Initial Public Offering (IPO): Pre-Effective Amendment to Registration Statement (General Form) — Form S-1 Filing Table of Contents
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1: S-1/A Amendment No. 1 to Form S-1 HTML 1.32M
2: EX-4.2 Ex-4.2: Common Stock Purchase Warrant No. W-1 HTML 51K
3: EX-4.3 Ex-4.3: Common Stock Purchase Warrant No. W-2 HTML 44K
4: EX-4.4 Ex-4.4: Common Stock Purchase Warrant No. W-3 HTML 45K
5: EX-4.5 Ex-4.5: Common Stock Purchase Warrant No. W-4 HTML 45K
6: EX-4.6 Ex-4.6: Common Stock Purchase Warrant No. W-5 HTML 41K
7: EX-4.7 Ex-4.7: Common Stock Purchase Warrant No. W-6 HTML 42K
8: EX-4.8 Ex-4.8: Registration Rights Agreement HTML 99K
9: EX-9.1 Ex-9.1: Amended and Restated Voting Agreement HTML 59K
10: EX-10.1 Ex-10.1: Stock Purchase Agreement HTML 85K
18: EX-10.10 Ex-10.10: Assignment Agreement HTML 14K
19: EX-10.11 Ex-10.11: Settlement Agreement HTML 80K
20: EX-10.12 Ex-10.12: Employment Agreement HTML 35K
11: EX-10.3 Ex-10.3: Stock Purchase Agreement HTML 97K
12: EX-10.4 Ex-10.4: Securities Purchase Agreement HTML 108K
13: EX-10.5 Ex-10.5: First Amendment to Securities Purchase HTML 21K
Agreement
14: EX-10.6 Ex-10.6: 2002 Stock Plan HTML 75K
15: EX-10.7 Ex-10.7: Renewable Diesel Fuel Oil Sales Contract HTML 38K
16: EX-10.8 Ex-10.8: By-Products Supply Agreement HTML 68K
17: EX-10.9 Ex-10.9: Exclusive License Agreement HTML 58K
21: EX-16.1 Ex-16.1: Letter From Martorella & Grasso, LLP HTML 12K
22: EX-21.1 Ex-21.1: Subsidiaries of the Registrant HTML 9K
23: EX-23.1 Ex-23.1: Consent of Ernst & Young LLP HTML 9K
24: EX-23.2 Ex-23.2: Consent of Ernst & Young LLP HTML 9K
EX-9.1 — Ex-9.1: Amended and Restated Voting Agreement
THIS AMENDED AND RESTATED VOTING AGREEMENT is entered into as of September 30, 2005, among
Changing World Technologies, Inc. (the “Company”), and the individuals and entities named
as Stockholders on the signature pages hereof (each a “Stockholder” and collectively, the
“Stockholders”). Capitalized terms have the meanings specified in Article 1.
WHEREAS, the Company, the Stockholders (other than Goldman) and ConAgra Foods, Inc.
(“ConAgra”) are party to that certain Voting Agreement dated as of July 21, 2005 (the
“Original Voting Agreement”);
WHEREAS, following the transactions contemplated by that certain Stock Purchase Agreement
(the “Purchase Agreement”), dated as the date hereof, among the Company and GSFS
Investments I Corp. (“Goldman”), the Stockholders collectively own a majority of the
issued and outstanding Common Stock of the Company;
WHEREAS, as a condition to the transactions contemplated by the Purchase Agreement, ConAgra,
the Stockholders and the Company are required to enter into this Agreement and desire to amend and
restate the Original Voting Agreement in its entirety;
WHEREAS, the Stockholders (other than Goldman) acknowledge and agree that they will receive
substantial benefit from the transactions contemplated by the Purchase Agreement.
NOW, THEREFORE, in consideration of the covenants and agreements contained herein and for
other good and valuable consideration, the sufficiency and receipt of which is hereby
acknowledged, the parties hereto hereby agree as follows:
ARTICLE 1 DEFINITIONS
SECTION 1.01.
Definitions. As used herein, the following terms, have the following
meanings:
“Agreement” means this Amended and Restated Voting Agreement as it may be amended
from time to time.
