SECURITIES ANDEXCHANGE COMMISSION
Washington, D.C. 20549
Form 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of Report (Date of earliest event reported) January 27, 1999
COMPUTER POWER INC.
(Exact name of registrant as specified in its charter)
New Jersey 0-15927 22-1981869
(State or other jurisdiction (Commission (IRS Employer
of incorporation) File No.) Identification No.)
124 West Main Street, High Bridge, New Jersey 08829
(Address of principal executive office)
Registrant's telephone number, including area code 908-638-8000
(Former name or former address, if changed since last report)
Item 1. CHANGES IN CONTROL OF REGISTRANT.
On January 27, 1999, Public Access Lighting, L.L.C., a limited
liability company formed under the laws of the State of
Illinois ("PAL"), acquired in a private sale 490,000 shares of
Registrant's Common Stock held of record by Mantilla Ltd., a
corporation owned and controlled by Lindsay Gillette, a
director of the Registrant. In addition to the 490,000 Common
Shares, PAL acquired certain warrants and debt instruments of
Registrant owned of record by Mr. Gillette and Southerntech,
Inc., another entity controlled and owned by Mr. Gillette.
PAL purchased the subject 490,000 Registrant Common Shares and
the other debt and equity interests of Registrant for a
purchase price of $195,000. As part of these transactions,
Susan M. Larson, the President of PAL, was appointed to the
Board of Directors of Registrant and Messrs. Lindsay Gillette,
Peter Gillette and Clarence Wilcox submitted their
resignations as directors of the Registrant. As a result,
Registrant's current Board of Directors is comprised of three
members, John M. Perry, the President and Chief Executive
Officer of Registrant, Roger Love and Susan M. Larson.
PAL owns and operates several companies engaged in the
development, manufacture and marketing of institutional and
retail lighting products.
Item 7. Financial Statements and Exhibits
(c) (10) Agreement, dated January 27,1999, by and between Lindsay
Gillette, Mantilla Ltd. and Southerntech, Inc., as Sellers, and
Public Access Lighting, L.L.C., as Purchaser.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1934, the
Registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
February 9, 1999 By: s/John M. Perry
John M. Perry
President and Chief Executive Officer
cpi-8k.1
EXHIBIT (C)(10)
EXHIBIT A
AGREEMENT
THIS AGREEMENT is made and entered into this 27th day of January, 1999, by
and among Lindsay Gillette, an individual, with an address c/o 88 Edward Street,
P. O. Box 51, Port of Spain, Trinidad, West Indies ("Gillette"), Mantilla, Ltd.,
a corporation organized under the laws of British Virgin Islands ("Mantilla"),
Southerntech, Inc., a corporation organized under the laws of the Cayman Islands
("Southerntech": sometimes Gillette, Mantilla and Southerntech are hereinafter
collectively referred to as the "Sellers") and Public Access Lighting, L.L.C., a
limited liability company organized under the laws of the State of Illinois,
having its principal offices located at 13603 South Halsted Street, Riverdale,
Illinois 60627 (the "Purchaser").
B A C K G R O U N D :
WHEREAS, Mantilla and Southerntech are corporations
controlled by Gillette; and
WHEREAS, Gillette, Mantilla and Southerntech own all of the following
equity and debt interests in Computer Power Inc., a corporation organized under
the laws of the State of New Jersey ("CPI"):
1. 490,000 shares of the Common Stock of CPI held of
record by Mantilla, Ltd. (the "Gillette Shares").
2. CPI stock subscription warrant, dated April 13, 1998 to purchase up
to 100,000 shares of the Common Stock of CPI (the "Gillette Warrant").
3. CPI Note, dated June 28, 1996 in the principal amount of $415,000,
payable to Southerntech, Inc. (the "1996 Note").
4. CPI Note, dated February 14, 1997 in the principal amount of
$250,000, payable to Southerntech, Inc. (the "1997 Note").
5. CPI Note, dated June 28, 1996 in the principal amount of $150,000,
payable to Southerntech, Inc. (the " 2nd 1996 Note").
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6. CPI stock subscription warrant for 150,000 shares dated June 28,
1996 issued to Southerntech, Inc. (the "A Warrant").
7. CPI stock subscription warrant for 714,286 shares dated February 1,
1998 issued to Southerntech, Inc. (the "B Warrant").
8. CPI stock subscription warrant for 37,828 shares dated April 13,
1998 issued to Southerntech, Inc. (the "C Warrant").
The foregoing are sometimes hereinafter collectively referred to as the
"Purchased Assets").
WHEREAS, the Sellers desire to sell the Purchased Assets to the Purchaser
and the Purchaser desires to buy the Purchased Assets from the Sellers; and
WHEREAS, the parties desire to enter into this Agreement for the purpose of
setting forth all of their respective promises, representations, warranties,
covenants, agreements and conditions in connection with the contemplated
transactions.
NOW, THEREFORE, in consideration of the mutual representations, warranties,
covenants, agreements and conditions contained herein, the parties hereto,
intending to be legally bound hereby, do hereby agree as follows:
ARTICLE I
PURCHASE AND SALE
1.1 Purchase and Sale. Subject to the terms and conditions of this
Agreement, on the Closing Date, Sellers shall sell, transfer, assign and deliver
to Purchaser, free and clear of liens,claims, security interests and
encumbrances of every kind, nature and description, and Purchaser shall purchase
for the consideration herein, provided, from Sellers, the Purchased Assets.
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1.2 Purchase Price. The purchase price (the "Purchase Price") to be paid by
Purchaser to Sellers for the Purchased Assets shall be a cash payment to the
Sellers, by bank or certified check, representing immediately available funds,
or wire transfer of funds in the amount of $190,5 00 U.S. to be delivered as
directed by a written and fully executed instruction of Gillette.
