Exhibit 10.2
[LETTERHEAD OF MINTZ AND FRAADE, P.C.]
August 7, 2000
VIA OVERNIGHT DELIVERY
Ms. Patricia J. Thompson
Chief Counsel, Listing Investigations
The Nasdaq Stock Market
Listing Investigations
1801 K Street, N.W., 8th Floor
Washington D.C. 20006
Re: Your letter dated July 26, 2000
to Mr. C. Dean McLain President and
Chief Executive Officer of Western
Power & Equipment Corp. ("Your
Letter").
Dear Ms. Thompson:
We represent Western Power & Equipment Corp. (the "Company"). The
following is the Company's response to Your Letter.
1. Robert Rubin is a director of and consultant to the Company and is also
the Chairman of the Board and the Chief Executive Officer of American United
Global, Inc. ("AUGI") which is presently the holder of approximately 60% of the
issued and outstanding shares of the Company's common stock. Mr. Rubin is
presently the beneficial owner of approximately 15% of AUGI's common stock.
Although the April 12, 2000 minutes of the Company's Board of Directors (the
"Board") state that the Rubin Family Stock Trust will receive 600,000 shares of
the Company's common stock, which stock was intended as a banking fee for Mr.
Rubin's role in the EMI transaction, Mr. Rubin has agreed with C. Dean McLain,
the Company's President and Chief Executive Officer that 300,000 of such shares
will be issued to Mr. McLain, pursuant to Mr. Rubin's past practice of sharing
benefits with respect to Company related transactions with Mr. McLain. In
addition, although the April 12, 2000 minutes of the Board state that the Rubin
Family Stock Trust will receive options to purchase 600,000 shares of the
Company's common stock at an exercise price of $1.50 per share which options
were intended as a banking fee for Mr. Rubin's role in the EMI transaction, Mr.
Rubin has
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agreed with Mr. McLain that 300,000 of such options will be issued to Mr.
McLain, pursuant to Mr. Rubin's past practice of sharing benefits with respect
to Company related transactions with Mr. McLain.
Mr. Rubin met Robert DePalo, a 12% shareholder of e-Mobile, Inc. ("EMI")
who has played, and will play, an active role in coordinating the subject
transaction on behalf of EMI, in 1995 or 1996. Although they kept in contact
with one another, they did not transact any business with one another until the
subject transaction.
The Board became concerned about the low price of the Company's stock.
Members of the Board were aware of other companies which increased their
shareholders' value by taking advantage of the high valuations placed upon high
technology start up companies. The Board, through informal discussion among its
members, determined to explore the prospect of acquiring or combining with a
high-technology company as a means of increasing their shareholders' value in
the Company.
Mr. Rubin has had previous experience with start-up high technology
companies. Mr. Rubin was an initial investor, individually or through corporate
entities in which Mr. Rubin was a shareholder, officer and/or director, ranging
from $50,000 to over $10,000,000 in the following high technology companies:
Connect Soft, EG.com, Fourth Periphal (presently known as Enuncia), Innapharma,
Magnalab, Metromedia Fiber Optics and Software Tool Works.
Mr. Rubin determined to seek out a high technology business opportunity
which would enhance the Company's shareholders' value. Mr. Rubin reviewed many
business plans of high technology companies, on behalf of the Company as well as
on his own behalf and on behalf of other entities in which he has an interest
and Mr. Rubin met or spoke with representatives of such companies in the end of
1999 and in the beginning of 2000 including, but not limited to, the following:
A. AutoBid.com in New York.
B. HealthyConnect.com (which was spun off from Med-Emerge International,
Inc. of which Mr. Rubin is a director) in Toronto.
C. WebSuite in California.
D. PlanetWeb.com in New York.
E. OneToOne in New York and Chicago.
F. Dr. Who, Who in New York.
G. Spent Labs, Inc. in New York and Chicago.
H. Sports2Travel.com in New York and Chicago.
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I. FutureTV in New York.
J. Dobi Medical Systems, Inc.
K. ProBatter Sports, L.L.C.
L. SignTopia.com.
M. APG, Inc.
N. Active InterMedia, Inc. in New York.
O. On-Line Auctions, Inc. in Florida.
P. EGO, Inc. in New York.
Q. Talk T.V., Inc in New York, California and Chicago.
R. G.com, Inc. in Long Island, New York.
S. HR Village in Chicago.
T. RKP Capital Partners, LLC ("RKP") a merchant banker in Chicago to
discuss Irontracks.com.