“Aggregate Ownership” means, in respect of any Stockholder or group of Stockholders,
the total number of the relevant class of Company Securities owned (without duplication) by such
Stockholder or group of Stockholders as of the date of such calculation, calculated on a
Fully-Diluted basis.
“Board” means the board of directors of the Company.
“Charter” means the Amended and Restated Certificate of Incorporation of the
Company, as the same may be amended from time to time.
“Common Stock” means the Company’s common stock, par value $0.01 per share, and any
stock into which such common stock may thereafter be converted, changed, reclassified or
exchanged.
“Company” has the meaning ascribed to such term in the recitals hereto.
“Company Securities” means (i) the Common Stock, (ii) any other common stock issued
by the Company, and (iii) any securities convertible into or exchangeable for, or options,
warrants or other rights to acquire, Common Stock or any other capital stock issued by the
Company.
“Exchange Agreement” means that certain Securities Exchange Agreement dated as of
July 21, 2005 between the Company and ConAgra.
“Fully-Diluted” means, in respect of any class of Company Securities, all outstanding shares
and all shares issuable in respect of securities convertible into or exchangeable or exercisable
for such class of Company Security, all stock appreciation rights, options, warrants and other
rights to purchase or subscribe for such class of Company Securities or securities convertible into
or exchangeable or exercisable for such class of Company Securities; provided,
however, that if any of the foregoing stock appreciation rights, options, warrants or other
rights to purchase or subscribe for such class of Company Securities are subject to vesting, the
Company Securities subject to vesting shall be included in the definition of “Fully-Diluted” only
upon and to the extent such Company Securities have vested.
“group of Stockholders” means a “group” of Stockholders, as such term would be
interpreted under Section 13(d) of the Securities Exchange Act of 1934, as amended.
“Initial Ownership” means, in respect of any Stockholder or group of Stockholders,
the Aggregate Ownership by such Stockholder or group of Stockholders as of the date hereof plus
any Company Securities which such Stockholder or group of Stockholders may, from time to time,
purchase pursuant to that certain warrant issued in connection with the Exchange Agreement, in
each case taking into account any stock split, stock dividend, reverse stock split or similar
event.
“Person” any individual, corporation, limited liability company, partnership, firm,
joint venture, association, joint-stock company, trust, unincorporated organization or other
entity.
“Public Offering” means an underwritten public offering of Company Securities
pursuant to an effective registration statement under the Securities Act of 1933, as amended or
pursuant to any applicable foreign securities law, other than pursuant to a registration statement
on
Form S-4 or Form S-8 or any similar or successor form.
“Purchase Agreement” has the meaning ascribed to such term in the recitals hereto.
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“Stockholder” has the meaning ascribed to such term in the recitals hereto.
ARTICLE 2 CORPORATE GOVERNANCE
SECTION
2.01. Composition of the Board.
(a) The Board shall consist of not more than nine directors, one of whom may, at Goldman’s
election, be designated by Goldman (the “Goldman Director”) and one of whom may, at
ConAgra’s election, be designated by ConAgra (the “ConAgra Director”). Each of Goldman and
ConAgra may, at their respective elections, from time to time, submit to the Company in writing the
name of the individual it wishes to be designated to the Board as the Goldman Director or ConAgra
Director, as applicable. Unless Goldman or ConAgra advise the Company otherwise, the Company may
assume that the then current Goldman Director or ConAgra Director shall be Goldman’s and ConAgra’s
designee’s, as applicable, at any future election of directors. Prior to the date this Agreement
terminates pursuant to Section 4.02(b) hereof, the size of the Board may not be increased without
the prior written consent of Goldman and ConAgra, in each case, which shall not be unreasonably
withheld or delayed; provided that, the consent of Goldman and ConAgra shall not be required in
connection with the expansion of the Board to provide bona fide, third party purchasers of Company
securities after the date hereof with Board representation.
(b) Each Stockholder shall vote all of its Company Securities that are entitled to vote or
execute proxies or written consents, as the case may be, and take all other necessary action
(including causing the Company to call a special meeting of stockholders) in order to ensure that
the size and composition of the Board is as set forth in this Article 2.
(c) The Company shall cause each individual designated pursuant to Section 2.01(a) or
2.03 to be nominated to serve as a director on the Board, and shall take all other
necessary actions (including calling a special meeting of the Board and/or stockholders) to ensure
that the size and composition of the Board is as set forth in this Article 2.
