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STOCK PURCHASE AGREEMENT
STOCK PURCHASE AGREEMENT, dated as of July 9, 2001
("Agreement"), between Sun NZ, L.L.C., a limited liability company organized
under the laws of the state of Arizona ("Seller") and Lipid Sciences, Inc., a
Delaware corporation ("Buyer").
WHEREAS, the Seller desires to sell to the Buyer, and Buyer
desires to purchase from the Seller, an aggregate of 1,505,402 shares
("Purchased Shares") of common stock, no par value per share ("Common Stock"),
of NZ Corporation, an Arizona corporation ("NZ"), representing approximately 22%
of the issued and outstanding Common Stock of NZ on the date of this Agreement,
on the terms and conditions set forth in this Agreement.
NOW THEREFORE, the parties hereto agree as follows:
1. Purchase and Sale of Shares. Subject to the terms and
conditions herein set forth, Seller hereby agrees to sell and Buyer hereby
agrees to purchase the Purchased Shares, for a price of $8.00 per Purchased
Share, or an aggregate of $12,043,216 ("Purchase Price").
2. Deposits into Escrow. On or before July 11, 2001, the
Buyer shall deposit with Continental Stock Transfer and Trust Company ("Escrow
Agent") in an interest bearing account the sum of $1,150,000 (which together
with all interest earned thereon is referred to as the "Escrow Funds") pursuant
to an agreement in the form of EXHIBIT A hereto "Escrow Agreement". The
distribution of the Escrow Funds will be governed by the terms of the Escrow
Agreement.
3. Closing. The closing of the purchase and sale of the
Purchased Shares ("Closing") shall take place at the offices of Xxxxx Xxxx LLP,
Two North Central Avenue, Phoenix, Arizona at 10:00 a.m. when all of the
conditions to the obligations of the parties to consummate the transactions
contemplated hereby, as set forth in Section 6 hereof are satisfied ("Closing
Date"). At the Closing, (i) Seller will deliver to the Buyer the Stock
Certificates representing the Purchased Shares, together with an executed stock
power, signature medallion guaranteed and corporate resolutions authorizing the
sale and indicating the officers who may execute documents of transfer on behalf
of the Seller, (ii) the Buyer will cause the Escrow Agent to transfer to Seller
or its designee all the Escrow Funds by wire transfer of immediately available
funds to be credited towards the Purchase Price, (iii) the Buyer shall deliver
the balance of the Purchase Price for the Purchased Shares to the Seller or its
designee by wire transfer of immediately available funds; provided that, in the
event that the Escrow Agent does not so transfer the Escrow Funds at the
Closing, Buyer shall deliver to Seller an amount equal to the Purchase Price by
wire transfer of immediately available funds, (iv) Seller will cause its
counsel, Xxxx, Xxxxxxx & Xxxxxxxxxx, to deliver an opinion (the "Seller
Opinion") to the Buyer stating, in form and substance reasonably satisfactory to
counsel for the Buyer that in their opinion (a) Seller has the power and
authority to enter into the transactions contemplated herein and perform
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the obligations under this Agreement, (b) this Agreement is the valid and
binding obligation of the Seller, and (c) to the knowledge of counsel, based
solely on a certificate of the officers or managers of the Seller, there is no
action, suit or proceeding pending or threatened that asserts the invalidity of
this Agreement or seeks to prevent consummation of the transactions contemplated
by this Agreement or impairing the Seller's ability to perform its obligations
under this Agreement and all related agreements, and (v) Buyer will cause its
counsel, Xxxxxx Xxxxxx White & XxXxxxxxx LLP, to deliver an opinion (the Buyer
Opinion") to the Seller stating, in form and substance reasonably satisfactory
to counsel for the Seller, that in his opinion (a) Buyer has the power and
authority to enter into the transactions contemplated herein and perform the
obligations under this Agreement, (b) this Agreement is the valid and binding
obligation of the Buyer, and (c) to the knowledge of counsel, based solely on a
certificate of the officers or managers of the Buyer, there is no action, suit
or proceeding pending or threatened asserting the invalidity of this Agreement
or seeking to prevent consummation of the transactions contemplated by this
Agreement or impairing the Buyer's ability to perform its obligations under this
Agreement and all related agreements. Notwithstanding the provisions of Section
3(ii) and (iii) above, if the Bridge Loan (as hereinafter defined) is unpaid in
whole or in part, the Buyer is authorized to and shall repay the Bridge Loan in
full from such portion of the Purchase Price (including the Escrow Funds) as may
be required, before paying any amount to the Seller or any other designee of
Seller.
