RNWF and CPV Merger Agreement
AGREEMENT AND PLAN OF REORGANIZATION
by and among:
COMPETITIVE POWER VENTURES HOLDINGS, LLC
a Maryland limited liability company and
RENEWAL FUELS, INC.
a Delaware corporation
NOVEMBER 18, 2010
[2]
TABLE OF CONTENTS
RECITALS INDEX OF DEFINED TERMS ARTICLE ONE THE MERGERS 1.1
Offer Price; Merger Consideration 1.2
Effective Time 1.3
Effect of the Merger 1.4
Surrender and Payment 1.5
Dissenting Shares 1.6
Lost Certificates 1.7
Registered Securities ARTICLE TWO REPRESENTATION AND WARRANTIES OF RENEWAL FUELS 2.1
Organization and Qualification 2.2
Certificate of Incorporation 2.3
Capitalization 2.4
Authority Related to this Agreement 2.5
Consents 2.6
Absence of Litigation 2.7
Property and Leases 2.8
Intellectual Property ARTICLE THREE REPRESENTATION AND WARRANTIES OF CPV 3.1
Corporate Organization 3.2
Authority Related to this Agreement 3.3
No Conflict; Required Filings and Consents 3.4
Financing 3.5
Proxy Statement 3.6
Litigation 3.7
Vote Required 3.8
Ownership of Company Shares ARTICLE FOUR CONDUCT OF BUSINESS PENDING THE MERGER 4.1
Conduct of Business Pending the Merger 4.2
Additional Conduct of Business Pending the Merger 4.3
Access to Information 4.4
Confidentiality 4.5
Books and Records [3] 4.6
Public Announcements ARTICLE FIVE MISCELLANEOUS 5.1
Entire Agreement5.2
Termination ARTICLE SIX GENERAL PROVISIONS 6.1
Notices 6.2
Notice Amendment 6.3
Severability 6.4
Interpretation of Agreement 6.5
No Other Representations and Warranties 6.6
Reliance 6.7
Counterparts THIS REORGANIZATION AGREEMENT, dated as of November 18, 2010 (this "Agreement"), is among Competitive Power Ventures Holdings, LLC, a Maryland limited liability company ("CPV") and Renewal Fuels, Inc., a Delaware corporation ("Renewal Fuels"). Certain terms used in this agreement are defined in the Index of Defined Terms.
RECITALS
A.
Upon the terms and subject to the conditions of this Agreement and in accordance
with the Delaware General Corporation Law (“Delaware Law”), CPV and
Renewal Fuels intend to enter into a business combination transaction. B.
The Boards of Di
rectors at CPV (“Acquirer”), and Renewal Fuels (“Company”),
believe it is fair to and in the best interests of their respective companies and the
stockholders and stakeholders that CPV and Renewal Fuels combine into a single
company through the acquisition of Renewal Fuels by CPV by the terms
contained herein. Furthermore, the respective boards have approved and declared
the advisability of this Agreement and the Acquisition.
C.
In consideration of the tangible assets and Intellectual Property to be received,
including the third and four-generation personal biofuels producer, CPV sees the
addition of Renewal Fuels to the company holdings as a strategic move that will
help diversify the portfolio beyond wind energy and natural gas generation into
the personal biofuels market. D.
CPV is contemplating an offer and sale of Common Stock to the public through
an underwritten initial public offering (the “IPO”).
E.
After the consummation of the IPO, as described in and subject to the conditions and terms set forth in this Agreement, stockholders in Renewal Fuels shall be [4]
permitted to exchange common membership interests in said holding for shares of CPV or cash.
AGREEMENT
For good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:
INDEX OF DEFINED TERMS
“
Agreement
”
is defined in the preamble.
“
Commission
”
or
“
SEC
”
shall refer to the Securities and Exchange Commission.
“Common Stock” means the
common stock, par value $0.001 per share, of Renewal Fuels.
“Company Board Recommendation” is defined in Section 2.5.
“
Confidentiality
Agreement”
is defined in Section 4.4.
