or a Certificate of Merger with respect
thereto shall be filed in the office of the Secretary of State of the State of
Delaware and in the office of the Corporation Commission of the State of
Arizona. Duplicate copies of this Agreement, certified by the appropriate
authorities, if necessary or desirable, shall be filed or recorded in such other
offices or places as shall be required by the laws of the State of Delaware and
the State of Arizona.
ARTICLE V
MISCELLANEOUS
Section 5.1 This Agreement may be executed in several counterparts each of
which shall be deemed an original but all of which counterparts collectively
shall constitute one instrument representing the agreement between the parties
hereto.
Section 5.2 Except as otherwise provided in this Agreement, nothing herein
expressed or implied is intended or shall be construed to confer upon or give
any person, firm or corporation, other than the Constituent Corporations or
their respective successors and assigns, any rights or remedies under or by
reason of this Agreement.
Section 5.3 This Agreement and legal relations between the parties hereto
shall be governed by and construed in accordance with the laws of the State of
Delaware.
IN WITNESS WHEREOF, each of the Constituent Corporations has caused this
Agreement and Plan of Merger to be signed in its corporate name by its duly
authorized officers all as of the date first above written.
PHOTOCOMM, INC., an Arizona Corporation
By:
John K. Coors, President and CEO
ATTEST:
By:
Name: Jeffrey C. Brines
Title: Secretary
GOLDEN GENESIS COMPANY, a Delaware corporation
By:
John K. Coors, President and CEO
ATTEST:
By:
Name: Jeffrey C. Brines
Title: Secretary
I, Jeffrey C. Brines, Secretary of Golden Genesis Company, a corporation
organized and existing under the laws of the State of Delaware, hereby certify,
as such secretary, that the Agreement and Plan of Merger to which this
certificate is attached, after having first being duly signed on behalf of the
said corporation and having been signed on behalf of Photocomm, Inc., a
corporation of the State of Arizona, was duly adopted pursuant to Section 251(f)
of the Delaware General Corporation Law, incorporated by reference in Section
252(e) of the Delaware General Corporation Law, without any vote of the
stockholders of the surviving corporation; and that no shares of the corporation
were issued prior to the adoption by the Board of Directors of the surviving
corporation of the resolution approving the Agreement and Plan of Merger, and
that Section 251(f) of the Delaware General Corporation Law, incorporated by
reference in Section 252(e) of the Delaware General Corporation Law, is
applicable; and that the Agreement and Plan of Merger was adopted by action of
the Board of Directors of said Golden Genesis Company, a Delaware corporation,
and is the duly adopted agreement and act of the said corporation.
WITNESS my hand on this 9th day of June, 1998.
/s/ Jeffrey C. Brines
Jeffrey C. Brines, Secretary
<PAGE> 51
Exhibit 10.3
ARTICLES OF MERGER OF
PHOTOCOMM, INC., AN ARIZONA CORPORATION,
INTO
GOLDEN GENESIS COMPANY, A DELAWARE CORPORATION
Pursuant to A.R.S. 10-1105(A), the undersigned corporations, by and through
the undersigned officers, hereby set forth the following Articles of Merger:
1. Names of Parties. The parties to the merger herein described are
PHOTOCOMM, INC., an Arizona corporation ("Disappearing Corporation") and GOLDEN
GENESIS COMPANY, a Delaware corporation ("GGC").
2. Surviving Corporation. GGC is the surviving corporation. The principal
place of business of GGC is 7681 East Gray Street, Scottsdale, Arizona 85260.
The statutory agent of GGC is The Corporation Trust Company, 1209 Orange Street,
Wilmington, Delaware 19801.
3. Plan of Merger. The Agreement and Plan of Merger ("Plan of Merger") is
set forth on Exhibit A attached hereto and is incorporated herein by this
reference.
4. Outstanding Shares. The designation, number of outstanding shares and
number of votes entitled to be cast by each voting group entitled to vote on the
Plan of Merger was as follows:
Common Stock Outstanding
Entitled to Vote
Disappearing Corporation 16,749,681
GGC -0-
5. Approvals. 12,505,488 outstanding shares of Common Stock of Disappearing
Corporation were voted in favor of the Plan of Merger. The number of votes cast
in favor of the Plan of Merger by the holders of outstanding shares of Common
Stock entitled to vote was sufficient for approval by such class. There are no
shareholders of GGC.
IN WITNESS WHEREOF, the undersigned have hereunto set their hands as of the 9th
day of June, 1998.
PHOTOCOMM, INC., an Arizona corporation
By: /s/ John K. Coors
Name: John K. Coors
Title: President and Chief Executive Officer
GOLDEN GENESIS COMPANY, a Delaware
corporation
By: /s/ John K. Coors
Name: John K. Coors
Title: President and Chief Executive Officer
<PAGE> 53
Exhibit 10.4
CERTIFICATE OF MERGER
OF
PHOTOCOMM, INC.,
AN ARIZONA CORPORATION,
INTO
GOLDEN GENESIS COMPANY,
A DELAWARE CORPORATION
The undersigned corporation DOES HEREBY CERTIFY:
1. That the name and state of incorporation of each of the constituent
corporations of the merger are as follows:
Name of Corporation State of Incorporation
Photocomm, Inc. Arizona
Golden Genesis Company Delaware
2. That an Agreement and Plan of Merger between the parties to the merger has
been approved, adopted, certified, executed and acknowledged by each of the
constituent corporations in accordance with the requirements of Section 252 of
the Delaware General Corporation Law.
3. That the name of the surviving corporation of the merger is Golden Genesis
Company, a Delaware corporation.
4. That the Certificate of Incorporation and Bylaws of Golden Genesis Company,
which is the surviving corporation of the merger, shall be the Certificate of
Incorporation and Bylaws of the surviving corporation.
5. That the executed Agreement and Plan of Merger is on file at the principal
place of business of the surviving corporation, the address of which is 7812
East Acoma Drive, Scottsdale, Arizona 85260.
6. That a copy of the Agreement and Plan of Merger will be furnished by the
surviving corporation, on request and without cost, to any stockholder of any
constituent corporation of the merger.
7. That the authorized capital stock of each foreign corporation which is a
party of the merger is as follows:
Corporation Class Number of Shares Par Value per Share or
Statement that Shares are
Without Par Value
Photocomm, Inc. Common 25,000,000 $.10
Preferred 5,000,000 $.001
Designated Classes of Authorized Preferred:
Series A Convertible 125,000 $.001
Series AA Convertible 200,000 $.001
IN WITNESS WHEREOF, GOLDEN GENESIS COMPANY has caused this Certificate of Merger
to be executed by its duly authorized officer on this 10th day of June, 1998.
GOLDEN GENESIS COMPANY,
a Delaware corporation
By: /s/ John K. Coors
Name: John K. Coors
Title: President and Chief Executive Officer
<PAGE> 55
Exhibit 10.5
SHARE PURCHASE AGREEMENT
Dated as of July 21, 1998
By and Among
Golden Genesis Company
and
Remote Power, Inc.
and
Its Shareholders
TABLE OF CONTENTS
Page
ARTICLE I DEFINITIONS
Section 1.1 Certain Definitions.
Section 1.2 Terms Generally
ARTICLE II PURCHASE AND SALE OF STOCK
Section 2.1 Transfer of Stock
Section 2.2 Purchase Price
Section 2.3 Golden Genesis Stock
Section 2.4 Limitation on Indebtedness and Transaction Costs
Section 2.5 Procedures
ARTICLE III REPRESENTATIONS AND WARRANTIES OF THE
COMPANY AND THE SHAREHOLDERS
Section 3.1 Corporate Organization
Section 3.2 Ownership of Shares
Section 3.3 Authorization, Etc.
Section 3.4 No Approvals or Conflicts
Section 3.5 Capital Stock
Section 3.6 Financial Statements
Section 3.7 Indebtedness
Section 3.8 Legal Compliance
Section 3.9 Litigation
Section 3.10 Judgments, Etc.
Section 3.11 Changes
Section 3.12 Taxes
Section 3.13 Employee Matters
Section 3.14 Labor
Section 3.15 Title to Properties; Encumbrances
Section 3.16 Entire Business
Section 3.17 Leases
Section 3.18 Condition of Assets
Section 3.19 Intellectual Property
Section 3.20 Insurance
Section 3.21 Customers
Section 3.22 Certain Environmental Matters
Section 3.23 Contracts
Section 3.24 Full Disclosure
Section 3.25 No Brokers' or Other Fees
Section 3.26 Representations and Warranties Generally
ARTICLE IV
Section 4.1 Organization
Section 4.2 Authorization, Etc.
Section 4.3 No Approvals or Conflicts
Section 4.4 Purchase for Investment.
Section 4.5 Status of Purchaser.
Section 4.6 Purchase Price.
ARTICLE V COVENANTS OF THE PARTIES
Section 5.1 General.
Section 5.2 Litigation Support.
Section 5.3 Tax Matters.
Section 5.4 Public Announcements.
Section 5.5 Employees.
Section 5.6 Consulting Agreement.
Section 5.8 Acknowledgment of Restricted Nature of Golden
Genesis Stock
Section 5.9 Rule 144 Information
ARTICLE IV CONDITIONS OF PURCHASER'S OBLIGATIONS TO CLOSE
Section 6.1 Representations and Warranties True.
Section 6.2 Performance.
Section 6.3 No Material Change.
Section 6.4 Company Certificate.
Section 6.5 No Injunction.
Section 6.6 Opinions of Counsel.
Section 6.7 Purchaser Board Approval.
Section 6.8 Shareholder Approval; Approval of Board
of Directors of the Company.
Section 6.9 Shareholder Action.
Section 6.10 Security Agreement
Section 6.11Solarex Consent
ARTICLE VII CONDITIONS OF THE COMPANY'S AND THE SHAREHOLDERS'
OBLIGATIONS TO CLOSE
Section 7.1 Representations and Warranties True.
Section 7.2 Performance.
Section 7.3 Purchaser Certificate.
Section 7.4 No Injunction.
Section 7.5 Legal Opinion.
Section 7.6 Shareholder Action.
Section 7.7 Consulting Agreement.
ARTICLE VIII DELIVERIES OF THE COMPANY AND THE SHAREHOLDERS
Section 8.1 Stock Certificates.
Section 8.2 Resignations.
Section 8.3 Letters to Banks.
Section 8.4 Company Certificate.
Section 8.5 Consents.
Section 8.6 Good Standing Certificates.
Section 8.7 Secretary's Certificate.
Section 8.8 Consulting Agreement.
Section 8.9 Legal Opinion.
Section 8.10 Buy-Sell Agreement
Section 8.11 Security Agreements
Section 8.12 Solarex Non-Exclusive Distributor
Agreement Deliveries
Section 8.13 Other Deliveries
ARTICLE IX DELIVERIES OF PURCHASER ON THE CLOSING DATE
Section 9.1 Payments.
Section 9.2 Secretary's Certificate.
Section 9.3 Purchaser Certificate.
Section 9.4 Legal Opinion.
Section 9.6 Other Deliveries.
ARTICLE X INDEMNIFICATION
Section 10.1 Indemnification by the Shareholders.
Section 10.2 Indemnification by Purchaser.
Section 10.3 Procedures for Third-Party Claims.
Section 10.4 Direct Claims.
Section 10.5 Limitations of Indemnification Obligations.
Section 10.6 Survival of Representations, Warranties and
Covenants.
ARTICLE XI MISCELLANEOUS
Section 11.1 Consent and Waiver - Shareholders.
Section 11.2 Consent and Waiver - Purchaser.
Section 11.3 Entire Agreement.
Section 11.4 Amendments.
Section 11.5 Taxes, Fees and Expenses.
Section 11.6 Governing Law; Consent to Jurisdiction.
Section 11.7 Representation by Counsel.
Section 11.8 Benefit of Parties; Assignment.
Section 11.9 Expenses.
Section 11.10 Counterparts.
Section 11.11 Headings.
Section 11.12 Notices.
Section 11.13 Resolution of Disputes.
Section 11.14 Specific Performance.
SHARE PURCHASE AGREEMENT
This SHARE PURCHASE AGREEMENT (this "Agreement"), dated as of July 21,
1998 is entered into by and among GOLDEN GENESIS COMPANY, a Delaware corporation
("Purchaser"), REMOTE POWER, INC., a Colorado corporation (the "Company"), and
the shareholders of the Company set forth on the signature pages hereto (such
shareholders being hereafter individually referred to as "Shareholder" and
collectively referred as the "Shareholders").
