<PAGE>
As filed with the Securities and Exchange Commission on June 30, 2000
Registration No. 33-19584
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-3
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
POWERCOLD CORPORATION
------------------------------------------------------
(Exact name of registrant as specified in its charter)
Nevada 23-2582701
---------------------------- --------------------
( State of Incorporation) (IRS Employer
Identification No.)
103 Guadalupe Drive
Cibolo, Texas 78108
(210) 659-8450
(Address, including zip code, and telephone number, including area code, of
registrant's principal executive offices)
FRANCIS L. SIMOLA
Chief Executive Officer
PowerCold Corporation
103 Guadalupe Drive
Cibolo, Texas 78108
(210) 659-8450
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
Copies to:
Charles A. Cleveland
Charles A. Cleveland, P.S.
Suite 304, 1212 North Washington
Spokane, Washington 99201-2401
Approximate date of commencement of proposed sale to the public: From time to
time after this Registration Statement becomes effective.
If the only securities being registered on this Form are being offered pursuant
to dividend or interest reinvestment plans, please check the following box. |_|
If any of the securities being registered on this Form are to be offered on a
delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box. |X|
If this Form is filed to register additional securities for an offering pursuant
to Rule 462(b) under the Securities Act, please check the following box and list
the Securities Act registration statement number of the earlier effective
registration statement for the same offering. |_|
If this Form is a post-effective amendment filed pursuant to Rule 462(c) under
the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. |_|
<PAGE> 1
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. |_|
CALCULATION OF REGISTRATION FEE
================================================================================
Proposed
Proposed maximum
Title maximum aggregate
of Securities offering price offering price Amount of
to be Amount to be price per per share registration
registered registered share [1] price [1] price[1] fee
------------- ------------ ------------------- --------------- -------------
Common Stock,
$.001 2,611,456
par value shares $1.06 $2,768,144 $730.79
Options to
purchase
Common Stock,
$.001 600,000
par value[2] shares $1.06 $ 636,000 $167.90
================================================================================
[1] Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(c) based upon the average of the high and low prices of the
Company's Common Stock on the OTC Electronic Bulletin Board (Symbol: PWCL) on
June 19, 2000.
[2] Pursuant to Rule 457(g) under the Securities Act of 1933, the
registration fee is based on the common stock issuable upon the exercise of the
Options and no separate fee is payable in respect of the Options.
[3] The Registrant hereby amends this Registration Statement on such date or
dates as may be necessary to delay its effective date until the Registrant shall
file a further amendment which specifically states that this Registration
Statement shall thereafter become effective in accordance with Section 8(a) of
the Securities Act of 1933 or until the Registration Statement shall become
effective on such date as the Securities and Exchange Commission, acting
pursuant to said Section 8(a), may determine.
<PAGE> 2
POWERCOLD CORPORATION
Cross Reference Sheet Required by Item 501(b) of Regulation S-K
FORM S-3 ITEM NUMBER AND CAPTION CAPTION IN PROSPECTUS
------------------------------------------------ ----------------------------
1. Forepart of Registration Statement Facing Page of Registration
and Outside Front Cover Page Statement and Cover Page of
of Prospectus Prospectus
2. Inside Front and Outside Back Inside Cover Page of
Cover Pages of Prospectus Prospectus and Outside Cover
Page of Prospectus
3. Summary Information, Risk Not Applicable
Factors and Ratio of Earnings to
Fixed Charges
4. Use of Proceeds Not Applicable
5. Determination of Offering Price Not Applicable
6. Dilution Not Applicable
7. Selling Security Holders Sales by Selling
Shareholders
8. Plan of Distribution Cover Page of Prospectus
and Sales by Selling
Shareholders
9. Description of Securities to Grant of Stock Bonus; and
be Registered Sales by Selling
Shareholders
10. Interest of Named Experts Not Applicable
and Counsel
11. Material Changes Not Applicable
12. Incorporation of Certain Information Incorporation of Certain
by Reference Information by Reference
13. Disclosure of Commission Position Indemnification
on Indemnification or Securities
Act Liabilities
<PAGE> 3
PROSPECTUS
POWERCOLD CORPORATION
600,000 Options to acquire Common Stock
($0.001 par value per share)
2,611,456 Shares of Common Stock($0.001 par value per share)
The shareholders named in the table included in the "Selling Shareholders"
section of this prospectus, which begins on page 10, are offering all of the
options and shares of common stock covered by this prospectus. Those people are
called selling shareholders and will be referred to throughout this document as
the "Selling Shareholders".
We will not receive any of the proceeds from such sales. We will pay all
expenses in connection with this offering, other than commissions and discounts
of underwriters, dealers or agents.
The Selling Shareholders may sell all or a portion of their options or stock at
any time whether through a broker, or otherwise. The stock will generally be
sold at the market price or whatever price is negotiated.
Our common stock is quoted on the OTC Electronic Bulletin Board (Symbol: PWCL).
On June 19, 2000, the closing price of the common stock was $1.06 per share.
See "Risk Factors" beginning on page 8 for a description of certain factors
that should be considered by purchasers of the common stock and options.
We have not, nor has any individual named in this prospectus, authorized any
person to give any information or to make any representation other than those
contained in, or incorporated by reference into, this prospectus. This
prospectus does not constitute an offer to sell or solicitation of an offer to
buy.
We have filed a registration statement on Form S-3 in respect of the common
stock offered by this prospectus with the Securities and Exchange Commission
under the Securities Act. This prospectus does not contain all of the
information contained in the registration statement. You should read this entire
prospectus carefully as well as the registration statement for additional
information.
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES
ANDEXCHANGE COMMISSION NOR HAS THE COMMISSION PASSED ON THE ACCURACY OR ADEQUACY
OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
This Prospectus does not constitute an offer to sell securities in any state to
any person to whom it is unlawful to make such offer in such state.
The date of the Prospectus is , 2000.
<PAGE> 4
TABLE OF CONTENTS
Where You Can Find More Information 6
Forward-Looking Statements 7
About Us 7
Risk Factors 8
Use of Proceeds 10
Selling Stockholders 11
Plan of Distribution 12
Our Common Stock 13
Indemnification 14
Legal Matters 15
Experts 15
<PAGE> 5
WHERE YOU CAN FIND MORE INFORMATION
We must file annual, quarterly and special reports, proxy statements and other
information with the SEC. You may read and copy any documents we file at the
SEC's public reference rooms in Washington, DC, New York, NY and Chicago, IL.
Please call the SEC at 1-800-SEC-0330 for further information on the public
reference rooms. Our SEC filings are also available to the public from the SEC's
web site at http://www.sec.gov. Our file number is File No. 33-19584. In
addition, our proxy and information statements and other information about us
can be inspected at the offices f the National Association of Securities
Dealers, Inc., 1735 R Street, N.W., Washington, D.C. 20006.
The SEC allows us to "incorporate by reference" information into this
prospectus, which means that we can disclose important information to you by
referring you to another document filed separately with the SEC. The information
incorporated by reference is considered to be part of this prospectus.
Information in this prospectus may update documents previously filed with the
SEC, and later information that we file with the SEC will automatically update
this prospectus. We incorporate by reference the documents listed below and any
future filings made with the SEC under Sections 13(a), 13(c), 14 or 15(d) of the
Securities Exchange Act of 1934 prior to the termination of the offering:
(1) The Company's Annual Report on Form 10-KSB for the year ended December
31, 1999;
(2) The Company's Quarterly Report on Form 10-QSB for the period ended
March 31, 2000;
(3) The Company's Quarterly Report on Form 10-QSB for the period ended
September 30, 1999;
(4) The Company's latest Annual Report on Form 10-KSB for the year ended
December 31, 1998;
(5) The Company's Form 8-A, as filed May 25, 2000; and,
(6) All other reports filed pursuant to Section 13(a) or 15(d) of the
Exchange Act since the end of the fiscal year covered by the Company's
Annual Report referred to above.
All reports and documents filed by the Company pursuant to Section 13, 14 or
15(d) of the Exchange Act, prior to the filing of a post-effective amendment
which indicate that all securities offered hereby have been sold or which
de-registers all securities then remaining unsold, shall be deemed to be
incorporated by reference herein and to be a part hereof from the respective
date of filing of each such document. Any statement incorporated by reference
herein shall be deemed to be modified or superseded for purposes of this
Prospectus to the extent that a statement contained herein or in any other
subsequently filed document, which also is or is deemed to be incorporated by
reference herein, modified or supersedes such statement. Any statement modified
or superseded shall not be deemed, except as so modified or superseded, to
constitute part of this Prospectus.
You may request a copy of these filings at no cost, by writing or telephoning us
at the following address:
Corporate Secretary,
PowerCold Corporation
103 Guadalupe Drive
Cibolo, Texas 78108
telephone (210) 659-8450
Information on our web site is not part of this prospectus.
<PAGE> 6
FORWARD LOOKING STATEMENTS
Some of the information in this prospectus contains forward-looking
statements that involve substantial risks and uncertainties. You can identify
these statements by forward-looking words such as "may," "will," "expect,"
"anticipate," "believe," "intend," "estimate" and "continue" or similar words.
You should read statements that contain these words carefully for the following
reasons:
- the statements discuss our future expectations;
- the statements contain projections of our future earnings or of
our financial condition; and
- the statements state other "forward-looking" information.
We believe it is important to communicate our expectations to our
investors. There may be events in the future, however, that we are not
accurately able to predict or over which we have no control. The risk factors
listed above, as well as any cautionary language in or incorporated by reference
into this prospectus, provide examples of risks, uncertainties and events that
may cause our actual results to differ materially from the expectations we
describe in our forward-looking statements. The SEC allows us to "incorporate by
reference" the information we file with them, which means we can disclose
important information to you by referring you to those documents. Before you
invest in our common stock, you should be aware that the occurrence of any of
the events described in the above risk factors, elsewhere in or incorporated by
reference into this prospectus and other events that we have not predicted or
assessed could have a material adverse effect on our earnings, financial
condition and business. If the events described above or other unpredicted
events occur, then the trading price of our common stock could decline and you
may lose all or part of your investment.
ABOUT US
We were formed on October 7, 1987 in the State of Nevada. We design, engineer,
manufacture, market and support energy efficient industrial refrigeration and
freezing systems. Our products are used in large food processors as well as in
small commercial air-conditioning units. We believe our products are the most
advanced, cost-effective and environmentally safe "quick-freeze" systems
available. We believe they are the most energy-efficient because they utilize
natural gas powered rotary engines. Our products are environmentally-friendly
because they use no chemicals that attack the ozone layer. Our products are sold
around the world.
We have five wholly owned subsidiaries: four companies that manufacture products
and a consulting service: RealCold Products, Inc., which makes commercial
refrigeration and freezer systems; Nauticon Inc., which makes evaporative heat
exchange systems and chiller systems; Channel Freeze Technologies, Inc, which
makes proprietary, multi purpose freezing system; Rotary Power Enterprise,
Inc., which markets rotary power natural gas and propane engines; and,
Technicold Services Inc., which provides commercial consulting and educational
services.
<PAGE> 7
RISK FACTORS
You should carefully consider the risks described below before making an
investment decision. The risks and uncertainties described below are not the
only ones facing us. Additional risks and uncertainties not presently known to
us or that we currently deem immaterial may also impair our business operations.
If any of the following risks actually occur, our business, financial condition
or results of operations could be materially and adversely affected. In such
case, the trading price of our common stock could decline, and you may lose all
or part of your investment.
GOVERNMENTAL REGULATIONS
Our products are subject to many regulations at the Federal and State Level. The
main rules set standards for energy efficiency. We believe that our products
comply with these regulations. If our business is alleged or found to violate
applicable laws, our revenue and earnings could materially decrease.
Our business is subject to extensive, frequently changing, federal, state and
local regulation regarding the following:
- health and safety requirements;
- changing technology requirements.
Some of these laws may restrict or limit our business. Much of this
regulation, particularly technology requirements, is complex and open to
differing interpretations. If any of our operations are found to violate these
laws, we may be subject to severe sanctions or be required to alter or
discontinue our operations. If we are required to alter our practices, we may
not be able to do so successfully. The occurrence of any of these events could
cause our revenue and earnings to decline.
WE MAY NOT BE PROFITABLE OR GENERATE CASH FROM OPERATIONS IN THE FUTURE.
- We have incurred significant losses in the last several years. We intend
to continue to expend significant financial and management resources on the
development of additional products, sales and marketing, improved technology and
expanded operations. Although we believe that operating losses and negative cash
flows may diminish in the near future, we may not be profitable or generate cash
from operations in the foreseeable future.
IF WE DO NOT SECURE ADDITIONAL FINANCING, WE MAY BE UNABLE TO DEVELOP OR ENHANCE
OUR SERVICES, TAKE ADVANTAGE OF FUTURE OPPORTUNITIES OR RESPOND TO COMPETITIVE
PRESSURES.
- We require substantial working capital to fund our business. We have had
significant operating losses and negative cash flow from operations. Additional
financing may not be available when needed on favorable terms or at all. If
adequate funds are not available or are not available on acceptable terms, we
may be unable to develop or enhance our services, take advantage of future
opportunities or respond to competitive pressures, which could materially
adversely affect our business. Our capital requirements depend on several
factors, including the rate of market acceptance of our products, the ability to
expand our customer base, the growth of sales and marketing and other factors.
If capital requirements vary materially from those currently planned, we may
require additional financing sooner than anticipated.
<PAGE> 8
ENVIRONMENTAL REGULATIONS
Environmental laws affect our U.S. operations. There are many Federal, state and
local laws and regulations governing the environment. We believe we meet
existing environmental laws and regulations. If we violate relevant laws, our
income could be seriously impacted.
We are most affected by environmental laws that control types of chemicals.
Some chemicals used in air conditioning and refrigeration equipment products may
affect the ozone layer.
None of our products uses the banned chemicals. However as we learn more about
the environment and the ozone layer, federal and states may impose new
regulations. Those laws could then have material adverse effect on our
operations.
DEPENDENCE UPON KEY PERSONNEL
If we lose any of our executive officers, or are unable to attract and retain
qualified management personnel and directors, our ability to run our business
could be adversely affected and our revenue and earnings could decline.
- We are dependent upon the services and management skills of our executive
officers, Francis L. Simola, President/Chief Executive Officer, H. Jack Kazmar,
Chief Operating Officer, and George Briley, Chief Technology Officer. Mr. Simola
has been with us since August, 1997. Mr. Kazmar has been with us since 1998. Mr.
Briley has been with us since 1995. We have not entered into employment
agreements with Simola, Kazmar, or Briley. We do not maintain key man life
insurance any officer. Further, our growth strategy will depend, in part, on our
ability to attract and retain additional key management, marketing and operating
personnel.
CONTROL BY EXISTING MANAGEMENT
Certain members of our board of Directors own a significant portion of our
outstanding common stock.