“Dissenting Shares”
is defined in Section 1.5.
“Exchange Agent”
is defined in Section 1.4.
“IPO” or “Initial Public Offering” refers to the first sale of stock by CPV to the general
public.
“
Intellectual Property
”
means domestic and foreign patents, patent applications, patent licenses, trade names, common law and other trademarks, service marks, licenses of trademarks, trademark registrations and applications, and copyrights.
“Merger Consideration” refers to the aggregate amount offered by CPV to Renewal Fuels
for each issued common share of stock and is further defined in Section 1.4.
“Payment Fund” is defined in Section 1.4.
“
Securities Act
”
shall mean the Securities Act of 1933.
“Surviving Corporation”
is defined in Section 1.3.
“Tax” or “Taxes” shall mean all taxes, however denominated, administered by any
federal, state, local or foreign government. [5] ARTICLE ONE
The Merger 1.1
Offer Price; Merger Consideration
. It is proposed that CPV shall commence an offer
(the “Offer”) to acquire Renewal Fuels
at the equivalent price of $0.12 per Company Share, net to the holder thereof in cash or in shares from the subsequent IPO from CPV, all upon the terms and conditions set forth within.
1.2 Effective Time
. The Reorganization will become effective upon the filing of this Agreement with the Securities and Exchange Commission and the filing of a Certificate of Merger with the Secretary of State and the State of Maryland in accordance with the relevant provisions of Maryland Law, to be done no later than December 5, 2010.
1.3 Effect of the Merger
. At the Effective Time, Renewal Fuels shall be merged with and into the CPV in accordance with Maryland and Delaware Law, whereupon the separate existence of the Company shall cease, and CPV shall be the surviving corporation (the
“Surviving Corporation”). From and after the Effective
Time, the Surviving Corporation shall possess all the rights, powers, privileges and franchises and be subject to all of the obligations, liabilities, restrictions and disabilities of the CPV and Renewal Fuels, all as provided under Maryland Law.
1.4 Surrender and Payment
. (a)
Prior to the Effective Time, CPV shall appoint an exchang
e agent (the “Exchange Agent”). As of the Effective Time,
CPV shall deposit with the Exchange Agent the aggregate Merger Consideration of cash or short-term securities to be paid in respect of the shares of Renewal Fuels
Common Stock (the “Payment Fund”).
(b)
Each holder of shares of Renewal Fuels Common Stock that have been converted into the right to receive the Merger Consideration shall be entitled to receive the Merger Consideration in respect of the Company Common Stock represented by a Certificate or Uncertificated Share, upon (i) surrender to the Exchange Agent of a Certificate, together with a duly completed and validly executed letter of transmittal and such other documents as may reasonably be requested by the Exchange Agent, or (ii) receipt of an "agent's message" by the Exchange Agent (or such other evidence, if any, of transfer as the Exchange Agent may reasonably request) in the case of a book-entry transfer of Uncertificated Shares. Until so surrendered or transferred, each such Certificate or Uncertificated Share shall represent after the Effective Time for all purposes only the right to receive such Merger Consideration. No interest shall be paid or accrued on the cash payable upon the surrender or transfer of such Certificate or Uncertificated Share. Upon payment of the Merger Consideration pursuant to the provisions of this Article 1
, each Certificate or Certificates so surrendered shall immediately be cancelled. (c)
All Merger Consideration paid upon the surrender of Certificates or transfer of Uncertificated Shares in accordance with the terms hereof shall be deemed to [6]
have been paid in full satisfaction of all rights pertaining to the shares of Company Common Stock. There shall be no further registration of transfers of shares of Company Common Stock on the stock transfer books of the Surviving Corporation. If, after the Effective Time, Certificates or Uncertificated Shares are presented to the Surviving Corporation, they shall be canceled and exchanged for the Merger Consideration provided for, and in accordance with the procedures set forth, in this Article 1
. (d)
Any portion of the Payment Fund that remains unclaimed by the holders of shares of Company Common Stock one (1) year after the Effective Time shall be returned to CPV, upon demand, and any such holder who has not exchanged shares of Company Common Stock for the Merger Consideration in accordance with this Section 1.4
prior to that time shall thereafter look only to CPV for payment of the Merger Consideration. Notwithstanding the foregoing, CPV shall not be liable to any holder of shares of Company Common Stock for any amounts paid to a public official pursuant to applicable abandoned property, escheat or similar laws. Any amounts remaining unclaimed by holders of shares of Company Common Stock immediately prior to such time when the amounts would otherwise escheat to or become property of any Governmental Authority shall become, to the extent permitted by Applicable Law, the property of CPV free and clear of any claims or interest of any Person previously entitled thereto. (e)
Should holders of shares elect to forego the payment of cash, said shares will be converted after the Effective Time and immediately prior to the IPO into newly-issued shares of CPV stock at an equivalent price by a ratio to be determined.