U. The Eye of the Storm in California.
V. Event411.com in New York.
W. Stockbrokers.com in Chicago.
X. StoryCatcher.com in California.
Y. Spalala.com in California
Z. Healthsync.com in New York.
AA. RKP in Chicago to discuss Here's Our World, Inc.
In January or February of 2000, Mr. Rubin met with Mr. DePalo. Mr. Rubin
explained the concerns of the Board. Mr. DePalo told Mr. Rubin about EMI and its
founder Nechemia Davidson. Mr. Rubin reviewed EMI's business plan and in early
April 2000, he met in New York with Mr. DePalo, Mr. Davidson, and Dedi Graucher,
a shareholder of EMI. At this meeting, Mr. Rubin was given a verbal explanation
and presentation of how EMI's personal relay unit technology would enable and
enhance the features of Net2Wireless and other portable Internet content
devices. Mr. Rubin was also given a verbal explanation and presentation of
Net2Wireless, a portable Internet content
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device which was invented by Mr. Davidson. Mr. Davidson described EMI's business
and answered Mr. Rubin's questions with respect to EMI's business plan and EMI's
product.
Mr. Rubin, based upon his review of numerous financial publications,
determined that the wireless technology market had a great potential for future
growth. Mr. Rubin knew that Sensar Corp. has announced that it is acquiring
Net2Wireless and that subsequent to the announcement Sensar Corp.'s market
capitalization increased from $8 million dollars to a high of 1.1 billion
dollars. Based upon his evaluation of other high technology companies, the
demonstration of the Net2Wireless product, EMI's ability to enhance the features
of such portable Internet content devices, EMI's business plan and the increase
in Sensar's Corp.'s market capitalization subsequent to it's announcement to
acquire Net2Wireless, Mr. Rubin advised the Board that he believed that a merger
between EMI and the Company would lead to an increase in the Company's
shareholders' value. On April 11, 2000, the Board authorized the Company to
execute a letter of intent to merge EMI into the Company. On April 12, 2000, the
Company and EMI signed the letter of intent to merge EMI and Company.
2. Attached hereto and made a part hereof as Exhibits, please find copies
of the following:
Exhibit "A" - The letter of intent with EMI dated April 12, 2000;
Exhibit "B" - EMI's Business Plan;
Exhibit "C" - Press release dated April 18, 2000.
We have requested copies of any existing drafts, correspondence or
any other document related to the letter of intent dated April 12, 2000. When we
have received this information, we will forward it to you under separate cover.
3. The law firm of Vanderkam & Sanders, located in Houston, Texas, is
EMI's United States counsel with respect to the proposed merger. We are counsel
to the Company with respect to the proposed merger. The following is a detailed
description of the status of the transaction:
A. In late May 2000, Vanderkam & Sanders prepared an initial draft
of the proposed merger agreement, a copy of which is attached hereto and made a
part hereof as Exhibit "D".
B. In early June 2000, we sent Vanderkam & Sanders a comment letter,
a copy of which is attached hereto and made a part hereof as Exhibit "E",
suggesting certain changes and additions to the proposed agreement.
C. In early June 2000, we sent Vanderkam & Sanders proposed riders
to the proposed merger agreement, copies of which are attached hereto and made a
part hereof as Exhibit "F".
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D. In June 2000, Vanderkam & Sanders prepared a revised draft of the
proposed merger agreement, a copy of which is attached hereto and made a part
hereof as Exhibit "G".
E. In June 2000, we sent Vanderkam & Sanders a comment letter with
respect to the revised draft of the proposed merger agreement, a copy of which
is attached hereto and made a part hereof as Exhibit "H".
F. In June 2000, Vanderkam & Sanders prepared a second revised draft
of the proposed merger agreement, a copy of which is attached hereto and made a
part hereof as Exhibit "I".
G. In June 2000, we sent Vanderkam & Sanders comment letters with
respect to the second revised draft of the proposed merger, copies of which are
attached hereto and made a part hereof as Exhibits "J" and "K" respectively.
H. After Michael Sanders, Esq., of Vanderkam & Sanders, received our
comment letters with respect to the second draft of the proposed merger
agreement, he advised us that he preferred not to proceed with the merger until
the proposed asset purchase agreement was finalized. Mr. Sanders stated that he
believed that many of the issues with respect to the proposed merger agreement
could best be resolved after the asset purchase agreement was finalized. The
proposed asset purchase agreement is the agreement referred to in the letter of
intent dated April 12, 2000, pursuant to which certain members of the Company's
management will purchase substantially all of the assets of the Company.