- Our Board of Directors, officers and their respective affiliates
beneficially own 38.5% of our outstanding common stock. Although these persons
do not have any agreements or understandings to act or vote in concert, any such
agreement, understanding or acting in concert would make it difficult for others
to elect the entire Board of Directors, or to control the disposition of any
matter submitted to a vote of shareholders.
THE VALUE OF OUR STOCK HAS IN THE PAST AND MAY IN THE FUTURE CHANGE SUDDENLY AND
SIGNIFICANTLY.
Our stock is traded on the Electronic Bulletin Board. Stocks that trade on the
Bulletin Board tend to experience dramatic price increases or decreases. The
trading price of our common stock has been subject to significant fluctuations
to date and could be subject to wide fluctuations in the future, in response to
many factors, including the following:
- Quarter-to-quarter variations in our operating results,
- New Licensing requirements,
- General conditions in the markets for our products or the television
industry,
- The price and availability of advertising revenue,
<PAGE> 9
- General financial market conditions, or
- Other events or factors.
In this regard, we do not endorse or accept responsibility for the estimates
or recommendations issued by stock research analysts from time to time. The
volatility of public stock markets, and media stocks specifically, have
frequently been unrelated to the operating performance of the specific
companies. These market fluctuations may adversely affect the market price of
our common stock.
PROPRIETARY PROTECTION.
Our success is dependent upon our proprietary information and technology. We
rely on a combination of patent, contract, trademark and trade secret laws and
other measures to protect our proprietary information and technology. As part
of our confidentiality procedures, we generally enter into nondisclosure
agreements with our employees, distributors and customers, and limit access to
and distribution of our proprietary information. Although we believe that our
patent rights and trademark protection should prevent another party from
manufacturing and selling competing products, there can be no assurance that
the steps we have taken to protect our technology will be successful. The
patents issued to us may not be adequate to protect our proprietary rights,
to deter misappropriation or to prevent an unauthorized third party from
copying our technology, designing around the patents we own or otherwise
obtaining and using our products, designs or other information. In addition,
patents may not issue under future patent applications, and the patents issued
under such patent applications could be invalidated, circumvented or
challenged. It may also be particularly difficult to protect our products and
intellectual property under the laws of certain countries in which our
products are or may be manufactured or sold.
Although we believe our products and technology do not infringe on any
proprietary rights of others, as the number of competing products available in
the market increases and the functions of those products further overlap,
infringement claims may increase. Any such claims, with or without merit, could
result in costly litigation or might require us to enter into royalty or
licensing agreements. Such royalty or licensing agreements, if required, may not
be available on terms acceptable to us or at all. Any successful infringement
claim could have a material adverse effect upon our business, results of
operations and financial condition
COMPETITION
We are in an extremely competitive market. We compete because of our service,
price, quality, reliability and efficiency of our products. Several of our
competitors have more money. The kind of Companies we compete with are RECold,
BAC, and Evapco, York, and Carrier.
USE OF PROCEEDS
We will not receive any of the proceeds from the sale of the shares of our
common stock or the options by the Selling Shareholders.
<PAGE> 10
SELLING SHAREHOLDERS
The following table lists (a) the name of the Selling Shareholders (b) the
number of shares of common stock beneficially owned by each Selling Shareholder
prior to the offering (c) the number of shares being offered under this
prospectus by such Selling Shareholders; and (d) the number of shares of common
stock beneficially owned by each Selling Shareholder after the completion of the
offering. The table assumes that the Selling Shareholders will sell all shares
they are offering under this prospectus, and that the Selling Shareholders will
not acquire additional shares of our common stock prior to completion of this
offering. The shares are being registered to permit secondary trading of the
Shares, and the Selling Shareholders may offer such shares for resale from time
to time. See "Plan of Distribution.".
<TABLE>
NUMBER OF SHARES TO PERCENTAGE
NAME OF SHARES SHARES TO BE OWNED TO BE OWNED
SELLING SHAREHOLDER OWNED BE OFFERED AFTER OFFERING AFTER OFFERING
----------------------------- ---------- ---------- -------------- --------------
<S> <C> <C> <C> <C>
INTERMAGNETICS GENERAL CORPORATION[1] 1,354,786 1,354,756 -0- -0-
450 Old Niskayuna Road
P.O. Box 461
Latham, NY 12110
J.E. LISS & COMPANY, INC.[1] 1,354,786 1,354,756 -0- %
424 East Wisconsin Avenue
Milwaukee, Wisconsin 53202
J.E. LISS & COMPANY, INC. 500,000 500,000 -0- %
424 East Wisconsin Avenue
Milwaukee, Wisconsin 53202
J.E. LISS & COMPANY, INC. 300,000[3,4] 300,000[3,4] -0- %
424 East Wisconsin Avenue
Milwaukee, Wisconsin 53202
RICHARD V. FITE 300,000[3,4] 300,000[3,4] -0- -0-
333 Washington Blvd., #511
Marina Del Rey, Ca 90292
IRWIN RENNEISEN 300,000 300,000 -0- -0-
660 Newton Yardley Road, #103
Newton, Pennsylvania 18940
DAVID S. HUNGERFORD 166,667 166,667 -0- -0-
10715 Potspring Road
Cockysville, Maryland 21030
JOSEPH PY 125,000 125,000 -0- -0-
2913 Village Green Lane
Norristown, Pennsylvania 19403
JOHN R. COGHLAN 165,000 165,000 -0- -0-
South 5102 Morrill Lane
Spokane, WA 99223
</TABLE>
[1] Pursuant to this Registration Statement, we are registering the sale of
1,354,786 shares of common stock by Intermagnetics General Corporation to J. E.
Liss & Company, Inc. J.E. Liss & Company, Inc. is then reselling their common
shares.
[2] Except as set forth herein, all securities are directly owned and the
sole investment and voting power are held by the person named. A person is
deemed to be the beneficial owner of securities that can be acquired by such
person within 60 days of June 19, 2000 upon the exercise of options or warrants.
[3] Based upon 8,924,996 shares of Common Stock issued and outstanding as of
March 31, 2000. Each beneficial owner's percentage is determined by assuming
that all such exercisable options or warrants that are held by such person (but
not those held by any other person) have been exercised.
[4] Assumes exercise of outstanding options. All of these transferable
options may be sold under the registration statement of which this prospectus is
apart.
<PAGE> 11
PLAN OF DISTRIBUTION
The Company has been advised by the Selling Shareholders that they intend to
sell all or a portion of their Shares or Options offered by this prospectus from
time to time. These sales may be made:
- on the over-the-counter market;
- to purchasers directly;
- in ordinary brokerage transactions in which the broker solicits
purchasers;
- through underwriters, dealers and agents who may receive compensation
in the form of underwriting discounts, concessions or commissions from a
seller and/or the purchasers of the shares or options for whom they may act
as agent;
- through the pledge of shares or options as security for any loan or
obligation, including pledges to brokers or dealers who may from time to
time effect distributions of the shares or other interests in the shares;
- through purchases by a broker or dealer as principal and resale by such
broker or dealer for its own account pursuant to this prospectus;
- through block trades in which the broker or dealer so engaged will attempt
to sell the shares as agent or as riskless principal but may position and
resell a portion of the block as principal to facilitate the transaction;
- in any combination of one or more of these methods; or
- in any other lawful manner.
The Selling Shareholders may also make private sales directly or through a
broker or brokers, who may act as agent or as principal. In connection with any
sales, such Selling Shareholders and any brokers participating in such sales may
be deemed to be underwriters within the meaning of the Securities Act and any
compensation received by them might be deemed to be underwriting discounts and
commissions under the Securities Act.
Any broker-dealer participating in such transactions as agent may receive
commissions from the Selling Shareholders (and, if they act as agent for the
purchaser of such Shares or Options, from such purchaser). Brokerage fees may be
paid by the Selling Shareholder, which may be in excess of usual and customary
brokerage fees. Broker-dealers may agree with the Selling Shareholders to sell a
specified number of Shares or Options at a stipulated price, and, to the extent
such a broker-dealer is unable to do so acting as agent for any Selling
Shareholder, to purchase as principal any unsold Shares or Options at the price
required to fulfill the broker-dealer's commitment to such Selling Shareholder.
Broker-dealers who acquire Shares or Options as principal may thereafter resell
such Shares or Options from time to time in transactions (which may involve
crosses and block transactions and which may involve sales to and through other
broker-dealers, including transactions of the nature described above) on the
over-the-counter Bulletin Board, in negotiated transactions or otherwise at
market prices prevailing at the time of sale or at negotiated prices, and in
connection with such resales may pay to or receive from the purchasers of such
Shares or Options commissions computed as described above.
Any Shares or Options covered by this Prospectus which qualify for sale
pursuant to Rule 144 under the Securities Act may be sold under that Rule rather
than pursuant to this Prospectus.
<PAGE> 12
The Selling Shareholders will be subject to the applicable provisions
of the Securities Exchange Act of 1934, as amended, and the rules and
regulations thereunder, including without limitation Regulation M, which
provisions may limit the timing of purchases and sales of any of the Common
Stock by the Selling Shareholders. All of the foregoing may affect the
marketability of the Common Stock.
We will pay substantially all the expenses incident to this offering of
Shares and Options by the Selling Shareholders, other than brokerage and selling
fees. The Selling Shareholders will pay all applicable stock transfer taxes,
transfer fees and brokerage commissions or underwriting or other discounts. We
have agreed to indemnify the selling shareholders against certain liabilities,
including liabilities under the Securities Act.
In order to comply with certain states' securities laws, if applicable,
the common stock and options will be sold in such jurisdictions only through
registered or licensed brokers or dealers. In addition, in certain states the
common stock and options may not be sold unless the stock and options have been
registered or qualified for sale in such state or an exemption from registration
or qualification is available and we or Selling Shareholders comply with the
applicable requirements.
We may be required to file a supplemental prospectus in connection with
any activities involving a seller which may be deemed to be an "underwriting."
In that case, a supplement to this prospectus would contain
(1) information as to whether an underwriter selected by a seller, or
any other broker-dealer, is acting as principal or agent for the seller,
(2) the compensation to be received by an underwriter selected by a
seller or any broker-dealer, for acting as principal or agent for a seller and
(3) the compensation to be received by any other broker-dealer, in the
event the compensation of such other broker-dealers is in excess of usual and
customary commissions.
Any broker or dealer participating in any distribution of the shares and options
may be required to deliver a copy of this prospectus, including any prospectus
supplement, to any individual who purchases any shares and options from or
through such a broker-dealer.
OUR STOCK
COMMON STOCK
We can issue up to 200,000,000 shares of Common Stock, $0.001 par value per
share. Our stockholders are entitled to one vote per share on each matter
submitted to a vote at any meeting of shareholders. A majority of our
outstanding Common Stock can elect the entire Board of Directors of the Company.
Our bylaws say that a majority of the outstanding shares is a quorum for
shareholders' meetings, except if the bylaws or a law say otherwise.
Our Shareholders have no preemptive rights to acquire additional shares of
Common Stock or other securities. Our Common Stock is subject to redemption and
will carry no subscription or conversion rights. If we liquidate, our Common
Stock will be entitled to share equally in corporate assets after satisfaction
of our bills. The shares of Common Stock, once issued, is fully paid and
non-assessable.
<PAGE> 13
Our stockholders can receive dividends if the Board of Directors decides to do
so and if we have the funds legally available. We intends to expand our business
through reinvesting our profits, if we have any, and don't expect to pay
dividends.
Our Directors have the authority to issue shares without action by the
shareholders.
TRANSFER AGENT
The transfer agent for the shares of Common Stock of the Company is American
Securities Transfer and Trust, Inc. 12039 West Alameda Parkway, Lakewood,
Colorado 80228
PREFERRED STOCK
We also can issue preferred stock. We did issue 1,250,000 shares of a Series
convertible, preferred stock, $.001 par value. Those shares were converted to
common stock. Currently no Preferred Stock is outstanding
INDEMNIFICATION
Our Articles of Incorporation, as amended, limit, to the maximum extent
permitted by law, the personal liability of our directors and officers for
monetary damages for breach of their fiduciary duties as directors and officers,
except in certain circumstances involving certain wrongful acts, such as a
breach of the director's duty of loyalty or acts of omission which involve
intentional misconduct or a knowing violation of law.
Nevada law provides that Nevada corporations may include within their articles
of incorporation provisions eliminating or limiting the personal liability of
their directors and officers in shareholder actions brought to obtain damages
for alleged breaches of fiduciary duties, as long as the alleged acts or
omissions did not involve intentional misconduct, fraud, a knowing violation of
law or payment of dividends in violation of the Nevada statutes. Nevada law
also allows Nevada corporations to include in their articles of incorporation or
bylaws provisions to the effect that expenses of officers and directors incurred
in defending a civil or criminal action must be paid by the corporation as they
are incurred, subject to an undertaking on behalf of the officer or director
that he or she will repay such expenses if it is ultimately determined by a
court of competent jurisdiction that such officer or director is not entitled to
be indemnified by the corporation because such officer or director did not act
in good faith and in a manner reasonably believed to be in or not opposed to the
best interests of the corporation.
Nevada law provides that Nevada corporations may eliminate or limit the personal
liability of its directors and officers. This means that the articles of
incorporation could state a dollar maximum for which directors would be liable,
either individually or collectively, rather than eliminating total liability to
the full extent permitted by the law.
Our Charter provides that a director or officer is not be personally liable to
us or our shareholders for damages for any breach of fiduciary duty as a
director or officer, except for liability for (i) acts or omissions which
involve intentional misconduct, fraud or a knowing violation of law, or (ii) the
payment of distribution in violation of Nevada Revised Statures, 78.300. In
addition, Nevada Revised Statutes, 78.751 and Article VII of our Bylaws, under
certain circumstances, provided for the indemnification of the officers and
directors of the Company against liabilities which they may incur in such
capacities. A summary of the circumstances in which such indemnification is
provided for is set forth in the following paragraph, but such summary is
qualified in its entirety by reference to Article VII of our Bylaws.
<PAGE> 14
In general, any director of officer (an "Indemnitee") who was or is a party to,
or is threatened to be made a party to, or is otherwise involved in any
threatened, pending or completed action or suit (including, without limitation,
an action, suit or proceeding by or in the right of us), whether civil,
criminal, administrative or investigative (a "Proceeding") by reason of the fact
that the Indemnitee is or was a director or officer of us or is or was serving
in any capacity for us as a director, officer, employee, agent, partner or
fiduciary of, or in any other capacity for, another corporation or any
partnership, joint venture, trust or other enterprise shall be indemnified and
held harmless by us for actions taken by the Indemnitee and for all omissions to
the full extent permitted by Nevada law against all expense, liability and loss
(including, without limitation, attorneys' fees, judgments, fines, taxes,
penalties and amounts paid or to be paid in settlement) reasonably incurred or
suffered by the Indemnitee in connection with any Proceeding. The rights to
indemnification specifically include the right to reimbursement by us for all
reasonable costs and expenses incurred in connection with the Proceeding and
indemnification continues as to an Indemnitee who has ceased to be a director or
officer. The Board of Directors may include employees and other persons as
though they were Indemnitees. The rights to indemnification are not exclusive
of any other rights that any person may have by law, agreement or otherwise.