RECITALS
A. The Shareholders own (beneficially or of record or both) all of the issued
and outstanding capital stock of the Company, consisting of 3,460 shares of
common stock, no par value (the "Shares").
B. Purchaser desires to purchase and the Shareholders desire to sell all of the
Shares upon the terms and conditions set forth herein.
C. The Boards of Directors of Purchaser and the Company deem it advisable and
in the best interests of their stockholders and shareholders, respectively, that
Purchaser acquire the Company.
D. Annex I to this Agreement sets forth the number of Shares owned by each
Shareholder and the amount of consideration to be received by each Shareholder
in payment of the Purchase Price (as defined below) for each such Shareholder
with respect to all Shares owned by such Shareholder,
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing and the respective
representations, warranties, covenants and agreements set forth herein, the
parties hereto agree as follows:
ARTICLE I
DEFINITIONS
Section 1.1 Certain Definitions. As used in this Agreement, the following terms
shall have the meanings set forth or as referenced below:
"Actions" shall mean any litigation and proceedings of any nature, whether at
law or in equity, before any court, arbitrator, arbitration panel or
Governmental Authority.
"Affiliate" of a Person shall mean any Person which, directly or indirectly,
controls, is controlled by or is under common control with such Person.
"Balance Sheet Date" shall mean June 31, 1998.
"Benefit Plans" shall have the meaning set forth in Section 3.13(c).
"Business Day" shall mean any day except a Saturday, Sunday or a day on which
banking institutions in Denver, Colorado are obligated by law, regulation or
governmental order to close.
"Closing" shall mean the closing of the transactions contemplated hereby, which
shall take place at the offices of Purchaser's counsel, Hogan & Hartson, One
Tabor Center, 1200 Seventeenth Street, Suite 1500, Denver, Colorado 80202, on
the Closing Date commencing at 10:00 A.M. local time, or at such other time or
place as the parties may agree upon in writing and shall be effective as of
12:01 A.M. on the Closing Date.
"Closing Date" shall mean July 21, 1998, or such other date as the Company and
Purchaser shall agree in writing.
"Code" shall mean the Internal Revenue Code of 1986, as amended.
"Company" shall mean Remote Power, Inc., a Colorado corporation.
"Confidentiality Agreement" shall mean the Confidentiality Agreement between the
parties dated May 13, 1998.
"Consulting Agreement" shall have the meaning set forth in Section 5.2.
"Contracts" shall mean all contracts, agreements, indentures, licenses, leases,
commitments, arrangements, sales orders and purchase orders of every kind,
whether written or oral.
"CPR" shall have the meaning set forth in Section 11.12(c).
"CPR Model Rules" shall have the meaning set forth in Section 11.12(c).
"Damages" shall mean, collectively, losses, Liabilities, Liens, costs, damages,
claims and expenses (including reasonable fees and disbursements of counsel,
consultants or experts and expenses of investigation), and, without limiting the
generality of the foregoing, with regard to environmental matters shall also
include specifically response costs, corrective action costs, natural resource
damages, costs to comply with orders or injunctions, damages or awards for
property damage or personal injury, fines, penalties and costs for testing,
remediation or cleanup costs, including those related to administrative review
of site remediation.
"Direct Claim" shall have the meaning set forth in Section 10.4.
"Disclosure Schedule" shall mean the disclosure schedule delivered to Purchaser
by the Company and the Shareholders on or prior to the date of this Agreement.
"Dispute" shall have the meaning set forth in Section 11.12(a).
"Dollars" and "$" shall mean United States dollars.
"Employment Laws" shall mean all federal, state, local and municipal Laws in
effect at or prior to Closing relating to employees, dependent contractors and
independent contractors and their employment, or rendition of services,
including but not limited to taxation, health, labor, labor/management
relations, occupational health and safety, pay equity, employment equity or
discrimination, employment standards, benefits and workers' compensation.
"Environment" shall mean the environment or natural environment as defined in
any Environmental Laws, including, without limitation, ambient air, surface
water, groundwater, land surface or subsurface strata and any sewer system.
"Environmental Claim" shall mean any litigation, proceeding, investigation,
prosecution, order, citation, directive or notice (written or oral) by any
Person alleging potential liability for Damages arising out of, based on or
resulting from (a) the presence, or release or threatened release into the
environment, of any Hazardous Material at any location, whether or not owned or
operated by the Company or (b) circumstances forming the basis of any violation,
or alleged violation, of any Environmental Law or Damages thereunder.
"Environmental Laws" shall mean all federal, state, local and municipal Laws in
existence, enacted or in effect at or prior to Closing relating to pollution or
protection of public health and safety, the workplace and the Environment,
including, without limitation, Laws relating to emissions, discharges, releases
or threatened releases of Hazardous Materials or otherwise relating to the
generation, manufacture, processing, distribution, use, treatment, storage,
disposal, transport, labeling, advertising, sale, display or handling of
Hazardous Materials.
"Environmental Liabilities" shall mean Damages relating to or arising in anyway
from Environmental Laws or Environmental Claims, or both.
"ERISA" shall mean the Employee Retirement Income Security Act of 1974, as
amended, and the rules and regulations promulgated thereunder.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as amended, and
the rules and regulations promulgated thereunder.
"Financial Statements" shall have the meaning set forth in Section 3.6.
"Golden Genesis Stock" shall have the meaning set forth in Section 2.2.
"Governmental Authority" shall mean any agency, public or regulatory authority,
instrumentality, department, commission, court, ministry, tribunal or board of
any government, whether foreign or domestic and whether national, federal,
provincial, state, regional, local or municipal.
"Hazardous Materials" shall mean those materials that are regulated by or form
the basis of liability under Environmental Laws and includes, without
limitation, (i) all substances identified under any Environmental Law as a
pollutant, contaminant, hazardous substance, liquid, industrial or solid or
hazardous waste, hazardous material or toxic substance, dangerous substance or
dangerous good, (ii) petroleum or petroleum derived substance or waste, (iii)
asbestos or asbestos-containing material, (iv) PCBs or PCB-containing materials
or fluids, (v) any other substance with respect to which a Governmental
Authority may require environmental investigation or remediation and (vi) any
radioactive material or substance.
"Indemnifying Party" shall mean any Person or Persons required to provide
indemnification under this Agreement.
"Indemnitee" shall mean any Person or Persons entitled to indemnification under
this Agreement.
"Insurance Policies" shall have the meaning set forth in Section 3.20.
"Investigation" shall mean any investigation of any nature before any
Governmental Authority.
"Laws" shall mean statutes, common laws, rules, ordinances, regulations, codes,
licensing requirements, orders, judgments, injunctions, decrees, licenses,
permits and bylaws of a Governmental Authority.
"Liabilities" shall mean debts, liabilities, commitments, obligations, duties
and responsibilities of any kind and description, whether absolute or
contingent, monetary or nonmonetary, direct or indirect, known or unknown or
matured or unmatured, or of any other nature.
"Lien" shall mean any security interest, lien, mortgage, claim, charge, pledge,
restriction, equitable interest or encumbrance of any nature and in the case of
securities any put, call or similar right of a third party with respect to such
securities.
"Material Adverse Effect" shall mean, with respect to the same or any similar
events, acts, conditions or occurrences, whether individually or in the
aggregate, a material adverse effect on or change in (a) any of the business,
condition (financial or otherwise), operations, assets or liabilities of the
Company taken as a whole, (b) the legality or enforceability against the
Shareholders of this Agreement or (c) the ability of any Shareholder to perform
its obligations and to consummate the transactions under this Agreement. For
purposes of clause (a) of this definition and without limiting the generality of
the foregoing, an effect or change with respect to the same or any similar
event(s), act(s), condition(s) or occurrence(s) individually or in the aggregate
with respect to which the Company would reasonably be expected to have $20,000
in the aggregate or more in Damages being asserted against, imposed upon or
sustained by any of them shall constitute a "material adverse" effect or change.
"Maximum Indemnification Amount" shall have the meaning set forth in Section
10.5(b).
"Notice of Settlement" shall have the meaning set forth in Section 10.3(c).
"Notice to Contest" shall have the meaning set forth in Section 10.3(c).
"Notice to Defend" shall have the meaning set forth in Section 10.3(a).
"Outstanding Debt Obligations" shall have the meaning set forth in Section 3.7.
"Person" shall mean any natural person, corporation, business trust, joint
venture, association, company, firm, partnership or other entity or government
or Governmental Authority.
"Proprietary Right" shall mean any trade name, trademark, service mark, patent,
copyright, proprietary technology, know how, process and industrial design, and
any application for any of the foregoing.
"Purchase Price" shall have the meaning set forth in Section 2.2.
"Purchaser" shall mean Golden Genesis Company, a Delaware corporation.
"Purchaser Indemnitee" shall have the meaning set forth in Section 10.1.
"Returns" shall mean all returns, declarations, reports, forms, estimates,
information returns, statements or other documents (including any related or
supporting information) filed or required to be filed with or supplied to any
Governmental Authority in connection with any Taxes.
"Shareholders" shall mean the Persons set forth as such on the signature pages
to this Agreement.
"Shareholder Indemnitee" shall have the meaning set forth in Section 10.2.
"Shares" shall have the meaning set forth in Recital A hereto.
"Subsidiary" shall mean any corporation or other entity of which securities or
other ownership interests having ordinary voting power to elect a majority of
the board of directors or other persons performing similar functions are at the
time directly or indirectly owned by the Company.
"Taxes" shall mean all taxes, charges, fees, duties, levies, penalties or other
assessments, including, without limitation, income, gross receipts, excise, real
and personal property, sales, transfer, license, payroll, withholding, social
security, franchise, unemployment insurance, workers' compensation, employer
health tax or other taxes, imposed by any Governmental Authority and shall
include any interest, penalties or additions to tax attributable to any of the
foregoing.
"Third Party Claim" shall have the meaning set forth in Section 10.3(a).
Section 1.2 Terms Generally. The definitions in Section 1.1 shall apply
equally to both the singular and plural forms of the terms defined. Whenever
the context may require, any pronoun shall include the corresponding masculine,
feminine and neuter forms. The words "include," "includes" and "including"
shall be deemed to be followed by the phrase "without limitation" even if not
followed actually by such phrase unless the context expressly provides
otherwise. With respect to any particular representation contained in this
Agreement, "knowledge" when used to apply to the "knowledge" of the Company or
the "knowledge" of any of the Shareholders, shall be deemed to be followed by
the phrase "after due inquiry" and shall mean the actual knowledge or conscious
awareness after reasonable due inquiry of the Shareholders and any employee of
the Company with managerial or substantial responsibility for the subject matter
of such representation. All references herein to Articles, Sections, paragraphs
and Annexes, Exhibits and Schedules shall be deemed references to this Agreement
unless the context shall otherwise require. Unless otherwise expressly defined,
terms defined in the Agreement shall have the same meanings when used in any
Annex, Exhibit or Schedule and terms defined in any Annex, Exhibit or Schedule
shall have the same meanings when used in the Agreement or in any other Annex,
Exhibit or Schedule. The words "herein," "hereof," "hereto" and "hereunder" and
other words of similar import refer to this Agreement as a whole and not to any
particular provision of this Agreement.
ARTICLE II
PURCHASE AND SALE OF STOCK
Section 2.1 Transfer of Stock. On the Closing Date and subject to the terms
and conditions set forth in this Agreement, the Shareholders will sell, convey,
assign, transfer and deliver all of the issued and outstanding Shares to
Purchaser, free and clear of all Liens, in accordance with Annex I.
Section 2.2 Purchase Price. Subject to Section 2.2 below, the total
consideration (the "Purchase Price") to be paid by Purchaser to Shareholders for
the Shares shall be (a) ONE HUNDRED THOUSAND DOLLARS ($100,000) in cash, and (b)
ONE HUNDRED FIFTY THOUSAND (150,000) shares of common stock, par value $.10 per
share, of Purchaser (the "Golden Genesis Stock"). At Closing each Shareholder
shall be paid in the manner specified in Section 9.1 such Shareholder's
respective portion of the aggregate Purchase Price as specified on Annex I.