1.3 Additional Agreements. (a) In addition to the payment of the Purchase
Price to the Sellers, the following shall have been accomplished prior to, or
contemporaneous with, Closing Date:
(a) A letter from Rosenthal & Rosenthal, Inc. shall be delivered to
Gillette stating that the aggregate amount of $150,000 U.S., currently being
held by Rosenthal & Rosenthal, Inc. as collateral for debt, together with
accrued interest, shall be delivered to Gillette, no later than February 10,
1999 (the "Gillette Cash Collateral"): for purposes of closing the transactions
contemplated in this Agreement, the Sellers shall accept, in lieu of the actual
delivery of the Gillette Cash Collateral on the Closing Date the Purchaser's
fully executed guaranty, in the form annexed hereto as Exhibit C; and
(b) CPI agrees to continue to make payments in the amount of $10,000
per month, commencing February 1, 1999 to be applied against accounts payable
due to Retrofit Trinidad Limited, a corporation organized under the laws of
Trinidad and Tobago and controlled by Gillette ("Retrofit"), and which accounts
payable balance iscurrently in the approximate amount of $106,935.67 U.S. The
Purchaser shall deliver to Lindsay Gillette its guaranty, in the form annexed
hereto as Exhibit C, the continuation of the $10,000 monthly payments to be made
to Retrofit under this Section 1.3. In addition, CPI shall pay off this accounts
payable balance due Retrofit within 60 days of any refinancing of CPI's assets
or in the event of a sale of the "AstraLite" business assets; and
(c) In the event of any sale of the "AstraLite" business assets, CPI
shall require that the prospective purchaser buy any and all AstraLite component
inventory located in Trinidad, exclusive of any outdated or unusable inventory,
as a condition of any such sale; provided, however, in the event no
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such sale is made prior to July 27, 1999, CPI shall itself purchase such
inventory at book value; and
(d) Contemporaneously with the Closing CPI to convey to Lindsay
Gillette for consideration of $1.00, all of CPI's twenty (20%) percent equity
ownership interest in Retrofit, a company organized under the laws of Trinidad
and Tobago.
1.4 Sellers' Best Efforts Actions. In addition to its agreement to sell the
Purchased Assets to the Purchaser in exchange for the receipt of the Purchase
Price, Sellers, or as may be more specifically identified below, hereby agree to
utilize their respective good faith, best efforts to accomplish the following
for the benefit of the Purchaser on or before the Closing Date:
(a) Lindsay Gillette shall utilize his best efforts to cause Pelinja
Holdings Limited to deliver its release and indemnification of Readymix (West
Indies) Ltd. from and against any and all claims, obligations, duties and
liabilities of any nature whatsoever, limited to any and all monies alleged to
be due and owing from Readymix (West Indies) Ltd. to Pelinja Holdings Limited
arising out of and in connection with a certain "HEADS OF AGREEMENT BETWEEN
PELINJA HOLDINGS LIMITED & READYMIX (WEST INDIES) LIMITED DATED TWELTH SEPTEMBER
1996", a copy of which is annexed hereto as Exhibit A (the "Pelinja Release");
and
(b) Lindsay Gillette shall utilize his best efforts to cause Mr. Hiro
Hiranandani to sell to Purchaser all of Mr. Hiranandani's debt and equity
interests in CPI (the "Hiranandani Sale").
ARTICLE II
CLOSING
2.1 Closing. Subject to the satisfaction of all the terms and conditions
contained in this Agreement, on or before January 27, 1999, (a) the Sellers
shall convey to Purchaser title to and possession of the Purchased Assets,
including the original stock certificates representing the Gillette Shares,
together with fully executed stock powers, with medallion guarantee signatures,
endorsing the Gillette Shares for transfer to Purchaser; an
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assignment and bill of sale, in substantially the form annexed hereto as Exhibit
B, all of Sellers' right, title and interest in and under the Gillette Warrant,
the 1996 Note, the 1997 Note, the 2nd 1996 Note, the A Warrant, the B Warrant
and the C Warrant to the Purchaser; (b) the Purchaser shall deliver the Purchase
Price to the Sellers, and (c) all of the "Conditions of Closing" identified
below, shall have been satisfied by the parties. The last date upon which the
deliveries, payments and conditions described in this Section 2.1 and elsewhere
in this Agreement are to be made or satisfied shall be deemed the "Closing Date"
for all purposes under this Agreement. The foregoing, notwithstanding, and as
time is of the essence, if stock certificates or other instruments can not be
readily located, Sellers shall prepare a lost certificate affidavit and instruct
counsel to take such steps as necessary, post-closing, to have replacement
certificates issued to Purchaser.
2.2 Release of All Claims to and Under the Purchased Assets. Upon the
conveyance by the Sellers of all Sellers' right, title and interest in, to and
under the Purchased Assets to the Purchaser on the Closing Date, Sellers hereby
acknowledge and agree that they shall have relinquished and released, in favor
of the Purchaser, any and all claims or rights that may have accrued under the
1996 Note, the 1997 Note and the 2nd 1996 Note, including without limitation any
interest that may have accrued under such notes, forever.
The Closing shall take place on the Closing Date at the
offices of Computer Power Inc. in High Bridge, New Jersey.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF SELLERS
As an inducement to Purchaser to enter into this Agreement and to
consummate the transactions contemplated hereby, Sellers hereby, jointly and
severally, represent and warrant to Purchaser as follows:
3.1 Title to Purchased Assets. Gillette, Mantilla and Southerntech, have
good and marketable title to their respective ownership interests in the
Purchased Assets being sold hereunder, free and clear of any and all liens,
encumbrances, restrictions,
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options, adverse claims and other defects in title. The Purchased Assets being
sold hereunder represent all of the Sellers' collective and respective equity
and debt interests in Computer Power Inc. and Sellers do not own nor have any
other rights to acquire any other equity or debt interest in Computer Power
Inc., which representation and warranty is true as of the date hereof and shall
be true as of the Closing Date.
