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Exhibit 10
STOCK PURCHASE AND
SHAREHOLDERS AGREEMENT
This STOCK PURCHASE and
SHAREHOLDERS AGREEMENT (the “Agreement”) is made as of
the 24th day of July, 2007 (the “Effective Date”), by
and among EarthFirst Technologies, Inc. (“EFTI”),
SolarDiesel Corporation f/k/a EarthFirst Americas, Inc., a Florida
corporation or any corporation or other entity formed by Solar
Diesel to own its shares and interest in the venture contemplated
hereby (“SolarDiesel” or “the Company”),
and Ultra Green Energy Corporation (“UGE”). EFTI and
UGE shall collectively be referred to herein as the
“Shareholders”).
RECITALS
A. The Company has entered
into a Lease and Supply Agreement (collectively the
“Lease”) with Loders Croklaan for the production of
ASTM 6751 biodiesel and related products by retrofitting an
existing facility previously used for vegetable oil fractionation
at Loders’ manufacturing complex at Channahon, Illinois
(herein “Channahon Facility”). EFTI, as the
Company’s parent, was required to and has guaranteed the
Company’s performance under the Lease.
B. On May 9, 2007 the
Company and UGE entered into a Memorandum of Understanding
(“MOU”) to set out certain terms for a proposed
transaction that would allow the parties to work together in
developing and operating the Channahon Facility as a Bio-refinery,
taking advantage of their joint experiences in the production and
marketing of biofuels and related products. This MOU contemplated
that the parties would execute definitive agreements setting forth
their final understandings and terms; and
C. The parties desire to
enter into this Agreement and execute the documents referenced
herein as Exhibits to effectuate the MOU and the Agreement and
Exhibits collectively constitute the definitive agreement called
for in the MOU; and
D. In addition to
effectuating the transaction called for in the MOU, the
Shareholders are entering into this Agreement to provide for
corporate or other entity governance and to define their rights and
obligations inter se.
NOW, THEREFORE, in
consideration of the recitals and the mutual promises set forth in
this Agreement, Ten Dollars ($10.00) and other good and valuable
consideration, the receipt and sufficiency of which are hereby
acknowledged, the Shareholders and the Company, intending to be
legally bound, hereby agree as follows:
1. DEFINITIONS
. As used in this Agreement, the following terms shall have the
following meanings:
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a. |
“Actual
Notice” means receiving or discovering a reliable written
disclosure or a writing or document that establishes a material
fact. A writing as used herein includes, but is not limited to a
hard or paper copy, facsimilie, an e-mail, a
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document in PDF or other
analog or digital format provided it is directed to the party
required to have Actual Notice under this Agreement. Actual Notice
does not include any form of oral communication or constructive or
indirect knowledge of any fact.
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b. |
“Agreed Construction” means the retrofitting,
additions, build-out, furnishing, equipping and fit-out of the
Channahon Facility pursuant to plans and on a time schedule agreed
to by the Shareholders in writing. |
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c. |
“Affiliate” of a specified person (the
“Specified Person”) means any Person: (a) who
directly or indirectly controls, is controlled by or is under
common control with the Specified Person; (b) who owns or
controls twenty percent (20%) or more of the Specified
Person’s outstanding voting securities or equity interests;
(c) of whom such Specified Person owns or controls twenty
percent (20%) or more of the outstanding voting securities or
equity interests; (d) who is, or in the year prior to
consideration of any Affiliate status hereunder was a director,
partner, manager, shareholder, member, executive officer or trustee
of the Specified Person; (e) in whom the Specified Person is,
or in the year prior to consideration of any Affiliate status
hereunder was or had the power to designate or appoint, a director,
partner, manager, shareholder, member, executive officer or trustee
or (f) who has any relationship with the Specified Person by
blood, marriage or adoption not more remote than first
cousin. |
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d. |
“Affiliate Contract” means a contract where goods
and/or services and performance of the contract will be provided or
rendered to the Company by an Affiliate. |
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e. |
“Agreed Value” means the value for the shares of
the Company established by the good faith negotiations of the
Shareholders annually, at the time the Annual Budget is considered
by the Shareholders or after the occurrence of a material event
that significantly affects the then established Agreed Value. The
Agreed Value shall be evidenced by a written document signed by all
Shareholders, in the form annexed hereto as Exhibit
“H”. |
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f. |
“Annual Budget” means a written, estimated
compilation of all projected operating income and expenses of the
Company, by month, for the next calendar year and shall include a
pro-forma opening and closing Balance Sheet, Profit and Loss
Statement, Sources and Uses of Working Capital and a Capital