The Bylaws also provide that we can purchase and maintain insurance or make
other financial arrangements on behalf of any person who otherwise qualifies as
an Indemnitee under the foregoing provisions. Other financial arrangements to
assist the Indemnitee are also permitted, such as the creation of a trust fund,
the establishment of a program of self-insurance, the securing of our obligation
of indemnification by granting a security interest or other lien on any of our
assets (including cash) and the establishment of a letter of credit, guaranty or
surety.
Insofar as indemnification for liabilities arising under the Securities Act may
be permitted to directors, officers or persons controlling us pursuant to the
foregoing provisions, we have been informed that in the opinion of the
Securities and Exchange Commission, such indemnification is against public
policy as expressed in the Securities Act and is therefore unenforceable.
LEGAL MATTERS
Our attorney, Charles A. Cleveland, P.S., Spokane, Washington will pass upon
the validity of the issuance of the shares of common stock offered hereby and
certain other legal matters. Charles A. Cleveland, the sole shareholder of the
law firm, beneficially owns 5,000 shares of common stock.
EXPERTS
The consolidated financial statements and the related financial statement
schedules incorporated in this prospectus by reference from the Company's Annual
Report on Form 10-KSB for the Year ended December 31, 1999 have been audited by
R. E. Bassie & Co., P.C., Certified Public Accountants, independent auditors,
as stated in their report which is incorporated herein by reference, and have
been so incorporated in reliance upon the report of such firm given upon their
authority as experts in accounting and auditing as stated in their report.
<PAGE> 15
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 14. OTHER EXPENSES OF INSURANCE AND DISTRIBUTION
The following sets forth the estimated expenses and costs in connection
with the issuance and distribution of securities being registered hereby. All
such expenses will be borne by the Company.
Securities and Exchange Commission Registration Fee $ 898.69
Accounting Fees and Expenses 450.00*
Legal Fees and Expenses 7,500.00*
Printing expenses 1,000.00*
Miscellaneous 400.00*
----------
Total $10,248.69[1]
==========
* Estimated
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Nevada Revised Statutes 78.037 is incorporated herein by this reference.
Insofar as indemnification for liabilities arising under the Securities Act of
1933, as amended, the Securities Exchange Act of 1934 or the Rules and
Regulations of the Securities and Exchange Commission thereunder may be
permitted under said indemnification provisions of the law, or otherwise, the
Company has been advised that, in the opinion of the Securities and Exchange
Commission, any such indemnification is against public policy and is, therefore,
unenforceable.
ARTICLES AND BYLAWS. The Company's Articles of Incorporation and the Company's
Bylaws provide that the Company shall, to the fullest extent permitted by law,
indemnify all directors of the Company, as well as any officers or employees of
the Company to whom the Company has agreed to grant indemnification.
<PAGE> 16
ITEM 16. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES.
Certain of the following exhibits are filed as part of this
registration statement.
The following are filed as exhibits to this Registration Statement:
No. Description
---- -----------------------------------------------------------------------
4.1 Instruments defining the rights of security holders including indentures
Incorporated by reference to the Company's Registration Statement
As Exhibit 4.7, on Form 8-A/12g, as filed on May 25, 2000.
4.2 Articles of Incorporation, of the Company.
Incorporated by reference to the Company's Registration Statement
as Exhibit 4.1, on Form 8-A/12g, as filed on May 25, 2000.
4.3 Amended and Restated Articles of Incorporation of the Company.
Incorporated by reference to the Company's Registration Statement
As Exhibit 4.5, on Form 8-A/12g, as filed on May 25, 2000.
4.4 Amended and Restated By-laws of the Company. Incorporated by
reference to the Company's Registration Statement As Exhibit
4.6 on Form 8-A/12g, as filed on May 25, 2000.
4.5 Form of common stock Certificate of the Registrant.
Incorporated by reference to the Company's Registration Statement
As Exhibit 5, on Form 8-A/12g, as filed on May 25, 2000.
4.6 Financial Services Agreement between J.E. Liss & Company, Inc. and the
Registrant
4.7 Financial Consulting Agreement between Irwin Renneisen and the
Registrant
4.8 Consulting Services Agreement between Richard V. Fite and the Registrant
4.9 Agreement between J.E. Liss & Company and Intermagnetics General
Corporation
4.10 Subscription Agreements with John Coghlan
5.0 Opinion of Charles A. Cleveland, re: Legality
15.0 Accountants' letter regarding unaudited interim financial information.
23.1 Consent of R. E. Bassie & Co., P.C., Certified Public Accountants
23.2 Consent of Charles A. Cleveland, Attorney At Law, included in 5.0
25.1 Powers of Attorney (contained on signature page of this
Registration Statement)
<PAGE> 17
ITEM 17. UNDERTAKINGS.
(a) The Registrant hereby undertakes
(1) To file, during any period in which offers or sales are being made,
a post-effective amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3) of the Act;
(ii) To reflect in the prospectus any facts or events arising after
the effective date of the registration statement (or the most
recent post-effective amendment thereof) which, individually or
in the aggregate, represent a fundamental change in the
information set forth in the registration statement;
and
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in the registration
statement or any material change to such information in the
registration statement;
Provided, however, that Paragraphs (a)(1)(i) and (a)(1)(ii) above do not apply
if the information required to the included in a post-effective amendment by
those Paragraphs is contained in periodic reports filed by the registrant
pursuant to Section 13 or Section 15(d) of the Securities and Exchange Act of
1934, as amended (the "Exchange Act"), that are incorporated by reference in the
registration statement.
(2) That, for the purpose of determining any liability under the Act,
each such post-effective amendment shall be deemed to be a new registration
statement relating to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona fide offering
thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the termination of
the offering.
(b) The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Act, each filing of the Registrant's annual
report pursuant to Section 13(a) or Section 15(d) of the Exchange Act (and,
where applicable, each filing of an employee benefit plan's annual report
pursuant to Section 15(d) of the Exchange Act) that is incorporated by reference
in the registration statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the Act may be
permitted to directors, officers and controlling persons of the registrant has
been advised that in the opinion of the Securities and Exchange Commission such
indemnification is against public policy as expressed in the Act and is,
therefore, unenforceable. In the event that a claim for indemnification against
such liabilities (other than the payment by the registrant of expenses incurred
or paid by a director, officer or controlling person of the registrant in the
successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Act and will be governed by the final adjudication of
such issue.
<PAGE> 18
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing of Form S-3 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, on the 30th day of June, 2000.
POWERCOLD CORPORATION
By:/s/ Francis L. Simola
------------------------
Francis L. Simola
Title: President, Chief Executive Officer,
By:/s/ George Briley
------------------------
George Briley
Title: Secretary
Date: June 30, 2000
KNOW ALL MEN BY THESE PRESENT, that each person whose signature appears below
constitutes and appoints Francis L. Simola, as his true and lawful
attorney-in-fact and agent, with full power of substitution, for him and in his
name, place and stead, in any and all capacities, to sign any and all amendments
(including post-effective amendments) to this Registration Statement, and to
file the same, therewith, with the Securities and Exchange Commission, and to
make any and all state securities law or Blue Sky filings, granting unto said
attorney-in-fact and agent, full power and authority to do and perform each and
every act and thing requisite or necessary to be done in about the premises, as
fully to all intents and purposes as he might or could do in person, hereby
ratifying the confirming all that said attorney-in-fact and agent, or any
substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this Registration
Statement has been signed by the following persons in the capacities and on the
dates indicated:
Signature Title Date
--------- ----- ----
/s/ Francis L. Simola
----------------------- President and Director June 30, 2000.
Francis L. Simola
/s/ George C. Briley
----------------------- Director, Secretary and June 30, 2000.
George C. Briley Treasurer
/s/ H. Jack Kazmar
----------------------- Director June 30, 2000.
H. Jack Kazmar
<PAGE> 19
Exhibit 4.6
PURCHASE AGREEMENT
To: PowerCold Corporation ("the Corporation")
1) I the undersigned hereby irrevocable subscribes for and agrees to purchase
500,000 (five hundred thousand) restricted common shares of the Corporation for
an aggregate consideration of US $300,000 (three hundred thousand dollars).
The shares have attached thereto the rights, privileges and restrictions as
set forth below.
2) By executing this agreement (the Purchase Agreement), the undersigned
represents, warrants and covenants to the Corporation (and acknowledges that the
Corporation is relying thereon) that:
a) It is resident in the jurisdiction set out below as the "Purchaser's
Address" opposite its signature as set forth below;
b) It is purchasing the restricted common shares as principal for its own
account, not for the benefit of any other person, and not with the view to the
immediate resale or distribution of all or any of the common shares;
c) It complies with the requirement of all applicable state and federal
securities legislation in the jurisdiction of its residences;
d) This Purchase agreement has been duly and validly authorized, executed and
delivered by and constitutes a legal, valid binding and enforceable obligation
of the undersigned;
e) It has such knowledge in financial and business affairs as to be capable of
evaluating the merits and risks of its investment and is able to bear the
economic risk of loss of its investments; and,
f) If required by applicable securities legislation, policy or order of a
securities commission, stock exchange or other regulatory authority, the
undersign will execute, deliver, file and otherwise assist the Corporation in
filing, such reports, undertakings, and other documents with respect to the
issue of the common shares as are required.
g) I the undersigned hereby confirms that this transaction is intended to be
exempt from registration under the Act by virtue of section 4 (2) of the Act and
the provisions of Rule 506 of Regulation D promulgated thereunder, and that I
confirm that it is an "accredited investor" within the meaning of SEC Regulation
"D", OR the undersigned alone, or together with its purchaser
representatives(s), has such knowledge and experience in financial and business
matters that it, or the undersigned and such representative(s) together are
capable of evaluating the merits and risks of the Common Stock and of making an
informed decision regarding the Common Stock.
3. Any controversy arising out of, connected to, or relating to any matters
herein of the transactions between J.E. Liss and the Company (including for
purposes of arbitration, officers, directors, employees, controlling persons,
affiliates, professional advisors, attorneys, agents or promoters of the Company
and J.E. Liss), on behalf of the undersigned, or this Agreement, or the breach
thereof, including, but not limited to any claims of violations of Federal
and/or State Securities Acts, Banking statutes, Consumer Protection Statutes,
Federal and/or State Anti-Racketeering (e.g. RICO) claims as well as any claims
<PAGE> 20
relating or deriving from the Common Stock, Common Stock Warrants, or underlying
securities law and any State Law claims of fraud, negligence, negligent
misrepresentation, and /or conversion shall be settled by arbitration; and in
accordance with this paragraph and judgment on the arbitrator's award may be
entered in any court having jurisdiction thereof in accordance with the
provisions of Wisconsin Law. In the event of such a dispute, each party to the
conflict shall select an arbitrator, both of whom shall then select a third
arbitrator, which shall constitute the three-person arbitration board. The
decision of a majority of the board of arbitrators, who shall render their
decision within thirty (30) days of appointment of the final arbitrator, shall
be binding upon the parties.
This Agreement is signed on this 28th day of March 2000 in the State of
Wisconsin.
J. E. Liss & Co.
424 East Wisconsin Ave.
Milwaukee, Wisconsin 53202
/s/ Jerome E. Liss
Jerome E. Liss
Subscriber's signature
PowerCold Corporation acknowledges receipt of this Agreement along with full
payment to the subscribed amount on this 23rd day of March 2000.
/s/ Francis L. Simola
Francis L. Simola
PowerCold Coroporation
<PAGE> 21
Exhibit 4.7
CONSULTING AGREEMENT
THIS CONSULTING AGREEMENT (the 'Agreement") is made and entered into this 1st
day of May, 1998, by and between Irwin Renneisen (the "Consultant") whose
principle place of business is 660 Newtown Yardley Road, Suite 103, Newtown, PA,
and PowerCold Corporation, a Nevada Corporation (the "Client") whose principle
place of business is 103 Guadalupe Drive Cibolo, Texas 78108.
RECITALS
(a) The Consultant is engaged in the business of providing various financial
consulting and public relation services for and on behalf of clients whose
equity securities are publicly traded. The Consultant's services on behalf of
clients includes interactions with broker/dealer firms, public relations firms,
shareholders and members of the general public. The Consultant provides
services in accordance with and subject to rules, regulations and policies of
the Securities and Exchange Commission.
(b) The Client is a company with a class of equity securities that are
publicly traded on one or more markets or exchanges. The Client desires to
retain the Consultant as an independent consultant for various financial
consulting and public relation services, including interaction with
broker/dealers, public relations, shareholders and members of the general
public.
AGREEMENT
NOW THEREFORE, in consideration of the mutual promises and agreements set forth
Herein, and other good and valuable consideration, the receipt and sufficiency
of which is hereby acknowledged, the parties agree as follows:
I. CONSULTING AND PUBLIC RELATION SERVICES
The Client hereby retains the Consultant as an independent consultant to the
Client and the Consultant hereby accepts and agrees to such retention. The
Consultant shall provide to the Client such services of an advisory and
consultative nature so as to inform the brokerage community, the client's
shareholders and the general public concerning financial public relation and
promotional matters related to the Client and its business (the "Consulting
Services"). The Consulting Services which Consultant shall provide to the Client
are on a best efforts basis. Consultant makes no representation, warranty or
guarantee that as a result of the Consulting Services the trading price of the
Client's stock will increase, the volume of shares traded will increase or that
Client will experience increase revenues.
Consultant will:
a. Gather all publicly available information relating to Client and confer
with the CEO of the Client in an effort to consolidate the information obtained
into appropriate form for dissemination to interested parties.
b. Make available to the general public, information concerning the Client
in accordance with rules, regulations and policy of the Securities and Exchange
Commission.
c. Distribute information concerning the Client to registered
representatives of broker/dealers, and other persons who the Consultant
determines are capable of effectively disseminating such information to the
general public.
<PAGE> 22
II. TIME, MANNER AND PLACE PERFORMANCE
The Consultant provides services similar to those provided for herein to
other publicly traded companies. The Consultant shall devote such time to the
Client as is reasonable and necessary to provide the Consulting Services to the
Client. Consultant shall be available for advice and counsel to the officers
and directors of the Client at such reasonable and convenient times and places
as may mutually be agreed upon.
III. TERM OF THE AGREEMENT
The initial term of this Agreement shall be one (1) year, commencing May 1,
1998 to May 1, 1999 (the "Initial Term"), subject however, to prior termination
as provided in Section X of this Agreement. After the Initial Term this
Agreement shall continue for two (2) years on a month-to-month basis and may be
terminated effective the last day of the month in which either party gives at
least ten (10) days' prior written notice to the other that it is terminating
this Agreement.
IV. COMPENSATION
In consideration of the Consulting Services to be provided to the Client by
the Consultant, the Client hereby agrees to compensate Consultant with a total
of 25,000 shares upon execution of this Agreement, and subject to performance,
up to an additional 200,000 restricted common shares for a period of three years
from date of this Agreement.