3.2 Authority. The Sellers have all requisite power and authority to
execute and deliver this Agreement and to consummate the transactions
contemplated hereby. This Agreement constitutes the valid and binding obligation
of Sellers, enforceable in accordance with its terms, except as may be limited
by bankruptcy, insolvency or other laws affecting creditors' rights generally
and limitations on equitable remedies generally, or as may be modified by a
court of equity in an action for specific performance. The execution, delivery
and performance by Sellers of this Agreement, will not violate or result in
default under any provision of any agreement to which Lindsay Gillette,
Mantilla, Ltd. or Southerntech, Inc. is a party, nor to their respective best
knowledge, to any material agreement, commitment, indenture, license or other
obligation to which Computer Power Inc. is a party and will not, to the best
knowledge and belief of Sellers, contravene any material law, rule or regulation
of any administrative agency or governmental body or any order, write,
injunction or decree of any court, administrative agency or governmental agency
applicable to Sellers or Computer Power Inc. To the best knowledge of Sellers,
no material consents or approvals are required as a condition to the validity of
this Agreement and the consummation by Sellers of the transaction contemplated
hereby.
3.3 No Default. Neither the execution and delivery of this Agreement by
Sellers or any agreement required hereby nor the performance by Sellers of such
agreements in compliance with their terms will (i) to the best knowledge of
Sellers, conflict with or result in a breach of or constitute or result in a
material default under any agreement, contract or commitment to which Sellers
are a party; or (ii) result in the creation or imposition of (or the obligation
to create or impose) any lien, charge or encumbrance upon any of the Purchased
Assets owned by Sellers, pursuant to the terms of any indenture, mortgage, deed
of trust, lease, agreement or other instrument to which Sellers
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are a party or by which Sellers may be bound. To the best knowledge of Sellers,
the consummation of this Agreement shall not result in any default by Sellers
which will give any Person the right to accelerate any obligations under any
agreement, contract, indenture or other instrument relating to the borrowing of
money or to other indebtedness by which Sellers are bound.
3.4 No Brokers. The Sellers are not obligated for the payment of fees or
expenses of any broker or finder in connection with this Agreement or any
transaction contemplated hereby, except to Al Roth. The Sellers hereby agrees to
indemnify the Purchaser from and against any liability which may arise under
this Section 3.4 in connection with any claims by any named or unnamed brokers.
3.5 Litigation. There is no litigation, suit, proceeding, action, claim or
investigation, at law or in equity, pending or threatened against or affecting
the Sellers' ownership interests in the Purchased Assets. The Sellers are not
aware of any facts that might result in any such litigation, suit, proceeding,
action, claim or investigation which relates to the transactions contemplated
hereby.
3.6 Maintenance of Status Quo. Neither Lindsay Gillette, Mantilla,
Southerntech or their respective affiliates shall purchase any equity or debt of
Computer Power Inc. in the public markets nor from any other current shareholder
or creditor of Computer Power Inc. prior to on the Closing Date.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF PURCHASER
As an inducement to Sellers to enter into this Agreement and to consummate
the transactions contemplated hereby, Purchaser hereby represents and warrants
to Sellers as follows:
4.1 Organization and Good Standing. Purchaser is a limited liability
company duly organized and validly existing and in good standing under the laws
of the State of Illinois and has full corporate power and authority to carry on
its business, to own and operate its properties and assets, to conduct the
business in which it is now engaged and to consummate the transactions
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contemplated hereby.
4.2 Authority. The execution and delivery of this Agreement and the
consummation of the transactions contemplated hereby have been duly and validly
authorized by Purchaser and no further corporate action of any nature will be
required pursuant to the organizational documents of Purchaser. This Agreement
constitutes the valid and binding obligation of Purchaser, enforceable in
accordance with its terms, except as may be limited by bankruptcy, insolvency or
other laws affecting creditors' rights generally and limitations on equitable
remedies generally, or as may be modified by a court of equity in an action for
specific performance. The execution, delivery and performance by Purchaser of
this Agreement will not violate or result in default under any provision of the
charter or organizational documents of Purchaser, nor to the best knowledge of
Purchaser, any material commitment, indenture, license or other obligation to
which Purchaser is a party and will not contravene any law, rule or regulation
of any administrative agency or governmental body or any order, writ, injunction
or decree of any court, administrative agency or governmental agency applicable
to Purchaser. No consents or approvals are required as a condition to the
validity of this Agreement and the consummation by Purchaser of the transactions
contemplated hereby.
4.3 No Default. Neither the execution and delivery of this Agreement by
Purchaser or any agreement required hereby nor the performance by Purchaser of
such agreements in compliance with their terms will conflict with or result in a
breach of or constitute or result in a default under any agreement, contract or
commitment to which Purchaser is a party.
4.4 Securities Representations. Purchaser is purchasing the Gillette Shares
for investment and not with any intention of making a distribution or resale of
such shares in whole or by fractionalization. Purchaser has no contract,
understanding, agreement or arrangement with any person or entity to sell,
transfer or pledge such shares. Purchaser is aware that such shares are being
sold by Sellers in reliance upon exemptions from registration requirements of
The Securities Act of 1933, as amended (the "1933 Act"), and applicable
exemptions from registration under state securities laws.
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4.5 Equal Treatment of CPI Insider Debt. Purchaser shall treat any debt of
Computer Power Inc. it acquires from either Trinidad Cement Limited, Readymix
(West Indies) Ltd. or Mr. Hiro Hiranandani in the same manner as it shall treat
the debt represented by the 1996 Note, the 1997 Note and the 2nd 1996 Note more
fully identified above.