Section 2.3 Golden Genesis Stock. The Golden Genesis Stock to be issued
pursuant to this Agreement shall not be registered under federal or state
securities laws and the certificates representing shares of Golden Genesis Stock
so issued shall bear a restrictive legend prohibiting their transfer except
pursuant to an effective registration or on exemption therefrom. Purchaser,
upon written request of a Shareholder, shall use its best efforts to cause such
restrictive legend placed on certificates representing Golden Genesis Stock to
be removed in accordance with the terms and provisions of Rule 144 of the
Securities Act of 1933, as amended; provided, however, that such Shareholder
must submit all necessary representation certificates in order for Purchaser to
provide an opinion to its transfer agent. The Golden Genesis Stock will be held
by Purchaser as collateral security for the Shareholders' obligations as
provided in Section 10.5(g) below.
Section 2.4 Limitation on Indebtedness and Transaction Costs. At the Closing
the Purchaser shall assume and pay outstanding long-term indebtedness of the
Company in the aggregate amount of $81,500. The Company shall have paid or
shall have available cash at Closing to pay the outstanding interest on the
foregoing indebtedness and all outstanding long-term indebtedness of the Company
in excess of $81,500. At Closing, the Company's aggregate short-term
indebtedness shall not exceed $300,000. If and to the extent any of the
foregoing limitations is exceeded, the Purchase Price shall be reduced by the
amount of the aggregate excesses. The reduction of the Purchase Price shall be
accomplished by reducing the aggregate number of shares of Golden Genesis Stock
which is conveyed to the Shareholders based on the average closing bid price of
Golden Genesis Stock on the five (5) Business Days immediately prior to the date
of Closing. In addition, at the Closing, the Purchaser shall assume and pay all
transaction costs of the Company related to the transactions contemplated by
this Agreement up to an aggregate amount not to exceed $18,500 and the
Shareholders shall assume and pay all of their costs and costs of the Company
related to the transactions contemplated by this Agreement above $18,500.
Section 2.5 Procedures. At least one Business Day prior to the Closing Date,
Purchaser shall deliver a closing statement to the Company (and the Company
shall deliver a copy of the same to each other Shareholder) confirming the final
amount of cash and Golden Genesis Stock to be paid at Closing by Purchaser as
the Purchase Price. On the Closing Date, upon satisfaction of the terms and
conditions set forth herein, the respective portion of the aggregate Purchase
Price shall be paid to each Shareholder in accordance with Annex I and such
closing statement.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE COMPANY AND THE SHAREHOLDERS
The Company and each of the Shareholders represents and warrants to Purchaser as
follows:
Section 3.1 Corporate Organization. The Company is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Colorado. The Company has no Subsidiaries and does not have an ownership
interest in any Person. The Company is not qualified to do business in any
jurisdictions outside of Colorado. The Company has the power and authority
(corporate and otherwise) to own, lease and operate its respective properties
and assets and to carry on its business as now being conducted and is duly
qualified or licensed to do business as a foreign corporation in good standing
in the jurisdictions in which the ownership, lease or operation of its property
or the conduct of its business requires such qualification, except jurisdictions
in which the failure to be so qualified or licensed would not reasonably be
expected to have a Material Adverse Effect. The Company has delivered to
Purchaser complete and correct copies of the charter documents and all
amendments thereto to the date hereof of the Company.
Section 3.2 Ownership of Shares. The Shares are owned by the Shareholders
free and clear of all Liens, other than any restrictions imposed by federal and
state securities laws. Annex I sets forth the name of each Person owning Shares
and the amount of Shares owned by such Person. Other than the Shares held by
the Shareholders, all of which are set forth and accounted for in Annex I, there
are no Shares of the Company issued or outstanding. Upon the consummation of
the transactions contemplated hereby, Purchaser will acquire good title to the
Shares that Purchaser purchases free and clear of all Liens, other than the
restrictions on subsequent transfers imposed by federal and state securities
laws. Each Shareholder makes the foregoing representations and warranties only
as to his or her own Shares, but makes such representations and warranties
without qualification.
Section 3.3 Authorization, Etc.. The Company and each of the Shareholders
has full power and authority to execute, deliver and perform its obligations
under this Agreement and the documents and instruments contemplated hereby and
to carry out the transactions contemplated hereby and thereby. The Company and
each of the Shareholders have duly approved and authorized the execution and
delivery of this Agreement and the documents and instruments contemplated hereby
and the consummation of the transactions contemplated hereby and thereby, and no
other corporate proceedings or other actions on the part of the Company or any
of the Shareholders are necessary to approve and authorize the execution,
delivery and performance by the Company and each of the Shareholders of this
Agreement and the documents and instruments contemplated hereby or the
consummation by the Company and the Shareholders of the transactions
contemplated hereby or thereby. This Agreement constitutes a legal, valid and
binding agreement of the Company and each of the Shareholders, enforceable
against the Company and each of the Shareholders in accordance with its terms,
except as enforcement hereof may be limited by equitable principles and by
bankruptcy, insolvency, reorganization, moratorium or other similar laws now or
hereafter in effect relating to creditors' rights generally.
Section 3.4 No Approvals or Conflicts. Except as set forth in Section 3.4 of
the Disclosure Schedule attached to this Agreement (the "Disclosure Schedule")
and except in the case of clauses (b), (c) and (d) below that would not
reasonably be expected to have a Material Adverse Effect, neither the execution,
delivery or performance by the Company and the Shareholders of this Agreement
nor the consummation by the Company and the Shareholders of the transactions
contemplated hereby will (a) violate, conflict with or result in a breach of any
provision of the articles of incorporation, bylaws or other organizational
documents of the Company, (b) violate, conflict with or result in a breach of
any provision of, or constitute (with or without notice or lapse of time or
both) a default (or give rise to any right of termination, cancellation or
acceleration) under, or result in the termination of, or accelerate or alter in
any material way the performance required by or result in the creation of or
give any party the right to create any Lien on any of the assets or properties
of the Company under, any note, bond, mortgage, loan agreement, deed of trust,
license, franchise, permit or other instrument or Contract to which any of the
Company, the Shareholders or any of their respective properties may be bound,
(c) violate any Law applicable to any of the Company, the Shareholders or any of
their respective assets or properties, or (d) require any consent, approval or
authorization of, or notice to, or declaration, filing or registration with, any
Governmental Authority or other third party in connection with the execution,
delivery and performance of this Agreement by the Shareholders or to enable the
Company to continue to conduct its business and operations immediately after the
Closing Date in the same manner in which they are presently conducted.
Section 3.5 Capital Stock. As of the date hereof, the authorized capital
stock of the Company consists of (a) 50,000 shares of common stock, no par value
of which 3,460 Shares are issued and outstanding and owned by the Shareholders,
and (b) 50,000 shares of preferred stock, no par value, of which no shares are
issued and outstanding. There are no subscriptions, options, warrants, calls,
rights, contracts, commitments, understandings, restrictions or arrangements
relating to the issuance, sale, transfer or voting of any Shares, including any
rights of conversion or exchange under any outstanding securities or other
instruments. All outstanding Shares have been validly issued and are fully
paid, nonassessable and free of preemptive or similar rights.
Section 3.6 Financial Statements. The Company has delivered to Purchaser the
unaudited balance sheets of the Company as of December 31, 1996, December 31,
1997 and May 31, 1998, and related statements of income for the years ended
December 31, 1996 and December, 31, 1997 and the six months ended June 31, 1998
(collectively referred to herein as the "Financial Statements"). The Financial
Statements are in accordance with the books and records of the Company, fairly
present the financial position of the Company and its results of operations as
of and for the periods indicated and, to the knowledge of the Shareholders, have
been prepared in accordance with sound accounting principles consistently
applied. Except as set forth in Section 3.6 of the Disclosure Schedule and as
disclosed in the Financial Statements, the Company does not have any
Liabilities, whether or not of a nature required to be reflected or reserved
against on a balance sheet in accordance with sound accounting principles,
except for Liabilities incurred by the Company in the ordinary course of
business consistent with past practice that individually or in the aggregate
would not have a Material Adverse Effect.
Section 3.7 Indebtedness. As of the date hereof, except the obligations (the
"Outstanding Debt Obligations") of the Company set forth in Section 3.7 of the
Disclosure Schedule, the Company has no outstanding indebtedness for borrowed
money or long term capital leases.
Section 3.8 Legal Compliance. Except as set forth in Section 3.8 of the
Disclosure Schedule, the Company has complied and is in compliance with all Laws
applicable to the Company and their business except where the failure to be in
compliance would not reasonably be expected to have a Material Adverse Effect.
The Company holds all material licenses, permits and other authorizations of
Governmental Authorities necessary to conduct its business as now being
conducted or to continue to conduct its business as now being conducted.
Neither the Company nor the Shareholders have knowledge of or intention to make
any changes in the conduct of its business that will result in or cause the
Company to be in noncompliance with applicable Laws or that will require changes
in or a loss of any such licenses, permits or other authorizations or an
increase in any expenses related thereto except where such noncompliance,
change, loss or increase would not reasonably be expected to have a Material
Adverse Effect. Such licenses, permits and other authorizations as aforesaid
held by the Company are valid and in full force and effect, and there are no (a)
Actions pending, or to the knowledge of the Company or the Shareholders,
threatened or (b) Investigations to the knowledge of the Company or the
Shareholders pending or threatened that could result in the termination,
impairment or nonrenewal thereof which would have a Material Adverse Effect.
Section 3.9 Litigation. There are no (i) Actions pending or, to the
Company's or the Shareholders' knowledge, threatened or (ii) Investigations to
the knowledge of the Company or the Shareholders pending or threatened against,
relating to or involving the Company (or any of its officers or directors in
connection with the business and affairs of the Company) or any properties or
rights of the Company (x) in which there is a reasonable possibility of an
adverse determination that would reasonably be expected to have a Material
Adverse Effect, or (y) that questions or challenges the validity of this
Agreement or any action taken or to be taken by the Shareholders pursuant to
this Agreement. There is no Action pending or, to the knowledge of the
Shareholders, threatened against or involving the Shareholders in their capacity
as shareholders, officers or directors of the Company.
Section 3.10 Judgments, Etc.. The Company is not (a) subject to any
judgment, injunction, order or decree of a Governmental Authority that has had
or continues to have or would reasonably be expected to have a Material Adverse
Effect or (b) in default of any judgment, injunction, order or decree of a
Governmental Authority.
Section 3.11 Changes. Since the Balance Sheet Date, except as disclosed
in Section 3.11 of the Disclosure Schedule: (a) the business of the Company has
been conducted only in the ordinary course, consistent with past practice and
consistent with the terms and conditions of this Agreement and no unusual cash
payments or bonuses have been made or agreed to be made inconsistent with past
practice; (b) there has been no direct or indirect redemption, purchase or other
acquisition by the Company of any shares of its capital stock; (c) there has not
been any declaration, setting aside or payment of any dividend or other
distribution by the Company other than cash management procedures in the
ordinary course of business consistent with past practice; and (d) there has
been no Material Adverse Effect or change in any of the business, condition
(financial or otherwise), operations, assets or liabilities of the Company.
Section 3.12 Taxes. (a) The Company has (i) timely filed or will timely
file with the appropriate federal, state and local taxing authorities all
Returns required to be filed by or with respect to the Company prior to Closing,
and such Returns when filed are or will be correct and complete in all material
respects and (ii) timely paid or will timely pay or made or will make provision
for in the appropriate financial statements all material Taxes of the Company
shown to be due on such Returns. There are no Liens for Taxes upon the assets
of the Company except liens for current Taxes not yet due or Taxes being
contested in good faith by appropriate proceedings and in each case where such
Lien would not reasonably be expected to have a Material Adverse Effect.
Neither the Company nor the Shareholders has received any written notice of
deficiency or assessment from any taxing Governmental Authority with respect to
liabilities for Taxes of the Company which have not been paid or finally
settled.
(b) The Company does not have any Liability for the payment of Taxes, except
such as are recorded in the Financial Statements or such Taxes not yet due as
have arisen since the Balance Sheet Date and for which adequate provision in the
accounts of the Company has been made, and the Company is not in arrears with
respect to any required withholdings or installment payments of any Tax and have
not filed any waiver or extension of the applicable statute of limitations for
assessment of Taxes for a taxation year under the Code or any state income or
franchise tax law or any other legislation imposing tax on the Company.
Section 3.13 Employee Matters.