Improvements Budget and a year to date comparison to prior years by
month. The Annual Budget and all its components shall be prepared
on an accrual basis in accordance with GAAP or if not GAAP,
consistent with the accounting methodology in use by the Company
and agreed by the Shareholders and shall contain all supporting
schedules or other information necessary for the Shareholders to
make an informed decision on the future financial operations of the
Company. |
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g. |
“Appraisal Value” means the Third Party appraised
value of the Company’s shares in any year that the
Shareholders fail to reach an Agreed Value for the Shares. The
Appraisal Value shall be placed into the Company records and
represented by an Appraised Value Certificate in the form annexed
hereto as Exhibit I. |
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h. |
“ASTM 6751” means a final biodiesel product that
satisfies any current or future standard, regardless of
identification number, adopted by the American Society for Testing
of Materials for biodiesel fuel capable of receiving the IRS tax
credit and substituting for petroleum diesel in motor fuel, heating
oil, conventional generators and power generation by turbines and
all other or similar applications. |
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i. |
“Board” means the Company’s Board of
Directors, or if an LLC it’s Managing Members. |
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j. |
“Bylaws” means the bylaws of the Company, as
amended or restated from time to time. |
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k. |
“Best Efforts” means the obligation to make every
effort a prudent business person or entity, under similar
circumstances, would make when acting in a determined manner to
obtain the intended result by action or expenditure, provided that
no action or expenditure will be required that is unreasonably
disproportionate or burdensome under the circumstances. |
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l. |
“Business Days” means all days in a calendar year
with the exception of Saturdays, Sundays, any day an FDIC insured
bank is closed for business and any official Illinois State Holiday
on which the Courts of the State of Illinois are not generally open
for business. |
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m. |
“Certificate” means the Certificate of
Incorporation of the Company, as amended or restated from time to
time. |
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n. |
“Code” means the Internal Revenue Code of 1986, as
amended from time to time. |
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o. |
“Company” as used herein primarily refers to Solar
Diesel, but in the case of a Substitute Agreement under Paragraph 2
hereof, shall mean the newly formed business entity which is
substituted by the shareholders for Solar Diesel. |
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p. |
“Competitive Biodiesel Project” means any business
venture in which either shareholder has an ownership, management,
operational, financial or any other direct or indirect interest of
any kind or nature which is or is to be located within a 300 mile
circumference of the Channahon Facility or wherever located that
sells or attempts to sell biodiesel or other bio-refinery products
like, similar or in competition with any product being produced or
intended to be produced at the Channahon Facility or attempts or
intends to sell such products to existing customer(s) of the
Channahon Facility or into its designated markets or the markets it
actually serves. |
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q. |
“Deadlock” means the casting of votes, by
Shareholders authorized to cast votes on an issue, in which the
votes cast are equal in number for and against the issue, or
otherwise resulting in a non-determination on the issue being
presented for a vote. |
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r. |
“Deadlock Notice” means the notice of a deadlock in
voting as called for and defined in Section 6.7.1 |
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s. |
“Default Purchase” means the purchase and sale of a
Shareholder’s shares as provided for and defined in
Section 6.6, et seq of this Agreement. |
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t. |
“Director” means a member of the Board. |
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u. |
“EFTI Consideration” means shares issued, capital
contributed or other things of value provided by EFTI to the
Company or any Shareholder hereunder. |
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v. |
“Formation Documents” means the Article or
Certificate of Incorporation or formation and the Bylaws or Rules
and Regulations governing of the Company. |
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w. |
“Initial Budget” means the mutually agreed budget
for the renovation and start-up of the Channahon
Facility. |
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x. |
“Involuntary Transfer” is a proposed or actual
transfer of a Shareholder’s shares as described in
Section 6.6.1 herein. |
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y. |
“Non-Selling Shareholder” means any Shareholder who
is not then making or required to make a Transfer of his, her or
its Shares pursuant to this Agreement. |
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z. |
“Person” means any individual, corporation,