1.5 Dissenting Shares
. Shares of Company Common Stock issued and outstanding immediately prior to the Effective Time and held by a holder who has not voted in favor of adoption of this Agreement or consented thereto in writing and who has properly exercised appraisal rights of such shares in accordance with Section 262 of Delaware Law (such shares being referred to collectively as the "Dissenting Shares" until such time as such holder fails to perfect or otherwise loses such holder's appraisal rights under Delaware Law with respect to such shares) shall not be converted into a right to receive the Merger Consideration but instead shall be entitled to payment of the appraised value of such shares in accordance with Section 262 of Delaware Law; providedthat if, after the Effective Time, such holder fails to perfect, withdraws or loses such holder's right to appraisal, pursuant to Section 262 of Delaware Law or if a court of competent jurisdiction shall determine that such holder is not entitled to the relief provided by Section 262 of Delaware Law, such shares of Company Common Stock shall be treated as if they had been converted as of the Effective Time into the right to receive the Merger Consideration, without interest thereon, upon surrender of such Certificate formerly representing such share or transfer of such Uncertificated Share, as the case may be. CPV shall provide the Company prompt written notice of any demands received by CPV for appraisal of shares of Company Common Stock, any withdrawal of any such demand and any other demand, notice, instrument delivered to CPV prior to the Effective Time pursuant to Delaware Law that relate to such demand, and Company shall have the [7] opportunity and right to participate in all negotiations and proceedings with respect to such demands. Except with the prior written consent of Company, or to the extent required by Applicable Law, CPV shall not make any payment with respect to, or offer to settle or settle, any such demands.
1.6 Lost Certificates
. If any Certificate shall have been lost, stolen or destroyed, upon the making of an affidavit of that fact by the Person claiming such Certificate to be lost, stolen or destroyed and, if required by the Company, the posting by such Person of a bond, in such reasonable amount as the Company may direct, as indemnity against any claim that may be made against it with respect to such Certificate, the Exchange Agent will issue, in exchange for such lost, stolen or destroyed Certificate, the Merger Consideration to be paid in respect of the shares of common stock formerly represented by such Certificate, as contemplated under this Article 1.
1.7 Registered Securities
. The shares of the Surviving Corporation to be issued to Company shareholders will be registered under the Securities Act of 1933, as amended, including the rules and regulations disseminated within
(the “Securities Act”).
1.8 Reporting of Reorganization
. For Federal, State and Local income tax return reporting purposes, all Parties agree to treat the Reorganization as a nontaxable reorganization under applicable Internal Revenue Code rules.
ARTICLE TWO
Representations and Warranties of Renewal Fuels As of the date of this Agreement, Renewal Fuels represents and warrants to CPV the information as follows:
2.1 Organization and Qualification
. Renewal Fuels is a corporation duly organized, validly existing and as of November 16, 2010 in good standing under the Laws of the State of Delaware and has the requisite corporate power and authority to own, lease and operate all of its properties and assets and to carry on its business as it is now being conducted. Renewal Fuels has completed all necessary filings with all Governmental bodies, Federal and State, to again be considered in good standing. The Company is duly qualified or licensed as a corporation to do business, and is in good standing, in each jurisdiction where the character of the properties owned, leased or operated by it or the nature of its business makes such qualification or licensing necessary, except where the failure to be so duly qualified or licensed and in good standing would not have, individually or in the aggregate, a Material Adverse Effect.