(a) The Company is not a party to any employment contract or contracts
requiring payment of more than $5,000 per annum to which the Company is a party
with dependent and independent contractors. The Company does not have any
contract requiring payment of more than $5,000 per annum with any dependent or
independent contractor, whether written or oral, except such contracts
terminable without penalty (except notice of termination and severance pay
pursuant to applicable law) on thirty days' notice or less. Section 3.13(a) of
the Disclosure Schedule sets forth the current position held by each employee
with the Company, and the current annual salary and the length of employment of
each employee.
(b) Except for remuneration paid to employees and contractors in the usual and
ordinary course of business and made at current rates of remuneration and except
as set forth in Section 3.13(b) of the Disclosure Schedule, no payments have
been made or authorized since the Balance Sheet Date by the Company to officers,
directors, employees, independent contractors or dependent contractors of the
Company.
(c) Section 3.13(c) to the Disclosure Schedule contains (i) a correct and
complete list of all bonus, deferred compensation, incentive compensation, share
or stock bonus, share or stock purchase, share or stock appreciation right,
share or stock option, severance pay or termination pay, health or other
medical, life or other insurance, death benefit, disability, medical
reimbursement, supplementary unemployment benefit, profit sharing, pension,
retirement and every other benefit plan, program, agreement or arrangement
maintained or contributed to or required to be contributed to by the Company
thereof for the benefit of any current or former directors, officers, employees,
independent contractors or dependent contractors of the Company or their
respective dependents or beneficiaries ("Benefit Plans") and (ii) a brief
description of all compensation practices and policies applicable to directors,
officers, employees, independent contractors or dependent contractors of the
Company, including but not limited to vacation policies, sick leave policies and
leave of absence policies.
(d) The Company has provided to the Purchaser copies of the Benefit Plans and
all amendments thereto and have made available to the Purchaser all documents in
the Company's possession pertaining to compensation practices, benefits and
other terms and conditions of employment of all directors, officers, employees
or dependent contractors of the Company.
(e) The Company has no "employee pension benefit plan" as defined in Section
3(2) of ERISA that is subject to ERISA (a "Pension Plan") and that has been
maintained or contributed to within the last five years by the Company or any
trade or business (whether or not incorporated) that is under common control
with the Company or is a member of a "controlled group" with the Company as
(defined in Section 4971(e)(2)(B) of the Code).
(f) The Company has no knowledge of any fact, condition, or circumstance since
the date of the documents provided pursuant to Section 3.13(c) above that would
materially affect the information contained therein and no promises have been
made by the Company to amend any Benefit Plan or to provide increased benefits
thereunder, except as required by applicable law.
(g) Except as would not reasonably be expected to have a Material Adverse
Effect, the Company does not and will not have any uninsured liability arising
out of claims made or suits brought (including workers compensation,
occupational health and safety, environmental, equal employment or
nondiscrimination) for injury, sickness, disease, death or termination of
employment of any employees or former employees of the Company to the extent
attributable to an event occurring or facts and circumstances existing at or
prior to Closing.
(h) No Benefit Plan contains any term or provision that precludes or otherwise
prohibits its termination.
Section 3.14 Labor. The Company is not a party to any collective
bargaining agreement and no employee is a member of or represented by a
collective bargaining unit with respect to the employment of such individual
with the Company. No unfair labor practice complaint before the National Labor
Relations Board, no charges pending before the Equal Employment Opportunity
Commission and no complaint, charge or grievance of any nature before any
similar or comparable Governmental Authority, in any case relating to the
Company or the conduct of its business, is pending or, to the knowledge of the
Company or the Shareholders, threatened. The Company has not received notice,
nor has any knowledge, of the intent of any Governmental Authority responsible
for the enforcement of labor or Employment Laws to conduct any investigation of
or relating to the Company or the conduct of its business. To the knowledge of
the Company and the Shareholders, no employee of the Company that the
Shareholders consider to be a "key employee" has any plans to terminate his or
her employment with the Company.
Section 3.15 Title to Properties; Encumbrances. Section 3.15 of the
Disclosure Schedule contains a correct and complete list of all real property
owned, leased or used by the Company as of the date hereof. The Company has
good and marketable title to or a valid leasehold interest in all of their
respective properties and assets, real, personal and mixed property (tangible
and intangible), including the properties and assets reflected in the most
recent Financial Statements (except for immaterial assets and inventory sold
since the date of the most recent Financial Statements in the ordinary course of
business and consistent with past practice), and in all assets acquired by the
Company since the date of the most recent Financial Statements. None of the
properties and assets of the Company owned, leased or held are subject to any
Lien, except Liens reflected in the Financial Statements and specifically
identified in Section 3.15 of the Disclosure Schedule securing specified
liabilities or obligations with respect to which no default exists (or an event
that, whether with or without notice, gives rise to any right of termination,
cancellation or acceleration) and except other Liens (including statutory liens
for current Taxes not yet due or delinquent or which are being contested in good
faith by appropriate proceedings and for which adequate reserves have been
established, and mechanics', carriers', materialmen's and similar liens imposed
by law incurred in the ordinary course of business and not delinquent or which
are being contested in good faith by appropriate proceedings and for which
adequate reserves have been established) that, individually or in the aggregate,
would not reasonably be expected to have a Material Adverse Effect.
Section 3.16 Entire Business. The rights, properties and other assets
presently owned, leased or held by the Company include all rights, properties
and assets necessary to permit the Company to conduct its business at the date
hereof in all material respects in the same manner as its business has been
conducted prior to the date hereof.
Section 3.17 Leases. Section 3.17 of the Disclosure Schedule contains a
correct and complete list of all leases having a rental obligation of $10,000 or
more per annum pursuant to which the Company is the lessee of any real or
personal property and identifies all lessors under such leases the consent of
which is required for the Company's execution of this Agreement and consummation
of the transactions contemplated hereby. All such leases are valid and
enforceable in accordance with their terms, are in full force and effect, and
there are no existing defaults by the Company thereunder or to the knowledge of
the Company and the Shareholders by any other party thereunder.
Section 3.18 Condition of Assets. The tangible properties and assets
owned, operated, leased or held by the Company and used in its business are
maintained in operating condition consistent with good business practices and in
material compliance with all applicable Laws and suitable for the uses for which
they are intended. Except as set forth in Section 3.18 of the Disclosure
Schedule, such tangible properties and assets, including the buildings,
structures and facilities owned or leased by the Company, are in good operating
condition (normal wear and tear excepted) and are in material conformity with
applicable building and zoning ordinances and regulations.
Section 3.19 Intellectual Property. Section 3.19 of the Disclosure
Schedule contains a correct and complete list of all Proprietary Rights used or
owned by the Company and registered with any Governmental Authority, and a list
of all licenses and other agreements relating thereto. Except as set forth in
Section 3.19 of the Disclosure Schedule, the Company has valid and enforceable
rights to Proprietary Rights that are necessary to permit them to conduct their
business substantially as now conducted, except where the lack of such rights
would not reasonably be expected to have a Material Adverse Effect. Except as
set forth in Section 3.19(b) of the Disclosure Schedule, no royalty or other
payment by the Company to any third party is required to use any Proprietary
Right described in Section 3.19 of the Disclosure Schedule.
Section 3.20 Insurance. Section 3.20 of the Disclosure Schedule contains
an accurate and complete description of all insurance contracts currently
maintained by the Company (collectively, the "Insurance Policies"), including
the name of the insurer and the types, policy periods, limits and deductibles.
All the Insurance Policies are in full force and effect, all premiums with
respect thereto covering all periods up to and including the Closing Date have
been paid, and no notice of cancellation or termination has been received with
respect to any such Insurance Policy. The Insurance Policies are sufficient for
compliance with all requirements of Law and of all agreements to which the
Company is a party; are valid, outstanding and enforceable; will remain in full
force and effect through the respective dates set forth in Section 3.20 of the
Disclosure Schedule without the payment of additional premiums; and will not in
any way be affected by, or terminate or lapse by reason of, the transactions
contemplated by this Agreement. The Company has not been refused any insurance
with respect to its assets or operations, nor has its coverage been limited, by
any insurance carrier to which it has applied for any such insurance or with
which it has carried insurance during the last three years.
Section 3.21 Customers. Section 3.21 of the Disclosure Schedule sets
forth a correct and complete list of the twenty largest customers of the Company
in terms of revenues during the Company's fiscal year ended December 31, 1997
and for the five month period ended on the Balance Sheet Date, showing the
approximate total sales to each such customer during each such period. To the
knowledge of the Company and the Shareholders, since the Balance Sheet Date
there has not been any change in the business relationship of the Company with
any customer named in Section 3.21 of the Disclosure Schedule that would
reasonably be expected to have a Material Adverse Effect; provided, however,
that many customers of the Company are non-recurring and as to such customers,
no representation is made as to the continuation of such business relationship.
Section 3.22 Certain Environmental Matters. (a) The Company has been and
is in compliance with all applicable Environmental Laws, and to the knowledge of
the Company and the Shareholders, there are no circumstances that may prevent or
interfere with continued compliance. The Company has all permits, licenses and
other governmental authorizations required under applicable Environmental Laws
except where not having such permits, licenses or other authorizations would not
be reasonably expected to have a Material Adverse Effect, and all such permits,
licenses and other governmental authorizations are in good standing and in full
force and effect, the Company is in compliance with the terms and conditions
thereof. The Company has not received any notice from a Governmental Authority
or other Person that alleges that the Company is in noncompliance with
Environmental Laws.
(b) No Environmental Claims have actually been asserted or initiated and are
pending or, to the knowledge of the Company or the Shareholders, threatened
against the Company.
(c) There are no past or present actions, activities, circumstances,
conditions, events or incidents by or involving the Company, or to the knowledge
of the Company or the Shareholders, any other Person, including, without
limitation, the Release, threatened Release, emission, discharge, presence or
disposal of any Hazardous Material, that would or would reasonably be expected
to form the basis of any Environmental Claims (i) having a Material Adverse
Effect, or (ii) against any officers or directors of the Company arising out of
the Company's operations (including off-site liabilities). No representation or
warranty is made with respect to the negligent or intentional violation of or
non-compliance with Environmental Laws by third parties in the possession, use,
storage, shipment, sale, transfer or disposal of batteries and electronic
equipment which is sold by the Company.
Section 3.23 Contracts.
(a) Except as set forth in Section 3.23(a) of the Disclosure Schedule, the
Company is not a party to, or subject to or bound by, any Contract that is a (i)
Contract not made in the ordinary course of business which involves payment to
or by the Company of more than $10,000 in any twelve month period and is not
cancelable without penalty within sixty days; (ii) royalty, distribution,
agency, territorial or material license agreement; (iii) Contract (other than
agreements covered by clause (ix) below) with any officer, employee, director or
shareholder (or any Affiliate of any such officer, employee, director or
shareholder) or any professional person or firm, independent contractor,
dependent contractor or advertising firm or agency which involves payment to or
by the Company of more than $5,000 in any twelve month period; (iv) Contract
guaranteeing the payment or performance of the obligations of others; (v) except
as otherwise set forth in Section 3.7 of the Disclosure Schedule, note, loan
agreement or other Contract under which the Company has incurred, guaranteed or
otherwise become liable for borrowed money indebtedness in an amount of $5,000
or more; (vi) except as otherwise set forth in Section 3.13(c), group health or
life insurance, pension, profit sharing, retirement, medical, bonus, incentive,
severance, stock option or purchase plan or other similar benefit plan,
agreement or arrangement in effect with respect to its employees or others;
(vii) Contract limiting the freedom of the Company to engage in any line of
business or to compete with any Person; (viii) except as otherwise set forth in
Section 3.13(a) consulting agreement that is not terminable at will (or with
notice not to exceed thirty days or payment not to exceed $5,000 in any twelve
month period) by the Company; (ix) joint venture agreement or other Contract
with respect to the operation or management of any entity; or (x) Contract not
otherwise identified by the foregoing clauses that involves payments by or to
the Company at an annualized rateof more than $10,000 in any twelve month
period. True and complete copies of all Contracts listed on Schedule 3.23(a)
have heretofore been delivered or otherwise made available for review by the
Company and the Shareholders to Purchaser.
(b) Except as set forth in Section 3.23(b) of the Disclosure Schedule, each
Contract listed in Section 3.23(a) of the Disclosure Schedule is a valid
Contract of the Company (except as validity may be limited by equitable
principles and by bankruptcy, insolvency, reorganization, moratorium or other
similar laws now or hereafter in effect relating to creditors' rights
generally), and to the knowledge of the Company and the Shareholders, of all of
the other parties thereto, and is in full force and effect, and the Company has
performed all material obligations required to be performed by them and are not
(with or without notice or lapse of time) in default under any such Contract and
to their knowledge no other party is in default under any such Contract such
that said default could reasonably be expected to have a Material Adverse
Effect.
