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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Schedule 13D
Under the Securities Exchange Act of 1934
(Amendment No. 5)*
Environmental Power Corporation
--------------------------------
(Name of Issuer)
Common Stock, $.01 par value
--------------------------------
(Title of Class of Securities)
29406-L-10-2
--------------------------------
(CUSIP Number)
Perez C. Ehrich, Esq.
Dorsey & Whitney LLP
250 Park Avenue
New York, New York 10077
(212) 415-9200
-------------------------------------------------------
(Name, Address and Telephone Number of Person
Authorized to Receive Notices and Communications)
November 20, 1996
--------------------------------
(Date of Event which Requires Filing of this Statement)
If the filing person has previously filed a statement on Schedule 13G to report
the acquisition which is the subject of this Schedule 13D, and is filing this
schedule because of Rule 13d-1(b)(3) or (4), check the following box. [ ]
Note: Six copies of this statement, including all exhibits, should be filed
with the Commission. See Rule 13d-1(a) for other parties to whom copies are to
be sent.
* The remainder of this cover page shall be filled out for a reporting person's
initial filing on this form with respect to the subject class of securities, and
for any subsequent amendment containing information which would alter the
disclosures provided in a prior cover page.
The information required in the remainder of this cover page shall not be deemed
to be "filed" for the purpose of Section 18 of the Securities Exchange Act of
1934 ("Act") or otherwise subject to the liabilities of that section of the Act
but shall be subject to all other provisions of the Act (however, see the
Notes).
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SCHEDULE 13D
CUSIP No. 29406-L-2 Page 2 of 10 Pages
----------------------------- ----------------------
1. NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Joseph E. Cresci
2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a) [_]
(b) [X]
3. SEC USE ONLY
4. SOURCE OF FUNDS
N/A
5. CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(D) OR 2(E)
N/A
6. CITIZENSHIP OR PLACE OF ORGANIZATION
United States
7. SOLE VOTING POWER
NUMBER OF 3,687,618
SHARES
BENEFICIALLY 8. SHARED VOTING POWER
OWNED BY 59,730
EACH
REPORTING 9. SOLE DISPOSITIVE POWER
PERSON 4,687,618
WITH
10. SHARED DISPOSITIVE POWER
59,730
11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
4,747,348
12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES*
N/A
13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
42.86
14. TYPE OF REPORTING PERSON*
IN
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SCHEDULE 13D
CUSIP No. 29406-L-2 Page 3 of 10 Pages
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1. NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
James F. Powers, as Voting Trustee
2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a) [_]
(b) [X]
3. SEC USE ONLY
4. SOURCE OF FUNDS
N/A
5. CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) OR 2(e)
N/A
6. CITIZENSHIP OR PLACE OF ORGANIZATION
United States
7. SOLE VOTING POWER
NUMBER OF 1,000,000
SHARES
BENEFICIALLY 8. SHARED VOTING POWER
OWNED BY -0-
EACH
REPORTING 9. SOLE DISPOSITIVE POWER
PERSON -0-
WITH
10. SHARED DISPOSITIVE POWER
-0-
11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
1,000,000
12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES*
N/A
13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
9.03%
14. TYPE OF REPORTING PERSON*
IN
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SCHEDULE 13D
CUSIP No. 29406-L-2 Page 4 of 10 Pages
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1. NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
The Cresci Family Limited Partnership
2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a) [_]
(b) [X]
3. SEC USE ONLY
4. SOURCE OF FUNDS
N/A
5. CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) OR 2(e)
N/A
6. CITIZENSHIP OR PLACE OF ORGANIZATION
New Hampshire
7. SOLE VOTING POWER
NUMBER OF -0-
SHARES
BENEFICIALLY 8. SHARED VOTING POWER
OWNED BY -0-
EACH
REPORTING 9. SOLE DISPOSITIVE POWER
PERSON 1,000,000
WITH
10. SHARED DISPOSITIVE POWER
-0-
11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
1,000,000
12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES*
N/A
13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
9.03%
14. TYPE OF REPORTING PERSON*
PN
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Item 1. Security and Issuer: Common Stock, $.01 par value per share of
-------------------
Environmental Power Corporation, a Delaware corporation (the
Company"). The address of the Company's principal executive office is
500 Market Street, Suite 1E, Portsmouth, NH 03801.
Item 2. Identity and Background:
-----------------------
(a) The persons (the Reporting Persons") filing this Statement, as
amended, are Joseph E. Cresci, James F. Powers, as voting trustee
of the Voting Trust (as hereinafter defined), and The Cresci
Family Limited Partnership (the Family Partnership").