V. WORK PRODUCT
Client acknowledges that in the course of performing under this Agreement,
Consultant will be contacting various persons about the Client. Consultant in
connection with the Consulting Services performed for the Client (the
Materials") agrees. Consultant hereby grants Client the right to use the
Materials (but not the Contact List) after their distribution solely for the
purpose of promoting the Client to existing and prospective investors, but the
Contact List and Material shall be and remain the physical and intellectual
property of the Consultant and all proprietary rights thereto shall remain with
Consultant. Consultant will absorb all costs and expenses related to its work
and work products per this Agreement. The Consultant will be compensated for
expenses incurred for any major services rendered the Client, per this
Agreement, that are previously approved by the Client.
VI. DISCLOSURE OF INFORMATION
The Consultant recognizes and acknowledges that it has and will have access to
certain confidential information of the Client's and its affiliates that are
valuable, special and unique assets and property of the Client and such
affiliates ("Confidential Information"). The Consultant will not during and
after the term of this Agreement, disclose, without the prior written consent or
authorization of the Client any Confidential Information to any person, except
authorized representatives of the Consultant or its affiliates, for any reason
or purpose whatsoever. In this regard, the Client agrees that such
authorization or consent to disclose may be conditioned upon the disclosure
being made pursuant to a secrecy agreement, protective order, provision of
statute, rule, regulation or procedure under which the confidentiality of the
information is maintained in the hands of the person to whom the information is
to be disclosed or in compliance with the terms of a judicial order or
administrative process. Any information which has been disclosed to the public
by the Client or upon the authorization of the client shall not be considered
Confidential Information.
<PAGE> 23
VII. NATURE OF RELATIONSHIP
Nothing in this Agreement shall render any party a general partner of the other.
Except as set forth in this Agreement neither party is nor shall be a general
agent for the other and neither party is given authority to act on behalf of the
other. The Consultant is retained by the Client in an independent capacity as
set forth in this Agreement. Consultant shall not enter into any Agreement or
incur any obligation on behalf of the Client.
VIII. CONFLICT OF INTEREST
This Agreement is non-exclusive. The Consultant shall be free to perform
services for other companies and persons. Consultant will use its best efforts
to avoid conflicts of interest. Client agrees that it shall not be a conflict
of interest that Consultant devotes time and resources to companies and persons
other than Client. In the event that Consultant believes a conflict of interest
arises which may effect the performance of the Consulting Services for Client,
Consultant shall promptly notify in writing the Client of such conflict. Upon
receiving such notice, the Client may terminate this Agreement pursuant to
Section XIII. Failure to terminate this Agreement within 30 days of
notification of any conflict of interest shall constitute the Client's ongoing
consent to the Consultant's continued activities, which would be in conflict
with client.
IX. INDEMNIFICATION FOR SECURITIES LAWS VIOLATIONS
The Client agrees to indemnify and hold harmless the Consultant and each
officer, director and controlling person of the Consultant against any losses,
claims, damages, liabilities and/or expenses (including any legal or other
expenses reasonably incurred in investigating or defending any action or claim
in respect thereof) to which the Consultant or such officer, director or
controlling person may become subject under the Securities Act of 933 as amended
or the Securities Exchange Act of 1934 as amended, because of actions of the
Client or its agent, Client's material publicly available to the Consultant, or
materials provided to Consultant by Client for use by Consultant in its
performance under this Agreement.
The Consultant agrees to indemnify and hold harmless the Client and each
officer, director and controlling person of the Client against any losses,
claims, damages, liabilities and/or expenses (including any legal or other
expenses reasonably incurred in investigating or defending any action or claim
in respect thereof) to which the Client or such officer, director or controlling
person may become subject under the Securities Act of 933 as amended or the
Securities Exchange Act of 1934 as amended, because of actions of the Consultant
or its agent, Consultant's material publicly available to the Client, or
materials provided to Client by Consultant for use by Client in its performance
under this Agreement.
X. TERMINATION
Notwithstanding Section III of this Agreement, this Agreement may be terminated:
a. By the Client upon ten (10) days prior written notice to Consultant in
the event:
(i) Consultant requests Client to perform acts or services in violation of'
any law, rule, regulation, policy or order of any federal or state regulatory
agency,
<PAGE> 24
(ii) Consultant distributes to the public information containing material
misrepresentations or omissions, or
(iii) Consultant is engaging in conduct in violation of any law, including
rules, regulations, orders and policies of any federal or state regulatory
agency.
(iv) Notwithstanding any provision of this Agreement in the event Consultant
engages in "insider trading" or violates the provisions of Articles V and VI,
any and all compensation paid or to be paid, Consultant shall be returned to
Client.
b. By Consultant upon ten (10) days prior written notice to the Client in
the event:
(i) Clients requests Consultant to perform acts or services in violation
of' any law, rule, regulation, policy or order of any federal or state
regulatory agency,
(ii) Clients distributes to the public information containing material
misrepresentations or omissions, or
(iii) Client is engaging in conduct in violation of any law, including
rules, regulations, orders and policies of any federal or state regulatory
agency.
XL. ACCURACY OF INFORMATION
In the distribution and dissemination of information about the Client by the
Consultant, the Consultant is relying upon the accuracy in information provided
to it by the Client, and the Client is relying upon the accuracy in information
distributed to the general public by the Consultant. The Client shall use its
best efforts to ensure that all information provided by Client to Consultant,
and all information which Client makes otherwise available to the general
public, is full, complete and accurate and contains no material
misrepresentations or omissions. The Consultant shall use its best efforts to
ensure that all information provided by Client to Consultant, and all
information which Consultant makes otherwise available to the general public, is
full, complete and accurate and contains no material misrepresentations or
omissions. Notwithstanding, the Consultant shall submit any and all information
to be disclosed by the Consultant for public dissemination to the Client, to
first seek approval from its Client.
XII. NOTICES
Any notices required or permitted to be given under this Agreement shall be
sufficient if in writing and delivered via FAX, to the FAX number set forth
below, or if sent by registered mail or certified mail, return receipt
requested, to the address set forth below.
a. If to Consultant:
Irwin Renneisen
660 Newtown Yardley Road, Suite 103
Newtown, PA.
b. If to Client:
PowerCold Corporation. Inc.
103 Guadalupe Drive
Cibolo. TX 78108
Fax: (210) 658-4212
<PAGE> 25
XIII. ASSIGNMENT
Neither party to this Agreement may assign its rights or obligations here under
without the prior written consent of the other party to this Agreement.
XIV. APPLICABLE LAW
This Agreement shall be interpreted and construed in accordance with and
pursuant to the laws of the State of Texas.
XV. ARBITRATION
Any controversy or claim arising out of or related to this Agreement, or the
breach thereof, shall be settled by arbitration administrated by the American
Arbitration Association under its Commercial Arbitration Rules, with the
arbitration proceeding and any hearing thereon be held in a mutually agreeable
location and judgement on the award rendered by the arbitrator (s) may be
entered in any court having jurisdiction thereof.
XVI. ENTIRE AGREEMENT
This entire Agreement constitutes and embodies the entire understanding and
agreement of the parties and supersedes and replaces all prior understandings,
agreements and negotiations of the parties. This Agreement may not be modified,
except in writing and signed by all parties hereto.
XVII. COUNTERPARTS
This Agreement may be executed in counterparts, each of which shall constitute
and be deemed an original, but of which taken together shall constitute to one
and same document.
IN WITNESS WHEREOF, the parties hereto have duly executed and delivered this
Agreement the day and year first above written.
CONSULTANT: CLIENT:
Irwin Renneisen PowerCold Corporation
By: /s/ Irwin Renneisen By: /s/ Francis L. Simola
Irwin Renneisen Francis L. Simola
President/CEO
<PAGE> 26
Exhibit 4.8
CONSULTING AGREEMENT
THIS CONSULTING AGREEMENT (the 'Agreement") is made and entered into this 10th
day of January, 2000, by and between Richard V. Fite (the "Consultant") whose
principle place of business is 333 Washington Blvd. No. 511, Marina Del Rey,
California 90292 and PowerCold Corporation, a Nevada Corporation (the "Client")
whose principle place of business is 103 Guadalupe Drive Cibolo, TX 78108.
RECITALS
(a) The Consultant is engaged in the business of providing various financial
consulting and public relation services for and on behalf of clients whose
equity securities are publicly traded. The Consultant's services on behalf of
clients includes interactions with broker/dealer firms, public relations firms,
shareholders and members of the general public. The Consultant provides
services in accordance with and subject to rules, regulations and policies of
the Securities and Exchange Commission.
(b) The Client is a company with a class of equity securities that are
publicly traded on one or more markets or exchanges. The Client desires to
retain the Consultant as an independent consultant for various financial
consulting and public relation services, including interaction with
broker/dealers, public relations, shareholders and members of the general
public.
AGREEMENT
NOW THEREFORE, in consideration of the mutual promises and agreements set forth
Herein, and other good and valuable consideration, the receipt and sufficiency
of which is hereby acknowledged, the parties agree as follows:
I. CONSULTING AND PUBLIC RELATION SERVICES
The Client hereby retains the Consultant as an independent consultant to the
Client and the Consultant hereby accepts and agrees to such retention. The
Consultant shall provide to the Client such services of an advisory and
consultative nature so as to inform the brokerage community, the client's
shareholders and the general public concerning financial public relation and
promotional matters related to the Client and its business (the "Consulting
Services"). The Consulting Services which Consultant shall provide to the Client
are on a best efforts basis. Consultant makes no representation, warranty or
guarantee that as a result of the Consulting Services the trading price of the
Client's stock will increase, the volume of shares traded will increase or that
Client will experience increase revenues. Consultant will:
a. Gather all publicly available information relating to Client and confer
with the CEO of the Client in an effort to consolidate the information obtained
into appropriate form for dissemination to interested parties.
b. Make available to the general public, information concerning the Client
in accordance with rules, regulations and policy of the Securities and Exchange
Commission.
c. Distribute information concerning the Client to registered
representatives of broker/dealers, and other persons who the Consultant
determines are capable of effectively disseminating such information to the
general public.
<PAGE> 27
II. TIME, MANNER AND PLACE PERFORMANCE
The Consultant provides services similar to those provided for herein to
other publicly traded companies. The Consultant shall devote such time to the
Client as is reasonable and necessary to provide the Consulting Services to the
Client. Consultant shall be available for advice and counsel to the officers
and directors of the Client at such reasonable and convenient times and places
as may mutually be agreed upon.
III. TERM OF THE AGREEMENT
The initial term of this Agreement shall be one (1) year, commencing
January 10, 2000 to January 10, 2001 (the "Initial Term"), subject however, to
prior termination as provided in Section X of this Agreement. After the Initial
Term this Agreement shall continue on a month-to-month basis and may be
terminated effective the last day of the month in which either party gives at
least ten (10) days' prior written notice to the other that it is terminating
this Agreement.
IV. COMPENSATION
In consideration of the Consulting Services to be provided to the Client by
the Consultant, the Client hereby agrees to compensate Consultant with a total
of 300,000 restricted option shares at $0.50 per option share ("options") for a
period of three years from date of this Agreement. Client will register
Consultant option shares as free trading shares as soon as current reporting
requirements and registration documents are filed.
Options to be issued as follows:
a. 100,000 options upon execution of this Agreement.
b. 100,000 options effective when Client engages an Investment Banking Firm
recommended by the Consultant.
c. 100,000 options effective when Client engages an Investment Banking Firm
recommended by the Consultant.
V. WORK PRODUCT
Client acknowledges that in the course of performing under this Agreement,
Consultant will be contacting various persons about the Client. Consultant in
connection with the Consulting Services performed for the Client (the
Materials") agrees. Consultant hereby grants Client the right to use the
Materials (but not the Contact List) after their distribution solely for the
purpose of promoting the Client to existing and prospective investors, but the
Contact List and Material shall be and remain the physical and intellectual
property of the Consultant and all proprietary rights thereto shall remain with
Consultant. Consultant will absorb all costs and expenses related to its work
and work products per this Agreement. The Consultant will be compensated for
expenses incurred for any major services rendered the Client, per this
Agreement, that are previously approved by the Client.
<PAGE> 28
VI. DISCLOSURE OF INFORMATION
The Consultant recognizes and acknowledges that it has and will have access to
certain confidential information of the Client's and its affiliates that are
valuable, special and unique assets and property of the Client and such
affiliates ("Confidential Information"). The Consultant will not during and
after the term of this Agreement, disclose, without the prior written consent or
authorization of the Client any Confidential Information to any person, except
authorized representatives of the Consultant or its affiliates, for any reason
or purpose whatsoever. In this regard, the Client agrees that such
authorization or consent to disclose may be conditioned upon the disclosure
being made pursuant to a secrecy agreement, protective order, provision of
statute, rule, regulation or procedure under which the confidentiality of the
information is maintained in the hands of the person to whom the information is
to be disclosed or in compliance with the terms of a judicial order or
administrative process. Any information which has been disclosed to the public
by the Client or upon the authorization of the client shall not be considered
Confidential Information.
VII. NATURE OF RELATIONSHIP
Nothing in this Agreement shall render any party a general partner of the other.
Except as set forth in this Agreement neither party is nor shall be a general
agent for the other and neither party is given authority to act on behalf of the
other. The Consultant is retained by the Client in an independent capacity as
set forth in this Agreement. Consultant shall not enter into any Agreement or
incur any obligation on behalf of the Client.
VIII. CONFLICT OF INTEREST
This Agreement is non-exclusive. The Consultant shall be free to perform
services for other companies and persons. Consultant will use its best efforts
to avoid conflicts of interest. Client agrees that it shall not be a conflict
of interest that Consultant devotes time and resources to companies and persons
other than Client. In the event that Consultant believes a conflict of interest
arises which may effect the performance of the Consulting Services for Client,
Consultant shall promptly notify in writing the Client of such conflict. Upon
receiving such notice, the Client may terminate this Agreement pursuant to
Section XIII. Failure to terminate this Agreement within 30 days of
notification of any conflict of interest shall constitute the Client's ongoing
consent to the Consultant's continued activities, which would be in conflict
with client.
IX. INDEMNIFICATION FOR SECURITIES LAWS VIOLATIONS
The Client agrees to indemnify and hold harmless the Consultant and each
officer, director and controlling person of the Consultant against any losses,
claims, damages, liabilities and/or expenses (including any legal or other
expenses reasonably incurred in investigating or defending any action or claim
in respect thereof) to which the Consultant or such officer, director or
controlling person may become subject under the Securities Act of 933 as amended
or the Securities Exchange Act of 1934 as amended, because of actions of the
Client or its agent, Client's material publicly available to the Consultant, or
materials provided to Consultant by Client for use by Consultant in its
performance under this Agreement.