partnership, association, Limited Liability Company, trust, estate,
syndicate or other entity. |
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aa. |
“Profits” and “Losses” means, for each
fiscal year of the Company or other period, the net taxable income
or loss of the Company as determined in accordance with the
accounting methods followed by the Company for Federal Income Tax
purposes and adjusted for non-cash expenses, but including a
provision for Reserves, or calculated in such other method as
unanimously agreed by all Shareholders. Unless provided otherwise,
an allocation of Profits or Losses shall consist of a pro-rata
allocation of all items comprising Profits or Losses. |
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bb. |
“Project Financing “means, if necessary, the bridge
or temporary financing obtained by the Shareholders from a Third
Party for the purpose of funding the Initial Budget and
subsequently the obtaining of loans or similar accommodations on a
permanent basis to provide long term financing of equipment,
inventory, site improvements, working capital and other funds
needed to operate or expand the Channahon Facility and to meet any
Initial or Annual Budget requirements thereof. |
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cc. |
“Project Guaranty” means a written document or
instrument, by which any Shareholder individually is required to
pledge its credit, assure performance, co-make, endorse, indemnify
or otherwise become responsible for any payment or performance of
the Company. |
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dd. |
“Proportionate Share” means, with respect to each
Non-Selling Shareholder, the number of Shares owned by each such
Non-Selling Shareholder divided by the total number of Shares owned
by all of the Non-Selling Shareholders. |
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ee. |
“Reserves” means funds from Project Financing or
operation of the Channahon Facility which are required by this
Agreement or any Initial or Annual Budget to be held for a specific
purpose such as replacement and upgrading of equipment or future
working capital. |
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ff. |
“Qualified Public Offering” means the offer of the
Company’s Shares pursuant to a registration statement filed
and made effective pursuant to the Securities Act (other than a
registration statement on Form S-4 or S-8 or filed in connection
with an exchange offer or an offering of securities solely to the
Company’s existing Shareholders) which shall be a firm
commitment public offering of securities underwritten by a major
bracket underwriter. |
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gg. |
“Securities” means any class of equity securities
that the Company now or hereafter is authorized to
issue. |
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hh. |
“Securities Act” means the Securities Act of 1933,
as amended from time to time. |
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ii. |
“Selling Shareholder” means a Shareholder
who’s Shares are subject to a purchase option of the Company
and/or the other Shareholders pursuant to the terms of this
Agreement or who otherwise proposes to Transfer his, her or its
Shares. |
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jj. |
“Share” means each share of common stock of the
Company, or if the Company is not a corporation then a membership
interest or such other written evidence, document or instrument
representing a Shareholder’s ownership interest in the
Company. |
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kk. |
“Substitute Agreement” means the corporate or other
entity governance documents enacted by the Shareholders in the
place of this Agreement, but incorporating the terms set forth
herein, in the event the Shareholders decide to use a newly formed
SPE to operate the Channahon Facility in the place of the
Company. |
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ll. |
“Third Party” means any third Person, unrelated to
any Shareholder, or Affiliate of any Shareholder. and excludes the
Company. |
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mm |
“Transfer” means: (a) when used as a verb, to
give, sell, exchange, assign, transfer, pledge, hypothecate or
otherwise dispose of or encumber or create a security interest in;
and (b) when used as a noun, the nouns corresponding to such
verbs, in either case voluntarily or involuntarily, directly or
indirectly, by operation of law or otherwise. |
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nn. |
“Unauthorized Transfer” means any Transfer or
attempted Transfer of a Shareholder’s Shares in violation of
the terms of this Agreement. |
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oo. |
“UGE Consideration” – Means the
consideration, promises, assignment of contract and other monies,
things or services of value given by UGE to receive Company Shares
or membership interests hereunder. |
2. UGE PURCHASE OF
COMPANY SHARES; CONSIDERATION .
The Shareholders, after
execution hereof, propose to file an agreed Amendment to the
Company’s Articles of Incorporation and take all such actions
as are reasonably necessary to make and reconstitute the Company as
a Special Purpose Entity (“SPE”), with its only purpose
and business to be the ownership and operation of the Channahon
Facility and to comply with all terms and conditions provided
herein. The proposed Amendment is annexed hereto as Exhibit A.