I. EMI's Israeli counsel and tax advisors raised concerns with
respect to the tax consequences of the proposed merger under Israeli law. In
July 2000, my partner, Alan P. Fraade, Esq., participated in a telephone
conference to discuss restructuring the merger with Mr. Sanders, Ofira Gordon,
EMI's Israeli corporate counsel, Noam Cannati of Ernst & Young L.L.P., EMI's tax
advisor with respect to the transaction, Mr. McLain, Mark J. Wright, the
Company's Chief Financial Officer and Ted Levine, Paul Farber and Bruce Rosen of
the New York City based accounting firm, Richard A. Eisner & Co., the Company's
tax advisors.
J. In July 2000, the principals of the companies and their tax
advisors participated in a second conference call to further discuss the
restructuring of the proposed merger. We believe that EMI has agreed to proceed
without restructuring the transaction.
K. As previously indicated, pursuant to the letter of intent dated
April 12, 2000, certain members of the Company's management, Messrs. McLain,
Rubin and Wright, will enter into an agreement pursuant to which they will
purchase all of the assets and assume all of the liabilities of the Company and
of the Company's wholly-owned subsidiary, Western Power & Equipment Corp., an
Oregon corporation ("WPEC"). The proposed purchase price was $4,700,000 which
was to be paid pursuant to a secured seven-year promissory note bearing an
interest rate of 8%. The law firm of Kaye,
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Scholer, Fierman, Hays & Handler, L.L.P. ("Kaye Scholer") located in New York,
New York represents the management-purchasers. Our firm is counsel to the
Company and WPEC with respect to the proposed asset purchase agreement.
L. In early June 2000, Kaye Scholer prepared an initial draft of the
proposed asset purchase agreement, a copy of which is attached hereto and made a
part hereof as Exhibit "L".
M. In June 2000, we sent Kaye Scholer a comment letter, a copy of
which is attached hereto and made a part hereof as Exhibit "M", suggesting
certain changes and additions to the proposed agreement.
N. In late June 2000 Kaye Scholer prepared a revised draft of the
proposed asset purchase agreement, a copy of which is attached hereto and made a
part hereof as Exhibit "N".
O. In early July 2000, we sent Kaye Scholer a comment letter with
respect to the revised draft of the proposed asset purchase agreement, a copy of
which is attached hereto and made a part hereof as Exhibit "O".
P. In July, 2000, one of our associates, Glen B. Thompson and I
participated in a telephone conference with Rory Greiss, Esq., of Kaye Scholer
and his associate, Marlo D. Salz with respect to our comments on the revised
draft of the asset purchase agreement.
Q. In July 2000, Kaye Scholer prepared a second revised draft of the
proposed asset purchase agreement, a copy of which is attached hereto and made a
part hereof as Exhibit "P".
R. In July 2000, we sent Kaye Scholer a comment letter with respect
to the second revised draft of the asset purchase agreement, a copy of which is
attached hereto and made a part hereof as Exhibit "Q".
S. In July 2000, Mr. Fraade participated in a telephone conference
with Mr. Greiss and Ms. Salz with respect to our comments on the second revised
draft of the proposed asset purchase agreement.
T. In addition to negotiating the terms of the asset purchase
agreement, our firm drafted proposed ancillary agreements pursuant to the asset
purchase agreement including the proposed promissory note, the proposed security
agreement and the proposed assumption agreement, copies of which are attached
hereto and made a part hereof as Exhibits "R", "S" and "T" respectively. In June
2000 we sent Kaye Scholer drafts of the proposed ancillary agreements.
U. In July, 2000, Kaye Scholer, prepared markups with respect to the
drafts of the proposed promissory note and the proposed security agreement,
copies of which are attached hereto and made a part hereof as Exhibits "U" and
"V" respectively.
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V. In late July 2000, the management-purchasers, after consultation
with their tax advisors, determined to modify the structure of the asset
purchase transaction. Pursuant to the new structure, Messrs. McLain, Rubin and
Wright shall form a Delaware limited liability company which shall purchase
substantially all of the assets of the Company including, but not limited to,
all of the outstanding shares of stock of WPEC and it shall assume substantially
all of the liabilities of the Company. The anticipated purchase price has been
reduced from $4,700,000 to $4,600,000.00. The purchase price will be paid
pursuant to a seven-year secured promissory note bearing an interest rate which
has been reduced from eight (8%) percent to seven (7%) percent per annum.
W. In early August 2000, Kaye Scholer prepared an initial draft of
the restructured transaction, a copy of which is attached hereto and made a part
hereof as Exhibit "W". We are currently reviewing this draft and we expect to
respond shortly.