2.2 Certificate of Incorporation
. Renewal Fuels has heretofore made available to CPV a complete and correct copy of the Certificate of Incorporation and the By-laws or equivalent organizational documents, each as amended to date, of the Company. Such Certificates of Incorporation, By-laws or equivalent organizational documents are in full [8]
force and effect. The Company is not in violation in any material respect of any of the provisions of its Certificate of Incorporation, By-laws or equivalent organizational documents.
2.3 Capitalization
. (a) The authorized capital stock of Renewal Fuels consists of 3,000,000,000 common shares and 20,000,000 shares of preferred stock, par value $0.001 per share. (b) As of the close of business on November 18, 2010: (i) 64,175,520 common shares were issued. (ii) No shares were held in the treasury of the Company (c) All outstanding options, warrants or other rights, Contracts, arrangements or commitments of any character relating to the issued or unissued capital stock of the Company (including any bonds, debentures, notes or other indebtedness having voting rights or convertible into securities having voting rights) or ownership interests in the Company will be paid in full by CPV.
2.4 Authority Related to this Agreement
. (a) Renewal Fuels has all necessary corporate power and authority to execute and deliver this Agreement, to perform its obligations hereunder and to consummate the Transactions. The execution, delivery and performance of this Agreement by the Company and the consummation by the Company of the Transactions have been duly and validly authorized by all necessary corporate action, and no other corporate proceedings on the part of the Company are necessary to authorize this Agreement or to consummate the Transactions (other than the filing and recordation of the Certificate of Merger pursuant to the DGCL). This Agreement has been duly executed and delivered by the Company and, assuming the due authorization, execution and delivery by CPV, constitutes a legal, valid and binding obligation of the Company, enforceable against the Company in accordance with its terms, except that (i) such enforcement may be subject to applicable bankruptcy, insolvency, reorganization, moratorium or other similar Laws, now or hereafter in effect, affecting creditors' rights generally, and (ii) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefore may be brought. (b) The Company Board, at a meeting duly called and held on November 4, 2010, at which all of the directors of the Company were present, unanimously (i) determined that the Merger is fair to, and in the best interests of the holders of Company Shares, (ii) approved and declared advisable this Agreement and the Transactions (such approval and adoption having been made in accordance with the DGCL), (iii) resolved to recommend that the holders of Company Shares adopt this Agreement (collectively, the "Company Board Recommendation"), and (iv) adopted a resolution causing none of the Company, any of the Transactions or [9]
this Agreement to be subject to any restriction set forth in any state takeover Law or similar Law that might otherwise apply, which actions and resolutions have not been subsequently rescinded, modified or withdrawn in any way (other than as permitted by this Agreement).
2.5 Consents
. Except as has been obtained or will be obtained prior to the IPO, no consent, approval or authorization of, or designation, declaration or filing with, any governmental authority or other third party on the part of such part is required for Renewal Fuels in connection with the delivery and execution of this Agreement or the consummation of the transactions discussed hereby.
2.6 Absence of Litigation
. As of the date hereof, there is (a) no Action or, to the knowledge of the Company, Claim pending and, (b) to the knowledge of the Company, (i) no inquiry or investigation by any Governmental Authority pending and (ii) no Action, inquiry or investigation by any Governmental Authority threatened in writing against the Company or any property or asset of the Company that (A) would have, individually or in the aggregate, a Material Adverse Effect or (B) will cause or require (or purports to cause or require) the Company to grant to any Third Party any license, covenant not to sue, immunity or other right with respect to or under any of the Intellectual Property Rights owned by the Company, or (y) be obligated to pay any royalties or other amounts, or offer any discounts, to any Third Party.