Based on the Company being able to achieve this SPE status, the
Parties agree to issue shares and provide the considerations to one
another as provided in the entirety of this Section 2. If for
any reason the Company
cannot be reconstituted as an
SPE, or the Shareholders, or their tax advisors determine that a
new corporation or different form of business entity better suits
the Shareholders purposes, or financing of the Channahon Facility
is required to be in or benefits from a newly formed business
entity now or in the future, the Shareholders agree to form such
new business entity and Transfer from the Company to such business
entity any and all assets of or at the time of Transfer are
associated with Channahon Facility. In the event of such Transfer
an appropriate Substitute Agreement shall be prepared and executed.
The Substitute Agreement shall conform in all material terms,
aspects, ownership percentages, profit allocations and respects
with this Agreement and incorporate all terms and purposes hereof
into such Substitute Agreement. Until the execution of the
Substitute Agreement, this Agreement shall continue to govern the
Shareholders.
2.1 Share Purchase:
UGE, in return for the consideration described and as contributed
by the allocation set forth in Section 2.2, and otherwise
herein is hereby transferred, or will be transferred, sold and
granted by EFTI and the Company Thirty-Five (35), fully paid and
non-assessable Shares of the Company’s common stock which
represents thirty-five percent (35%) of the Company’s
authorized and outstanding common stock(or the same proportion of
shares under any Substitute Agreement). These Shares will be newly
issued by the Company with EFTI’s full consent and, when
issued, will be transferred to UGE free and clear, without any
lien, claim or encumbrance of any kind or nature
2.2 Consideration for UGE
Shares in the Company: In consideration of its purchase of
Company Shares, UGE will be contributing and transferring to the
Company all of the following:
2.2.1 Assignment:
Assignment (or re-issuance by a separate, but identical as to party
and terms, Off-Take Agreement) to the Company of 60 million
gallons of UGE’s right to place biodiesel produced pursuant
to a Master Off-Take contract, dated February 16, 2007, a copy
of such Assignment being annexed hereto as Exhibit B. Upon
execution of Exhibit B, UGE will be receive Seventeen and one-half
(17.5) Shares of the Company, representing a seventeen and
one-half percent (17.5%) interest in the Company’s
issued and outstanding Shares.
2.2.2 Management
Agreement : Management Agreement dedicating as many key UGE
personnel, including but not limited, to Tom Campone and Ed Phelan
and providing for as much UGE staff time and effort as needed to
assist and supervise in the development and then operation of the
Channahon Facility on a professional and first rate quality level
of operations, including putting in place all necessary reporting,
record-keeping quality control and other processes and procedures
to allow qualification for and the ultimate receipt of BQ9000 and
Six Sigma certifications for the manufacturing of ASTM 6751
Biodiesel, and Methyl Ester Sulfonate or other related products
meeting their individual ASTM, or if no ASTM designation, the
highest industry standard for all such products that will bring the
maximum value and salability for such products, from the Channahon
Facility or such other locations as the Shareholders’
authorize. A form of the
Executive Management
Agreement is annexed hereto as Exhibit C. Upon execution of Exhibit
C, UGE will receive four (4) additional Shares of the Company;
and
2.2.3 Working Capital
Contribution: The Shareholders are desirous of as quickly as
possible entering into a contract or contracts for the start-up of
Agreed Construction at the Channahon Facility. UGE has pre-existing
relationships with AMS and Block Electric, and other reputable
contractors with familiarity and working knowledge of the Channahon
facility. As UGE’s working capital contribution and prior to
obtaining Project Financing, UGE at its own cost and expense shall
perform the following:
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(a) |
Negotiate and coordinate with DeNovo Global Technologies, Inc.