SECTION 2.02. Removal. No Stockholder shall vote any of its Company Securities in
favor of the removal of the Goldman Director or the ConAgra Director, unless Goldman or ConAgra,
as applicable, shall have consented to such removal in writing; provided, however,
that if Goldman or ConAgra shall request in writing the removal of the Goldman Director or the
ConAgra Director, as applicable, each Stockholder shall vote all its Company Securities that are
entitled to vote in favor of such removal.
SECTION 2.03. Vacancies. If, as a result of death, disability, retirement,
resignation, removal or otherwise, there shall exist or occur any vacancy on the Board:
(a) in the case of a Goldman Director, Goldman may designate another individual (the
“Goldman Replacement Nominee”) to fill such vacancy and serve as a director on the Board;
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(b) in the case of a ConAgra Director, ConAgra may designate another individual (the
“ConAgra Replacement Nominee”) to fill such vacancy and serve as a director on the Board;
(d) each Stockholder shall vote all of its Company Securities that are entitled to vote or
execute proxies or written consents, as the case may be, in order to ensure that the Goldman
Replacement Nominee or the ConAgra Replacement Nominee, as applicable, be elected to the Board.
SECTION
2.04. Charter or Bylaw Provisions. Each Stockholder shall vote all of its
Company Securities that are entitled to vote or execute proxies or written consents, as the case
may be, and shall take all other actions necessary, to ensure that the Company’s Charter and
Bylaws (i) facilitate, and do not at any time conflict with, any provision of this Agreement and
(ii) permit each Stockholder to receive the benefits to which such Stockholder is entitled under
this Agreement.
ARTICLE 3 CERTAIN REPRESENTATIONS, COVENANTS AND AGREEMENTS
SECTION
3.01. Conflicting Agreements. Each Stockholder represents and agrees that it
shall not (i) grant any proxy or enter into or agree to be bound by any voting trust or agreement
in respect of the Company Securities, except as expressly contemplated by this Agreement, (ii)
enter into any agreement or arrangement of any kind with any Person in respect of its Company
Securities inconsistent with the provisions of this Agreement or for the purpose or with the
effect of denying or reducing the rights of any other Stockholder under this Agreement or (iii)
act, for any reason, as a member of a group or in concert with any other Person in connection with
the voting of its Company Securities in any manner that is inconsistent with the provisions of
this Agreement.
SECTION
3.02. Representations.
(a) The Company hereby represents and warrants to each Stockholder as follows:
(i) Organization, Standing and Power. The Company is a corporation
duly organized, validly existing and in good standing under the laws of the State
of Delaware, with full corporate power and corporate authority to (a) own, lease
and operate its properties, (b) carry on its business as currently conducted by it
and (c) execute and deliver, and perform under this Agreement.
(ii) Authority. The execution and delivery by the Company of this
Agreement, the performance by the Company of its obligations hereunder, and the
consummation of the transactions contemplated hereby, have been duly and validly
authorized by all necessary corporate action on the part of the Company and the
Company has all necessary corporate power and corporate authority with
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respect thereto. This Agreement is the valid and binding obligations of the Company
enforceable in accordance with its terms.
(iii) Noncontravention. Neither the execution and delivery by the
Company of this Agreement, nor the consummation of any of the transactions
contemplated hereby, nor the performance by the Company of any of its obligations
hereunder, will (nor with the giving of notice or the lapse of time or both would)
(a) conflict with or result in a breach of any provision of the Certificate of
Incorporation or By-Laws of the Company, each as amended to date, or (b) give rise
to a default, or any right of termination, cancellation or acceleration, or
otherwise be in conflict with or result in a loss of contractual benefits to the
Company under any of the terms, conditions or provisions of any note, bond,
mortgage, indenture, license, agreement or other instrument or obligation to which
the Company is a party or by which it or any of the Company’s assets may be bound,
or require any consent, approval or notice under the terms of any such document or
instrument, or (c) violate any order, writ, injunction, decree, law, statute, rule
or regulation of any court or governmental authority which is applicable to the
Company or (d) result in the creation or imposition of any liens upon any of the
Company’s assets, or the Common Stock, or (e) interfere with or otherwise adversely
affect the ability of the Company to carry on its business after the Closing Date on
substantially the same basis as it is now conducted or as proposed to be conducted.