Section 3.24 Full Disclosure. No representation or warranty of the Company
or any of the Shareholders hereunder or information supplied in writing by the
Company or the Shareholders to Purchaser in connection herewith is false or
misleading with respect to any material fact and neither the Company nor either
of the Shareholders has omitted to state any material fact required to be stated
herein or therein necessary to make the statements herein and therein, in light
of the circumstances under which they are made, not misleading.
Section 3.25 No Brokers' or Other Fees. No broker, finder or investment
banker is entitled to any fee or commission in connection with this Agreement
based upon arrangements made by or on behalf of any Shareholder or the Company.
Section 3.26 Representations and Warranties Generally. The
representations and warranties contained in any particular Section of this
Article III are not exclusive as to any particular subject matter covered by
such Section and different Sections may apply different tests to the same or
similar matters. One Section of the Disclosure Schedule may specifically cross
reference other applicable Sections or parts thereof of the Disclosure Schedule
without repeating disclosure that applies to more than one Section.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF PURCHASER
Purchaser hereby represents and warrants to the Shareholders as follows:
Section 4.1 Organization. Purchaser is a corporation duly organized, validly
existing and in good standing under the laws of the State of Delaware.
Section 4.2 Authorization, Etc.. Purchaser has full corporate power and
authority to execute, deliver and perform its obligations under this Agreement
and the documents and instruments contemplated hereby and to carry out the
transactions contemplated hereby and thereby. Purchaser has duly approved and
authorized the execution and delivery of this Agreement and the documents and
instruments contemplated hereby and the consummation of the transactions
contemplated hereby and thereby, and no other corporate proceedings on the part
of Purchaser are necessary to approve and authorize the execution, delivery and
performance by Purchaser of this Agreement and the documents and instruments
contemplated hereby and the consummation by Purchaser of the transactions
contemplated hereby and thereby. This Agreement constitutes a legal, valid and
binding agreement of Purchaser, enforceable against Purchaser in accordance with
its terms, except as enforcement hereof may be limited by equitable principles
and by bankruptcy, insolvency, reorganization, moratorium or other similar laws
now or hereafter in effect relating to creditors' rights generally.
Section 4.3 No Approvals or Conflicts. Except in the case of clauses (b),
(c) and (d) below that would not have a material adverse effect on the financial
condition, operations or business of Purchaser or on Purchaser's ability to
consummate the transactions under this Agreement, neither the execution,
delivery or performance by Purchaser of this Agreement nor the consummation by
Purchaser of the transactions contemplated hereby will (a) violate, conflict
with or result in a breach of any provision of the certificate of incorporation
or by-laws or other organizational documents of Purchaser; (b) violate, conflict
with or result in a breach of any provision of, or constitute (with or without
notice or lapse of time or both) a default under, or result in the termination
of, or accelerate or alter in any material way the performance required by or
result in the creation of or give any party the right to create any Lien on any
of the assets or properties of the Purchaser under, any note, bond, mortgage,
loan agreement, deed of trust, license, franchise, permit or other instrument,
agreement or contract to which Purchaser or any of its properties may be bound;
(c) violate any Law applicable to Purchaser or any of its assets or properties;
or (d) require any consent, approval or authorization of, or notice to, or
declaration, filing or registration with, any Governmental Authority or other
third party in connection with the execution, delivery and performance of this
Agreement by Purchaser.
Section 4.4 Purchase for Investment. Purchaser will acquire the Shares
pursuant to the terms of this Agreement for investment purposes and not with a
view toward any resale or distribution thereof. Purchaser acknowledges that the
Shares have not been registered for the purpose of the transactions contemplated
by this Agreement or otherwise under the Securities Act of 1933, as amended, or
under any state securities laws. Purchaser will not sell or otherwise
distribute all or any portion of the Shares acquired hereunder except in
compliance with applicable laws relating to the sale or other distribution of
securities.
Section 4.5 Status of Purchaser. Purchaser is a reporting company under the
Exchange Act and has timely filed all reports to be filed under the Exchange Act
and in compliance with the Exchange Act in all material respects. Since the
date of Purchaser's Quarterly Report on Form 10-Q for the period ended March 31,
1998 and Purchaser's Current Report on Form 8-K as filed with the Securities and
Exchange Commission on June 9, 1998, and except as disclosed therein, Purchaser
has not suffered any material adverse change in its consolidated financial
condition, operations or business as of the date of this Agreement.
Section 4.6 Purchase Price. The Golden Genesis Stock, when issued to the
Shareholders in accordance with the payment of the Purchase Price, shall be
validly issued, fully paid, nonassessable and free of pre-emptive or similar
rights.
ARTICLE V
COVENANTS OF THE PARTIES
Section 5.1 General. In case at any time after the Closing any further
action is necessary or desirable to carry out the purposes of this Agreement,
including obtaining any third-party consents not obtained prior to Closing, each
of the parties will take such further action (including the execution and
delivery of such further instruments and documents) as any other party
reasonably may request, at the sole cost and expense of the requesting party
(unless the requesting party is entitled to indemnification therefor under
Article X below). The Shareholders acknowledge and agree that from and after
the Closing, Purchaser will be entitled to possession of all documents, books,
records (including Tax records), agreements and financial data of any sort
relating to the Company.
Section 5.2 Litigation Support. In the event that and for so long as any
party actively is contesting or defending against any action, suit, proceeding,
hearing, investigation, charge, complaint, claim or demand (including Tax
audits) in connection with (a) any transaction contemplated under this Agreement
or (b) any fact, situation, circumstance, status, condition, activity, practice,
plan, occurrence, event, incident, action, failure to act or transaction on or
prior to the Closing Date involving the Company, each of the other parties will
cooperate with such party and its counsel in the contest or defense, make
available its personnel and provide such testimony and access to its books and
records as shall be necessary in connection with the contest or defense, all at
the sole cost and expense of the contesting or defending party (unless the
contesting or defending party is entitled to indemnification therefor under
Article X below). Without limiting the foregoing, the Shareholders shall have
the right to participate in any such action, suit, proceeding, hearing,
investigation, charge, complaint or demand which may, if adversely decided,
result in indemnification obligations to the Shareholders pursuant to Article X
below.
Section 5.3 Tax Matters. The Shareholders and Purchaser agree to provide
each other with such cooperation and information as either of them reasonably
may request of the other in relation to (a) preparation of any Tax Return of the
Company or with respect to the Company's operations, (b) determining any Taxes
or right to a refund of Taxes of the Company or with respect to the Company's
operations, or (c) responding to any audit or examination of Tax Returns of the
Company or with respect to the Company's operations. Without limiting the
foregoing, the Shareholders shall have the right to participate in the defense
of any audit or examination of Tax Returns of the Company for any Tax period
prior to or which includes the Closing Date. In the event that any controversy
develops between Purchaser or the Company and any Tax authority with respect to
any Tax period prior to or which includes the Closing Date, neither Purchaser
nor the Company may settle or compromise such controversy in a manner which
would affect any Tax liability of the Company for any Tax period prior to or
which includes the Closing Date without first obtaining the consent of the
Shareholders thereto, which consent shall not unreasonably be withheld.
Section 5.4 Public Announcements. The Company, the Shareholders and Purchas-
er agree that they will consult with each other before they issue any press
releases or otherwise make any public statements with respect to this Agreement
or the transactions contemplated hereby and shall not issue any press release or
make any public statement prior to such consultation, except as may be required
by law (including disclosure requirements of any applicable securities laws or
exchange).
Section 5.5 Employees.
(a) The Purchaser shall undertake to employ all employees of the Company at
the date of Closing and continuing for a period of not less than three months
after Closing. At the end of such three month period, the Purchaser shall
provide written notice to each individual whose employment it elects to
terminate at such time. Any individual who receives such a notice of
termination shall receive severance benefits equivalent to three months' salary.
The employment (both during the initial period and, if applicable, following
such three month period) shall (i) be at a level of compensation not less than
the level of employment compensation which was paid by the Company for the three
(3) month period immediately prior to the Closing; (ii) include such benefits as
Purchaser provides to employees of similar job levels or descriptions; and (iii)
be of a reasonably similar or comparable type and level of work as was performed
by the employee for the three (3) month period immediately prior to the Closing.
If the employment continues beyond the initial three (3) month period, the
employees shall be given credit for length of employment service which begins on
their respective start dates at the Company.
(b) Purchaser acknowledges that Ms. Christina Duarte is presently on a leave
of absence from the Company due to her maternity. She has indicated to the
Company that she anticipates returning to work on or about August 1, 1998.
Prior to her leave of absence, the Company agreed to offer part-time employment
to Ms. Duarte upon her return. Purchaser agrees to accommodate during the
initial three month period Ms. Duarte's need to work part time.
Section 5.6 Consulting Agreement. At Closing, John A. Phillips shall enter
into a three (3) month consulting agreement with the Company (the "Consulting
Agreement"). The Consulting Agreement shall be for an initial term of three (3)
months to be based on a twenty-seven (27) our work week and shall provide that
Mr. Phillips be paid an aggregate amount of twenty thousand dollars ($20,000).
The Consulting Agreement shall be in substantially the form attached hereto as
Exhibit D.
Section 5.7 Insurance. For a period of three (3) years following the Closing
Date, the Purchaser agrees to maintain insurance coverage of substantially the
same type and scope as is in effect for the Company as of the Closing Date.
Section 5.8 Acknowledgment of Restricted Nature of Golden Genesis Stock. The
Shareholders hereby acknowledge, with respect to the Golden Genesis Stock to be
issued as part of the Purchase Price , the following:
(a) The Shareholders may not, directly or indirectly, offer, sell,
transfer, assign, pledge, hypothecate or otherwise dispose of such Golden
Genesis Stock (or solicit any offers to purchase or otherwise acquire or take a
pledge of such Golden Genesis Stock), except pursuant to (i) an effective
registration statement under the Securities Act of 1933, as amended (the
"Securities Act") and (ii) an effective registration statement or qualification
under applicable "Blue Sky" state securities laws, or unless such the
Shareholders shall have delivered to Purchaser an opinion of counsel, which
opinion of counsel shall be satisfactory to Purchaser, to the effect that no
registration statement or qualification is required because of the availability
of exemptions from registration or qualification under the Securities Act or
Blue Sky laws.
(b) The Shareholders understand that, (i) the offer and sale of Golden Genesis
Stock has not been registered under the Securities Act or registered or
qualified under any Blue Sky laws as of the date hereof and will not be
registered or qualified under the Securities Act or any Blue Sky laws at the
Closing, (ii) the Shareholder must continue to bear the economic risk of the
investment in their shares of Golden Genesis Stock for such period of time until
the offer and sale of such Golden Genesis Stock is subsequently registered or
otherwise qualified under the Securities Act and any applicable Blue Sky laws or
an exemption from such registration or qualification is available, (iii) there
can be no assurance that the offer and sale of the Shareholders' Golden Genesis
Stock will be registered or otherwise qualified under the Securities Act or any
applicable Blue Sky laws at any time, (iv) a restrictive legend in substantially
the form hereinafter set forth shall be placed upon the Shareholders' Golden
Genesis Stock, and (v) a notation shall be made in the appropriate records of
Purchaser indicating that the Shareholders' Golden Genesis Stock is subject to
restrictions on transfer and appropriate stop-transfer instructions will be
issued to the transfer agent of Purchaser with respect to such Golden Genesis
Stock;
(c) The Shareholders understand that such Shareholders' Golden Genesis Stock
shall bear a legend in substantially the following form:
THE SHARES REPRESENTED HEREBY HAVE BEEN ACQUIRED FOR INVESTMENT AND HAVE NOT
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"). SUCH
SHARES MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED, PLEDGED OR
HYPOTHECATED UNLESS AND UNTIL REGISTERED UNDER THE ACT AND ANY APPLICABLE STATE
SECURITIES LAWS OR, UNLESS, IN THE OPINION OF COUNSEL SATISFACTORY TO THE ISSUER
IN FORM AND SUBSTANCE SATISFACTORY TO THE ISSUER, SUCH OFFER, SALE, TRANSFER,
PLEDGE OR HYPOTHECATION IS EXEMPT FROM REGISTRATION OR IS OTHERWISE IN
COMPLIANCE WITH THE ACT AND SUCH LAWS.