<PAGE> 29
The Consultant agrees to indemnify and hold harmless the Client and each
officer, director and controlling person of the Client against any losses,
claims, damages, liabilities and/or expenses (including any legal or other
expenses reasonably incurred in investigating or defending any action or claim
in respect thereof) to which the Client or such officer, director or controlling
person may become subject under the Securities Act of 933 as amended or the
Securities Exchange Act of 1934 as amended, because of actions of the Consultant
or its agent, Consultant's material publicly available to the Client, or
materials provided to Client by Consultant for use by Client in its performance
under this Agreement.
X. TERMINATION
Notwithstanding Section III of this Agreement, this Agreement may be terminated:
a. By the Client upon ten (10) days prior written notice to Consultant in
the event:
(i) Consultant requests Client to perform acts or services in violation of'
any law, rule, regulation, policy or order of any federal or state regulatory
agency,
(ii) Consultant distributes to the public information containing material
misrepresentations or omissions, or
(iii) Consultant is engaging in conduct in violation of any law, including
rules, regulations, orders and policies of any federal or state regulatory
agency.
(iv) Notwithstanding any provision of this Agreement in the event Consultant
engages in "insider trading" or violates the provisions of Articles V and VI,
any and all compensation paid or to be paid, Consultant shall be returned to
Client.
b. By Consultant upon ten (10) days prior written notice to the Client in
the event:
(i) Clients requests Consultant to perform acts or services in violation
of' any law, rule, regulation, policy or order of any federal or state
regulatory agency,
(ii) Clients distributes to the public information containing material
misrepresentations or omissions, or
(iii) Client is engaging in conduct in violation of any law, including
rules, regulations, orders and policies of any federal or state regulatory
agency.
XL. ACCURACY OF INFORMATION
In the distribution and dissemination of information about the Client by the
Consultant, the Consultant is relying upon the accuracy in information provided
to it by the Client, and the Client is relying upon the accuracy in information
distributed to the general public by the Consultant. The Client shall use its
best efforts to ensure that all information provided by Client to Consultant,
and all information which Client makes otherwise available to the general
public, is full, complete and accurate and contains no material
<PAGE> 30
misrepresentations or omissions. The Consultant shall use its best efforts to
ensure that all information provided by Client to Consultant, and all
information which Consultant makes otherwise available to the general public, is
full, complete and accurate and contains no material misrepresentations or
omissions. Notwithstanding, the Consultant shall submit any and all information
to be disclosed by the Consultant for public dissemination to the Client, to
first seek approval from its Client.
XII. NOTICES
Any notices required or permitted to be given under this Agreement shall be
sufficient if in writing and delivered via FAX, to the FAX number set forth
below, or if sent by registered mail or certified mail, return receipt
requested, to the address set forth below.
a. If to Consultant:
Richard V. Fite
333 Washington Blvd. No.511
Marina Del Ray, California 90292
b. If to Client:
PowerCold Corporation. Inc.
103 Guadalupe Drive
Cibolo. TX 78108
Fax: (210) 658-4212
XIII. ASSIGNMENT
Neither party to this Agreement may assign its rights or obligations here under
without the prior written consent of the other party to this Agreement.
XIV. APPLICABLE LAW
This Agreement shall be interpreted and construed in accordance with and
pursuant to the laws of the State of Texas.
XV. ARBITRATION
Any controversy or claim arising out of or related to this Agreement, or the
breach thereof, shall be settled by arbitration administrated by the American
Arbitration Association under its Commercial Arbitration Rules, with the
arbitration proceeding and any hearing thereon be held in a mutually agreeable
location and judgement on the award rendered by the arbitrator (s) may be
entered in any court having jurisdiction thereof.
XVI. ENTIRE AGREEMENT
This entire Agreement constitutes and embodies the entire understanding and
agreement of the parties and supersedes and replaces all prior understandings,
agreements and negotiations of the parties. This Agreement may not be modified,
except in writing and signed by all parties hereto.
XVII. COUNTERPARTS
This Agreement may be executed in counterparts, each of which shall constitute
and be deemed an original, but of which taken together shall constitute to one
and same document.
<PAGE> 31
IN WITNESS WHEREOF, the parties hereto have duly executed and delivered this
Agreement the day and year first above written.
CONSULTANT: CLIENT:
Richard V. Fite PowerCold Corporation
By: /s/ Richard V. Fite By: /s/ Francis L. Simola
Richard V. Fite Francis L. Simola
President/CEO
<PAGE> 32
Exhibit 4.9
STOCK PURCHASE AGREEMENT
BETWEEN
J. E. LISS & COMPANY, INC.
AND
INTERMAGNETICS GENERAL CORPORATION
DATED , 2000
ARTICLE I DEFINITIONS 1
SECTION 1.1. Definitions 1
ARTICLE II THE ACQUISITION 2
SECTION 2.1. Purchase and Sale of Shares 2
SECTION 2.2. Consideration for the Shares 2
ARTICLE III REPRESENTATIONS AND WARRANTIES OF IGC 3
SECTION 3.1. Organization and Qualification 3
SECTION 3.2. Authorization 3
SECTION 3.3. No Violation 3
SECTION 3.4. Brokers' Fees and Commissions 3
ARTICLE IV REPRESENTATIONS AND WARRANTIES OF BUYER 3
SECTION 4.1. Organization, Qualifications and Operations 3
SECTION 4.2. Authorization 4
SECTION 4.3. No Violation 4
SECTION 4.4. Consents and Approvals 4
SECTION 4.5. Brokers' Fees and Commissions 4
SECTION 4.6. Purchase for Investment 5
SECTION 4.7. Status of the Investor 5
SECTION 4.8. Unregistered Securities 5
SECTION 4.9. Transfer of Shares 5
SECTION 4.10. Holding Periods 5
SECTION 4.11. Due Diligence Review 5
SECTION 4.12. Reliance on Exemptions 5
SECTION 4.13. Economic Risks 6
SECTION 4.14. Financing 6
ARTICLE V COVENANTS 6
SECTION 5.1. All Reasonable Efforts 6
SECTION 5.2. Public Announcements 6
SECTION 5.3. Supplemental Filings 6
SECTION 5.4. No Implied Representations or Warranties 6
SECTION 5.5. Compliance With Securities Laws 7
ARTICLE VI INDEMNIFICATION AND RELEASE 7
SECTION 6.1. Indemnification of IGC 7
SECTION 6.2. Release 7
ARTICLE VII ASSIGNMENT OF PREFERRED STOCK PURCHASE AGREEMENT AND RELEASE. 7
SECTION 7.1. Assignment 7
SECTION 7.2. General Release 7
SECTION 7.3. Acknowledgment of Transfer and Assignment 8
SECTION 7.4. Waiver. 8
SECTION 7.5. No Implied Rights, Representations, Warranties or
Covenants 8
<PAGE> 33
ARTICLE VIII CLOSING CONDITIONS 8
SECTION 8.1. Conditions to the Obligations of Buyer under this
Agreement 8
SECTION 8.2. Conditions to the Obligations of IGC under this Agreement 8
ARTICLE IX CLOSING 9
SECTION 9.1. Closing 9
ARTICLE X SURVIVAL 9
SECTION 10.1. Survival of Representations, Warranties and Covenants 9
ARTICLE XI TERMINATION AND ABANDONMENT 9
SECTION 11.1. Termination 9
SECTION 11.2. Procedure and Effect of Termination 10
ARTICLE XII MISCELLANEOUS PROVISIONS 10
SECTION 12.1. Amendment and Modification 10
SECTION 12.2. Waiver of Compliance; Consents 10
SECTION 12.3. Validity 10
SECTION 12.4. Expenses and Obligations 10
SECTION 12.5. Parties in Interest 10
SECTION 12.6. Notices 11
SECTION 12.7. Governing Law 12
SECTION 12.8. Counterparts 12
SECTION 12.9. Headings 12
SECTION 12.10. Entire Agreement 12
SECTION 12.11. Assignment 12
<PAGE> 34
STOCK PURCHASE AGREEMENT
STOCK PURCHASE AGREEMENT (this "AGREEMENT"), dated ______________, 2000, by
and between J. E. Liss & Company, Inc., a Wisconsin corporation ("BUYER"), and
Intermagnetics General Corporation, a New York corporation ("IGC").
RECITALS:
WHEREAS, IGC purchased 1,250,000 unregistered shares of Series A
Convertible Preferred Stock (the "SERIES A PREFERRED STOCK"), par value $0.001,
of PowerCold Corporation, a Nevada Corporation ("POWERCOLD"), pursuant to a
Preferred Stock Purchase and Option Agreement among IGC and PowerCold dated
November 16, 1998, and ancillary agreements (the "PREFERRED STOCK PURCHASE
AGREEMENT");
WHEREAS, pursuant to the terms of the Preferred Stock Purchase
Agreement and the Certificate of Designations, Preferences and Other Rights and
Qualifications of the Series A Preferred Stock, on , 2000, IGC
exercised its right to convert (the "CONVERSION") all 1,250,000 unregistered
shares of Series A Preferred Stock into 1,354,786 unregistered shares of Common
Stock, par value $0.001 (the "COMMON STOCK") of PowerCold;
WHEREAS, subsequent to the Conversion, IGC is the record and beneficial
owner of 1,354,786 unregistered shares of Common Stock of PowerCold (the
"SHARES"); and
WHEREAS, subject to the terms and conditions set forth herein, IGC desires
to sell to Buyer, and Buyer desires to purchase from IGC the Shares;
NOW, THEREFORE, in consideration of premises and the mutual covenants,
representations, warranties and agreements herein contained, the parties hereto
agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.1. DEFINITIONS. For purposes of this Agreement, the term:
(a) "BUSINESS DAY" means any day that is not a Saturday, Sunday or
other day on which banking institutions in the city of New York, New York are
authorized or required by law or executive order to be closed.
(b) "CLOSING" shall have the meaning set forth in Section 9.1.
(c) "CLOSING DATE" shall have the meaning set forth in Section 9.1.
(d) "GOVERNMENTAL AUTHORITY" means any nation or government, any state
or other political subdivision thereof and any entity exercising executive,
legislative, judicial, regulatory or administrative functions of or pertaining
to government.
<PAGE> (35) 1
(e) "MATERIAL ADVERSE EFFECT" means a material adverse effect with
respect to the business, results of operations or financial condition of the
Buyer or IGC as appropriate.
(f) "PURCHASE PRICE" shall have the meaning set forth in Section 2.2
hereof.
(g) "PERSON" means an individual, corporation, limited liability
company, partnership, joint venture, association, trust, unincorporated
organization or, as applicable, any other entity.
(h) "SECURITIES ACT" means the Securities Act of 1933, as amended and
the rules promulgated thereunder.
(i) "SHARES" means 1,354,786 unregistered shares of common stock.
(j) "TAXES" means any and all federal, state, local, foreign and other
taxes, levies, fees, imposts, duties and similar governmental charges (including
any interest, penalties or additions to tax imposed in connection therewith or
with respect thereto) including, without limitation, taxes imposed on, or with
respect to, or measured by, income, franchise, profits or gross receipts, ad
valorem, value added, sales, use, service, real or personal property, capital
stock, license, payroll, withholding, employment, social security, unemployment,
compensation, utility, severance, production, excise, stamp, occupation,
premium, windfall profits, transfer and gains taxes, and customs duties.
ARTICLE II
THE ACQUISITION
---------------
SECTION 2.1. PURCHASE AND SALE OF SHARES. On the terms and subject to the
conditions hereof, and in reliance upon the respective representations,
warranties, covenants and agreements of each of the respective parties to this
Agreement, at the Closing IGC will sell, assign, transfer and convey to Buyer,
and Buyer will purchase and acquire from IGC, the Shares.
SECTION 2.2. CONSIDERATION FOR THE SHARES. The aggregate purchase price
payable by Buyer for the Shares shall be $1,300,000 in cash (the "PURCHASE
PRICE"). On the Closing Date, Buyer will pay the Purchase Price by wire
transfer of immediately available funds to such accounts as IGC shall have
designated in writing at least two days prior to the Closing Date.
<PAGE> (36) 2
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF IGC
-------------------------------------
IGC represents and warrants to Buyer as follows:
SECTION 3.1. ORGANIZATION AND QUALIFICATION.
(a) IGC is a corporation duly organized, validly existing and in good
standing under the laws of its jurisdiction of incorporation, with all requisite
corporate power and authority to own, operate and lease its properties and to
carry on its business as it is now being conducted.
SECTION 3.2. AUTHORIZATION. IGC has full corporate power and authority to
execute and deliver this Agreement and to consummate the transactions
contemplated hereby. The execution and delivery of this Agreement by IGC, the
performance by IGC of its obligations hereunder, and the consummation by IGC of
the transactions contemplated hereby, have been duly authorized by its Board of
Directors. This Agreement has been duly and validly executed and delivered by
IGC and constitutes a valid and binding obligation of IGC, enforceable against
IGC in accordance with its terms, subject to applicable bankruptcy, insolvency,
fraudulent conveyance, reorganization, moratorium and similar laws affecting
creditors' rights and remedies generally, and subject, as to enforceability, to
general principles of equity, including principles of commercial reasonableness,
good faith and fair dealing (regardless of whether enforcement is sought in a
proceeding at law or in equity).
SECTION 3.3. NO VIOLATION. Neither the execution and delivery of this
Agreement by IGC, the performance by IGC of its obligations hereunder nor the
consummation by IGC of the transactions contemplated hereby will violate,
conflict with or result in any breach of any provision of the Certificate of
Incorporation or Bylaws of IGC.
<PAGE>
SECTION 3.4. BROKERS' FEES AND COMMISSIONS. Neither IGC nor its directors,
officers, employees or agents has employed any investment banker, broker, finder
or similar Person in connection with the transactions contemplated hereby, and
no brokers fee, finder fee, commission or similar payment shall be due from, or
payable by, IGC to any person.
<PAGE> (37) 3
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF BUYER
---------------------------------------
Buyer hereby represents and warrants to IGC as follows:
SECTION 4.1. ORGANIZATION, QUALIFICATIONS AND OPERATIONS. Buyer is a
corporation duly organized, validly existing and in good standing under the laws
of the jurisdiction of its organization, with all requisite corporate power and
authority to own the Shares. Buyer is qualified or licensed to do business and
is in good standing in each jurisdiction in which the ownership or leasing of
property by it or the conduct of its business requires such licensing or
qualification, except where the failure to be so qualified or licensed will not
affect Buyer's ability to consummate the transactions contemplated by this
Agreement (a "BUYER MATERIAL ADVERSE EFFECT").
SECTION 4.2. AUTHORIZATION. Buyer has full corporate power and authority to
execute and deliver this Agreement and each other document to be delivered by
Buyer in connection herewith and to consummate the transactions contemplated
hereby and thereby. No other corporate proceeding on the part of Buyer is
necessary to authorize the execution and delivery of this Agreement and each
other document to be delivered by Buyer in connection herewith or to consummate
the transactions contemplated hereby and thereby. This Agreement has been duly
and validly executed and delivered by Buyer and constitutes a valid and binding
obligation of Buyer, enforceable against it in accordance with its terms,
subject to applicable bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and similar laws affecting creditors' rights and
remedies generally, and subject, as to enforceability, to general principles of
equity, including principles of commercial reasonableness, good faith and fair
dealing (regardless of whether enforcement is sought in a proceeding at law or
in equity).