(“De Novo”) to minimize engineering expense, maximize
in field placements and generate the lowest cost infra-structure
placement with complete “as-built” drawings;
and |
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(b) |
assist DeNovo in marking equipment for removal, refurbishing
and determining demolition situs, status and schedule and, if
feasible complete plans for a first phase capable of producing
approximately 12 million gallons per year capacity using
existing reactors and equipment, and |
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(c) |
arrange for AMS to commence demolition and basic to Equipment
relocation at the site; and |
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(d) |
arrange for Block Electric to start testing and ringing out
needed circuits and placing transmitters and otherwise providing
the capability for a revise electrical plan, and |
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(e) |
negotiate contracts and take all planning and implementation
action needed for the acquisition of glycerin feedstock, conversion
to technical grade glycerin and the sale of such glycerin,
and |
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(f) |
work with De Novo, Block, AMS and other contractors to obtain a
final cost estimate for the Agreed Improvements, such that the
estimate will be sufficient for Project Financing purposes,
and |
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(g) |
be making their Best Efforts to obtain a commitment for Project
Financing. |
It is the Shareholder’s
specific intention that this in-kind, working capital advance made
available by UGE will be repaid as a first priority from any
Project Financing, but shall be at risk if for any reason the
Channahon Facility fails to become operational or the project is
otherwise terminated or abandoned by the Company. Upon, completion
of all the above, UGE shall receive two (2) shares in the Company);
and
2.2.4 Grant Expertise:
UGE’s expertise in obtaining a grant or grants from the State
of Illinois, local governments, the Federal Government, or
otherwise to subsidize construction, operations or sale of
Biodiesel or related products produced by the Company at the
Channahon facility or such other location as agreed to by the
Shareholders. The Shareholders acknowledge that the amount of any
grant may vary based on the estimated annual gallons of biodiesel
to be produced at the Channahon Facility, but that at the current
time the minimum grant amount sought will be $3,000,000. Upon
receipt of this grant, UGE shall receive two_(2)_Shares in the
Company).
2.2.5 Certifications:
UGE’s expertise in getting the Channahon Facility operational
is a primary reason for EFTI’s entry into this Agreement.
Upon UGE getting the Channahon facility operational to the level of
5 million gallons per month and it receives either a BQ 9000
or Six Sigma Certifications, then UGE shall be entitled to the
remaining Shares called for herein such that it will own Shares
equivalent to thirty-five percent (35%) of all issued and
outstanding Shares of the Company.
2.3 Additional
Consideration to be Provided UGE by EFTI: In addition to the
common shares of the Company to be issued for the UGE
Consideration:
2.3.1 Initial EFTI
Shares: UGE shall be receiving on the successful execution and
completion of Sections 2.2.1 through 2.2.4 above, cashless warrants
equivalent to four and nine tenths percent (4.9%) of the
authorized and outstanding common stock of EFTI on the date hereof
at an exercise price of $.07 per share; these shares are subject to
Rule 144 restrictions; and
2.3.2 Additional EFTI
Shares: Based on meeting the benchmarks and Channahon Facility
goals set forth in the schedule to the Warrant Agreement, and upon
payment of the purchase prices set forth in the Warrant Agreement
annexed hereto as Exhibit D, UGE shall also have warrants to
acquire up to fourteen percent (14%) of the issued and
outstanding common shares of EFTI as of the date hereof;
and
2.3.3 Home - Run
Warrants: UGE shall be entitled to be issued success warrants
for the extraordinary success of the Channahon Facility in
accordance with and provided for under the terms of that Warrant
Agreement annexed hereto as Exhibit D; and
2.3.4 EFTI Working
Capital: Upon Agreement to the Initial Budget, EFTI shall,
effective May 1, 2007, advance to the Company up to $125,000
per month to compensate UGE personnel and their related
administrative expenses (pursuant to the Executive Management
Agreement) for work done and services provided at or in connection
with the Channahon Facility for the months of May through September
2007. This advance shall cease upon the obtaining of Project
Financing. This EFTI advance shall be repaid as a first priority
from any Project Financing but shall be at risk if, for any reason,
the Channahon Facility fails to become operational, or the project
is terminated or abandoned by the Shareholders; and
2.3.5 EFTI Personnel:
EFTI will make available to the Company Domenic Massari, Pete
Calvert and such other management and technical staff as needed to
assist and support in the development, operation and obtaining of
financing of the Channahon Facility.