ARTICLE V
CONDITIONS TO CLOSING; THE CLOSING
5.1 Conditions to Closing. The respective obligations of each party to
effect the transactions contemplated hereby shall be subject to the fulfillment
at or prior to the Closing Date of the following conditions:
(a) None of Lindsay Gillette, Mantilla, Southerntech nor the Purchaser
shall be subject to any order, decree or injunction of a court of competent
jurisdiction which prohibits any of the transactions contemplated by this
Agreement; and
(b) Conditions to the Obligations of Lindsay Gillette, Mantilla and
Southerntech to Effect the Transactions Contemplated Hereby. The obligations of
Lindsay Gillette, Mantilla and Southerntech to effect the transactions
contemplated hereby shall be further subject to the fulfillment at or prior to
the Closing Date of the following conditions, which can be waived by Lindsay
Gillette:
(i) Public Access Lighting, L.L.C. shall have performed and
complied with in all material respects the agreements contained in this
Agreement required to be performed and complied with by it at or prior to the
Closing Date and PAL's representations and warranties set forth 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;
(ii) Lindsay Gillette shall have received Purchaser's guaranty,
in the form annexed hereto as Exhibit C, guaranteeing the payment to Lindsay
Gillette, on or before February 10, 1999, of payments in the aggregate amount of
$150,000 U.S. currently being held by Rosenthal & Rosenthal, P.C.
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of New York, New York, as additional collateral for outstanding
loans made to Computer Power Inc.;
(iii) Lindsay Gillette shall have received all of Computer Power
Inc.'s right, title and interest currently owned in Retrofit, a company
organized under the laws of Trinidad and Tobago;
(iv) Lindsay Gillette shall have received Purchaser's guaranty,
in the form annexed hereto as Exhibit C, of certain $10,000 monthly payments to
be made by Computer Power Inc. to Retrofit and representing the payment of
accounts payable;
(v) The Sellers shall have received the Purchase Price in
accordance with Section 2.1.
(c) Conditions to the Obligations of Public Access Lighting, L.L.C. to
Effect the Transactions Contemplated Hereby. The obligations of Public Access
Lighting, L.L.C. to effect the transactions contemplated hereby shall be further
subject to the fulfillment at or prior to the Closing Date of the following
conditions, which can be waived by the Purchaser:
(i)Lindsay Gillette, Mantilla and Southerntech shall have
performed and complied with in all material respects the agreements contained in
this Agreement required to be performed and complied with by them at or prior to
the Closing Date and their respective representations and warranties set forth
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;
(ii) The Purchaser shall have received the certificate(s)
representing 490,000 shares of the Common Stock of Computer Power Inc.,
currently held of record by Mantilla, Ltd., with accompanying fully executed
stock powers in accordance with Section 2.1 or suitable affidavits of lost
certificates;
(iii) The Purchaser shall have received the Assignment and Bill
of Sale, the form of which is annexed hereto as Exhibit B, fully executed by
Lindsay Gillette and Southerntech in accordance with Section 2.1;
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(iv) The Purchaser shall have received the Pelinja Release
identified in Section 1.4 (a) and in accordance with Section 2.1;
(v) The Purchaser shall have consummated a certain transaction
with Mr. Hiro Hiranandani, referred to in Section 1.4 (b) above, pursuant to the
general terms of which Purchaser shall have purchased all of the equity and debt
interests of Computer Power Inc. currently owned of record by Mr.
Hiranandani;
(vi) The Board of Directors of Computer Power Inc., consisting
solely of Messrs. Lindsay Gillette, Peter Gillette, Clarence Wilcox, Roger Love
and John Perry, shall have unanimously appointed Susan M. Larson, Purchaser's
representative, to the Board of Directors of Computer Power Inc. and,
immediately thereafter, the Purchaser shall have received original copies of
letters of resignation from the Board of Directors of Computer Power Inc. from
Messrs. Lindsay Gillette, Peter Gillette and Clarence Wilcox,effective as of the
date of delivery, all of which actions shallresult in the CPI Board of Directors
being comprised of three (3)members, to wit, John Perry, Roger Love and Susan M.
Larson.
ARTICLE VI
SURVIVAL OF REPRESENTATIONS; INDEMNIFICATION
6.1 Survival of Representations. All representations and warranties made by
any party in this Agreement shall survive the Closing Date and continue for a
period of 18 months. All claims made by virtue of the representations,
warranties and agreements made by any party in this Agreement shall be made
under, and subject to the limitations set forth in, this Article VI.
6.2 Lindsay Gillette's Agreement to Indemnify. Subject to the conditions
and provisions set forth herein, Lindsay Gillette hereby agrees to indemnify,
defend and hold harmless the Purchaser from and against all demands, claims,
actions, losses, damages, liabilities, costs and expenses, including without
limitation, reasonable attorneys' fees, asserted against or incurred by the
Purchaser resulting from a breach of any representation, warranty, or agreement
of Lindsay Gillette,
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Mantilla or Southerntech contained in this Agreement.
6.3 Purchaser's Agreement to Indemnify. Subject to the conditions and
provisions set forth herein, the Purchaser hereby agrees to indemnify, defend
and hold harmless Lindsay Gillette, Mantilla and Southerntech, as the case may
be, from and against all demands, claims, actions, losses, damages, liabilities,
costs and expenses, including without limitation, reasonable attorneys'
fees,asserted against or incurred by Lindsay Gillette resulting from a breach of
any representation, warranty, or agreement of the Purchaser contained in this
Agreement.
6.4 Conditions of Indemnification. The obligations and liabilities of
either party under this Article VI with respect to claims resulting from the
assertion of liability by third parties shall be subject to the following terms
and conditions:
(a) a party claiming indemnification hereunder shall give prompt
notice to the other party of any asserted claim against or incurred and shall
undertake the defense thereof by counsel then representing the party, or by
additional and substitute counsel with the approval of the other party, which
approval shall not be unreasonably withheld;
(b) in the event that a party, within a reasonable time after notice
of any third party claim, fails to defend, the party against whom any claim is
made or incurred shall (upon further notice to the other party) have the right
to undertake the defense, compromise or settlement of such third party claim for
the account of the other party, subject to that party's right to assume the
defense of such third party claim at any time prior to settlement, compromise or
final determination thereof.
ARTICLE VII
MISCELLANEOUS
7.1 None of the parties to this Agreement may make an assignment of this
Agreement or any interest herein without the prior written consent of the other
parties hereto.