(iv) Governmental Consents. No consent, approval, order or
authorization of, or registration, qualification, designation, declaration or
filing with, any federal, state or local governmental authority on the part of the
Company is required in connection with the valid execution and delivery of this
Agreement.
(b) Each Stockholder which is a corporation or a limited liability company hereby
represents and warrants to the Company and each other Stockholder as follows:
(i) Organization, Standing and Power. The Stockholder is duly
organized, validly existing and in good standing under the laws of the state of its
organization, with full power and authority to (a) own, lease and operate its
properties, (b) carry on its business as currently conducted by it and (c) execute
and deliver, and perform under this Agreement.
(ii) Authority. The execution and delivery by the Stockholder of this
Agreement, the performance by the Stockholder of its obligations hereunder and the
consummation of the transactions contemplated hereby, have been duly and validly
authorized by all necessary governance action on the part of the Stockholder and
the Stockholder has all necessary power and authority with respect thereto.
(iii) Noncontravention. Neither the execution and delivery by the
Stockholder of this Agreement, nor the consummation of any of the transactions
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contemplated hereby, nor the performance by the Stockholder of any of its
obligations hereunder, will (nor with the giving of notice or the lapse of time or
both would) conflict with or result in a breach of any provision of its governance
documents.
(c) Each Stockholder hereby represents and warrants to the Company and each other
Stockholder as follows:
(i) Noncontravention. Neither the execution, delivery by the
Stockholder of this Agreement, nor the consummation of any of the transactions
contemplated hereby, nor the performance by the Stockholder of any of its
obligations hereunder, will (nor with the giving of notice or the lapse of time or
both would) (a) give rise to a default, or any right of termination, cancellation or
acceleration, or otherwise be in conflict with or result in a loss of contractual
benefits to the Stockholder under any of the terms, conditions or provisions of any
note, bond, mortgage, indenture, license, agreement or other instrument or
obligation to which the Stockholder is a party or by which it or any of the its
assets may be bound, or require any consent, approval or notice under the terms of
any such document or instrument, or (b) violate any order, writ, injunction, decree,
law, statute, rule or regulation of any court or governmental authority which is
applicable to the Stockholder, or (c) result in the creation or imposition of any
liens upon any of the Stockholder’s assets, or (d) interfere with or otherwise
adversely affect the ability of the Stockholder to carry on its business after the
date hereof on substantially the same basis as it is now conducted or as proposed to
be conducted.
(ii) Binding Agreement. This Agreement is the valid and binding
obligation of the Stockholder enforceable in accordance with its terms.
(iii) Governmental Consents. No consent, approval, order or
authorization of, or registration, qualification, designation, declaration or
filing with, any federal, state or local governmental authority on the part of the
Stockholder is required in connection with the valid execution and delivery of this
Agreement.
SECTION 3.03. Certain Other Matters. The Company shall not implement, and the
Stockholders shall not approve or ratify, any share exchange, merger, restructuring,
reclassification, reorganization, re-domestication or other plan which has an adverse effect on
any Stockholder, unless each Stockholder is treated in a similar manner or afforded the same
opportunity to participate, as applicable, in such transaction.
SECTION 3.04. Waiver. Each investor set forth on Schedule A of the Securities
Purchase Agreement dated as of October 24, 2002 hereby irrevocably waives its right of first offer
under Section 7.8 thereof, solely as it applies to the transactions contemplated by the Purchase
Agreement and ConAgra hereby irrevocably waives its right of first offer under Section 5.8 of the
Exchange Agreement, solely as it applies to the transactions contemplated by the Purchase
Agreement.
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ARTICLE 4 MISCELLANEOUS
SECTION 4.01. Binding Effect; Assignability; Benefit. (a) This Agreement shall inure
to the benefit of and be binding upon the parties hereto and their respective heirs, successors,
legal representatives and permitted assigns. Any Stockholder that ceases to own beneficially any
Company Securities shall cease to be bound by the terms hereof.
(a) Neither this Agreement nor any right, remedy, obligation or liability arising hereunder or
by reason hereof shall be assignable by any party hereto without the written consent of the
Company, Goldman and ConAgra.