(b) Mr. Cresci's business address is Environmental Power Corporation,
500 Market Street, Suite 1E, Portsmouth, NH 03801. Mr. Powers'
business address is Seven Essex Green Drive, Peabody, MA 01960.
The Family Partnership's business address is P.O. Box 452, 83
Ducks Head, New Castle, New Hampshire 03854.
(c) Mr. Cresci is Chairman, Chief Executive Officer and Director of
Environmental Power Corporation, 500 Market Street, Suite 1E,
Portsmouth, NH 03801. The Company's principal business is the
development and leasing of electricity generating plants
utilizing waste coal incineration as the source of energy. Mr.
Powers is a certified public accountant and shareholder in the
accounting firm of Mandragouras, Powers & Co., P.C., Seven Essex
Green Drive, Peabody, MA 01960. The Family Partnership is a
limited partnership of which Mr. Cresci, is his capacity as
Trustee of the Joseph E. Cresci Revocable Trust U/T/A dated April
3, 1996 (the JEC Trust") is general partner and members of the
Cresci family (including Mr. Cresci) are the limited partners.
The business of the Family Partnership is to engage in investment
activities.
(d) Criminal proceedings - none
(e) Civil proceedings - none
(f) Citizenship - Mr. Cresci and Mr. Powers are United States
Citizens. The Family Partnership is a New Hampshire limited
partnership.
Item 3. Source and Amount of Funds or Other Consideration: Not applicable. The
-------------------------------------------------
transaction giving rise to the filing of this Amendment did not
involve the purchase of Common Stock by the Reporting Persons.
Item 4. Purpose of Transaction: On November 20, 1996, Mr. Cresci transferred
----------------------
1,000,000 shares of Common Stock to a voting trust (the Voting
Trust") of which Mr. Powers is Voting Trustee. Beneficial interest in
the Voting Trust is evidenced by voting trust certificates which were
issued in the name of Mr. Cresci, as Trustee of the JEC Trust. Such
voting trust certificates were endorsed by Mr. Cresci, as Trustee of
the JEC Trust, to the Family
Page 5 of 10 pages
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Partnership, of which Mr. Cresci is the General Partner (in his
capacity as Trustee of the JEC Trust) and a limited partners. The
transfer of shares of Common Stock to the Voting Trust and transfer of
voting trust certificates to the Family Partnership were made for
estate planning purposes.
Item 5. Interest in Securities of the Issuer:
------------------------------------
(a) Mr. Cresci may be deemed to own beneficially 4,747,348 shares of
Common Stock as of December 16, 1996, which includes 1,000,000
shares held by the Voting Trust (evidenced by voting trust
certificates held by the Family Partnership, of which Mr. Cresci,
in his capacity as trustee of the JEC Trust, is the general
partner), and 59,730 shares of Common Stock held by the Joseph J.
Cresci and Mildred E. Cresci Trust dated December 28, 1978 for
the benefit of Mr. Cresci and his issue, of which trust Mr.
Cresci is both a trustee and a beneficiary. The 4,747,348 shares
beneficially owned by Mr. Cresci do not include the following, as
to all of which Mr. Cresci disclaims beneficial ownership: 20,000
shares held by Mr. Cresci's wife; 18,000 shares held by Mr.
Cresci's mother, Mildred E. Cresci; 244,896 shares held in trust
for the benefit of Mr. Cresci's children; 50,000 shares held by
Mr. Cresci's son Gregory J. Cresci; 50,000 shares held by Mr.