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7.2 Governing Law. This Agreement and all of the agreements,documents and
instruments executed in connection with the transactions contemplated hereby,
(all of said agreements, documents and instruments are collectively referred to
herein as the "Purchase Documents") shall be governed by and construed in
accordance with the laws of the State of New Jersey. Each of the undersigned
further agrees that any action or proceeding brought or initiated in respect of
this Agreement or the Purchase Documents or the transactions contemplated hereby
or thereby shall be brought or initiated in the Superior Court of the State of
New Jersey,Hunterdon County, and each of the undersigned consents and agrees to
the exercise of personal jurisdiction and the subject matter of any such action
or proceeding and the placement of venue in any of such courts in any such
action or proceeding, and further consents and agrees that service of process
may be effected in any such action or proceeding in the manner provided in New
Jersey Statutes, as amended, or in such other manner as may be permitted by law,
and each of the undersigned further agrees that no such action shall be brought
against any party hereunder except in one of the courts named above and waives
any and all rights to object to venue and lack of jurisdiction to the extent
consistent with this Section. If either party is found to be in breach of this
Agreement by any of the above-mentioned courts of law, then the breaching party
shall pay the reasonable legal fees actually incurred by the non- breaching
party.
7.3 Notices. All notices, requests, demands and other communications
hereunder shall be in writing and shall be deemed to have been duly given if
delivered personally or by telecopy, or if mailed, by United States certified or
registered mail, prepaid, and three business days shall have elapsed after the
same shall have been mailed to the parties or their assignees at the following
addresses (or at such other addresses as shall be given in writing by the
parties to one another as provided herein):
To Sellers: LINDSAY GILLETTE
c/o 88 Edward Street
P. O. Box 51
Port of Spain, Trinidad, West Indies
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With a copy to: James P. Jalil, Esq.
Shustak, Jalil & Heller
545 Madison Avenue
New York, New York 10022
To Purchaser: PUBLIC ACCESS LIGHTING, L.L.C.
13603 South Halsted Street
Riverdale, Illinois 60627
Attention: Susan M. Larson, President
With a copy to: JOSEPH J. TOMASEK, ESQ.
77 North Bridge Street
Somerville, New Jersey 08876
7.4 Remedies Not Exclusive; Specific Performance. No remedy conferred by
any of the specific provisions of this Agreement is intended to be exclusive of
any other remedy. The election of any one remedy by a party hereto shall not
constitute a waiver of the right to pursue other available remedies. Irreparable
damage would probably occur if any provision of this Agreement were not
performed in accordance with the terms hereof, and the parties acknowledge and
agree that the aggrieved party shall be entitled to specific performance of the
terms hereof, in addition to any other remedy at law or equity.
7.5 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.
7.6 Entire Agreement. This Agreement, the exhibits and schedules hereto and
other documents delivered pursuant hereto or incorporated by reference herein,
contain the entire agreement between the parties hereto concerning the
transactions contemplated hereby and supersede all prior agreements or
understandings, written or oral, between the parties hereto relating to the
subject matter hereof. No oral representation, agreement or understanding made
by any party hereto shall be valid or binding upon such party or any other party
hereto.
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7.7 Severability. The parties intend for this Agreement to be severable. It
is mutually agreed that in the event any paragraph, subparagraph, section,
subsection, sentence, clause or phrase hereof shall be construed as illegal,
invalid or unenforceable, for any reason, such determination shall in no manner
affect the other paragraphs, subparagraphs, section, subsections, sentences,
clauses or phrases hereof which shall remain in full force and effect, as if the
said paragraph, subparagraph, section, subsection, sentence, clause or phrase so
construed as illegal, invalid or unenforceable were not originally a part
hereof, and the enforceability hereof as a whole will not be affected. The
parties hereby declare that they would have agreed to the remaining parts hereof
if they had known that such parts hereof would be construed as illegal, invalid
or unenforceable.
7.8 Amendment; Waiver. This Agreement may be amended only by a written
instrument duly executed by all parties hereto. To the extent permitted by law,
any condition to a party's obligations hereunder may be waived in writing by the
other parties.
7.9 Parties in Interest; Further Assurances. This Agreement shall be
binding upon, inure to the benefit of and be enforceable by Purchaser and
Sellers and their respective successors and heirs, as the case may be. Each
party hereto agrees to take any and all action and execute and and all documents
and instruments reasonably requested by another party hereto to effectuate the
transactions contemplated by this Agreement.
7.10 Closing: Time of the Essence. This Agreement is scheduled to close,
with all obligations on the respective parts of the Purchaser and the Sellers,
and all of the Conditions to Closing and the Deliveries by Sellers and Purchaser
set forth in Article V to have been consummated and completed on the Closing
Date, January 27, 1999, TIME BEING OF THE ESSENCE with respect to all of the
transactions contemplated in this Agreement.
For purposes of facilitating the consummation of the transactions described
herein, any and all deliveries of documents or payments required to be made by
Purchaser hereunder shall be deemed made or received by Sellers for all purposes
15
under this Agreement if delivered or paid to Seller's counsel.
7.11 Confidentiality of Agreement.
(a) All information disclosed hereto or hereafter by Purchaser or the
Sellers to the other in connection with this Agreement shall be kept
confidential by such other, and shall not be used otherwise than by such other
in connection with this Agreement, except: (i) to the extent it was known when
received or as it is or hereafter becomes lawfully obtainable from other
sources, (ii) to the extent such duty as to confidentiality and non-use is
waived, (iii) as may be required by court order or any governmental agency,
including any and all disclosures required under the 1933 Act or the Securities
Exchange Act of 1934, as amended, in which case each party shall be responsible
for their own respective filings under applicable securities laws (iv) for the
sole and exclusive purpose of receiving legal or tax advice with respect to the
foregoing, or (v) to the extent reasonably necessary by Purchaser or Sellers to
carry out and perform and satisfy the terms and conditions of the Agreement.