Section 5.9 Rule 144 Information. With a view to making available to the
Shareholders the benefits of Rule 144 promulgated under the Securities Act and
any other rule or regulation of the Securities and Exchange Commission (the
"SEC") that may at any time permit the Shareholders to sell Golden Genesis Stock
to the public without registration, the Purchaser agrees to:
(a) cause the condition in paragraph (c) of Rule 144 under the Securities Act
to remain satisfied for two years after the Effective Time;
(b) file with the SEC in a timely manner all reports and other documents
required of Purchaser under the Securities Act and the Exchange Act; and
(c) furnish the Shareholders, (i) a written statement by the Purchaser that it
has complied with the reporting requirements of Rule 144 of the Securities Act
and the Exchange Act, (ii) a copy of the most recent annual or quarterly report
of Purchaser and such other reports and documents so filed by Purchaser under
the Securities Act and the Exchange Act and (iii) such other information as may
be reasonably requested by the Shareholders in availing himself of any rule or
regulation of the SEC which permits the selling of any such securities without
registration.
ARTICLE VI
CONDITIONS OF PURCHASER'S OBLIGATIONS TO CLOSE
The obligations of Purchaser to close under this Agreement are subject to
satisfaction of the following conditions, unless waived in writing by Purchaser:
Section 6.1 Representations and Warranties True. The representations and
warranties of the Company and the Shareholders contained in this Agreement shall
be true and correct on and as of the Closing Date, except to the extent that a
representation or warranty is made as of a specific earlier date, in which case
such representation or warranty shall be true and correct in the manner
specified above as of such earlier date and shall be deemed to have been made on
and as of the Closing Date.
Section 6.2 Performance. The Company and the Shareholders shall have
performed and complied in all material respects with all agreements and
conditions required by this Agreement to be performed or complied with by them
on or prior to the Closing.
Section 6.3 No Material Change. Since the Balance Sheet Date, and except as
disclosed in Section 3.11 of the Disclosure Schedule, there shall have been no
Material Adverse Effect on or change in (i) any of the business, condition
(financial or otherwise), operations, assets or liabilities of the Company taken
as a whole, (ii) the legality or enforceability against the Shareholders of this
Agreement or (iii) the ability of any Shareholder to perform its obligations and
to consummate the transactions under this Agreement.
Section 6.4 Company Certificate. Purchaser shall have received a certificate
dated the Closing Date and executed by the President of the Company, on behalf
of the Company, substantially in the form of Exhibit A hereto, to the effect
that the conditions expressed in Sections 6.1, 6.2 and 6.3 have been fulfilled.
Section 6.5 No Injunction. On the Closing Date there shall be no Law or
effective injunction, preliminary restraining order or any order of any nature
issued by a court of competent jurisdiction that prevents or makes illegal the
consummation of the transaction contemplated hereby.
Section 6.6 Opinions of Counsel. Purchaser shall have received a favorable
opinion of counsel for the Company dated as of the Closing Date in substantially
the form of Exhibit B hereto.
Section 6.7 Purchaser Board Approval. The Board of Directors of Purchaser
shall have approved this Agreement and the transactions contemplated hereby.
Section 6.8 Shareholder Approval; Approval of Board of Directors of the
Company. Purchaser shall have received copies of resolutions of the
Shareholders and the Board of Directors of the Company, certified by the
Secretary or Assistant Secretary of the Company, in each case approved by
unanimous written consent, approving this Agreement and the transactions
contemplated hereby.
Section 6.9 Shareholder Action. Each Shareholder shall have executed and
delivered to Purchaser this Agreement.
Section 6.10 Security Agreement. Purchaser shall have received security
agreements securing the Pledged Stock as set forth in Section 10.5(g).
Section 6.11 Solarex Consent. Purchaser shall have received the consent
described in Section 8.12.
ARTICLE VII
CONDITIONS OF THE COMPANY'S AND
THE SHAREHOLDERS' OBLIGATIONS TO CLOSE
The obligation of the Company and the Shareholders to close under this Agreement
is subject to satisfaction of the following conditions, unless waived in writing
by the Shareholders.
Section 7.1 Representations and Warranties True. The representations and
warranties of Purchaser contained in this Agreement shall be true and correct on
and as of the Closing Date, except to the extent that a representation or
warranty is made as of a specific earlier date, in which case such
representation or warranty shall be true and correct in the manner specified
above as of such earlier date and shall be deemed to have been made on and as of
the Closing Date.
Section 7.2 Performance. Purchaser shall have performed and complied in all
material respects with all agreements and conditions required by this Agreement
to be performed or complied with by it on or prior to the Closing.
Section 7.3 Purchaser Certificate. Sellers shall have received a certificate
dated the Closing Date and executed by an executive officer of Purchaser, on
behalf of Purchaser, substantially in the form of Exhibit C hereto, to the
effect that the conditions expressed in Sections 7.1 and 7.2 have been
fulfilled.
Section 7.4 No Injunction. On the Closing Date there shall be no Law or
effective injunction, preliminary restraining order or any order of any nature
issued by a court of competent jurisdiction that prevents or makes illegal the
consummation of the transaction contemplated hereby.
Section 7.5 Legal Opinion. The Company and the Shareholders shall have
received a favorable opinion of counsel for Purchaser, dated as of the Closing
Date, in substantially the form as Exhibit E hereto.
Section 7.6 Shareholder Action. Each Shareholder shall have executed and
delivered to Purchaser this Agreement.
Section 7.7 Consulting Agreement. The Purchaser shall have entered into the
Consulting Agreement with John A. Phillips in form and substance substantially
as set forth in Exhibit D.
ARTICLE VIII
DELIVERIES OF THE COMPANY AND THE SHAREHOLDERS
The Company and the Shareholders agree on the Closing Date to deliver or cause
to be delivered to Purchaser the following:
Section 8.1 Stock Certificates. Certificates evidencing the Shares properly
endorsed for transfer or accompanied by duly executed stock powers, in either
case executed in blank and otherwise in form acceptable for transfer on the
books of the Company.
Section 8.2 Resignations. Written resignations of each director, officer and
the registered agent of the Company.
Section 8.3 Letters to Banks. If requested by Purchaser, letters to banks at
which the Company maintains accounts or borrows funds revoking the authority of
existing signatories and authorizing signatories designated by Purchaser.
Section 8.4 Company Certificate. The certificate of the President of the
Company, on behalf of the Company.
Section 8.5 Consents. All consents, approvals or authorizations, if any,
listed in Section 3.4 of the Disclosure Schedule as being required of the
Company to execute, deliver and perform this Agreement and the transactions
contemplated hereby.
Section 8.6 Good Standing Certificates. Good standing certificates,
certificates of status or certificates of compliance, dated no more than ten
(10) days prior to the Closing Date, from the appropriate authorities in the
jurisdiction of incorporation of the Company, showing the Company to be in good
standing in such jurisdiction.
Section 8.7 Secretary's Certificate. Certificate of the Secretary or an
Assistant Secretary of the Company as to Certificate of Incorporation and Bylaws
of the Company, the resolutions adopted by the Board of Directors and the
Shareholders of the Company authorizing and approving this Agreement and the
consummation of the transactions contemplated hereby, and the incumbency of
officers.
Section 8.8 Consulting Agreement. An original executed counterpart of the
Consulting Agreement described in Section 5.6.
Section 8.9 Legal Opinion. An opinion of counsel for the Company as
referenced in Section 6.6.
Section 8.10 Waiver and Termination of Buy-Sell Agreement. An executed
written agreement by and among the Company and all of the Shareholders (a)
waiving all of the restrictions, rights and provisions of the Remote Power, Inc.
Amended and Fully Restated Stock Buy-Sell Agreement dated November 14, 1997 (the
"Buy-Sell Agreement") with respect to the transaction contemplated hereby, and
(b) terminating the Buy-Sell Agreement at the Closing.
Section 8.11 Security Agreements. Security Agreements securing the
Pledged Stock, as required by Section 10.5(g).
Section 8.12 Solarex Non-Exclusive Distributor Agreement. An instrument,
executed by Solarex, consenting to the transactions contemplated herein and
affirming Solarex's intention to maintain in effect the terms and conditions of
the Non-Exclusive Distributor Agreement between Solarex and the Company.
Section 8.13 Other Deliveries. All previously undelivered documents
required to be delivered pursuant to this Agreement and such other documents or
instruments as Purchaser or its counsel may reasonably request.
ARTICLE IX
DELIVERIES OF PURCHASER ON THE CLOSING DATE
Purchaser agrees on the Closing Date to deliver to the Shareholders the
following:
Section 9.1 Payments. Payment of the Purchase Price, including Stock
Certificates for the Golden Genesis Stock, pursuant to and in accordance with
Annex I attached hereto and the closing statement pursuant to Section 2.5. The
cash portion of the Purchase Price shall be made to each Shareholder by
cashier's check of immediately available funds in United States dollars.
Section 9.2 Secretary's Certificate. A certificate of the Secretary or an
Assistant Secretary of Purchaser setting forth a copy of the resolutions adopted
by the Board of Directors of Purchaser authorizing and approving the execution
and delivery of this Agreement and the consummation of the transactions
contemplated hereby.
Section 9.3 Purchaser Certificate. The officer's certificate of Purchaser
referenced in Section 7.3.
Section 9.4 Legal Opinion. An opinion of counsel for the Purchaser as
referenced in Section 7.5.
Section 9.5 Other Deliveries. All previously undelivered documents required
to be delivered pursuant to this Agreement and such other documents or
instruments as the Company or its counsel may reasonably request.
ARTICLE X
INDEMNIFICATION
Section 10.1 Indemnification by the Shareholders. Subject to the
limitations set forth in Section 10.5, each of the Shareholders, severally and
in their respective proportions of ownership of Shares as set forth in Annex I
to this Agreement, agrees to indemnify Purchaser and every Affiliate (and their
respective officers, directors, stockholders, agents and representatives) of
Purchaser (which shall specifically include the Company following the Closing)
(each a "Purchaser Indemnitee") against and hold them harmless from any and all
Damages which may be asserted against, imposed upon or sustained by a Purchaser
Indemnitee by reason of or arising out of the breach, default, inaccuracy or
failure of any of the warranties, representations, covenants or agreements of
the Company or the Shareholders contained in this Agreement or in any
certificate or instrument required to be delivered pursuant hereto.
Section 10.2 Indemnification by Purchaser. From and after Closing,
Purchaser agrees to indemnify each Shareholder and every Affiliate of such
Shareholder (each a "Shareholder Indemnitee") and hold them harmless from and
against any and all Damages which may be asserted against, imposed upon or
sustained by a Shareholder Indemnitee at any time by reason of or arising out of
the breach, default, inaccuracy or failure of any warranties, representations,
conditions, covenants or agreements of Purchaser contained in this Agreement or
in any certificate, instrument or document delivered pursuant hereto.
Section 10.3 Procedures for Third-Party Claims.
(a) If any Indemnitee receives written notice of the assertion of any claim or
of the commencement of any action or proceeding by any entity who is not a party
to this Agreement (a "Third Party Claim") against or affecting such Indemnitee,
and if such assertion were presumed to be true (regardless of the actual
outcome) then a party could be obligated to provide indemnification under this
Agreement as a result of or in connection with such claim, action or proceeding,
such Indemnitee will give such Indemnifying Party reasonably prompt written
notice thereof, but in any event no later than fifteen (15) calendar days after
receipt of such written notice of such Third Party Claim; provided however, that
failure to give notice as provided in this paragraph (a) shall not relieve the
Indemnifying Party of its indemnification obligations under this Article X
except to the extent that such Indemnifying Party is actually prejudiced by such
failure. Said written notice to the Indemnifying Party shall set forth the
basis of the Third Party Claim in reasonable detail and include copies of all
pertinent correspondence relating to such Third Party Claim. The Indemnifying
Party (which, in the case of the Shareholders and for purposes of this Section
10.3 shall act as a single group) will have the right to assume and control the
defense of any Third Party Claim at such Indemnifying Party's sole expense and
by such Indemnifying Party's own counsel (which counsel must be reasonably
satisfactory to the Indemnitee), by giving written notice to the Indemnitee (the
"Notice to Defend") no later than fifteen (15) calendar days after receipt of
the above-described notice of such Third Party Claim. The Indemnitee also will
have the right to participate in the defense of any Third Party Claim assisted
by counsel of its own choosing, but all fees and expenses of such counsel shall
be paid by the Indemnitee. The Indemnifying Party and the Indemnitee will
cooperate with each other in good faith in such defense and make available all
employees and books and records in its control as reasonably deemed necessary
with respect to such defense (but not to the extent that would require waiver of
any privilege). If the Indemnitee does not receive from the Indemnifying Party
a Notice to Defend with respect to a Third Party Claim or a written notice of
objection to the claim for indemnification specifying in reasonable detail the
basis for the objection within the fifteen (15) day period described above, the
Indemnitee may, at its option, elect to solely defend the Third Party Claim
assisted by counsel of its own choosing, and the Indemnifying Party will be
liable for all reasonable costs and expenses, and all settlement amounts
(subject to and in accordance with paragraph (c) below of this Section 10.3) or
other liabilities, losses, damages and injuries paid or incurred in connection
therewith to the extent such claim is or would have been indemnifiable under
this Agreement if such claim is or had been proved.