Cresci's daughter Elizabeth E. Cresci; 5,835 shares held by the
Gail Hohweiler 1987 Trust, of which Mildred E. Cresci and Joseph
Serafini are the trustees; 23,300 shares held by the Hohweiler
Children 1987 Trust, of which Mildred E. Cresci and Joseph
Serafini are the trustees; and 5,800 shares held by the George H.
Hohweiler 1987 Trust of which Mildred E. Cresci and Joseph
Serafini are the trustees.
Each of Mr. Powers, as Voting Trustee with voting power, and the
Family Partnership, with dispositive power, may be deemed to
beneficially own the 1,000,000 shares of Common Stock held in the
Voting Trust.
The shares beneficially owned by Mr. Cresci represent 42.86% of
the class and the shares beneficially owned by Mr. Powers (as
Voting Trustee) and the Family Partnership (as holder of voting
trust certificates), which shares are included in Mr. Cresci's
ownership figures, represent 9.03% of the class, based on the
11,076,783 shares of Common Stock reported to be outstanding as
of November 8, 1996 in the Company's Form 10-Q filed for the
period ending September 30, 1996.
(b) Number of shares as to which Mr. Cresci has:
(i) sole power to vote or to direct the vote: 3,687,618
Page 6 of 10 pages
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(ii) shared power to vote or to direct the vote: 59,730 shares
(iii) sole power to dispose or to direct the disposition of:
4,687,618
(iv) shared power to dispose or to direct the disposition of:
59,730 shares.
Number of shares as to which Mr. Powers has:
(i) sole power to vote or to direct the vote: 1,000,000
(ii) shared power to vote or to direct the vote: none
(iii) sole power to dispose or to direct the disposition of: none
(iv) shared power to dispose or to direct the disposition of:
none
Number of shares as to which the Family Partnership has:
(i) sole power to vote or to direct the vote: none
(ii) shared power to vote or to direct the vote: none
(iii) sole power to dispose or to direct the disposition of:
1,000,000
(iv) shared power to dispose or to direct the disposition of:
none
(c) As described in Item 4, on November 20, 1996, Mr. Cresci deposited
1,000,000 shares into the Voting Trust in the name of Mr. Cresci,
in his capacity as Trustee of the JEC Trust. The voting trust
certificates issued to evidence such deposit were transferred by
Mr. Cresci, as Trustee of the JEC Trust, to the Family Partnership.
Item 6. Contracts, Arrangements, Understandings or Relationships With Respect to
------------------------------------------------------------------------
Securities of the Issuer:
------------------------
Mr. Cresci and Mr. Powers, as Voting Trustee, are parties to a Voting
Trust Agreement (the Agreement") filed as an exhibit to this Amendment,
pursuant to which Mr. Cresci has deposited 1,000,000 shares into the
Voting Trust as Trustee of the JEC Trust. The Agreement provides, among
other things, for (i) the deposit of shares into the Voting Trust to be
evidenced by voting trust certificates, (ii) the Trustee generally to
exercise all stockholders' rights with respect to the deposited shares,
(iii)
Page 7 of 10 pages
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for, dividends and other distributions (other than of voting securities)
to be paid by the Trustee to the holders of voting trust certificates
and (iv) for a term which ends upon the termination of the Family
Partnership (but not later than 21 years after the death of the last to
die of a group consisting of Mr. Cresci and all his descendants living
at the date of his death).
Item 7. Material to be Filed as Exhibits:
--------------------------------
1. Voting Trust Agreement dated as of November 19, 1996 between Joseph
E. Cresci and James F. Powers.
2. Agreement of the Reporting Persons relating to the filing of this
Amendment to Schedule 13D.
Page 8 of 10 pages
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SIGNATURE
---------
After reasonable inquiry to and to the best of the knowledge and
belief of the undersigned, the undersigned certifies that the information set
forth in this statement by or about the undersigned is true, complete and
correct.
December 16, 1996
-----------------------------------
Date
/s/ Joseph E. Cresci
-----------------------------------
Joseph E. Cresci
/s/ James F. Powers
-----------------------------------
James F. Powers, as Trustee
The Cresci Family Limited
Partnership
By:/s/ Joseph E. Cresci
--------------------------------
Joseph E. Cresci, Trustee of the
Joseph E. Cresci Revocable
Trust U/T/A dated April 3, 1996,
General Partner
Page 9 of 10 pages
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List of Exhibits
----------------
1. Voting Trust Agreement dated as of November 19, 1996 between
Joseph E. Cresci and James F. Powers.
