1.
|
Energy & Environmental Research Center Foundation (“LICENSOR”), a nonprofit entity, organized under the laws of the State of North Dakota, having its principal place of business at 15 N 23rd Street, Stop 9017, Grand Forks, North Dakota, 58202-9017, and
|
2.
|
MES Inc. (“MES”), a North Dakota corporation, a wholly owned subsidiary of Midwest Energy Emissions Corp., and a successor to all the rights, titles and interests of RLP Energy, Inc. arising under the LICENSE AGREEMENT.
|
3.
|
Midwest Energy Emissions Corp. (together with MES, “COMPANY”), a Delaware corporation.
|
A)
|
As a material inducement to LICENSOR to enter into this Amendment No. 5, in addition to any other representations and warranties of LICENSOR contained in this Amendment No. 5, in the ACKNOWLEDGEMENT AND CONSENT, or in the LICENSE, each of MES and Midwest Energy Emissions Corp. (as applicable) delivers to LICENSOR the following representations and warranties, each as of the EFFECTIVE DATE, and the following covenant:
|
|
1)
|
Each of MES and Midwest Energy Emissions Corp. is a corporation, validly existing and in good standing in its respective jurisdiction of incorporation.
|
|
2)
|
MES has good, valid and defensible title to all and not less than all of the right, title and interest granted by LICENSOR to RLP Energy, Inc. under the LICENSE as amended, and, except pursuant to the COLLATERAL ASSIGNMENT and as previously disclosed to LICENSOR, no other person or entity has a share or interest in such right, title or interest.
|
|
3)
|
The LICENSE AGREEMENT is in full force and effect and is enforceable in accordance with its respective terms without amendment or modification, except: (a) as modified herein; (b) as modified by the COLLATERAL ASSIGNMENT; and (c) as qualified by that certain Assurance Letter of Midwest Energy Emissions Corporation addressed to LICENSOR and dated January 14, 2014 (the “Assurance Letter”) and as further qualified by that certain Memorandum of Understanding by and between LICENSOR and Grünenergy Technologies USA Inc. as predecessor in interest to Midwest Energy Emissions Corporation and dated November 9, 2010 (the “MoU”)..
|
|
4)
|
The COLLATERAL ASSIGNMENT effective as of the date of closing (“Closing Date”) of the loan to be funded by FINANCIER to Midwest Energy Emissions Corp. will be in full force and effect and will be enforceable in accordance with its respective terms without amendment or modification.
|
|
5)
|
No default or condition which, with the giving of notice or the passage of time or both would constitute a default, exists under the FINANCING AGREEMENT, the LICENSE AGREEMENT (or the License granted thereunder), the COLLATERAL ASSIGNMENT.
|
|
6)
|
MES has not assigned or pledged or otherwise encumbered any rights in the License granted under the LICENSE AGREEMENT to anyone other than the collateral assignment to FINANCIER as set forth in the COLLATERAL ASSIGNMENT and subject to the understanding that the MES granted a blanket lien for its general intangibles to the holders of $1,795,000 in principal amount of secured notes outstanding, which effective as of the Closing Date shall be subject to an intercreditor agreement by such holders through their Noteholder Agent in favor of FINANCIER—the “Intercreditor Agreement”.
|
|
7)
|
Midwest Energy Emissions Corp. is not insolvent, and nothing contained in the LICENSE AGREEMENT, in the FINANCING AGREEMENT, the COLLATERAL ASSIGNMENT or as related to the issuance of common shares of Midwest Energy Emissions Corp. as set out herein shall render Midwest Energy Emissions Corp. insolvent, or cause Midwest Energy Emissions Corp. to breach any financial or other covenants as contained in any instrument whatsoever.
|
|
8)
|
Assuming the prior receipt by the Company from LICENSOR and each INVENTOR (as defined below) of customary private placement investment representations, warranties and covenants, including a representation that LICENSOR and each INVENTOR is an “Accredited Investor” (as defined in Rule 501 of Regulation D of the Securities Act of 1933, as amended (the “Securities Act”) at the time of the issuance of the common stock of Midwest Energy Emissions Corp. as set forth herein, the execution of this Amendment No. 5, of the FINANCING AGREEMENT, the COLLATERAL ASSIGNMENT the LICENSE AGREEMENT and the consummation of the transactions contemplated herein and therein, shall not cause either MES or Midwest Energy Emissions Corp. to violate any law or regulation (in particular, but without limiting the generality of the foregoing, the Securities Act or any applicable state law regulating the issuance and transfer of securities and any regulation promulgated under any of the foregoing), any court judgment or administrative ruling to which MES or Midwest Energy Emissions Corp.is subject, any consent decree, or any contract, agreement, warrant, option, or other instrument.