SECTION 4.3. NO VIOLATION. Neither the execution and delivery of this
Agreement by Buyer, the performance by Buyer of its obligations hereunder nor
the consummation by Buyer of the transactions contemplated hereby will (a)
violate, conflict with or result in any breach of any provision of the
Certificate of Incorporation or Bylaws of Buyer (or similar organizational
documents), (b) violate or conflict with or result in a violation or breach of,
or constitute a default (with or without due notice or lapse of time or both)
under the terms, conditions or provisions of any note, bond, mortgage, indenture
or deed of trust, or any license, lease or agreement to which Buyer or any of
Buyer's subsidiaries is a party or by which any of their assets is bound or (c)
violate any order, writ, judgment, injunction, decree, statute, rule or
regulation of any Governmental Authority applicable to Buyer or any of Buyer's
subsidiaries or any of their assets, except in each case as would not have a
Buyer Material Adverse Effect.
SECTION 4.4. CONSENTS AND APPROVALS. No filing or registration with, no
notice to and no permit, authorization, consent or approval of any third party
or any Governmental Authority is necessary for the consummation by Buyer of the
transactions contemplated by this Agreement.
SECTION 4.5. BROKERS' FEES AND COMMISSIONS. Neither Buyer nor any of its
directors, officers, employees or agents has employed any investment banker,
broker or finder or similar Person in connection with the transactions
contemplated hereby.
<PAGE> (38) 4
SECTION 4.6. Purchase for Investment. Buyer is acquiring the Shares for its
own account for investment purposes only and not with a view to, or in
connection with, the distribution or public offering, within the meaning of the
Securities Act, of the Shares.
SECTION 4.7. Status of the Investor. Buyer has such knowledge,
sophistication and experience in financial and business matters and the
investment in securities of publicly traded companies so as to be capable of
evaluating the merits and risks of its investment in the Shares. Buyer
understands the term "ACCREDITED INVESTOR" as such term is defined in Rule 501
of the Securities Act. Buyer represents and warrants that it is an "ACCREDITED
INVESTOR" for the purpose of the purchase of the Shares. Buyer was not formed
for the purpose of acquiring the Shares.
SECTION 4.8. Unregistered Securities. Buyer is aware and understands (i)
that the Shares have not been registered under the Securities Act or under the
securities laws of any state, (ii) that any transfer of the Shares will be
restricted by such act and such state laws, (iii) that the certificates
representing the Shares will bear legends to such effect,and (iv) that the
Shares are "RESTRICTED SECURITIES" as such term is defined under the Securities
Act.
SECTION 4.9. Transfer of Shares. Buyer understands and acknowledges that
the Shares may not be offered, sold, pledged, or otherwise transferred except in
compliance with applicable federal and state securities laws including, without
limitation the Securities Act.
SECTION 4.10. Holding Periods. Buyer understands and acknowledges that any
"HOLDING PERIODS," as such term is defined under the Securities Act, accrued by
IGC may not be transferred to, or used by, the Buyer for "TACKING" purposes, as
such term is understood within the context of resales of restricted securities
under Rule 144 of the Securities Act or any successor or similar provision.
SECTION 4.11. Due Diligence Review. Buyer acknowledges that it or its
counsel, accountants or other advisers have completed to Buyer's satisfaction
review of all public filings, all material agreements, all financial statements,
all confidential documents and all other information the Buyer and its advisers
consider relevant, necessary and appropriate in making an informed decision to
buy the Shares.
SECTION 4.12. Reliance on Exemptions. The Buyer understands and
acknowledges that the Shares are being offered and sold to it in reliance upon
specific exemptions from the registration requirements of the Securities Act and
state securities laws and that IGC is relying upon the truth and accuracy of,
and the Buyer's compliance with, the representations, warranties, agreements,
acknowledgments, understandings and covenants of the Buyer set forth in this
Agreement.
SECTION 4.13. Economic Risks. Buyer is able to bear the economic risk of
purchasing the Shares including, without limitation, a complete loss of the
investment.
SECTION 4.14. Financing. Buyer has sufficient funds available necessary to
consummate the acquisition by Buyer of the Shares.
<PAGE> (39) 5
ARTICLE V
COVENANTS
---------
SECTION 5.1. All Reasonable Efforts. Subject to the terms and conditions
herein provided, each of the parties hereto agrees to use all reasonable efforts
to take, or cause to be taken, all action, and to do, or cause to be done as
promptly as practicable, all things necessary, proper and advisable under
applicable laws and regulations to consummate and make effective as promptly as
practicable the transactions contemplated by this Agreement. If at any time
after the Closing any further action is necessary or desirable to carry out the
purposes of this Agreement, including, without limitation, the execution of
additional instruments, the proper officers and directors of each party to this
Agreement shall take all such necessary action.
SECTION 5.2. Public Announcements. The parties hereto will consult with
each other and will mutually agree (the agreement of each party not to be
unreasonably withheld or delayed) upon the content and timing of any press
release or other public statements with respect to the transactions contemplated
by this Agreement and shall not issue any such press release or make any such
public statement prior to such consultation and agreement, except as may be
required by applicable law or by obligations pursuant to any listing agreement
with any securities exchange or any stock exchange regulations; provided,
however, that each party will give prior notice to the other parties of the
content and timing of any such press release or other public statement required
by applicable law or by obligations pursuant to any listing agreement with any
securities exchange or any stock exchange regulations.
SECTION 5.3. Supplemental Filings. Following the Closing, if, with respect
to the Shares, any reports, undertakings or other documents are required by the
Securities Act, federal securities laws, any state securities law, any
Governmental Authority, or any other regulatory authority, to be filed, the
Buyer will, at its own expense, execute, deliver and file such reports,
undertakings or other documents.
SECTION 5.4. No Implied Representations or Warranties. Buyer hereby
acknowledges and agrees that IGC is not making any representation or warranty
whatsoever, express or implied, except for those representations and warranties
of IGC explicitly set forth in this Agreement. Neither IGC nor its subsidiaries
nor any of their respective officers, directors, shareholders, employees,
affiliates or representatives has made or is making any representation or
warranty, express or implied, as to the value of the Shares.
SECTION 5.5. Compliance With Securities Laws . The Buyer shall not
directly or indirectly, offer, sell (including sell short), pledge, transfer or
otherwise dispose of (or solicit offers to buy, purchase or otherwise acquire or
take a pledge of) any of the Shares except in compliance with the registration
requirements of the Securities Act and applicable federal and state securities
laws.
<PAGE> (40) 6
ARTICLE VI
INDEMNIFICATION AND RELEASE
---------------------------
SECTION 6.1. Indemnification of IGC. Buyer hereby agrees to indemnify and
hold IGC, its officers, directors and subsidiaries harmless, at all times
against and in respect of any claims, actions, suits, proceedings, demands,
assessments, judgments, costs and legal and other expenses, arising out of or in
connection with, including, without limitation, (i) any breach of any
representation or warranty of Buyer contained herein, (ii) any failure by the
Buyer to perform or comply with any of the covenants or agreements contained in
this Agreement or any agreement or document given in connection herewith, and
(iii) any liability or obligation incurred by IGC, its officers, directors and
subsidiaries, after the Closing relating to the ownership of the Shares (other
than any liability or obligation for Taxes arising therefrom).
SECTION 6.2. Release. With effect from the Closing Date, Buyer and its
successors or assigns hereby remises, releases, acquits, and forever discharges
IGC, its officers, directors and subsidiaries from any and all manner of
actions, causes of actions, claims, debts, covenants, contracts, agreements,
promises and demands at law or in equity it had, now has or shall have upon or
by reason of any matter relating to the Preferred Stock Purchase Agreement or
this Agreement.
ARTICLE VII
ASSIGNMENT OF PREFERRED STOCK PURCHASE AGREEMENT AND RELEASE.
-------------------------------------------------------------
SECTION 7.1. Assignment. The execution of this Agreement and Closing shall
together work the assignment, from IGC to the Buyer, of all rights, benefits,
obligations and duties of IGC set forth in the Preferred Stock Purchase
Agreement, including, without limitation, the Registration Rights set forth
therein at Section 9. With effect from the Closing Date the Buyer shall assume
all rights, benefits, obligations and duties of the "INVESTOR" as such term is
defined in the Preferred Stock Purchase Agreement.
SECTION 7.2. General Release. With effect from the Closing Date, PowerCold
and its successors or assigns hereby remises, releases, acquits, and forever
discharges IGC, its officers, directors and subsidiaries, from any and all
manner of actions, causes of actions, claims, debts, covenants, contracts,
agreements, promises and demands at law or in equity it had, now has or shall
have upon or by reason of any matter relating to the Preferred Stock Purchase
Agreement or this Agreement.
SECTION 7.3. Acknowledgment of Transfer and Assignment. By executing this
Agreement PowerCold hereby (i) acknowledges and consents to the transfer of the
Shares and (ii) acknowledges and consents to the assignment set forth in Section
7.1 hereof.
SECTION 7.4. Waiver.. By executing this Agreement, PowerCold hereby waives
all the provisions for notice and transfer of the Shares set forth in the
Preferred Stock Agreement, including, without limitation, the provisions set
forth in Section 9 of the Preferred Stock Agreement.
<PAGE> (41) 7
SECTION 7.5. No Implied Rights, Representations, Warranties or Covenants.
Buyer and IGC hereby acknowledge and agree that, by executing this Agreement,
PowerCold is not making any implied representations, warranties or covenants
except for those representations, warranties or covenants of PowerCold
explicitly set forth herein. Buyer and IGC further acknowledge and agree that
Power Cold is executing this Agreement solely to effect the provisions of this
Article VII and that such execution by PowerCold neither implicates, creates nor
abridges any other rights, powers, duties or obligations under any other
provisions of this Agreement.
ARTICLE VIII
CLOSING CONDITIONS
------------------
SECTION 8.1. Conditions to the Obligations of Buyer under this Agreement.
The obligation of Buyer under this Agreement to consummate the acquisition of
the Shares (the "ACQUISITION") shall be subject to the satisfaction, at or prior
to the Closing, of the following conditions:
(a) All authorizations, consents and approvals contemplated by Section
4.4 shall have been obtained and shall be in full force and effect;
(b) No injunction, restraining order or other ruling or order issued by
any Governmental Authority or other legal restraint or prohibition
preventing the consummation of the Acquisition shall be in effect;
and
(c) Each of the obligations of IGC required to be performed by it at or
prior to the Closing pursuant to this Agreement shall have been duly
performed and complied with in all material respects, and the
representations and warranties of IGC contained in this Agreement
shall be true and correct, except where the failure to be true and
correct would not reasonably be expected to have a Material Adverse
Effect, as of the date of this Agreement and as of the Closing as
though made at and as of the Closing (except as to any representation
or warranty which specifically relates to an earlier date).
SECTION 8.2. Conditions to the Obligations of IGC under this Agreement. The
obligation of IGC under this Agreement to consummate the Acquisition shall be
subject to the satisfaction, at or prior to the Closing, of the following
conditions:
(a) All authorizations, consents and approvals contemplated by Section
4.4 shall have been obtained and shall be in full force and effect;
(b) No injunction, restraining order or other ruling or order issued by
any Governmental Authority or other legal restraint or prohibition
preventing the consummation of the Acquisition shall be in effect;
and
(c) Each of the obligations of Buyer required to be performed by it at
or prior to the Closing pursuant to the terms of this Agreement
shall have been duly performed and complied with in all material
respects, and the representations and warranties of Buyer
contained in this Agreement shall be true and correct in all
material respects as of the date of this Agreement and as of the
Closing Date as though made at and as of the Closing Date (except
as to any representation or warranty which specifically relates to
an earlier date), and IGC shall have received a certificate to
that effect signed by an officer of Buyer.
(d) PowerCold shall have consented to execute this Agreement solely for
the purposes of effecting Article VII hereof.
<PAGE> (42) 8
ARTICLE IX
CLOSING
-------
SECTION 9.1. Closing. The closing of the Acquisition (the "CLOSING") shall
take place on _____________, 2000, at the offices of Morgan, Lewis & Bockius,
LLP, 1701 Market Street, Philadelphia, PA 19103-2921, subject to the
satisfaction or waiver of the conditions set forth in Sections 8.1 and 8.2, as
soon as practicable after the date hereof and in any event not later than
___________, 2000, or at such other time and on such other date as Buyer and IGC
shall agree (the "CLOSING DATE"). As a further condition to Closing, at the
Closing:
(a) IGC shall deliver or cause to be delivered to Buyer certificates
representing all of the Shares in appropriate form for transfer to Buyer duly
endorsed in blank or accompanied by stock powers duly executed in blank.
(b) Buyer shall deliver or cause to be delivered to IGC the certificate
described in Section 8.2(c).
(c) Buyer shall pay the Purchase Price to IGC, by wire transfer of
immediately available funds.
ARTICLE X
SURVIVAL
--------
SECTION 10.1. Survival of Representations, Warranties and Covenants. Unless
a specified period is set forth in this Agreement (in which event such specified
period will control), the representations, warranties and covenants in this
Agreement will survive the Closing and remain in effect indefinitely.
ARTICLE XI
TERMINATION AND ABANDONMENT
---------------------------
SECTION 11.1. Termination. This Agreement may be terminated and the
transactions contemplated hereby may be abandoned at any time prior to the
Closing:
(a) by mutual consent of each of IGC and Buyer;
(b) by IGC or Buyer:
(i) if a Governmental Authority shall have issued an order, decree or
ruling or taken any other action (which order, decree or ruling the parties
hereto shall use their best efforts to lift), in each case permanently
restraining, enjoining or otherwise prohibiting the Acquisition, and such order,
decree, ruling or other action shall have become final and nonappealable; or
(ii) if the Closing shall not have occurred on or before ____________,
2000; provided, however, that the right to terminate this Agreement shall not be
available to any party whose breach of this Agreement has been the cause of, or
resulted in, the failure of the Closing to occur on or before such date;
(c) by Buyer if a material default or breach shall be made by IGC with
respect to the due and timely performance of any of its covenants or agreements
contained herein, or (subject to the proviso set forth below) in any of its
representations or warranties contained in this Agreement, if such default or
breach has not been cured or waived within 30 days after written notice to IGC
specifying, in reasonable detail, such claimed material default or breach and
demanding its cure or satisfaction; provided, however, in no event shall Buyer
be entitled to terminate this Agreement in the event of a breach by IGC of a
representation or warranty unless the failure of such representation or warranty
to be true and complete would have a Material Adverse Effect; or
<PAGE> (43) 9
(d) by IGC (i) if a material default or breach shall be made by Buyer
with respect to the due and timely performance of any of its covenants or
agreements contained herein, or in any of its representations or warranties
contained in this Agreement, if such default or breach has not been cured or
waived within 30 days after written notice to Buyer specifying, in reasonable
detail, such claimed material default or breach and demanding its cure or
satisfaction, or (ii) if PowerCold does not consent by ___________, 2000 to
execute this Agreement solely for the purpose of effecting Article VII hereof.