2. Agreement of the Reporting Persons relating to the filing of this
Amendment to Schedule 13D.
Page 10 of 10 pages
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EXHIBIT I
VOTING TRUST AGREEMENT
----------------------
THIS AGREEMENT (the "Agreement") is made as of the 19th day of November,
1996, between JOSEPH E. CRESCI, TRUSTEE OF THE JOSEPH E. CRESCI REVOCABLE TRUST
U/T/A DATED APRIL 3, 1996, AS MAY BE AMENDED, of New Castle, New Hampshire, a
shareholder of ENVIRONMENTAL POWER CORPORATION, a corporation organized and
existing pursuant to the laws of the state of Delaware (the "Company"), and
those holders of voting trust certificates who may hereafter become parties
hereto in the manner hereinafter set forth (sometimes hereinafter referred to as
the "Beneficiaries" and sometimes referred to as "holders of voting trust
certificates") and James F. Powers of Peabody, Massachusetts (the "Trustee").
WHEREAS, Joseph E. Cresci is the owner of one million shares of the
Company's common stock, no par value;
WHEREAS, pursuant to this Agreement, Mr. Cresci has established a voting
trust (the "Voting Trust"); and
WHEREAS, Mr. Cresci deems it is and from time to time in the future may be
advisable to place some or all of his shares into the Voting Trust (all such
shares at any time placed in the Voting Trust hereinafter referred to as the
"Shares"); and
WHEREAS, the Trustee has agreed to act under this Agreement for the
purposes in the manner herein provided;
NOW, THEREFORE, it is mutually agreed as follows:
Section 1 - Agreement. Copies of this Agreement, together with every
--------- ----------
supplement and amendment hereto, shall be filed (i) in the Delaware office of
the Company at Environmental Power Corporation, c/o Corporation Trust Co.,
Corporate Trust Center, 1209 Orange Street, Wilmington, Delaware 19801, and (ii)
in the office of the Trustee at Seven Essex Green Drive, Peabody, Massachusetts,
and shall be open to the inspection of any stockholder of the Company or any
<PAGE>
Beneficiary, daily during business hours. All voting trust certificates issued
as hereinafter provided shall be issued, received and held subject to all the
terms of this Agreement. Every person, firm or corporation entitled to receive
voting trust certificates representing a portion of the Shares, and his
transferees and assignees, upon accepting the voting trust certificates issued
hereunder shall become parties to and be bound by the provisions of this
Agreement with the same effect as if he had executed this Agreement.
Section 2 - Transfer of Stock to Trustee.
--------- -----------------------------
(a) Joseph E. Cresci may deposit from time to time with the Trustee all
or any portion of his stock in the Company, as represented by stock
certificate(s). All stock certificates representing the Shares shall be made
out in the name of the Trustee or so endorsed, or accompanied by such
instruments of transfer as to enable the Trustee to cause such certificates to
be transferred into the name of the Trustee. On receipt by the Trustee of the
certificates for such Shares and the transfer of the same into the name of the
Trustee, the Trustee shall hold the same subject to the terms of this Agreement,
and shall thereupon issue and deliver to Joseph E. Cresci, or to any person or
entity designated by Mr. Cresci, a voting trust certificate or certificates for
the number of the Shares deposited by him.
(b) All stock certificates transferred and delivered to the Trustee
pursuant to this Agreement shall be surrendered by the Trustee to the Company
and canceled, and new certificates therefor shall be issued to and held by the
Trustee in his name as Voting Trustee.
Section 3 - Voting Trust Certificates. The voting trust certificates to be
--------- -------------------------
issued and delivered by the Trustee in respect of the Shares as hereinbefore
provided shall be in substantially the form of the voting trust certificate
attached hereto as Exhibit A.
2
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Section 4 - Transfer of Certificates.