7.12 Survival of Representations and Warranties. The representations and
warranties and covenants and agreements made herein and in the documents and
instruments executed and delivered pursuant to the transactions contemplated
hereby shall survive the Closing Date for a period of eighteen (18) months.
7.13 Captions and Section Headings. Captions and section headings used
herein are for convenience only and are not a part of this Agreement and shall
not be used in construing it.
7.14 Exhibit/Schedule Disclosures. A disclosure made in this Agreement or
in any Exhibit or Schedule attached hereto or in any other document or
instrument executed and delivered pursuant to the transactions contemplated
hereby shall constitute a disclosure for all purposes of this Agreement and said
Exhibits, Schedules, documents and instruments.
16
IN WITNESS WHEREOF, Lindsay Gillette, Mantilla, Ltd.,
Southerntech, Inc. and Public Access Lighting, L.L.C. have signed
or caused this Agreement to be signed by their respective duly
authorized officers as of the date first above written.
SELLERS:
s/Lindsay Gillette
Lindsay Gillette
MANTILLA, LTD.
By: s/Lindsay Gillette
Lindsay Gillette, President
SOUTHERNTECH, INC.
By: s/Lindsay Gillette
Lindsay Gillette, President
PURCHASER:
PUBLIC ACCESS LIGHTING, L.L.C.
By: s/Susan M. Larson
Susan M. Larson
President
As to Sections 1(b), 1(c), 1(d) only Computer Power, Inc.
By: s/John Perry
John Perry, President
computer.mim
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EXHIBIT A
COPY OF
HEADS OF AGREEMENT BETWEEN PELINJA HOLDINGS LIMITED
& READYMIX (WEST INDIES) LIMITED
DATED TWELTH SEPTEMBER 1996
1. Contemporary Homes Limited & Queen's Park Lease
1.1 Readymix (West Indies) Ltd (RM) has made advances to
Contemporary Homes Ltd (CH) totaling TT$2,345,547, which total
amount is agreed as being correct by Pelinja Holdings
Ltd (PH).
1.2 RM has broken its lease from PH of 25 Queen's Park West, and
it has been agreed with PH, that RM will pay PH the sum of
TT$100,000 in full and final settlement of all and any amounts
due under the lease and by way of termination of the said
lease.
1.3 Within five working days hereof PH will pay to RM the sum of
TT$2,345,547 referred to in 1.1 above less the sum of
TT$100,000 referred to in 1.2 above. This payment will be made
on the basis that PH will be taking over all rights vis-a-vis
CH formerly held by RM, and RM will so inform CH.
2. Computer Power Inc
2.1 RM is the owner of 510,000 shares in Computer Power Inc.
(CPI), and has made loans and/or advances to CPI of US$700,000
by way of a Subordinated Note and US$300,000 by way of a
Convertible Debenture.
2.2 PH has advanced to RM the sum of US$90,531.90 without interest
to assist RM in making the investments in CPI set out in 2.1
above. It is agreed that interest will begin to accrue with
effect from the date on which PH shall have made the payment
to RM referred to in 1.3 above, at the rate of US Prime + 2.5%
per annum.
2.3 PH acknowledges that RM has the right to sell all or part of
its shares in CPI at any time, and similarly that RM has the
right to make its own arrangements for the repayment and/or
takeover by a third party in whole or in part of its loans
and/or advances to CPI set out in 2.1 above. However RM
undertakes to keep PH informed as to its intentions and plans
in this regard. Before so doing however RM undertakes to give
five working days notice in writing to PH during which time PH
shall have the right to exercise its option as set out in 2.4
below, on the express understanding however that PH must
purchase all or all the remaining CPI shares owned by RM at
that time.
2.4 PH has the option to acquire all RM's holding of 510,000 shaes
in CPI referred to in 2.1 above or such part thereof and has
not been sold by RM in accordance with 2.1 above, at a price
to be determined in accordance with a formula, details of
which are set out in 2.5 below, at any time from the date
hereof up to 31 March 1996 on the express condition however
that PH will simultaneously or at any time beforehand arrange
or have arranged for all the loans and/or advances detailed in
2.3 above, plus any interest accrued thereon, to be repaid to
RM.
2.5 The price at which PH shall have the option to purchase RM's
holding of 510,000 shares in CPI will be TT$2,000,000 at any
time before or up to 30 September 1996, increasing ratably
over time to 31 March 1996 to TT$3,000,000; Should RM already
have sold part of its holding of shares in CPI in accordance
with 2.3 above, the amount payable by PH shall be ratably
reduced accordingly.
2.6 Whenever RM sells any of its shares in CPI, whether to PH or
otherwise, RM shall repay to PH that portion of the amount due
to PH set out in 2.2 above which is pro rata to the amount of
CPI shares sold vis-a-vis Rm's original holding of 510,000
shares, together with any interest accrued thereon.
2.7 RM, under the terms of the Convertible Debenture covering that
part of its loans and/or advances to CPI totalling US$300,000,
has the right to convert up to US$40,000 into shares in CPI at
a rate of US$0.40 per share at any time up to 27 September,
1996. RM, if so requested in writing not later than five
working days prior to that date by PH undertakes to exercise
its right to convert such amount of its loan up to a maximum
of US$40,000 as requested by PH, on behalf of PH, on the basis
that PH will pay the same amount to RM in part repayment of
its loans and/or advances covered by the Convertible Debenture
in CPI. RM undertakes that having received such shares, it
will immediately transfer same to PH, on the basis that no
costs accrue to RM whether for transfer fees or otherwise. PH
for its part acknowledges that should it not request RM to
exercise the said conversion rights on its behalf, then RM
shall have the right to exercise the said conversion rights on
its own behalf.
2.8 RM acknowledges that PH on 9 November 1995 paid RM the sum of
US$62,000 on account of interest due to RM by CPI in respect
of the loans and/or advances referred to in 2.1 above. RM
further undertakes to request CPI to record that PH made the
said payment to RM on CPI's behalf, and that CPI shall
acknowledge to PH that CPI owes such sum to PH.