(b) If, within the fifteen (15) day period set forth in paragraph (a) above of
this Section 10.3, an Indemnitee receives a Notice to Defend from an
Indemnifying Party with respect to any Third Party Claim, the Indemnifying Party
will not be liable for any legal expenses of the Indemnitee incurred after
receipt by the Indemnitee of such Notice to Defend.
(c) In the event there is a dispute between the Indemnifying Party and
Indemnitee concerning whether a Third Party Claim should be contested, settled
or compromised, it shall be settled, compromised or contested, in accordance
with the next succeeding sentences; provided, however, that the Indemnitee, or
its respective successors or assigns, shall neither be required to refrain from
paying or satisfying any claim which has matured by court judgment or decree,
unless appeal is taken thereafter and proper appeal bond posted by the
Indemnifying Party, nor shall the Indemnitee be required to refrain from paying
or satisfying any Third Party Claim after and to the extent that such Third
Party Claim has resulted in an unstayed injunction. The Indemnifying Party
shall not, without the Indemnitee's prior written consent, not to be
unreasonably withheld, settle or compromise any action or claim or consent to
the entry of any judgment with respect to any action, claim or proceeding for
anything other than money damages paid by the Indemnifying Party unless the
settlement does not involve the imposition of any liability or obligation on the
Indemnitee or any restriction on its activities. The Indemnifying Party may,
without the Indemnitee's written consent, settle or compromise any such action
or claim or consent to entry of any judgment with respect to any such action or
claim which requires solely the payment of money damages by the Indemnifying
Party. Subject to the foregoing, in the event that the Indemnifying Party, on
the one hand, or the Indemnitee, on the other hand, has reached a good faith,
bona fide settlement, agreement or compromise, subject only to approval
hereunder, with any claimant regarding a matter which may be the subject of
indemnification hereunder and desires to settle on the basis of such agreement
or compromise, such party who desires to so settle or compromise shall notify
the other party in writing of its desire setting forth the terms of such
settlement or compromise (the "Notice of Settlement"). The Third Party Claim may
be settled or compromised on such basis unless within ten (10) days of the
receipt of the Notice of Settlement the party who issued the Notice of
Settlement receives a notice from the other party of its desire to continue to
contest the matter (the "Notice to Contest") and, in such case:
(i) Should the Indemnitee deliver a Notice to Contest, the claim shall be so
contested and the liability of the Indemnifying Party shall be limited as
provided in clause (iii) below;
(ii) If the settlement or compromise could result in a further claim for
indemnification being made against the Indemnifying Party and if the
Indemnifying Party delivers the Notice to Contest, the claim shall be so
contested and the liability of the Indemnitee shall be limited as provided in
clause (iii) below; and
(iii) If a matter is contested as provided in clauses (i) or (ii) above and
is later adjudicated, settled, compromised or otherwise disposed of and such
adjudication, compromise, settlement or disposition results in a liability,
loss, damage or injury in excess of the amount for which one party desired
previously to settle the matter, then the liability of such party shall be
limited to such lesser proposed settlement amount (plus attorney's fees and
expenses to the date of the proposed but unapproved settlement to the extent
provided for in paragraphs (a) and (b) above) and the party contesting the
matter shall be solely responsible for any additional amount.
Section 10.4 Direct Claims. Any claim for which an Indemnitee intends to
assert a right to indemnifiable Damages under this Agreement which does not
result from a Third-Party Claim (a "Direct Claim") shall be asserted by giving
each Indemnifying Party reasonably prompt written notice thereof, and each
Indemnifying Party shall have a period of fifteen (15) calendar days within
which to respond to such Direct Claim. If any Indemnifying Party does not so
respond within such fifteen (15) calendar day period, such Indemnifying Party
shall be deemed to have rejected such claim, in which event the Indemnitee shall
be free to pursue such remedies as may be available to the Indemnitee pursuant
to this Agreement. A failure to give timely notice as provided in this Section
10.4 shall not affect the rights or obligations of any party hereunder except
and only to the extent that, as a result of such failure, the survival period
specified in Section 10.5(a) has passed, or any party which was entitled to
receive such notice was deprived of its right to recover any payment under its
applicable insurance coverage, incurred an obligation or liability which
otherwise would have been avoided, or was otherwise actually prejudiced.
Section 10.5 Limitations of Indemnification Obligations.
(a) The obligations of the respective Indemnifying Parties to indemnify the
applicable Indemnitee under this Agreement shall survive (a) with respect to a
notice of any claims for a Liability related to Taxes (including Returns) with
respect to the representations and warranties in Section 3.12, until the later
of 30 days after the expiration of the applicable statute of limitations
(including any extensions granted or consented to) under applicable Laws or
after all appeals in connection with any such claims have been exhausted, and
(b) with respect to a notice of all other claims for indemnification under this
Article X, until the third anniversary of the Closing Date. Any claims for
indemnification pending on or asserted or identified prior to the expiration of
the applicable time period specified above may continue to be made and
indemnified against pursuant to this Agreement and the related obligation to
indemnify shall not terminate.
(b) A Purchaser Indemnitee shall not have any right to indemnification under
this Agreement until the aggregate of all amounts claimed by all Purchaser
Indemnitees exceeds $10,000, and in such event the Indemnifying Parties
hereunder shall be liable for all Damages (to the extent deemed liable pursuant
to the terms of this Article X) in excess of $10,000; provided, however, that
the maximum aggregate liability payable to all Purchaser Indemnitees by the
indemnifying parties under this Agreement (the "Maximum Indemnification Amount")
and the satisfaction of any indemnification claim made by a Purchaser Indemnitee
solely pursuant to and in accordance with this Agreement shall not in any event
exceed the amount of the value of the collateral which is held by the Purchaser
pursuant to Section 10(g) and shall not be satisfied in any manner other than
the foreclosure of a security interest granted in Section 10(g).
(c) A Shareholder Indemnitee shall not have any right to indemnification under
this Agreement until the aggregate of all amounts claimed by all Shareholder
Indemnitees exceeds $10,000 and, in such event, the Purchaser shall be liable
for all Damages (to the extent deemed liable pursuant to the terms of this
Article X) in excess of $10,000; provided however, that the maximum aggregate
liability payable to all Shareholder Indemnitees by the Indemnifying Parties
under this Agreement shall not in any event exceed the value of the collateral
which is held by Purchaser pursuant to Section 10.5(g).
(d) The amount of any Damages for which indemnification is available
hereunder, shall be net of any insurance proceeds, if any, actually received by
the Indemnitee in respect of such Damages and (i) increased to take account of
any net tax cost incurred by the Indemnitee arising from the receipt of
indemnity payments hereunder (grossed up for such increase and any tax
consequences resulting from any payments pursuant to this Section 10.5(d)) and
(ii) reduced to take account of any net tax benefit realized by the Indemnitee
arising from the incurrence or payment of any such Damage. In computing the
amount of any such tax cost or tax benefit, the Indemnitee shall be deemed to
recognize all other items of income, gain, loss, deduction or credit before
recognizing any item arising from the receipt of any indemnity payment hereunder
or the incurrence or payment of any indemnified Damages. Any indemnity payment
under this Agreement shall be treated as an adjustment to the Purchase Price for
tax purposes, unless a final determination (which shall include the execution of
a Form 870-AD or successor form) with respect to the Indemnitee or any Affiliate
of such Indemnitee causes any such payment not to be treated as an adjustment to
the Purchase Price for Federal tax purposes. The purpose of this Section
10.5(d) is to put the Indemnitee in such a position as if the Damage for which
indemnification is provided hereunder had not occurred. Nothing in this Section
10.5(d) shall be deemed to increase the Maximum Indemnification Amount.
(e) The parties acknowledge and agree that the indemnities set forth in this
Article X shall be the sole and exclusive remedy for breach, default, inaccuracy
or failure of any of the warranties, representations, conditions, covenants or
agreements contained in this Agreement and in any certificates or documents
delivered pursuant hereto, except in the case of fraud, intentional or willful
misrepresentation.
(f) Notwithstanding anything to the contrary in this Agreement, in no event
will any party hereto have any liability under this Agreement to any other party
hereto for consequential, indirect or incidental damages of any kind or nature
or lost profits.
(g) At the Closing, each of the Shareholders shall pledge and deliver all of
his or her Golden Genesis Stock which is acquired in this transaction (the
"Pledged Stock") as collateral security for the performance of that respective
Shareholder's indemnification obligations under this Article. The Purchaser
Indemnitees' sole and exclusive recourse against any Shareholder under this
Article shall be the foreclosure of the security interest in the Pledged Stock
of that Shareholder. Excluding only John A. Phillips, provided no Purchaser
Indemnitee has made an indemnification claim (whether a Third Party Claim or a
Direct Claim) under this Article against a particular Shareholder, upon the
first anniversary of the date of the Closing the Purchaser shall deliver to that
Shareholder the Pledged Stock which is held by Purchaser, and supply that
Shareholder with a termination statement for the security interest. With
respect to Mr. Phillips, provided no Purchaser Indemnitee has made an
indemnification claim (whether a Third Party Claim or a Direct Claim) under this
Article against Mr. Phillips, upon the third anniversary of the date of the
Closing the Purchaser shall deliver to Mr. Phillips the Pledged Stock which is
held by the Purchaser, and supply Mr. Phillips with a termination statement for
the security interest.
Section 10.6 Survival of Representations, Warranties and Covenants. The
representations, warranties, covenants, indemnitees, conditions and agreements
contained herein are and will be deemed to be continuing representations,
warranties, covenants, indemnitees, conditions and agreements that survive the
Closing and remain in full force and effect regardless of any investigations or
knowledge of or on behalf of any party, but subject to the applicable
limitations contained in Section 10.5.
ARTICLE XI
MISCELLANEOUS
Section 11.1 Consent and Waiver - Shareholders. By execution of this
Agreement, each of the Shareholders (in all capacities) hereby consents to and
ratifies, releases and holds harmless Purchaser, the Company and their
respective Affiliates (and their respective officers and directors,
stockholders, agents and representatives) for any matters related to all actions
taken or omissions made by the Company and its respective officers, directors,
shareholders, agents and representatives acting in any capacity (including,
without limitation, breach of fiduciary duty) in connection with (i) the
management, operation and conduct of the business of the Company at or prior to
Closing and (ii) the negotiation and execution of this Agreement and
consummation of the transactions contemplated hereby. Each Shareholder hereby
represents and warrants to the Purchaser that, to its knowledge, there are no
outstanding claims or disputes by, against or involving such Shareholder (in its
capacity as a shareholder of the Company) with the Company or any other
Shareholder.
Section 11.2 Consent and Waiver - Purchaser. By execution of this
Agreement, the Purchaser and, subsequent to Closing, the Company hereby consents
to and ratifies, releases and holds harmless the Shareholders and their
respective Affiliates (and their respective officers and directors,
stockholders, agents and representatives), solely in their capacity as
Shareholders, for any matters related to all actions taken or omissions made by
the Company and its respective officers, directors, shareholders, agents and
representatives acting in any capacity (including, without limitation, breach of
fiduciary duty) subsequent to Closing in connection with the management,
operation and conduct of the business of the Company. The provisions of this
Section 11.2 shall not apply to any such actions or omissions occurring prior to
Closing.
Section 11.3 Entire Agreement. This Agreement, which also includes the
Annexes, Exhibits and Schedules hereto, sets forth the entire agreement and
understanding among the parties and merges and supersedes all prior discussions,
agreements and understandings of every kind and nature among them as to the
subject matter hereof, and no party shall be bound by any condition, definition,
warranty or representation other than as expressly provided for in this
Agreement or as may be on a date on or subsequent to the date hereof duly set
forth in writing signed by each party which is to be bound thereby.