--------- -------------------------
(a) The voting trust certificates shall be transferable by the registered
owner thereof, either in person or by attorney thereto duly authorized, upon
surrender thereof together with appropriate instruments of transfer, and the
Trustee shall treat the registered holder as owner thereof for all purposes
whatsoever.
(b) Every transferee of a voting trust certificate shall, by the
acceptance thereof, become a party to this Agreement with like effect as though
such transferee were an original party hereto.
(c) If a voting trust certificate is lost, stolen, mutilated or destroyed,
the Trustee in his discretion, may issue a duplicate of such certificate upon
receipt of: (i) evidence of such fact satisfactory to him; (ii) indemnity
satisfactory to him; (iii) the existing certificate if mutilated; and (iv) his
reasonable fees and expenses in connection with the issuance of a new Voting
Trust certificate. The Trustee shall not be required to recognize any transfer
of a voting trust certificate not made in accordance with the provisions hereof,
unless the person claiming such ownership shall have produced indicia of title
satisfactory to the Trustee and shall in addition deposit with the Trustee
indemnity satisfactory to him.
Section 5 - Rights of Trustee.
--------- -----------------
(a) For so long as any Shares are held in this Voting Trust, the Trustee
shall have the right, subject to the limitations in this Agreement hereinafter
set forth, to exercise, in person or by his nominees or proxies, all
stockholders' rights and powers in respect to all Shares deposited hereunder,
including the right to vote thereon and to take part in or consent to any
corporate or stockholders' action. The right to vote shall include the right to
vote for the election of directors, and in favor of or against any resolution or
proposed action which may be presented at any meeting or require the consent of
stockholders of the Company.
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(b) The holders of voting trust certificates shall not have any right,
with respect to Shares held by the Trustee, to vote, or take part in or consent
to, any corporate or stockholder's action of the Company.
(c) In all instances in which Shares may be voted by the Trustee, such
Shares shall be voted in such manner as the Trustee deems, in his sole
discretion, to be in the best interest of the Beneficiaries and the Company;
provided, however, that no action or inaction of the Trustee hereunder shall be
- ------------------
deemed in any way to affect the validity of this Voting Trust.
(d) In voting the Shares subject to this Agreement, the Trustee shall
not be liable for any error of judgment or mistake of law, or other mistake, and
shall incur no responsibility as stockholder, Trustee or otherwise, except for
his own individual, willful misconduct or gross negligence.
(e) The Trustee may employ counsel and agents.
(f) The Trustee shall not be required to give any bond or security for
the discharge of his duties.
(g) The Trustee shall be entitled to reasonable compensation based on
time spent in rendering services hereunder. In addition, the Trustee shall be
entitled to reimbursement of and indemnity against any and all expenses and
liabilities, including any extraordinary expenses, incurred by him in connection
with or growing out of this Agreement or the discharge of his duties hereunder.
The Trustee may also deduct any expenses and charges incurred by and due to him
from any dividends or other monies or property received by the Trustee on the
Shares deposited hereunder.
Section 6 - Dividends.
--------- ----------
(a) For so long as any Shares are held in this Voting Trust, the Trustee
shall be obligated to distribute promptly all cash dividends which he receives
on such Shares to the holders of the voting trust certificates. Such
distribution shall be made to such holders of voting trust certificates pro
---
rata, in accordance with the number of Shares
- ----
4
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represented by their respective voting trust certificates.
(b) If any dividend in respect to the Shares deposited with the
Trustee is paid, in whole or in part, in securities of the Company having any
voting powers (or the possibility of conversion to securities having any voting
power), the Trustee shall likewise hold, subject to the terms of this Agreement,
the certificates for securities which are received by the Trustee on account of
such dividend, and the holder of each voting trust certificate representing
Shares on which such dividend has been paid shall be entitled to receive, pro
rata, appropriate certificates for the securities so received by the Trustee as
such dividend.
(c) Holders of voting trust certificates entitled to receive any
dividends shall be those registered as such on the transfer books of the Trustee
at the close of business on the day fixed by the Company for the taking of a
record to determine those holders of Shares entitled to receive such dividends.