|
|
9)
|
Execution of this Amendment No. 5, of the FINANCING AGREEMENT, the COLLATERAL ASSIGNMENT the LICENSE AGREEMENT and the consummation of the transactions contemplated herein and therein shall not(a)be forbidden or result in a breach of the articles of incorporation, bylaws, or other governing documents of either MES or Midwest Energy Emissions Corp.; or (b) give rise to a breach or an event of default under any instrument or certificate to which either MES or Midwest Energy Emissions Corp. is party; or (c) cause or result in the acceleration of any debt owed by either MES or Midwest Energy Emissions Corp.
|
|
10)
|
COMPANY shall perform all filings pertaining to the issuance of securities as set out herein, to the extent such filing is required by applicable law or regulation.
|
|
11)
|
Each of MES and Midwest Energy Emissions Corp. has the requisite power and authority to enter into and perform its obligations under this Amendment No. 5, the FINANCING AGREEMENT, the COLLATERAL ASSIGNMENT the LICENSE AGREEMENT and the consummation of the transactions contemplated herein and therein to which, in each case, such entity is a party, and, in the case of Midwest Energy Emissions Corp., to issue the ADDITIONAL LICENSOR SHARES and the ADDITIONAL INVENTOR SHARES (in each case, as defined below), in accordance with the terms hereof and thereof.
|
|
12)
|
Each of the transactions (including all issuances of securities by Midwest Energy Emissions Corp.) as contemplated herein (a) has been authorized by all necessary and appropriate corporate action on the part of Midwest Energy Emissions Corp. or MES, as the case may be , and (b) has been consented to by FINANCIER. Other than FINANCIER, no consent is required of any person or entity for the issuance of the ADDITIONAL LICENSOR SHARES or the ADDITIONAL INVENTOR SHARES by Midwest Energy Emissions Corp., or for the COMPANY to enter into this Amendment No. 5, the FINANCING AGREEMENT, the COLLATERAL ASSIGNMENT, or to enter into the transactions herein and therein contemplated.
|
|
13)
|
Each person executing this Amendment No. 5 and the RECIPIENT AGREEMENT on behalf of MES and Midwest Energy Emissions Corp. has all necessary power and authority to do so, and by so doing, shall bind its respective principal.
|
|
14)
|
Upon issuance, each of the ADDITIONAL LICENSOR SHARES and the ADDITIONAL INVENTOR SHARES shall be authorized, fully paid, and non-assessable, and, upon issue, shall be validly issued, and free of all taxes and encumbrances thereon.
|
|
15)
|
Except as disclosed in writing to LICENSOR: none of Midwest Energy Emissions Corp.’s common stock is subject to preemptive rights or any other similar rights or any liens or encumbrances suffered or permitted by MES or Midwest Energy Emissions Corp. The holders of the Prior Notes (as defined below) have a most favored nations right to convert their loans into the next round of financing of Company (which right will be waived as a condition to closing of the loan from FINANCIER as it relates to that financing).
|
|
16)
|
Upon execution and delivery, each of this Amendment No. 5 and the RECIPIENT AGREEMENT as attached hereto are each valid and enforceable and binding on the COMPANY in accordance with the terms of the respective instrument.
|
B)
|
COMPANY acknowledges that LICENSOR executes both this Amendment No. 5 and the ACKNOWLEDGEMENT AND CONSENT in reliance upon the completeness and accuracy of each of the aforementioned representations, warranties and covenants.
|
C)
|
Each of the COMPANY’s representations, warranties and covenants as set out herein shall survive the performance of the transactions contemplated herein and in the LICENSE AGREEMENT, the FINANCING AGREEMENT, the COLLATERAL ASSIGNMENT, and the ACKNOWLEDGEMENT AND CONSENT. Further, each of the COMPANY’s representations, warranties and covenants as set out herein shall survive the termination of the License granted under the LICENSE AGREEMENT.
|
D)
|
LICENSOR and each INVENTOR represents and warrants that it or he or she, as applicable, is an “Accredited Investor” as such term is defined in Rule 501 of Regulation D of the Securities Act.
|
E)
|
COMPANY acknowledges that the Recipient Agreements entered into by and between the COMPANY, LICENSOR and each INVENTOR shall remain in full force and effect.
|
INVENTOR name
|
Number of shares of common stock of Midwest Energy Emissions Corporation
|
Percentage of issuance of shares of common stock of Midwest Energy Emissions Corporation
|
||||||
John Pavlish
|
94,350 | 34 | % | |||||
Ed Olson
|
94,350 | 34 | % | |||||
Mike Holmes
|
83,250 | 30 | % | |||||
Ye Zhaung
|
5,550 | 2 | % |
Energy & Environmental Research Center Foundation
|
MES, Inc.
|
Midwest Energy Emissions Corp.
|
||
Robert Harris, President
|
R. Alan Kelley, President
|
R. Alan Kelly, President
|
UNDERSIGNED:
|
ME2C:
|
||||
Midwest Energy Emissions Corp.
|
|||||
(Signature)
|
|||||
By:
|
|||||
(Print Name)
|
Its:
|
||||
Tax ID or SS No.:
|
|||||
Date of Execution:
|