2.9 In consideration of all the foregoing PH undertakes to use its
best influence with CPI to get CPI to:
- bring up to date and thereafter keep up to date all
the interest payments due to RM in accordance with
the terms of the agreements covering RM's loans
and/or advances to CPI;
- repay to RM all of RM's loans and/or advances to CPI
together with any interest accrued thereon as quickly
as possible, preferably not later than 31 December
1996;
- arrange for the appointment to the CPI board of
directors of a representative of RM until such time
as all RM's loans and/or advances to CPI have been
repaid and RM shall have disposed of all its shares
in CPI in accordance with 2.3 and/or 2.4 above, on
the basis that CPI shall be responsible for the
payment of the terms director's fees; and
- provide RM in Trinidad promptly by courier copies of
all public filings with respect to CPI including
accounting information.
Agreed to on behalf of:
Pelinja Holdings Limited
s/Peter Gillette
by Peter Gillette, LDirector
Witness
Readymix(West Indies) Limited
s/Richard O. Hobday
by Richard O. Hobday, LDirector
Witness
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EXHIBIT B
ASSIGNMENT AND BILL OF SALE
ASSIGNMENT AND BILL OF SALE
KNOW ALL MEN BY THESE PRESENTS that we, Lindsay Gillette, of
Port-of-Spain, Trinidad, West Indies, Mantilla Ltd., a corporation organized
under the laws of the British Virgin Islands and Southerntech, Inc., a
corporation organized under the laws of the Grand Cayman Islands, in
consideration of the sum of $190,500 to us in hand paid by Public Access
Lighting, L.L.C. of Riverdale, Illinois, the receipt whereof is hereby
acknowledged, (A) have granted, bargained, sold, conveyed, transferred, and
delivered and by these presents do bargain, sell, grant, convey, transfer, and
deliver, and; (B) where required pursuant to any applicable term or provision
set forth in the following personal property, do hereby assign all of our
respective right, title and interest, unto Public Access Lighting, L.L.C., the
following personal property:
1. 490,000 shares of the Common Stock of CPI held of
record by Mantilla Ltd.
2. CPI stock subscription warrant, dated April 13, 1998 to purchase up
to 100,000 shares of the Common Stock of CPI.
3. CPI Note, dated June 28, 1996 in the principal amount of $415,000,
payable to Southerntech, Inc.
4. CPI Note, dated February 14, 1997 in the principal amount of
$250,000, payable to Southerntech, Inc.
5. CPI Note, dated June 28, 1996 in the principal amount of $150,000,
payable to Southerntech, Inc.
6. CPI stock subscription warrant for 150,000 shares dated June 28,
1996 issued to Southerntech, Inc.
7. CPI stock subscription warrant for 714,286 shares dated February 1,
1998 issued to Southerntech, Inc.
8. CPI stock subscription warrant for 37,828 shares dated April 13,
1998 issued to Southerntech, Inc. and the foregoing instruments are hereinafter
collectively referred to as the "Purchased Assets",
To have and to hold the same unto Public Access Lighting, L.L.C., its
successors and assigns forever;
And I we do for ourselves, our respective executors, administrators,
successors and assigns covenant and agree with Public Access Lighting, L.L.C. to
warrant and defend title to the Purchased Assets hereby sold unto Public Access
Lighting, L.L.C., its successors and assigns against all and every person and
persons whomsoever.
And we do for ourselves, our respective executors, administrators,
successors and assigns warrant and represent to Public Access Lighting, L.L.C.
that the title conveyed is good, its transfer is rightful; and the Purchased
Assets are, have been, or shall be delivered from any security interest or other
lien or encumbrance.
In witness whereof we have hereunto set our hands and seals this
January 27, 1999.
s/Lindsay Gillette
Lindsay Gillette, Individually
MANTILLA, LTD.
By: s/Lindsay Gillette
Lindsay Gillette,
Title: President
SOUTHERNTECH, INC.
By: s/Lindsay Gillette
Lindsay Gillette,
Title: President
bill-sal.pal
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EXHIBIT C
SPECIAL GUARANTY OF
PUBLIC ACCESS LIGHTING, L.L.C.
THIS SPECIAL GUARANTY, given by Public Access Lighting, L.L.C., a limited
liability company formed under the laws of the State of Illinois (the
"Guarantor") to Lindsay Gillette, of Trinidad, West Indies ("Gillette").
B A C K G R O U N D:
WHEREAS, Lindsay Gillette and certain of his affiliates have entered into a
certain agreement with Public Access Lighting, L.L.C., dated January , 1997,
pursuant to the principal terms of which Gillette and his affiliates will sell
their equity and debt interests in Computer Power Inc., a New Jersey corporation
("CPI") to the Guarantor (the "Primary Agreement"); and
WHEREAS, pursuant to certain terms of the Primary Agreement, the Guarantor
has committed to utilize its best efforts to cause CPI to make certain payments
to Lindsay Gillette and/or Retrofit Trinidad Limited, a company organized under
the laws of Trinidad and Tobago ("Retrofit"); and
WHEREAS, the Guarantor desires to guarantee the payment of the CPI payments
due to Lindsay Gillette and/or Retrofit as a further inducement to Lindsay
Gillette to execute, deliver and close on the transactions described in the
Primary Agreement.
The Guarantor hereby undertakes the following on behalf of and for the
benefit of Lindsay Gillette and/or Retrofit:
1. Obligation. In consideration of Lindsay Gillette and his affiliates
executing, delivering and consummating the transactions set forth in the Primary
Agreement, the Guarantor hereby unconditionally guarantees to Lindsay Gillette,
his heirs and assigns, the payment of the following obligations of Computer
Power Inc.:
A. The payment of $150,000 on or before February 10, 1999,
representing the aggregate cash collateral amount currently being held by
Rosenthal & Rosenthal, P.C. of New York, New York as partial security for an
outstanding accounts receivable loan of Computer Power Inc.; and
B. The scheduled monthly payments by CPI to Retrofit in the
amount of $10,000, beginning on February 1, 1999, and continuing for each
consecutive month thereafter until the outstanding balance of accounts payable
due as of January 31, 1999 (currently estimated to be approximately $106,935.67
U.S.) is paid in full.