(d) If any dividend in respect of the Shares deposited with the Trustee
is paid other than in cash or in securities having voting powers (or the
possibility of conversion to securities having any voting power), then the
Trustee shall distribute the same among the holders of voting trust certificates
pro rata, in accordance with the number of Shares represented by their
- --- ----
respective voting trust certificates.
(e) In lieu of receiving cash dividends upon the Shares and paying the
same to the holders of voting trust certificates pursuant to the provisions of
this Agreement, the Trustee may instruct the Company in writing to pay such
dividends directly to the holders of the voting trust certificates. The Trustee
may at any time revoke such instructions and by written notice to the Company
direct it to make dividend payments to the Trustee.
Section 7 - Subscription Rights. In case any stock or other
--------- --------------------
securities of the Company are offered for subscription to the Trustee as holder
of Shares, the Trustee shall promptly mail a copy thereof to each of the
holders of the voting trust
5
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certificates. The Trustee shall make such subscription and payment if the
Trustee timely receives (i) a request from any registered holder of voting trust
certificates to subscribe in his behalf, and (ii) the sum of money required to
pay for such stock or securities. In the event that such subscription is for
securities having any voting power (or the possibility of conversion to
securities having any voting power), the Trustee shall, upon receipt from the
Company of the certificates for such securities, (i) retain such certificates
for such securities, and (ii) issue to the subscriber an appropriate certificate
in respect thereof. If, by contrast, such subscription is for securities which
do not have voting powers, the Trustee shall instruct the Company to deliver
such securities directly to the subscriber, and such non-voting securities shall
therefore not become subject to this Voting Trust.
Section 8 - Dissolution of Company. In the event of any total or
--------- -----------------------
partial restructuring of the Company , whether voluntary or involuntary,
including without limitation, by way of dissolution, total or partial
liquidation, merger, consolidation, termination, or winding up of the Company,
the Trustee shall receive the monies, securities, rights or property to which
the holders of the Shares deposited hereunder are entitled, and shall
distribute the same among the registered holders of voting trust certificates in
proportion to their interests, as shown by the books of the Trustee; provided,
---------
however, that no securities having voting rights (or the possibility of
- --------
conversion to securities having any voting power) shall be so distributed, but
rather the Trustee shall, upon receipt from the Company of the certificates for
such securities, (i) retain such certificates for such securities, and (ii)
issue to the subscriber an appropriate certificate in respect thereof.
Section 9 - Successor Trustees.
--------- -------------------
(a) Wherever reference is made herein to the "Trustee," such reference
shall be deemed to include the singular and plural thereof whenever the context
and facts require, and to include any and all successor Trustees at any time
acting as the
6
<PAGE>
Trustee of this Voting Trust, unless otherwise specifically provided herein to
the contrary.
(b) Any Trustee of this Voting Trust may resign at any time by written
notice delivered to each Co-Trustee, if any, and to the resigning Trustee's
successor as Trustee, if known, and to the holders of voting trust certificates.
(c) Each successor Trustee shall automatically acquire, as of the date
of vacancy, all of the title to all of the Shares held hereunder, together with
all powers and discretion which are then vested in the successor Trustee's
predecessor, without the necessity of any conveyance or transfer, but any
predecessor Trustee shall execute all documents and do all acts necessary to
vest and indicate such title in such successor Trustee.
(d) No successor Trustee shall be liable for the acts or defaults of
any predecessor Trustee, nor for any loss or expense from anything done or
neglected to be done by any predecessor Trustee, and no successor Trustee shall
have any duty or responsibility to audit or review the actions and accountings
of the successor Trustee's predecessor, but such successor Trustee shall be
liable only with respect to property received by the successor Trustee as
successor Trustee. Any successor Trustee who shall be then acting as Trustee
pursuant to a notice of vacancy shall not be guilty of wrongdoing merely because
such successor Trustee is acting as successor Trustee if it shall later be
discovered that another has been designated as successor Trustee pursuant to any
provision herein.