2.4 Mutual Efforts
and Considerations: The Company, EFTI and UGE will:
2.4.1 Project
Financing: Diligently work together using their Best Efforts to
obtain Project Financing in the amount of fifteen million dollars
($15,000,000) with a first draw or tranche of seven million, five
hundred thousand dollars ($7,500,000). From the first draw the
Shareholder will be reimbursed for all previous contributions and
expenses made or paid on account of the Channahon Facility,
including without limitation, the $500,000 deposit on the Lease
already made by Solar Diesel, and the working capital amounts
referenced in Sections 2.2.3 and 2.3.4 and actually advanced or
subject to a Project Guaranty by a Shareholder or its principals
through the date Project Financing is closed and the proceeds
thereof received by the Company;
2.4.2 Right of First
Refusal: The Shareholders acknowledge that they are each
working on additional alternative energy or green projects. Nothing
herein prohibits the Shareholders from working on any other
projects, provided that the Shareholders’ agree that neither
the Shareholders nor their Affiliates will engage in, become
involved with or finance a Competitive Biodiesel Project, as
prohibited in Section 3.3. The Shareholders to hereby grant
each other a Right of First Offer to participate as a fifty
(50%) (or such other percentage if agreed), joint venture
partner, shareholder or member in any alternative energy or green
project the other enters into after the date hereof. This Right of
First Offer shall be evidenced by the Shareholders’ execution
of that Right of First Offer Agreement annexed hereto as Exhibit E;
and
2.4.3 M-1 Consulting
Agreements: The Parties agree to use Best Efforts to reach
agreements with M-1 Capital Securities to provide Project
Financing, other financing and risk management services to the
Company with compensation to M-1, to be as agreed by the
Shareholders and which may consist of cash payment, a grant of
equity, or both.
3. SPECIAL DUTIES AND
OBLIGATIONS.
3.1 Day to Day
Management: Subject to the Shareholders’ rights to make
all Major Decisions and Major Expenditures (as hereinafter defined)
relating to the Channahon Facility, the Shareholders agree that,
provided Tom Campone complies with the terms of the Executive
Management Agreement and meets the benchmarks and project goals
specified herein and required hereby or in any budget or schedule
established by the Company in a timely fashion, that Tom Campone
and such UGE and Company staff under his direction shall have the
exclusive right to manage the Channahon Facility’s day to day
operations. To evidence this day to day operational authority, Tom
Campone, by unanimous consent, is hereby elected as the President
of the Company to serve in accordance with the terms of the
Executive Management Agreement. The other key initial and agreed
officers of the Company are as follows:
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Ed Phelan – Sr. Vice President of Commercial
Development |
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Domenic Massari – Sr. Vice President for Strategic
Planning |
3.2 Indemnification For
Guaranty Obligation: Prior to the execution of this Agreement,
EFTI has provided a corporate parent Project Guaranty of the Lease,
and UGE has or may be required to provide one or more Project
Guaranties associated with construction or other phases of the
Channahon Facility ( other than and excepting the working capital
to be provided by UGE on a risk basis pursuant to
Section 2.2.3 hereof) or in connection with its business. To
fairly allocate the burden of any existing or future Project
Guaranty that may be required from either Shareholder individually,
the Shareholders have executed a Cross-Indemnity Agreement in the
form annexed hereto as Exhibit “F”.
3.3 Non-Compete
Covenant: The Shareholders (and by virtue of the
Shareholders’ obtaining acceptable written non-compete
agreements from all of their current or future principals, agents,
representatives and key personnel, the Shareholders officers,
directors and key employees) hereby covenant and agree that they
shall not directly or indirectly, as an officer, agent, employee,
consultant, independent contractor, manager ,shareholder, investor,
partner, joint venturer, financier or in any other capacity
participate, support or in any way become involved in a Competitive
Biodiesel Project during the term hereof and for one year
thereafter. In addition, because money damages are insufficient for
any possible damage that may be caused to the Company or the
Shareholders by a breach of this covenant, the Shareholders agree
that injunctive relief to enjoin such breach is appropriate and
shall be granted by a Court of competent
jurisdiction, upon evidence
that a breach of this covenant has occurred and without the need
for the Company or a Shareholder seeking such relief demonstrating
the absence of a remedy at law, irreparable injury, the
insufficiency of monetary damages or the requirement that the party
seeking the injunction post a bond.
3.4 Covenant to Not
Disclose; Trade Secrets: The Shareholders acknowledge that the
Company has and will develop processes, formulations, operating
manuals and protocols, business relationships and other tangible
and intangible intellectual property, knowledge and know-how, as
well as “trade-secrets” as defined by applicable law.
The Shareholders mutually covenant that they shall protect and
preserve all such Company knowledge, relationships and trade
secrets and shall not disclose them directly, indirectly, in any
part or whole (or provide non-trade secret information that might
lead to a Third Party discovering or re-creating a trade secret) to
any Third Party, absent consent by all Shareholders and the Third
Party executing a form of Non-Disclore Agreement approved by
Counsel for the
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