2.7 Property and Leases
. The Company owns, and has good title to, each of the tangible assets reflected as owned by the Company that are material to the Company taken as a whole (except for tangible assets sold or disposed off the latest Balance Sheet in the ordinary course of business) free of any Liens, other than Permitted Liens. The Company has sufficient title to all their properties and assets to conduct their respective businesses as currently conducted, with only such exceptions as would not have, individually or in the aggregate, a Material Adverse Effect. Except as would not have, individually or in the aggregate, a Material Adverse Effect, all of the machinery, equipment and other tangible personal property and assets owned or used by the Company and the Company Subsidiaries are usable in the ordinary course of business and are reasonably adequate and suitable for the uses to which they are being put. The Company has good, valid and marketable title in fee simple to all property, free and clear of all Liens of any nature whatsoever except Permitted Liens.
2.8 Intellectual Property
. (a) The Company has taken commercially reasonable efforts to prosecute, register, and maintain all material Registered Company Intellectual Property. The Company and/or one of the Company Subsidiaries is the sole owner of each item of (i) material Registered Company Intellectual Property. All material Company Intellectual Property is free and clear of material Liens. (b)
Trademarks
. The Company and the Company Subsidiaries have taken commercially reasonable actions to police all material Trademarks included in the Company Intellectual Property against unauthorized use by Third Parties. [10]
(c)
Rights to Intellectual Property Ordered or Awarded
. The company is not a party to or bound by any decree, judgment, order, or arbitral award that is reasonably expected to require the Company to grant to any Third Party any license, covenant not to sue, immunity or other right with respect to any material Company Intellectual Property or that affects the terms and conditions under which any such license, covenant, immunity or other right is, may be, or must be granted. (d)
No Proceedings
. Within 24 months prior to date hereof, the Company has not received notice that any Registered Company Intellectual Property is or has been involved in any interference, reissue, reexamination, opposition, cancellation, or proceeding regarding invalidity or unenforceability in the U.S. and, to the knowledge of the Company, no such action has been threatened. (e)
Trade Secrets
. The Company has, in accordance with the applicable Law of each relevant jurisdiction, taken commercially reasonable steps to protect their rights in and to their material Trade Secrets.
ARTICLE THREE
Representation and Warranties of CPV As of the date of this Agreement, CPV represents and warrants to Renewal Fuels the information as follows:
3.1 Corporate Organization
. CPV is a limited liability company duly organized, validly existing and in good standing under the Laws of the State of Maryland and has the requisite corporate power and authority to own, lease and operate its properties and to carry on its business as it is now being conducted. CPV is duly qualified or licensed as a limited liability company to do business, and is in good standing, in each jurisdiction where the character of the properties owned, leased or operated by it or the nature of its business
makes such qualification or licensing necessary, except where the failure to be so duly qualified or licensed and in good standing, individually or in the aggregate, would not prevent or materially delay consummation of the Transactions or otherwise prevent CPV from performing any of their material obligations under this Agreement.
3.2 Authority Related to this Agreement
. CPV has all necessary corporate power and authority to execute and deliver this Agreement, to perform its obligations hereunder and to consummate the Transactions. The execution, delivery and performance of this Agreement by CPV and consummation of the Transactions have been duly and validly authorized by all necessary corporate action, and no other corporate proceedings on the part of CPV are necessary to authorize this Agreement or to consummate the Transactions (other than, with respect to the Merger, the filing and recordation of the Certificate of Merger). This Agreement has been duly and validly executed and delivered [11]
by CPV and, assuming due authorization, execution and delivery by Renewal Fuels, constitutes a legal, valid and binding obligation, enforceable in accordance with its terms, except that (i) such enforcement may be subject to applicable bankruptcy, insolvency, reorganization, moratorium or other similar Laws, now or hereafter in effect, affecting creditors' rights generally, and (ii) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefore may be brought.