(e) Except as otherwise provided herein, a vacancy in the trusteeship
shall be deemed to exist in the event of the death, resignation, removal,
refusal, failure or inability of any person to act as Trustee or Co-Trustee
hereunder. Notice of a vacancy in the trusteeship shall be effective if given
to the next successor Trustee by an instrument in writing signed by the
resigning predecessor Trustee, and delivered to (i) such successor Trustee and
(ii) to the holders of voting trust certificates
7
<PAGE>
hereunder. Immediately upon receipt of such notice, the successor Trustee
recipient shall act as Trustee or shall decline in writing to act. In the event
that there is no successor Trustee named herein, or such successor Trustee is
unavailable, then the holders of a majority of voting trust certificates
hereunder shall designate a successor Trustee, pursuant to the terms,
conditions, and limitations relevant to designation of successor Trustees
hereinbelow provided.
(f) The holders of voting trust certificates hereunder shall be entitled,
upon written request to the Trustee, to receive an accounting of the number of
Shares held hereunder, and all dividends paid to the Voting trust in all prior
periods on account of the Shares. The failure of any holders of voting trust
certificates to object to said account within ninety (90) days after receipt
thereof shall be deemed to be a written approval.
(g) If any corporate trustee at any time acting as Trustee of this Voting
Trust shall be merged into or consolidated with or shall sell or transfer all or
substantially all of its assets and business to any other corporation, or shall
be in any manner reorganized or reincorporated, the corporation to which such
sale or transfer shall be made or the corporation resulting from such
reorganization or reincorporation shall thereupon become the Trustee of this
Voting Trust without any further action.
(h) When a bank or trust company shall at any time be acting as Trustee
or Co-Trustee of this Voting Trust, the holders of a majority of the voting
trust certificates may remove said corporate trustee with or without cause by
delivering to said corporate trustee a written instrument, signed by said
holders of a majority of the voting trust certificates; provided, however, that,
unless a successor corporate trustee has been designated hereunder, such written
instrument shall concurrently appoint a successor corporate trustee.
(i) Neither (i) Mr. Cresci, nor (ii) any holder of a voting trust
certificate, nor (iii) any Trustee then serving, shall have any ownership
interest or serve in any
8
<PAGE>
capacity, including without limitation as an officer, employee, adviser, or
independent contractor, with respect to any corporate trustee designated
hereunder.
(j) When an individual shall at any time be acting as Trustee or Co-
Trustee hereunder, the holders of a majority of the voting trust certificates
may remove said individual trustee with or without cause by delivering to said
individual trustee a written instrument, signed by said majority of the voting
trust certificates; provided, however, that, unless a successor individual
trustee has been designated hereunder, such written instrument shall
concurrently appoint a successor individual trustee.
(k) In the event of the resignation or removal of an individual trustee
as Trustee hereunder, a successor individual trustee to fill the vacancy in the
trusteeship so occurring shall be designated by an instrument in writing
delivered to the vacating and the successor individual trustees; provided,
---------
however, that no individual shall be designated as a successor trustee who is
- --------
related in any way to, or subordinate, directly or indirectly, in any way to Mr.
Cresci, any holder of a voting trust certificate, or any Trustee then serving,
and any individual so designated must be an individual whose profession and
abilities will allow him to make independent, prudent business judgments in the
discharge of his obligations hereunder.
(l) The removal powers granted hereunder may be released by an
appropriate written instrument delivered to the then Trustee of the Voting
Trust.
(m) In the event that the Trustee is unable or unwilling during his
lifetime to act or continue to act as Trustee hereunder, then Peter Mandragouras
of Peabody, Massachusetts shall serve as successor Trustee of this Voting Trust,
then David K. Mulhern of Portsmouth, New Hampshire shall serve as successor
Trustee of this voting trust.
Section 10 - Termination. This Agreement shall terminate upon the
---------- ------------
termination of a certain family limited partnership, organized under the laws of
the State of New Hampshire, of near or even date hereto and known as "The Cresci
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Family Limited Partnership" (the "Partnership").