4. The following persons are E-Mobile's Officers, Directors and/or 5% or
greater shareholders. We are waiting for confirmation that the following are all
of the Officers and Directors. At the present time we do not have information
with respect the actual percentage of ownership the following persons have in
EMI nor do we have the current address of Nechemia Davidson, Eytan Ramon or
Moshe Nissim. We have requested this information. When we receive this
information, we will send it to you under separate cover.
Name and Address Relationship
- ---------------- ------------
Nechemia Davidson Chairman
Eytan Ramon Chief Executive Officer
Moshe Nissim Vice President
Research & Development
Cedar Investment Service Ltd. Shareholder
580 Fifth Avenue #901
New York, N.Y. 10036
Robert DePalo Shareholder
488 Madison Ave, 8th Floor
New York, New York 10022
Alexander/Rachel LLC Shareholder
250 Longwood Crossing
Lawrence, NY 11559
NBDB LLC Shareholder
16 Grosser Lane
Monsey, New York 10952
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I Bacher Shareholder
17 Marmurek Street
Tel Aviv, 64254, Israel
Meridian Trading and Investment Shareholder
1612 57th Street, 1st Floor
New York, New York 11204
Beneficial Investment Services Ltd. Shareholder
331 West 57th Street
New York, New York 10019
We have requested information with respect to the shareholders of the
companies listed above. When we have received such information, we will forward
it to you under separate cover.
5. EMI had one (1) employee at the time of the signing of the April 12,
2000 letter of intent.
EMI currently has four (4) employees.
6. In January or February, 2000 Mr. Rubin had discussions with Mr. DePalo
with respect to the Board's desire to acquire or combine with a high technology
company as a means of increasing the Company's shareholders' value. Mr. DePalo
advised Mr. Rubin that he believed that EMI was a company which would be
compatible with the Board's concerns.
Mr. Rubin reviewed EMI's business plan and in early April 2000 he
met with Mr. DePalo, Mr. Davidson and Mr. Graucher. At this meeting, Mr. Rubin
was given a verbal explanation and presentation of how EMI's personal relay unit
technology would enable and enhance the features of Net2Wireless and other
portable Internet content devices. Mr. Rubin was also given a verbal explanation
and presentation of Net2Wireless which was invented by Mr. Davidson. EMI is
currently developing a prototype of its personal relay unit. EMI will be
applying for patents in the United States. Mr. Davidson described EMI's business
and answered Mr. Rubin's questions with respect to EMI's business plan and EMI's
product.
Mr. Rubin, based upon his review of numerous financial publications,
determined that the wireless technology market had a great potential for future
growth. Mr. Rubin had confidence in Mr. Davidson's because he had been the
inventor and a principal stockholder of Net2Wireless and based upon the success
of Net2Wireless, Mr. Rubin believed that Mr. Davidson had the potential to make
EMI a similar success.
From Mr. Rubin's standpoint, a merger between the Company and EMI
contained an added advantage over other suitable companies which Mr. Rubin
reviewed. Specifically, EMI, unlike the other companies, was not requesting that
the Company
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provide capital for the acquired business. Mr. Rubin was assured by EMI that
adequate funds would be available for the development and promotion of EMI's
product.
Based upon the foregoing, Mr. Rubin believed and he advised the
Board that a merger between EMI and the Company would help to increase the
Company's shareholders' value.
7. For the period beginning January 1, 1999 to the present, the Company
did not issue, sell, exchange, convert or redeem any common stock, preferred
stock, warrants or debt instruments.
(A) For the period beginning January 1, 1999 to the present, the
Company issued the following stock options:
Option Holder Issue Date #of Shares Exercise Price Expiration Date
- ------------- ---------- ---------- -------------- ---------------
Harold Chapman 08/02/99 5,000 $2.375 08/02/09
Merrill McPeak 08/02/99 5,000 $2.375 08/02/09
Rubin Family 04/12/00 600,000 $1.50 04/12/05
Stock Trust
Harold Chapman and Merrill McPeak were members of the Company's
Board of Directors at the time the options were issued. We have requested
information with respect to the current addresses of the above option holders.
When we have received such information, we will forward it to you under separate
cover. The options issued to Harold Chapman and Merrill McPeak were issued
pursuant to the Company's Second Amended and Restated Stock Option Plan for
Non-Employee Directors which was approved by the Company's shareholders on
January 27, 1998. The options issued to the Rubin Family Stock Trust were
intended as a banking fee for Mr. Rubin's role in the EMI transaction and Mr.
Rubin has agreed with Mr. McLain that 300,000 of such options will be issued to
Mr. McLain pursuant to Mr. Rubin's past practice of sharing benefits with
respect to Company related transactions with Mr. McLain.