3.3 No Conflict; Required Filings and Consents
. (a)
The execution and delivery of this Agreement by CPV does not, and the performance of this Agreement by CPV will not, (i) conflict with or violate the Certificate of Incorporation or By-laws of CPV, (ii) assuming that all consents, approvals, authorizations and other actions described before and hereafter have been obtained and all filings and obligations described before and hereafter have been made, conflict with or violate any Law applicable to CPV or by which any property or asset of either of them is bound or affected, or (iii) result in any breach of, or constitute a default (or an event that, with notice or lapse of time or both, would become a default or breach) under, or give to others any rights of termination, amendment, acceleration or cancellation of, or result in the creation of a Lien on any property or asset of CPV pursuant to, or result in the loss of a material benefit under any Contract filed by CPV with the SEC, permit, franchise or other instrument or obligation to which CPV is a party or by which CPV or any property or asset of either of them is bound or affected, except, with respect to clauses (ii) and (iii), for any such conflicts, violations, breaches, defaults or other occurrences that, individually or in the aggregate, would not prevent or materially delay consummation of the Transactions or otherwise prevent CPV from performing any of their material obligations under this Agreement. (b)
The execution and delivery of this Agreement by CPV does not, and the performance of this Agreement by CPV will not, require any further consents, approvals, authorizations or permits of, or filings with, or notifications to, any Governmental Authority except the filing and recordation of the Certificate of Merger. (c)
Except as has been obtained or will be obtained prior to the IPO, no consent, approval or authorization of, or designation, declaration or filing with, any governmental authority or other third party on the part of such part is required for CPV in connection with the delivery and execution of this Agreement or the consummation of the transactions discussed hereby.
3.4 Financing
. CPV currently has, and at the Effective Time, CPV will have the funds necessary to satisfy all obligations under this Agreement, including paying the aggregate Merger Consideration, to pay all amounts payable pursuant to Section 1.3
and to pay all fees and expenses in connection therewith.
CPV’s
obligations hereunder are not subject to a condition regarding
CPV’s
obtaining of funds to consummate the Merger and the [12]
other Transactions. Moreover, CPV currently has and will have funds necessary to satisfy all outstanding liabilities and obligations of Renewal Fuels.
3.5 Proxy Statement
. The information supplied by CPV for inclusion in the Proxy Statement, if any, shall not, as of the date first mailed to the stockholders of Renewal Fuels, and at the time of the Stockholders' Meeting, contain any untrue statement of a material fact, or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not false or misleading, or necessary to correct any statement in any earlier communication with respect to the solicitation of proxies for the Stockholders' Meeting that shall have become false or misleading. Notwithstanding the foregoing, CPV make no representation or warranty with respect to any information supplied by Renewal Fuels or any of its Representatives for inclusion in any of the foregoing documents. The information supplied by CPV for inclusion in the Proxy Statement, if any, shall comply as to form and substance in all material respects with the applicable requirements of the Securities Act, the Exchange Act and the rules and regulations thereunder.
3.6 Absence of Litigation
. There is (a) no Action pending and (b) to the knowledge of CPV, (i) no inquiry or investigation by any Governmental Authority pending and (ii) no Action, inquiry or investigation by any Governmental Authority threatened in writing against CPV, any subsidiary of CPV, or any property or asset of CPV, or any subsidiary of CPV, that, individually or in the aggregate, is reasonably likely to prevent the consummation of any Transaction or otherwise prevent CPV from performing material obligations under this Agreement. Neither CPV nor any subsidiary of CPV nor any property or asset of CPV or any subsidiary of CPV is subject to any settlement agreement or similar written agreement with, any Governmental Authority, or any Order of any Governmental Authority that is reasonably likely to prevent consummation of the Merger or otherwise prevent CPV from performing their material obligations under this Agreement.
3.7 Vote Required
. No additional votes are necessary to approve this Agreement and the Transactions.
. 3.8 Ownership of Company Shares
. CPV has not at any time during the last three (3) years been an "interested stockholder" of Renewal Fuels as defined in Section 203 of the DGCL (other than as contemplated by this Agreement). No interested parties within CPV beneficially own any Company Shares.