Section 11.4 Amendments. This Agreement (including the Annexes, Exhibits
and Schedules hereto) shall not be changed, modified or amended except by a
writing signed by each party to be charged, and this Agreement may not be
discharged except by performance in accordance with its terms or by a writing
signed by each party to be charged. Except as otherwise provided herein, the
rights and remedies of the parties hereunder are cumulative and not exclusive of
any other right or remedy any party may have. No failure or delay by any party
hereto in exercising any right, power or privilege shall operate as a waiver of
any such right, power or privilege, except as expressly set forth in this
Agreement. No waiver of any default shall constitute a waiver of any other or
any subsequent default. No single or partial exercise of any right, power or
privilege shall preclude the further or other exercise of the same or other
right, power or privilege.
Section 11.5 Taxes, Fees and Expenses. Any Taxes in the nature of a sales
or transfer tax, any stock transfer tax, or any other taxes that may be or may
become payable by any of the Shareholders including, but not limited to, any
taxes resulting from or ensuing as a consequence of the sale or transfer of the
Shares or the consummation of any other transaction contemplated hereby shall be
paid by the Shareholders and the Shareholders shall indemnify and hold harmless
Purchaser from and against all such Taxes severally in the proportions of the
respective ownership of Shares set forth in Annex I.
Section 11.6 Governing Law; Consent to Jurisdiction. THIS AGREEMENT AND
ITS VALIDITY, CONSTRUCTION AND PERFORMANCE SHALL BE GOVERNED IN ALL RESPECTS BY
THE LAWS OF THE STATE OF COLORADO WITHOUT GIVING EFFECT TO PRINCIPLES OF
CONFLICTS OF LAW.
Section 11.7 Representation by Counsel. Each party and its counsel
cooperated in the drafting and preparation of this Agreement and the documents
referred to herein. Accordingly, any rule of law or any legal decision that
would require interpretation of any ambiguities in this Agreement against the
party that drafted it is of no application and is hereby expressly waived by
each party.
Section 11.8 Benefit of Parties; Assignment. This Agreement shall be
binding upon and shall inure to the benefit of the parties hereto and their
respective successors, legal representatives and permitted assigns. This
Agreement may not be assigned by any Shareholder except with the prior written
consent of Purchaser, which shall not be unreasonably withheld or delayed.
Purchaser may assign this Agreement to an Affiliate of Purchaser but no
assignment shall release the assigning party from its obligations hereunder.
Nothing herein contained shall confer or is intended to confer on any third
party or entity which is not a party to this Agreement any rights under this
Agreement, except for Purchaser Indemnitees and Seller Indemnitees who are
acknowledged to be third party beneficiaries under Article X.
Section 11.9 Expenses. Except as provided in Section 2.4(b) of this
Agreement, each party will pay its own expenses incident to this Agreement and
the transactions contemplated hereby, including legal and accounting fees.
Except as provided in Section 2.4(b), without the prior consent of Purchaser,
the Company shall not pay or bear directly or indirectly any expenses incurred
by any Shareholder in connection with this Agreement or the transactions
contemplated hereby. Transaction expenses of Shareholders shall include without
limitation all fees, expenses and disbursements of any legal counsel and
accountants employed by any Shareholder relating to the preparation, negotiation
and execution of this Agreement and consummation of the transactions
contemplated hereby, including tax planning and analyses concerning the
structuring of the transactions contemplated hereby.
Section 11.10 Counterparts. This Agreement may be executed in
counterparts, each of which shall be deemed to be an original instrument and all
of which shall constitute one and the same instrument.
Section 11.11 Headings. The headings in the Sections, paragraphs,
Schedules and Exhibits of this Agreement are inserted for convenience of
reference only and shall not constitute a part hereof.
Section 11.12 Notices. All notices, requests, demands, deliveries and
other communications provided for by this Agreement shall be in writing and
shall be deemed to have been given when hand delivered, when received if sent by
telecopier or by same day or overnight recognized commercial courier service or
three business days after being mailed in any general or branch office of the
United States Postal Service, enclosed in a registered or certified postpaid
envelope, addressed to the address of the parties stated below or to such
changed address as such party may have fixed by notice:
To a Shareholder: At the address set forth on the signature page hereto for
such Shareholder.
To the Company:
Remote Power, Inc.
3220 West 71st Avenue
Westminster, CO 80030
Attention: President
Telephone:
Facsimile:
To Purchaser:
Golden Genesis Company
4585 McIntyre Street
Golden, CO 80403
Attention:
Telephone: (303) 271-7465
Facsimile: (303) 271-7193
with a copy to:
Hogan & Hartson L.L.P.
One Tabor Center
1200 Seventeenth Street, Suite 1500
Denver, CO 80202
Attention: Steven A. Cohen
Telephone: (303) 899-7324
Facsimile: (303) 899-7333
provided, that any notice of change of address shall be effective only upon
receipt.
Section 11.13 Resolution of Disputes.
(a) Any dispute, claim or controversy arising out of or relating to this
Agreement or the Annexes, Exhibits, Schedules or other documents or instruments
referred to herein or the breach, termination or validity thereof (a "Dispute")
shall be resolved in accordance with the procedures set forth in this Section
11.13. These procedures shall be the sole and exclusive process for the
resolution of any such Dispute. However, any party may initiate litigation to
obtain a preliminary injunction or other provisional relief, pending the
completion of the procedures set forth in this Section 11.13, if in its sole
judgment such action is necessary to avoid irreparable damage or to preserve the
status quo.
(b) The parties shall attempt in good faith to resolve any Dispute promptly by
negotiation. Any party may give the other party written notice of any Dispute
not resolved in the normal course of business. Within 20 days after delivery of
such notice, the receiving party shall submit to the other a written response.
The notice and the response shall include a statement of each party's position
and a summary of arguments supporting that position. Within 30 days after
delivery of the disputing party's notice, both parties shall meet at a mutually
acceptable time and place, and thereafter as often as they reasonably deem
necessary, to attempt to resolve the Dispute. All reasonable requests for
information made by one party to the other shall be honored. If the Dispute has
not been resolved within 45 days of the receipt of the disputing party's notice,
or if the parties fail to meet within 30 days, either party may initiate
mediation of the controversy as provided hereinafter.
(c) If the Dispute has not been resolved by negotiation as provided herein,
upon the written request of either party, the parties shall endeavor to settle
the Dispute by mediation under the CPR Model Procedure for Mediation of Business
Disputes, promulgated by the CPR Institute for Dispute Resolution ("CPR"), that
is in effect on the date of this Agreement except as modified herein ("CPR Model
Rules"). If the parties are unable to agree upon a mediator within 15 days of
the request for mediation, the mediator shall be selected by CPR from the CPR
Panels of Neutrals. In the event that the Dispute has not been resolved by
mediation within 30 days of appointment in accordance with the CPR Model Rules
of a mediator, either party may initiate arbitration as provided in this Section
11.13.
(d) All negotiations held and submissions made pursuant to subparagraphs (b)
and (c) are confidential and shall be treated as compromise and settlement
negotiations for purposes of the Federal Rules of Evidence and state rules of
evidence.
(e) Any Dispute which has not been resolved by use of the processes set forth
in subparagraphs (b) and (c) above shall be resolved by a sole arbitrator under
arbitration in accordance with the CPR Rules for Non-Administered Arbitration of
Business Disputes in effect on the date of this Agreement except as modified
herein. However, if one party has requested the other to participate in the
processes set forth in subparagraphs (b) or (c) and the other has failed to
participate, including the failure to give any required notices, the requesting
party may initiate arbitration immediately. The arbitration shall be governed
by the United States Arbitration Act, 9 U.S.C. 1-16, and judgment upon the
award rendered by the arbitrator may be entered by any court having jurisdiction
thereof. The place of arbitration shall be Denver, Colorado. The arbitrator is
not empowered to award damages in excess of compensatory damages and each party
hereby irrevocably waives any right to recover such damages with respect to any
dispute resolved by arbitration.
Section 11.14 Specific Performance. The parties hereto agree that, in the
event that a Dispute comes before a sole arbitrator pursuant to Section
11.12(e), such sole arbitrator may take into account (subject to acting in
accordance with the provisions of Section 11.12(e)) in resolving such Dispute
that the parties hereto agree that if any of the provisions of this Agreement
were not performed in accordance with their specific terms or were otherwise
breached, irreparable damage would occur, no adequate remedy at law would exist
and damages would be difficult to determine, and that the parties shall be
entitled to specific performance of the terms hereof, in addition to any other
remedy at law or in equity.
[SIGNATURE PAGES TO FOLLOW]
IN WITNESS WHEREOF, Purchaser, the Company and each of the Shareholders have
caused this Agreement to be duly executed on the day and year first above
written.
BY SIGNING THIS AGREEMENT, EACH SHAREHOLDER FOR ITSELF EXPRESSLY CONFIRMS AND
AGREES TO ANNEX I TO THIS AGREEMENT AND THE INFORMATION WITH RESPECT TO SUCH
SHAREHOLDER CONTAINED THEREIN.
GOLDEN GENESIS COMPANY
By: /s/ Jeffrey C. Brines
Name:
Title:
REMOTE POWER, INC.
By: /s/ John A. Phillips
Name: John A. Phillips
Title: President
/s/ Brian K. Christensen
Brian K. Christensen
/s/ Charles A. Bachman, Jr.
Charles A. Bachman, Jr.
/s/ John A. Phillips
John A. Phillips
/s/ Michael A. Hernandez
Michael A. Hernandez
/s/ Peter M. Semple
Peter M. Semple
/s/ Vicki Weller
Vicki Weller
/s/ Leonard W. Loomans
Leonard W. Loomans
/s/ Cristina M. Duarte
Cristina M. Duarte
/s/ H. Welch
James H. Welch
ANNEX I
A. Shareholders
Shareholder Shares Owned Shareholder's Portion
of Purchase Price
Brian K. Christensen 70 2.02%
Charles A. Bachman, Jr. 175 5.06%
Cristina M. Duarte 70 2.02%
James H. Welch 865 25.00%
John A. Phillips 2,000 57.80%
Leonard W. Loomans 140 4.05%
Michael A. Hernandez 70 2.02%
Peter M. Semple 35 1.01%
Vicki Weller 35 1.01%
Total Shares 3,460 100.00%
List of Exhibits and Schedules
EXHIBIT A Company's Certificate
EXHIBIT B Company's Opinion
EXHIBIT C Purchaser Certificate
EXHIBIT D Consulting Agreement
EXHIBIT E Purchaser's Opinion
Company's Disclosure Schedules
<TABLE> <S> <C>
<ARTICLE> 5
<LEGEND>
EXHIBIT 27
ART. 5 FDS FOR 2ND QUARTER 10-Q
This schedule contains summary financial information extracted from the
Consolidated Balance Sheet at June 30, 1998 (Unaudited) and the Consolidated
Statement of Operations for the Six Months ended June 30, 1998 (Unaudited) and
is qualified in its entirety by reference to such financial statements.
</LEGEND>
<S> <C>
<PERIOD-TYPE> 6-MOS
<FISCAL-YEAR-END> Dec-31-1998
<PERIOD-START> Jan-1-1998
<PERIOD-END> Jun-30-1998
<CASH> 958,268
<SECURITIES> 0
<RECEIVABLES> 8,364,952
<ALLOWANCES> 274,687
<INVENTORY> 7,036,531
<CURRENT-ASSETS> 17,564,069
<PP&E> 3,741,935
<DEPRECIATION> 1,961,841
<TOTAL-ASSETS> 22,563,427
<CURRENT-LIABILITIES> 5,393,701
<BONDS> 0
<COMMON> 1,666,804
0
83
<OTHER-SE> 10,642,895
<TOTAL-LIABILITY-AND-EQUITY> 22,563,427
<SALES> 19,326,335
<TOTAL-REVENUES> 19,326,335
<CGS> 15,503,818
<TOTAL-COSTS> 19,012,612
<OTHER-EXPENSES> 13,095
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 180,991
<INCOME-PRETAX> 119,637
<INCOME-TAX> 0
<INCOME-CONTINUING> 119,637
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 119,637
<EPS-PRIMARY> 0.01
<EPS-DILUTED> 0.01
</TABLE>