SECTION 11.2. Procedure and Effect of Termination. In the event of
termination and abandonment of the transactions contemplated hereby pursuant to
Section 11.1, written notice thereof shall forthwith be given to the other
parties to this Agreement and this Agreement shall terminate and the
transactions contemplated hereby shall be abandoned, without further action by
any of the parties hereto. If this Agreement is terminated as provided herein:
(a) upon request therefor, each party will redeliver all documents, and
other material of any other party relating to the transactions contemplated
hereby, whether obtained before or after the execution hereof, to the party
furnishing the same; and
(b) no party hereto shall have any liability or further obligation to
any other party to this Agreement resulting from such termination except (i)
that the provisions of this Section 11.2 and the proviso of Section 11.1(b)(ii)
shall remain in full force and effect and (ii) no party waives any claim or
right against a breaching party to the extent that such termination results from
the breach by a party hereto of any of its representations, warranties,
covenants or agreements set forth in this Agreement.
ARTICLE XII
MISCELLANEOUS PROVISIONS
------------------------
SECTION 12.1. Amendment and Modification. This Agreement may only be
amended, modified or supplemented by a written instrument signed by all the
parties hereto.
SECTION 12.2. Waiver of Compliance; Consents. Any failure of Buyer to
comply with any obligation, covenant, agreement or condition contained herein
may be waived in writing by IGC, but such waiver or failure to insist upon
strict compliance with such obligation, covenant, agreement or condition shall
not operate as a waiver of, or estoppel with respect to, any other failure. Any
failure of IGC to comply with any obligation, covenant, agreement or condition
contained herein may be waived in writing by Buyer, but such waiver or failure
to insist upon strict compliance with such obligation, covenant, agreement or
condition shall not operate as a waiver of, or estoppel with respect to, any
other failure.
SECTION 12.3. Validity. The invalidity or unenforceability of any provision
of this Agreement shall not affect the validity or enforceability of any other
provisions of this Agreement, which shall remain in full force and effect.
SECTION 12.4. Expenses and Obligations. Each party shall be responsible for
paying all costs and expenses incurred by it in connection with the consummation
of the transactions contemplated by this Agreement.
SECTION 12.5. Parties in Interest. This Agreement shall be binding upon and
inure solely to the benefit of each party hereto, and nothing in this Agreement,
express or implied, is intended to confer upon any other Person any rights or
remedies of any nature whatsoever under or by reason of this Agreement.
<PAGE> (44) 10
SECTION 12.6. Notices. All notices and other communications hereunder
shall be in writing and shall be deemed given upon the earlier of delivery
thereof if by hand or upon receipt if sent by mail (registered or certified,
postage prepaid, return receipt requested) or on the second next Business Day
after deposit if sent by a recognized overnight delivery service or upon
transmission if sent by telecopy or facsimile transmission (with electronic
acknowledgement of transmission confirmed) as follows:
(a) If to Buyer, to:
J. E. Liss & Company, Inc.
424 East Wisconsin Avenue
Milwaukee, Wisconsin 53202
Attention: Jerome E. Liss
Facsimile No.: (414) 225-3168
with a copy to:
Attention:
Facsimile No.:
If to PowerCold to:
PowerCold Corporation
103 Guadalupe Drive
22 Passaic Street
Cibolo, TX 78108
Attention: Francis L. Simola
Facsimile No.:
with a copy to:
Attention:
Facsimile No.:
If to IGC, to:
Intermagnetics General Corporation
450 Old Niskayuna Road
P.O. Box 461
Latham, NY 12110
Attention: Michael Zeigler
Facsimile No.: (518) 782-710 or 783-2601
with a copy to:
Morgan, Lewis & Bockius, LLP
1701 Market Street
Philadelphia, PA 19102-2921
Attention: David King
Facsimile No.: (215) 963-5299
<PAGE> (45) 11
SECTION 12.7. Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York without regard to
the conflicts-of-laws rules thereof.
SECTION 12.8. Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same agreement.
SECTION 12.9. Headings. The article and section headings contained in this
Agreement are solely for the purpose of reference, are not part of the agreement
of the parties and shall not affect in any way the meaning or interpretation of
this Agreement.
SECTION 12.10. Entire Agreement. This Agreement embodies the entire
agreement and understanding of the parties hereto in respect of the subject
matter contained herein or therein. There are no agreements, representations,
warranties or covenants other than those expressly set forth herein or therein.
This Agreement supersedes all prior agreements and understandings between the
parties with respect to such subject matter.
SECTION 12.11. Assignment. This Agreement shall not be assigned except
in writing and with the consent of all parties hereto.
IN WITNESS WHEREOF, each of the parties hereto has caused this Agreement to
be signed on its behalf by its duly authorized officers, all as of the day and
year first above written.
J. E. LISS & COMPANY, INC.
By:
Name:
Title:
INTERMAGNETICS GENERAL CORPORATION
By:
Name:
Title:
PowerCold Corporation hereby acknowledges this Agreement and executes this
Agreement solely to effect the provisions set forth herein at Article VII.
POWERCOLD CORPORATION
By:
Name:
Title:
<PAGE> (46) 12
Exhibit 4.10
Subscription Agreement
SUBSCRIPTION AGREEMENT
FOR
POWERCOLD CORPORATION
1. Stock Subscription: The undersigned, JOHN COGHLAN ("COGHLAN") or
("Subscriber") hereby subscribes for One Hundred Thousand(100,000) shares
of Common Stock, of POWERCOLD CORPORATION, a Nevada Corporation ("Company")
("Common Stock"), for and in consideration of Seventy -Five Thousand Dollars
($75,000.00), to be paid upon execution of this Agreement. Such Subscription is
subject to the following terms and conditions, and may be rejected in whole or
in part by the Company:
a. The certificate(s) representing the Common Stock delivered pursuant
to this Subscription bear a legend in the following form:
"THE COMMON STOCK REPRESENTED BY THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933 ("ACT"), AS AMENDED, OR ANY OTHER APPLICABLE FEDERAL
OR STATE SECURITIES ACTS; AND IS A RESTRICTED SECURITY AS DEFINED BY RULE 144 OF
THE ACT. THE COMMON STOCK MAY NOT BE TRANSFERRED, SOLD OR OTHERWISE DISPOSED OF
UNLESS (1) A REGISTRATION STATEMENT WITH RESPECT TO THE COMMON STOCK SHALL BE
EFFECTIVE UNDER THE ACT OR ANY OTHER FEDERAL OR STATE SECURITIES ACTS OR AN
EXEMPTION FROM REGISTRATION REQUIREMENTS UNDER THE ACT IS EFFECTIVE, AND, (2)
THE COMPANY SHALL HAVE RECEIVED AN OPINION OF COUNSEL FOR THE COMPANY THAT NO
VIOLATIONS OF ANY SECURITIES ACTS WILL BE INVOLVED IN ANY TRANSFER."
b. If the Common Stock represented by this certificate have been held for a
period of at least one (1) year and if Rule 144 the Securities Act of 1933, as
amended ("Act"), is applicable (there being no representations by the
Company that Rule 144 is applicable), then the undersigned may make sales of
the Common Stock only under the terms and conditions prescribed by Rule 144 of
the Act or Exemptions therefrom.
2. Representations and Warranties: COGHLAN hereby represents and warrants to
POWERCOLD CORPORATION:
a. UNDERSTANDS THAT POWERCOLD COMMON STOCK HAS NOT BEEN APPROVED OR
DISAPPROVED BY THE UNITED STATES SECURITIES AND EXCHANGE COMMISSION, THE STATE
OF PENNSYLVANIA OR ANY OTHER STATE SECURITIES AGENCIES.
b. is not an underwriter, and acquired POWERCOLD Common Stock solely for
investment for his own account and not with a view to, or for, resale in
connection with any distribution of securities within the meaning of the Federal
Securities Acts, the Washington State Securities Act, or any other applicable
State Securities Acts; and is not being purchased with a view to or for the
resale, distribution, subdivision or fractionalization thereof; and the
undersigned has no contract, undertaking, understanding, agreement, or
arrangement, formal or informal, with any person to sell, transfer, or pledge to
any person the securities for which he/she hereby subscribes, or any part
thereof; and he understands that the legal consequences of the foregoing
representations and warranties to mean that he must bear the economic risk of
the investment for an indefinite period of time because the securities has not
been registered under the Act, and, therefore, cannot be sold unless they are
subsequently registered under the Act (which the Company is not obligated to do)
or an exemption from such registration is available.
<PAGE> 47
c. understands the speculative nature and risks of investments
associated with POWERCOLD, and confirms that the Common Stock would be suitable
and consistent with his investment program and that his financial position
enables him bear the risks of this investment; and that there may not be any
public market for the securities for herein. Such risks include, but are not
limited to: (1) There is no guarantee the Company is able to successfully market
its products and services; (2) The Company is wholly dependent on the services
and technological skills of Francis L. Simola, Chairman and Chief Executive
Officer, George Briley, Chief Technology Officer, and Jack Kazmar, Chief
Operating Officer, the loss of the services of them due to death, disability or
other reasons could have a material adverse effect on the Company; (3)
Governmental regulations such as the National Appliance Energy Conservation Act
of 1987 and/or Environmental laws that affect or could affect PowerCold's
domestic operations include, among others, the Clean Air Act, the Clean Water
Act, the Resource Conservation and Recovery Act, the Occupational Safety and
Health Act, the National Environmental Policy Act, the Toxic Substances Control
Act, any regulations promulgated under these acts, and various other Federal,
state and local laws and regulations governing environmental matters (4) the
Company is under capitalized; and (5) the volatility of the Common Stock of the
Company, may be subject to fluctuations in response to quarter-to-quarter
variations in operating results, changes in earnings estimates by investment
analysts or changes in business or regulatory conditions affecting PowerCold,
its customers, its suppliers or its competitors.
d. The Common Stock subscribed for herein may not be transferred,
encumbered, sold, hypothecated, or otherwise disposed of to any person,
without the express prior written consent of POWERCOLD, and the prior
opinion of counsel for POWERCOLD, that such disposition will not violate
Federal and/or State Securities Acts. Disposition shall include, but is not
limited to acts of selling, assigning, transferring, pledging, encumbering,
hypothecating, giving, and any form of conveying, whether voluntary or
not.
e. POWERCOLD is under no obligation to register or seek an exemption
under any Federal and/or State Securities Acts for any Common Stock of
POWERCOLD, or to cause or permit such Common Stock to be transferred in the
absence of any such registration or exemption and that COGHLAN herein must hold
such Common Stock indefinitely unless such Common Stock is subsequently
registered under Federal and/or State Securities Acts or an exemption from
registration is available.
f. At the time of subscription, COGHLAN reviewed the economic consequences
of the purchase of the Common Stock with his attorney and/or other financial
advisor, was afforded access to the books and records of the Company, conducted
an independent investigation of the business of the Company, and was fully
familiar with the financial affairs of the Company. consulted with his counsel
with respect to the Act and applicable federal and state securities laws.
Company has not provided COGHLAN with any representations, statements, or
warranties as to the Common Stock.
g. had the opportunity to ask questions of the Company and receive
additional information from the Company to the extent that the Company
possessed such information, (including the review of the Company's Form
10-Q for the latest quarter and the Form 10-K Annual Report for the past
fiscal year, as well as other filings with the U.S. Securities and Exchange
Commission) or could acquire it without unreasonable effort or expense,
necessary to evaluate the merits and risks of an investment in POWERCOLD;
provided that nothing herein shall be deemed to be an acknowledgment of
the accuracy or completeness of such responses.
<PAGE> 48
h. confirms that he is able (i) to bear the economic risk of his
investment, (ii) to hold the Common Stock for an indefinite period of time, and
(iii) to afford a complete loss of its investment; and represents that he has
adequate means of providing for its current needs and possible personal
contingencies, and that he has no need for liquidity in this investment; (iv)
this investment is suitable for COGHLAN based upon his investment holdings and
financial situation and needs, and (v) has had a preexisting personal or
business relationship with
POWERCOLD or by reason of his business or financial experience could
be reasonably assumed to have the capacity to protect his own Common Stock in
connection with this transaction.
i. confirms that the undersigned is an "accredited investor" within the
meaning of SEC Regulation "D" or the undersigned, along or together with its
purchaser representative(s) has such knowledge and experience in financial and
business matters that he, or Johnson and such representative(s) together, is
capable of evaluating the merits and risks of an investment in POWERCOLD and of
making an informed investment decision.
j. that the undersigned is a citizen of the United States.
3. Arbitration: Any controversy arising out of, connected to, or relating
to any matters herein of the transactions between Subscriber and Company
(including for purposes of arbitration, officers, directors, employees,
controlling persons, affiliates, professional advisors, agents, or promoters of
the Company), on behalf of the undersigned, or this Agreement, or the breach
thereof, including, but not limited to any claims of violations of Federal
and/or State Securities Acts, Banking Statutes, Consumer Protection Statutes,
Federal and/or State anti-Racketeering (e.g. RICO) claims as well as any common
law claims and any State Law claims of fraud, negligence, negligent
misrepresentations, and/or conversion shall be settled by arbitration; and in
accordance with this paragraph and judgment on the arbitrator's award may be
entered in any court having jurisdiction thereof in accordance with the
provisions of Nevada Law. In the event of such a dispute, each party to the
conflict shall select an arbitrator, both of whom shall then select a third
arbitrator which shall constitute the three person arbitration board. The
decision of a majority of the board of arbitrators, who shall render their
decision within thirty (30) days of appointment of the final arbitrator, shall
be binding upon the parties.
4. Miscellaneous: This Subscription Agreement shall be binding upon the
parties hereto, their heirs, executors, successors, and legal representatives.
The laws of the State of Nevada shall govern the rights of the parties as to
this Agreement.
5. Indemnification: Subscriber acknowledges that he understands the meaning
and legal consequences of the representations and warranties contained herein,
and he/she hereby agrees to indemnify and hold harmless the Company and any
other person or entity relying upon such information thereof from and against
any and all loss, damage or liability due to or arising out of a breach of any
representation, warranty, or acknowledgment of contained in this Agreement.
<PAGE> 49
COGHLAN HEREBY DECLARE THAT HE IS AN ACCREDITED INVESTOR AND AFFIRMS THAT HE HAS
READ THE CONTENTS WITHIN AND FOREGOING SUBSCRIPTION AGREEMENT, IS FAMILIAR WITH
THE CONTENTS THEREOF AND AGREES TO ABIDE BY THE TERMS AND CONDITIONS THEREIN SET
FORTH, AND KNOWS THE STATEMENTS THEREIN TO BE TRUE AND CORRECT.
IN WITNESS WHEREOF, executed this Agreement this day of 1999.