(b) Nothing in this Agreement, expressed or implied, is intended to confer on any person or
entity other than the parties hereto, and their respective heirs, successors, legal representatives
and permitted assigns, any rights, remedies, obligations or liabilities under or by reason of this
Agreement.
SECTION 4.02. Waiver; Amendment; Termination. (a) No provision of this Agreement may
be waived except by an instrument in writing executed by the party against whom the waiver is to
be effective. No provision of this Agreement may be amended or otherwise modified except by an
instrument in writing executed by (1) the Company; and (2) each Stockholder party hereto.
(b) This Agreement shall terminate (A) with regard to Goldman’s rights hereunder upon the
earlier of (i) the first Public Offering and (ii) such time as Goldman, together with its
affiliates, owns less than 50% of its Initial Ownership; and (B) with regard to ConAgra’s rights
hereunder upon the earlier of (i) the first Public Offering, (ii) such time as ConAgra owns less
than 50% of its Initial Ownership and (iii) ConAgra’s Aggregate Ownership is less than 10% of the
issued and outstanding Common Stock (on a Fully-Diluted basis).
SECTION 4.03. Governing Law. This Agreement shall be governed by, and construed in
accordance with, the laws of the State of Delaware, without giving effect to any principle of
conflicts of laws thereof.
SECTION 4.04. Jurisdiction. The parties hereby agree that any suit, action or
proceeding seeking to enforce any provision of, or based on any matter arising out of or in
connection with, this Agreement or the transactions contemplated hereby shall be brought in the
United States District Court for the Southern District of New York or any New York State court
sitting in New York City, so long as one of such courts shall have subject matter jurisdiction
over such suit, action or proceeding, and that any case of action arising out of this Agreement
shall be deemed to have arisen from a transaction of business in the State of New York, and each
of the parties hereby irrevocably consents to the jurisdiction of such courts (and of the
appropriate appellate courts therefrom) in any such suit, action or proceeding and irrevocably
waives, to the fullest extent permitted by law, any objection that it may now or hereafter have to
the laying of the venue of any such suit, action or proceeding in any such court or that any such
suit, action or proceeding which is brought in any such court has been brought in an inconvenient
form.
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Process in any such suit, action or proceeding may be served on any party anywhere in the world,
whether within or without the jurisdiction of any such court.
SECTION 4.05. Waiver of Jury Trial. EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY
WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATED TO
THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
SECTION 4.06. Specific Enforcement; Cumulative Remedies. The parties hereto
acknowledge that money damages may not be an adequate remedy for violations of this Agreement and
that any party, in addition to any other rights and remedies which the parties may have hereunder
or at law or in equity, may, in his or its sole discretion, apply to a court of competent
jurisdiction for specific performance or injunction or such other relief as such court may deem
just and proper in order to enforce this Agreement or prevent any violation hereof and, to the
extent permitted by applicable law, each party waives any objection to the imposition of such
relief. All rights, powers and remedies provided under this Agreement or otherwise available in
respect hereof at law or in equity shall be cumulative and not alternative, and the exercise or
beginning of the exercise of any thereof by any party shall not preclude the simultaneous or later
exercise of any other such rights, powers or remedies by such party.
SECTION 4.07. Entire Agreement. This Agreement and any exhibits and other documents
referred to herein constitute the entire agreement and understanding among the parties hereto in
respect of the subject matter hereof and thereof and supersede all prior and contemporaneous
agreements and understandings, both oral and written, among the parties hereto, or between any of
them, in respect of the subject matter hereof and thereof.
SECTION 4.08. Severability. If any term, provision, covenant or restriction of this
Agreement is held by a court of competent jurisdiction or other authority to be invalid, void or
unenforceable, the remainder of the terms, provisions, covenants and restrictions of this
Agreement shall remain in full force and effect and shall in no way be affected, impaired or
invalidated. Upon such a determination, the parties shall negotiate in good faith to modify this
Agreement so as to effect the original intent of the parties as closely as possible in an
acceptable manner so that the transactions contemplated hereby be consummated as originally
contemplated to the fullest extent possible.
SECTION 4.09. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, with the same effect as if the
signatures thereto and hereto were upon the same instrument.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed and
delivered as of the date first above written.