ARTICLE FOUR
Conduct of the Business Pending the
Merger 4.1. Conduct of the Business Pending the Merger
. (a) Between the date of this Agreement and the date of the Effective Time: (i) both Renewal Fuels and CPV shall conduct business only in the ordinary course of [13]
business, in a manner in compliance in all material respects with all applicable Laws and Orders, (ii) both companies shall use commercially reasonable efforts to preserve substantially intact respective business organizations, to keep available the services of the current officers and key employees of both companies and to preserve the material current relationships of both companies with their material customers, suppliers, distributors, resellers, licensors, licensees and other persons with which either company has business relations. In addition, Renewal Fuels shall provide to CPV such monthly and other periodic financial and operational summaries and reports as are prepared by or on behalf of the Company for use by or delivery to any member of the Company Board within four (4) business days after delivery thereof to any member of the Company Board.
4.2 Additional Conduct of Business Pending the Merger
. Renewal Fuels shall not, between the date of this Agreement and the Effective Time, directly or indirectly, do, or propose to do, any of the following without the prior written consent of CPV: (a) amend or otherwise change its Certificate of Incorporation or By-laws or equivalent organizational documents; (b) issue, sell, pledge, dispose of, grant or encumber, or authorize the issuance, sale, pledge, disposition, grant or encumbrance of, any shares of any class of capital stock of the Company, or any options, warrants, convertible securities or other rights of any kind to acquire any shares of such capital stock, or any other ownership interest; (c) transfer, lease, sell, pledge, license, dispose of or encumber any assets or properties of the Company that are material to the Company, taken as a whole, except in the ordinary course of business; (d) declare, set aside, make or pay any dividend or other distribution, payable in cash, stock, property or otherwise, with respect to any of its capital stock; (e) enter into any Government Contract by the Company that otherwise provides for any research and development, joint development or funding by any Governmental Authority of Intellectual Property, or that would provide any Governmental Authority rights other than those provided by the Company's standard commercial licenses or whereby the Company provides to the Governmental Authority any products or services that the Company does not otherwise make commercially available.
4.3 Access to Information
. From the date of this agreement until the Effective Time, Renewal Fuels shall, and shall cause all company representatives, auditors and agents to, afford the representatives of CPV reasonable access during normal working hours upon reasonable advance notice to the officers, employees, agents, assets, properties, offices, plants and other facilities, books and records of the Company and shall furnish CPV with such financial, operating and other data and information (including the work papers of the Company's accountants, subject to the prior consent of such accountants, which consent [14]
the Company shall use its reasonable best efforts to obtain as soon as practicable) as CPV through their Representatives, may reasonably request, as long as these actions are in compliance with all applicable data privacy/protection Laws.
4.4 Confidentiality
. All information obtained by CPV pursuant to this Section 4.4
shall be held confidential in accordance with the confidentiality agreement, dated June 8, 2010 (the "Confidentiality Agreement"), between CPV and Renewal Fuels.
4.5 Books and Records
. In addition to the terms outlined in Section 4.2
, Renewal Fuels shall not destroy any books, records or material documents for a period of five (5) years.
4.6 Public Announcements
. No press release or public announcement, statement or disclosure concerning the Merger shall be issued by either party without the prior consent of the other party (which consent shall not be unreasonably withheld, conditioned or delayed), except as such release or announcement may be required by Law, including the rules or regulations of any U.S. or non-U.S. securities exchange, in which case the party required to make the release or announcement shall use its reasonable efforts to allow the other party reasonable time to comment on such release or announcement in advance of such issuance, until the filing of this Agreement with proper regulatory bodies.
ARTICLE FIVE
Miscellaneous 5.1 Entire Agreement
. This Agreement sets forth the entire understanding of parties hereto and supersedes all other agreements, proposals, writings and understandings between the parties relating to the subject matter hereof.
5.2 Termination
. This Agreement may be terminated before the Effective Time for following reasons: (a) mutual written consent of CPV and Renewal Fuels; (b) Governmental or Regulatory Body prohibiting consummation of this Agreement after all appeals have been exhausted; (c) By CPV or Renewal Fuels if (i) either company is in material breach of respective covenants or obligations under this Agreement, and (ii) there is an inaccuracy in the representations of either company or a breach of their covenants herein, in either case such that the conditions set forth prior would fail to be satisfied, and such inaccuracy or breach is not cured within twenty (20) days after notice thereof.