Notwithstanding any provisions of this Voting Trust to the contrary, no
Shares shall be held in trust for longer than twenty-one (21) years after the
date of death of the last to die of a group consisting of (i) Mr. Cresci, and
(ii) all his descendants who are living at the date of his death. If, at the
expiration of such period, any Shares are still held in trust hereunder, or any
trust estate hereunder has not terminated, the corpus of such trust shall vest
in and immediately be distributed to the Beneficiaries, in accordance with the
number of Shares represented by their respective voting trust certificates.
Section 11 - Upon Termination.
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(a) Upon the termination of this Agreement for any cause hereinabove
provided, the Trustee, at such time as he may choose during the period
commencing twenty (20) days before and ending twenty (20) days after such
termination, shall mail written notice of such termination to the registered
owners of the voting trust certificates, at the addresses appearing on the
transfer books of the Trustee, and to the Company at its principal place of
business. From the date specified in any such notice (which date shall be fixed
by the Trustee) the voting trust certificates shall cease to have any effect,
and the holders of such voting trust certificates shall have no further rights
under this Agreement, except as provided in Section 11 (b) of this Agreement.
(b) As soon as practicable after the termination of this Agreement, the
Trustee shall cause the Company to deliver to the registered holders of all
voting trust certificates, pro rata, new share certificates representing the
--- ----
Shares previously represented by the voting trust certificates.
Section 12 - Notice.
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(a) Any notice to or communication with the Company hereunder shall be
deemed to be sufficiently given or made if enclosed in a postpaid envelope
(certified
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or registered mail) and deposited in any post office or post office box
addressed to the Company as follows:
Mr. William Linehan
Environmental Power Corporation
500 Market Street, Suite 1E
Portsmouth, New Hampshire 03801
or such other address as the Company may designate in writing to the
Trustee.
(b) Any notice to or communication with the Trustee shall be deemed to be
sufficiently given or made if enclosed in a postpaid envelope (certified or
registered mail) and deposited in any post office or post office box addressed
to the Trustee as follows:
Mr. James F. Powers
Mandragouras, Powers, & Co., P.C.
Seven Essex Green Drive
Peabody, MA 01960
Section 13 - Governing Law; Choice of Forum. This Agreement shall be
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construed and interpreted in accordance with the laws of the State of
Delaware, and all actions pertaining hereto shall be maintained in a court of
competent jurisdiction in the State of Delaware.
Section 14 - Invalidity. If, for any reason, any provision of this
---------- -----------
Agreement shall be determined to be inoperative, the validity and effect of the
other provisions hereof shall not be affected thereby.
Section 15 - Counterparts. This Agreement may be executed in one or more
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counterparts, each of which so executed shall be deemed to be an original, and
such counterparts shall, together constitute one and the same instrument.
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Section 16 - Successors and Assigns. This Agreement shall be binding upon
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the parties hereof, his heirs, administrators, executors, successors and
assigns.
IN WITNESS WHEREOF the Trustee, in acceptance of this trust, and Mr.
Cresci, in subjecting his Shares of to the provisions of this Agreement, have
hereunto set his hands and seals as of the day and year first above written.
/s/ [SIGNATURE APPEARS HERE] /s/ James F. Powers, Trustee
- ------------------------------ ----------------------------
Witness James F. Powers, Trustee
/s/ [SIGNATURE APPEARS HERE] /s/ Joseph E. Cresci
- ------------------------------ ----------------------------
Witness Joseph E. Cresci
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EXHIBIT 2
AGREEMENT
Filed as Part of
STATEMENT ON SCHEDULE 13D
Filed With The
SECURITIES AND EXCHANGE COMMISSION
Pursuant to Rule 13d-1(f)(1) under the Securities Exchange Act of
1934, as amended, each of the undersigned hereby agrees that the Statement on
Schedule 13D, to which this Agreement is attached as an exhibit, is filed on
behalf of each of them.
Dated: December 16, 1996
/s/ Joseph E. Cresci
-----------------------------------
Joseph E. Cresci
/s/ James F. Powers
-----------------------------------
James F. Powers, as Trustee
The Cresci Family Limited
Partnership
By:/s/ Joseph E. Cresci
--------------------------------
Joseph E. Cresci, Trustee of the
Joseph E. Cresci Revocable
Trust U/T/A dated April 3, 1996,
General Partner