2. Waiver. The undersigned hereby waives demand for payment, notice of
default or nonpayment, protest, and notice of protest as to any of the above
enumerated payment obligations of Computer Power Inc.
3. Term. This Special Guaranty shall continue until the receipt by
Lindsay Gillette or his agents of the payments due from Computer Power Inc. and
identified in Section 1.A and 1.B above are fully paid.
4. Binding Effect. This Special Guaranty shall be binding upon Public
Access Lighting, L.L.C., its successors and assigns and shall inure to the
benefit of Lindsay Gillette, his successors, heirs and assigns.
5. Governing Law. This Special Guaranty shall be
governed by and construed in accordance with the laws of the
State of New Jersey.
IN WITNESS WHEREOF, Public Access Lighting, L.L.C. has
executed this Special Guaranty on January 27, 1999.
PUBLIC ACCESS LIGHTING, L.L.C.
By: s/Susan M. Larson
Susan M. Larson, President
CERTIFICATE OF MISSING
INSTRUMENT OR INDEMNIFICATION
I, LINDSAY GILLETTE, President of SOUTHERNTECH, INC., a Cayman Islands
corporation ("Southerntech"), states:
That Southerntech, was the legal and beneficial owner and holder of record
of $415,000 Note of Computer Power, inc. ("CPI") dated June 28, 1996, $250,000
Note of CPI dated February 14, 1997,$150,000 Note of CPI dated June 28, 1996,
CPI Stock Subscription Warrant for 150,000 shares of CPI dated June 28, 1996,
CPI Stock Subscription Warrant for 714,286 shares of CPI dated February 1,1998
and CPI Stock Subscription Warrant for 37,828 shares of CPI dated April 13, 1998
(the "Instruments").
That the Instruments have been lost, misplaced or destroyed and after a
diligent search cannot be located by Southerntech.
That the said Instruments were not endorsed by Southerntech to any third
person, nor were the rights of Southerntech in whole or in part, as the owner
and holder of such Instruments assigned, transferred, hypothecated, pledged or
otherwise disposed of by the Southerntech prior to its surrender thereof as
hereinabove described.
That Southerntech shall continue to search for the Instruments and shall
promptly deliver such Instruments upon discovery thereof.
The undersigned hereby agrees to indemnify and hold harmless Public Access
Lighting LLC from and against any claims or liabilities arising out of or in
connection with any claims made by any third parties claiming an ownership
interest in the Instruments. This Certificate shall be governed under and
construed in accordance with the laws of the State of New Jersey.
SOUTHERNTECH, INC.
Dated: Jauary 27, 1999 By: s/Lindsay Gillette
------------------
Name: Lindsay Gillette
Title: President
CERTIFICATE OF MISSING
INSTRUMENT OR INDEMNIFICATION
I, LINDSAY GILLETTE ("Gillette") states:
That Gillette, was the legal and beneficial owner and holder of a Stock
Subscription Warrant dated April 13, 1998 to purchase up to 100,000 shares of
the Common Stock of Computer Power, Inc. (the "Warrant").
That the Warrant has been lost, misplaced or destroyed and after a diligent
search cannot be located by Gillette.
That the said Warrant was not exercised or endorsed by Gillette to any
third person, nor were the rights of Gillette in whole or in part, as the owner
and holder of such Warrant and the shares represented thereby, assigned,
transferred, hypothecated, pledged or otherwise disposed of by Gillette.
That Gillette shall continue to search for the Warrant and shall promptly
deliver such Warrant upon discovery thereof.
The undersigned hereby agrees to indemnify and hold harmless Public Access
Lighting LLC from and against any claims or liabilities arising out of or in
connection with any claims made by any third parties claiming an ownership
interest in the Warrant. This Certificate shall be governed under and construed
in accordance with the laws of the State of New Jersey.
Dated: January 27, 1999 s/Lindsay Gillette
Lindsay Gillette
RELEASE
Reference is made to that certain Heads of Agreement (the "Heads of
Agreement") between Pelinja Holdings Limited ("Pelinja") and Ready Mix (West
Indies) Limited ("RMC") dated September 12, 1996.
Pelinja hereby releases RMC from all of the obligations set forth in the
Heads of the Agreement.
PELINJA HOLDINGS LIMITED
Dated: January 27, 1999 By: s/Peter Gillette
----------------
Peter Gillette, Director
RESIGNATION
The undersigned Lindsay Gillette, Peter Gillette and Clarence Wilcox hereby
resign as directors and, to the extent they are,officers of Computer Power, Inc.
effective immediately.
s/Lindsay Gillette
Lindsay Gillette
s/Peter Gillette
Peter Gillette
s/Clarence Wilcox
Clarence Wilcox
Dated: January 27, 1999
UNANIMOUS CONSENT OF DIRECTOR
The undersigned being all the directors of Computer Power, Inc., adopt the
following resolutions by unanimous consent, dated January 27, 1999.
1. RESOLVED, that Susan M. Larsen by and hereby is appointed a director
of Computer Power, Inc. to fill a vacancy.
2. RESOLVED, that the proper officers and employees of Computer Power,
Inc. be and each hereby is, authorized, directed and empowered to
execute and deliver the Agreements by and between Public Access
Lighting, LLC and Mantilla, Ltd., Southerntech Ltd and Lindsay
Gillette.
s/Lindsay Gillette
Lindsay Gillette (recused as to
Resolution 2)
s/Peter Gillette
Peter Gillette (recused as to Resolution 2)
s/Clarence Wilcox
Clarence Wilcox (recused as to
Resolution 2)
s/Roger Love
Roger Love
s/John Perry
John Perry
Dated: January 27, 1999
computer.mim