ARTICLE SIX
[15]
General Provisions 6.1 Notices
. All notices, requests, claims, demands and other communications hereunder shall be in writing and shall be given and shall be deemed to have been duly given if delivered personally (notice deemed given upon receipt), telecopied (notice deemed given upon confirmation of receipt), sent by a nationally recognized overnight courier service such as Federal Express (notice deemed given upon receipt of proof of delivery) or mailed by registered or certified mail, return receipt requested (notice deemed given upon receipt) to the respective parties at the following addresses: If to CPV: Competitive Power Ventures 8403 Colesville Road Suite 915 Silver Spring, MD 20910 Attn: Senior Vice President, Finance with a further required copy to (which copy shall not constitute notice) Wachtell, Lipton, Rosen, and Katz 51 West 52ndStreet New York, NY 10019
If to Renewal Fuels: Renewal Fuels, Inc. 1818 North Farwell Avenue Milwaukee, WI 53202 Attn: Donald Jackson, Interim CFO.
6.2 Notice Amendment
. Any party to this Agreement may change its address for notices, demands and other communications under this Agreement by giving notice of such change to all interested parties listed in Section 6.1
. 6.3 Severability
. If any provision of this Agreement is held invalid or unenforceable by any court of competent jurisdiction, the other provisions of this Agreement will remain in full force and effect. Any provision of this Agreement deemed invalid or unenforceable only in part or degree will remain in full force and effect to the extent not held invalid or unenforceable. 6.4 Interpretation of Agreement
. Each party and its counsel cooperated in drafting and preparing this Agreement. Any rule of law or any legal decision that would require interpretation of any ambiguities in this Agreement against the party that drafted it is of no application and is hereby waived. [16] +
6.5 No Other Representations and Warranties
. CPV and Renewal Fuels each acknowledges and agrees that, in connection with this detailed Agreement, except for the representations and warranties of Renewal Fuels set forth in Article 2 and of CPV set forth in Article 3, (a) no party (or any of its affiliates, stockholders, directors, officers, employees, representatives, agents, advisors or any other person) makes, and no party (or any of its affiliates, stockholders, directors, officers, employees, agents, representatives, advisors or any other person) has made any express or implied representations or warranties relating to such party, its subsidiaries, its businesses or operations or otherwise, including with respect to any information or materials, documents, estimates, projections, forecasts or other forward-looking information, business plans or other material provided or made available to the other party or any of its affiliates, stockholders, directors, officers, employees, agents, representatives, advisors or any other person (including in "data rooms" or management presentations) in anticipation or contemplation of the Merger.
6.6 Reliance
. Each party acknowledges and agrees that it is not relying on any representations or warranties, express or implied, relating to the other party, its subsidiaries, its businesses or operations or otherwise, including with respect to any information or materials, documents, estimates, projections, forecasts or other forward-looking information, business plans or other material provided or made available to such party or any of its affiliates, stockholders, directors, officers, employees, agents, representatives, advisors or any other person (including in "data rooms" or management presentations) in anticipation or contemplation of the Merger or any other Transaction, except to the extent of the representations and warranties set forth in this Agreement.
6.7 Counterparts.
. This Agreement may be executed, agreed upon and delivered (including by facsimile or other form of electronic transmission) in one or more counterparts, and by the different parties in separate counterparts, each of which when executed shall be deemed to be an original but all of which taken together shall constitute one and the same agreement. Signatures to this Agreement transmitted by facsimile transmission, by electronic mail in PDF form, or by any other electronic means designed to preserve the original graphic and pictorial appearance of a document, will be deemed to have the same effect as physical delivery of the paper document bearing the original signatures.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed on November 18, 2010.
COMPETITIVE POWER VENTURES HOLDINGS By: _/s/ Doug Egan
Name: Doug Egan Title:
Chairman & CEO RENEWAL FUELS, INC. [17]
By: /s/ Donald Jackson
Name: Donald Jackson Title: Interim Chief Financial Officer
AI