Although the April 12, 2000 minutes of the Board state that the
Rubin Family Stock Trust will receive 600,000 shares of the Company's common
stock, which stock was intended as a banking fee for Mr. Rubin's role in the EMI
transaction, Mr. Rubin has agreed with Mr. McLain, that 300,000 of such shares
will be issued to Mr. McLain, pursuant to Mr. Rubin's past practice of sharing
benefits with respect to Company related transactions with Mr. McLain.
For the period beginning January 1, 1999 to the present, the
following stock options were exercised:
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Option Holder Issue Date Number of Exercise Price Exercise Date
- ------------- ---------- --------- -------------- -------------
Shares
------
Thomas Berkompas 01/31/97 26,000 $5.125 06/23/00
Thomas Berkompas 01/31/97 24,000 $5.125 07/07/00
Thomas Berkompas is a former Chief Financial Officer of the Company.
We have requested information with respect to Mr. Berkompas' current address.
When we have received such information, we will forward it to you under separate
cover.
On or about April 17, 2000 the Company cancelled 734,000 stock
options at $0.10 per share as set forth on Exhibit "X" attached hereto and made
a part hereof.
(B) For the period from January 1, 1999 to the present, the Company
did not issue any private placement memoranda or solicit any subscriptions.
(C) Not Applicable.
(D) Not Applicable
8. For the period beginning January 1, 1999 to the present the Company did not
enter into any advisory, consulting, investor/public relations and/or investment
banking agreements except for the Company's agreement with the Rubin Family
Stock Trust pursuant to which the Rubin Family Stock Trust will receive 600,000
shares of the Company's common stock, which stock was intended as a banking fee
for Mr. Rubin's role in the EMI transaction, Mr. Rubin has agreed with Mr.
McLain that 300,000 of such shares will be issued to Mr. McLain pursuant to Mr.
Rubin's past practice of sharing benefits with respect to Company related
transactions with Mr. McLain. In addition, the Rubin Family Stock Trust will
receive options to purchase 600,000 shares of the Company's common stock at an
exercise price of $1.50 per share, which options were intended as a banking fee
for Mr. Rubin's role in the EMI transaction, Mr. Rubin has agreed with Mr.
McLain that 300,000 of such options will be issued to Mr. McLain, pursuant to
Mr. Rubin's past practice of sharing benefits with respect to Company related
transactions with Mr. McLain.
9. Attached hereto and made a part hereof as Exhibit "Y" are copies of the
Minutes of the Company's Board of Directors from July 1, 1999 to the present
time.
10. Aside from the aforementioned meeting with Messrs. Rubin, DePalo, Davidson,
and Graucher the only one of the following persons with whom the Company had a
relationship was Mr. DePalo. None of these persons provided services to the
Company. The Company has been advised of the following:
A. Yitzchar Bachar is holding shares of EMI in escrow on behalf of David
Rubner.
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B. Yitzchar Bachar is holding shares of EMI in escrow on behalf of Zahava
Rubner.
C. Murray Huberfeld is not a shareholder of EMI.
D. Laura Huberfeld is the wife of Murray Huberfeld and has a controlling
interest in Alexander/Rachel, LLC.
E. Alexander/Rachel, LLC is a 5% or greater shareholder of EMI.
F. David Bodner is not a shareholder of EMI.
G. Naomi Bodner is the wife of David Bodner and has a controlling interest
in NBDB, LLC.
H. NBDB, LLC is a 5% or greater shareholder of EMI.
I. Broad Capital is owned by David Bodner and Murray Huberfeld. Broad
Capital is not a shareholder of EMI and is not involved in the merger
transaction.
J. Nechemia Davidson is the founder of EMI and the principal inventor of
EMI's technology. Nechemia Davidson owns Cedar Investments Services, Ltd.
K. Cedar Investments Services, Ltd. is a 5% or greater shareholder of EMI.
L. Robert DePalo is a 12% shareholder of EMI who has played, and will
play, an active role in coordinating the subject transaction on behalf of EMI.
M. Yitzchar Bachar is the attorney and escrow agent for David and Zahava
Rubner (see subparagraphs "(a)" and "(b)" of this paragraph "10").
N. Irwin Katsof has no relationship to EMI or to this transaction.
O. The Jerusalem Fund of Aish HaTorah has no relationship to EMI or to
this transaction.
At the present time, we do not have information with respect to the
percentage of ownership interest which the above-named individuals have in EMI.
We have requested this information. When we have received this information we
will send it to you under separate cover.
If you require any additional information, please contact the undersigned.
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Very truly yours,
/s/ Frederick M. Mintz
Frederick M. Mintz
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