SUBSCRIBER:
John R. Coghlan
(Please Print Name)
/s/ John R. Coghlan
(Signature)
###-##-####
(Social Security Number or Employer Identification Number)
POWERCOLD CORPORATION, A NEVADA CORPORATION
By: /s/ Francis L. Simola
Francis L. Simola
Title: President and CEO
<PAGE> 50
Exhibit 4.10 (continued)
SUBSCRIPTION AGREEMENT
FOR
POWERCOLD CORPORATION
1. Stock Subscription: The undersigned, JOHN R. COGHLAN ("COGHLAN") or
("Subscriber") hereby subscribes for Sixty Five Thousand( 65,000) shares
of Common Stock, of POWERCOLD CORPORATION, a Nevada Corporation ("Company")
("Common Stock"), for and in consideration of Fifty Thousand Dollars
($50,000.00), to be paid upon execution of this Agreement. Such Subscription is
subject to the following terms and conditions, and may be rejected in whole or
in part by the Company:
a. The certificate(s) representing the Common Stock delivered pursuant
to this Subscription bear a legend in the following form:
"THE COMMON STOCK REPRESENTED BY THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933 ("ACT"), AS AMENDED, OR ANY OTHER APPLICABLE FEDERAL
OR STATE SECURITIES ACTS; AND IS A RESTRICTED SECURITY AS DEFINED BY RULE 144 OF
THE ACT. THE COMMON STOCK MAY NOT BE TRANSFERRED, SOLD OR OTHERWISE DISPOSED OF
UNLESS (1) A REGISTRATION STATEMENT WITH RESPECT TO THE COMMON STOCK SHALL BE
EFFECTIVE UNDER THE ACT OR ANY OTHER FEDERAL OR STATE SECURITIES ACTS OR AN
EXEMPTION FROM REGISTRATION REQUIREMENTS UNDER THE ACT IS EFFECTIVE, AND, (2)
THE COMPANY SHALL HAVE RECEIVED AN OPINION OF COUNSEL FOR THE COMPANY THAT NO
VIOLATIONS OF ANY SECURITIES ACTS WILL BE INVOLVED IN ANY TRANSFER."
b. If the Common Stock represented by this certificate have been held
for a period of at least one (1) year and if Rule 144 the Securities Act of
1933, as amended ("Act"), is applicable (there being no representations by
the Company that Rule 144 is applicable), then the undersigned may make sales
of the Common Stock only under the terms and conditions prescribed by Rule
144 of the Act or Exemptions therefrom.
2. Representations and Warranties: COGHLAN hereby represents and warrants to
POWERCOLD CORPORATION:
a. UNDERSTANDS THAT POWERCOLD COMMON STOCK HAS NOT BEEN APPROVED OR
DISAPPROVED BY THE UNITED STATES SECURITIES AND EXCHANGE COMMISSION, THE STATE
OF PENNSYLVANIA OR ANY OTHER STATE SECURITIES AGENCIES.
b. is not an underwriter, and acquired POWERCOLD Common Stock solely for
investment for his own account and not with a view to, or for, resale in
connection with any distribution of securities within the meaning of the Federal
Securities Acts, the Washington State Securities Act, or any other applicable
State Securities Acts; and is not being purchased with a view to or for the
resale, distribution, subdivision or fractionalization thereof; and the
undersigned has no contract, undertaking, understanding, agreement, or
arrangement, formal or informal, with any person to sell, transfer, or pledge to
any person the securities for which he/she hereby subscribes, or any part
thereof; and he understands that the legal consequences of the foregoing
representations and warranties to mean that he must bear the economic risk of
the investment for an indefinite period of time because the securities has not
been registered under the Act, and, therefore, cannot be sold unless they are
subsequently registered under the Act (which the Company is not obligated to do)
or an exemption from such registration is available.
<PAGE> 51
c. understands the speculative nature and risks of investments
associated with POWERCOLD, and confirms that the Common Stock would be suitable
and consistent with his investment program and that his financial position
enables him bear the risks of this investment; and that there may not be any
public market for the securities for herein. Such risks include, but are not
limited to: (1) There is no guarantee the Company is able to successfully market
its products and services; (2) The Company is wholly dependent on the services
and technological skills of Francis L. Simola, Chairman and Chief Executive
Officer, George Briley, Chief Technology Officer, and Jack Kazmar, Chief
Operating Officer, the loss of the services of them due to death, disability or
other reasons could have a material adverse effect on the Company; (3)
Governmental regulations such as the National Appliance Energy Conservation Act
of 1987 and/or Environmental laws that affect or could affect PowerCold's
domestic operations include, among others, the Clean Air Act, the Clean Water
Act, the Resource Conservation and Recovery Act, the Occupational Safety and
Health Act, the National Environmental Policy Act, the Toxic Substances Control
Act, any regulations promulgated under these acts, and various other Federal,
state and local laws and regulations governing environmental matters (4) the
Company is under capitalized; and (5) the volatility of the Common Stock of the
Company, may be subject to fluctuations in response to quarter-to-quarter
variations in operating results, changes in earnings estimates by investment
analysts or changes in business or regulatory conditions affecting PowerCold,
its customers, its suppliers or its competitors.
d. The Common Stock subscribed for herein may not be transferred,
encumbered, sold, hypothecated, or otherwise disposed of to any person,
without the express prior written consent of POWERCOLD, and the prior
opinion of counsel for POWERCOLD, that such disposition will not violate
Federal and/or State Securities Acts. Disposition shall include, but is not
limited to acts of selling, assigning, transferring, pledging, encumbering,
hypothecating, giving, and any form of conveying, whether voluntary or
not.
e. POWERCOLD is under no obligation to register or seek an exemption
under any Federal and/or State Securities Acts for any Common Stock of
POWERCOLD, or to cause or permit such Common Stock to be transferred in the
absence of any such registration or exemption and that COGHLAN herein must hold
such Common Stock indefinitely unless such Common Stock is subsequently
registered under Federal and/or State Securities Acts or an exemption from
registration is available.
f. At the time of subscription, COGHLAN reviewed the economic consequences
of the purchase of the Common Stock with his attorney and/or other financial
advisor, was afforded access to the books and records of the Company, conducted
an independent investigation of the business of the Company, and was fully
familiar with the financial affairs of the Company. consulted with his counsel
with respect to the Act and applicable federal and state securities laws.
Company has not provided COGHLAN with any representations, statements, or
warranties as to the Common Stock.
g. had the opportunity to ask questions of the Company and receive
additional information from the Company to the extent that the Company
possessed such information, (including the review of the Company's Form
10-Q for the latest quarter and the Form 10-K Annual Report for the past
fiscal year, as well as other filings with the U.S. Securities and Exchange
Commission) or could acquire it without unreasonable effort or expense,
necessary to evaluate the merits and risks of an investment in POWERCOLD;
provided that nothing herein shall be deemed to be an acknowledgment of
the accuracy or completeness of such responses.
<PAGE> 52
h. confirms that he is able (i) to bear the economic risk of his
investment, (ii) to hold the Common Stock for an indefinite period of time, and
(iii) to afford a complete loss of its investment; and represents that he has
adequate means of providing for its current needs and possible personal
contingencies, and that he has no need for liquidity in this investment; (iv)
this investment is suitable for COGHLAN based upon his investment holdings and
financial situation and needs, and (v) has had a preexisting personal or
business relationship with
POWERCOLD or by reason of his business or financial experience could
be reasonably assumed to have the capacity to protect his own Common
Stock in connection with this transaction.
i. confirms that the undersigned is an "accredited investor" within the
meaning of SEC Regulation "D" or the undersigned, along or together with its
purchaser representative(s) has such knowledge and experience in financial and
business matters that he, or Johnson and such representative(s) together, is
capable of evaluating the merits and risks of an investment in POWERCOLD and of
making an informed investment decision.
j. that the undersigned is a citizen of the United States.
3. Arbitration: Any controversy arising out of, connected to, or relating
to any matters herein of the transactions between Subscriber and Company
(including for purposes of arbitration, officers, directors, employees,
controlling persons, affiliates, professional advisors, agents, or promoters of
the Company), on behalf of the undersigned, or this Agreement, or the breach
thereof, including, but not limited to any claims of violations of Federal
and/or State Securities Acts, Banking Statutes, Consumer Protection Statutes,
Federal and/or State anti-Racketeering (e.g. RICO) claims as well as any common
law claims and any State Law claims of fraud, negligence, negligent
misrepresentations, and/or conversion shall be settled by arbitration; and in
accordance with this paragraph and judgment on the arbitrator's award may be
entered in any court having jurisdiction thereof in accordance with the
provisions of Nevada Law. In the event of such a dispute, each party to the
conflict shall select an arbitrator, both of whom shall then select a third
arbitrator which shall constitute the three person arbitration board. The
decision of a majority of the board of arbitrators, who shall render their
decision within thirty (30) days of appointment of the final arbitrator, shall
be binding upon the parties.
4. Miscellaneous: This Subscription Agreement shall be binding upon the
parties hereto, their heirs, executors, successors, and legal representatives.
The laws of the State of Nevada shall govern the rights of the parties as to
this Agreement.
5. Indemnification: Subscriber acknowledges that he understands the meaning
and legal consequences of the representations and warranties contained herein,
and he/she hereby agrees to indemnify and hold harmless the Company and any
other person or entity relying upon such information thereof from and against
any and all loss, damage or liability due to or arising out of a breach of any
representation, warranty, or acknowledgment of contained in this Agreement.
<PAGE> 53
COGHLAN HEREBY DECLARE THAT HE IS AN ACCREDITED INVESTOR AND AFFIRMS THAT HE HAS
READ THE CONTENTS WITHIN AND FOREGOING SUBSCRIPTION AGREEMENT, IS FAMILIAR WITH
THE CONTENTS THEREOF AND AGREES TO ABIDE BY THE TERMS AND CONDITIONS THEREIN SET
FORTH, AND KNOWS THE STATEMENTS THEREIN TO BE TRUE AND CORRECT.
IN WITNESS WHEREOF, executed this Agreement this 22nd day of June 2000.
SUBSCRIBER:
JOHN R. COGHLAN
------------------
(Please Print Name)
/s/ John R. Coghlan
(Signature)
###-##-####
(Social Security Number or Employer Identification Number)
POWERCOLD CORPORATION, A NEVADA CORPORATION
By: /s/ Francis L. Simola
Francis L. Simola
Title: President and CEO
<PAGE> 54
Exhibit 5
June 28, 2000
Powercold Corporation
103 Guadalupe Drive
Cibolo, Texas 78108
Re: Powercold Corporation -- Shelf Registration Statement on Form S-3
Ladies and Gentlemen:
We have acted as counsel for Powercold Corporation, a Nevada corporation (the
"Company"), in connection with the preparation of a Registration Statement on
Form S-3 (the "Registration Statement") filed with the Securities and Exchange
Commission under the Securities Act of 1933, as amended, relating to the
registration of an aggregate of 2,611,456 shares (the "Shares") of the Company's
Common Stock, par value $0.001 per share ("Common Stock"), as well as options
for 600,000 shares of the Company's Common Stock, par value $0.001 per share
("Options") all of which may to be sold by certain stockholders of the Company
(the "Selling Stockholders").
I have examined the Registration Statement and such documents and records of the
Company and other documents as I had deemed necessary for purposes of this
opinion. We have not made any independent review or investigation of the
organization, existence, good standing, assets, business or affairs of the
Company, or of any other matters. In rendering our opinion, we have assumed
without inquiry the legal capacity of all natural persons, the genuineness of
all signatures, and the authenticity of all documents submitted to us.
We have not undertaken any independent investigation to determine facts bearing
on this opinion, and no inference as to the best of our knowledge of facts based
on an independent investigation should be drawn from this representation.
Based upon the foregoing, I am of the opinion that upon the happening of the
following events,
(a) due action by the Board of Directors of the Company authorizing the
issuance and/or sale of the Shares and Options by the Selling Shareholders;
(b) filing of the Registration Statement and any amendments thereto and the
becoming effective of the Registration Statement; and
(c) due execution by the Company and registration by its registrars of the
Shares and Options of the Selling Shareholders and sale thereof as contemplated
by the Registration Statement and in accordance with the aforesaid corporate and
governmental authorizations,
the Shares and Options are duly authorized for issuance and are validly issued,
fully paid and nonassessable.
I hereby consent to the filing of this opinion as an exhibit to the Registration
Statement.
This opinion is given as of the date hereof, and we assume no obligation to
advise you after the date hereof of facts or circumstances that come to our
attention or changes in law that occur which could affect the opinions contained
herein.
<PAGE> 55
For purposes of Item 509, of Regulation S-K, I currently possess 5,000 shares of
Common Stock of the Company, obtained as a gift.
This opinion is rendered only to you and is solely for your benefit in
connection with the transactions covered hereby. This opinion may not be relied
upon by you for any other purpose or furnished, or quoted to, or relied upon by
any other person, firm or corporation for any purpose without our prior express
written consent.
Very truly yours,
CHARLES A. CLEVELAND, P.S.
By:/s/ Charles A. Cleveland
CAC:lrb
<PAGE> 56
Exhibit 15.0
R. E. BASSIE & CO., P.C.
CERTIFIED PUBLIC ACCOUNTANTS
A PROFESSIONAL CORPORATION
7171 Harwin Drive, Suite 306
Houston, Texas 77036-2197
Tel: (713) 266-0691 Fax: (713) 266-0692
E-Mail: [email protected]
June 20, 2000
PowerCold Corporation
103 Guadalupe Drive
Cibolo, Texas 78108
We have reviewed, in accordance with standards established by the American
Institute of Certified Public Accountants, the unaudited interim financial
information of PowerCold Corporation and subsidiaries for the period ended March
31, 2000, as indicated in our report dated May 10, 2000; because we did not
perform an audit, we expressed no opinion on that information.
We are aware that our report referred to above, which was included in your
Quarterly Report on Form 10-Q for the quarter ended March 31, 2000, is being
used in this Registration Statement.
We also are aware that the aforementioned report, pursuant to Rule 436(c) under
the Securities Act of 1933, is not considered a part of the Registration
Statement prepared or certified by an accountants or a report prepared or
certified by an accountant within the meaning of Sections 7 and 11 of that Act.
/s/ R. E. Bassie & Co., P.C.
<PAGE> 57
Exhibit 23.1
R. E. BASSIE & CO., P.C.
CERTIFIED PUBLIC ACCOUNTANTS
A PROFESSIONAL CORPORATION
7171 Harwin Drive, Suite 306
Houston, Texas 77036-2197
Tel: (713) 266-0691 Fax: (713) 266-0692
E-Mail: [email protected]
INDEPENDENT AUDITORS' CONSENT
-----------------------------
We consent to the incorporation by reference in this Registration Statement of
PowerCold Corporation on Form S-3 of our reports dated March 30, 2000, appearing
in the Amended Annual Report on Form 10-K of PowerCold Corporation for the year
ended December 31, 1999, and to the reference to us under the heading "Experts"
in the Prospectus, which is part of this Registration Statement.
/s/ R. E. Bassie and Co., P.C.
Houston, Texas
June 20, 2000
<PAGE> 58
Exhibit 23.2
See Exhibit 5.