4. Representations of Seller. Seller hereby represents and
warrants to the Buyer as follows, each of which shall be deemed to have been
given as of the date hereof and as of the date of the Closing:
(a) Subject to the pledge of the Purchased Shares to
Bridge Financial Corporation as security in respect of a loan for up to
$8,000,000 in aggregate principal amount from Bridge Financial Corporation to
Seller dated April 3, 2001 ("Bridge Loan"), Seller is the holder of record and
beneficial owner of the Purchased Shares and at the Closing upon repayment of
the Bridge Loan by or on behalf of Seller, the Purchased Shares will be free and
clear of all security interests, liens or encumbrances, equities and claims.
Except for the grant of the security interest in the Purchased Shares to Bridge
Financial Corporation under the Bridge Loan, Seller has not granted to any
person or persons any right in or options or other rights to buy, or proxies or
other rights to vote, the Purchased Shares.
(b) Seller has full legal power to execute and
deliver this Agreement and to perform its obligations hereunder. All acts
required to be taken by Seller to enter into this Agreement and to carry out the
transactions contemplated hereby have been, or prior to the Closing Date shall
have been, properly taken; and this Agreement constitutes a legal, valid and
binding obligation of Seller, enforceable in accordance with its terms, subject
to principles of equity and to the bankruptcy laws of the United States. The
execution, the delivery and, subject to the terms of the Bridge Loan, the
performance of this Agreement by Seller in accordance with its terms will not,
with or without the giving of notice or the passage of time, or both, conflict
with, result in a default, right to accelerate
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or loss of rights under, or result in the creation of any encumbrance pursuant
to, or require the consent of any third party or governmental authority pursuant
to, (i) any provision of the certificate of incorporation or by-laws, or
formation document or operating agreement, as the case may be, of Seller, or
(ii) any franchise, mortgage, indenture or deed of trust or any material lease,
license or other agreement or any law, regulation, order, judgment or decree to
which Seller is a party or by which Seller (or any of its assets, properties,
operations or businesses) may be bound, subject to or affected.
(c) To the knowledge of Seller, no documents filed by
NZ since January 1, 1999 pursuant to the Securities Exchange Act of 1934, as
amended ("Exchange Act"), or the rules and regulations thereunder, contained an
untrue statement of a material fact or omitted to state any material fact
required to be stated therein or necessary in order to make the statements
therein, in the light of the circumstances in which they were made, not
misleading at the time such documents were so filed. Seller is not aware of any
material adverse change in the business, properties or condition, financial or
otherwise, of NZ since the date on which the most recent report filed by NZ
pursuant to the Exchange Act was filed.
(d) The sale of the Purchased Shares pursuant to this
Agreement will not result in a violation of Section 10-2704 of the Arizona
Business Corporation Act, understanding that the Buyer will be merged into NZ
immediately after the sale and purchase hereunder of the Purchased Shares.
5. Representations and Warranties of Buyer. Buyer hereby
represents and warrants to the Seller as follows each of which shall be deemed
to have been given as of the date hereof and as of the date of the Closing:
(a) Buyer has full legal power to execute and deliver
this Agreement and to perform its obligations hereunder. All acts required to be
taken by Buyer to enter into this Agreement and to carry out the transactions
contemplated hereby have been, or prior to the Closing Date shall have been,
properly taken; and this Agreement constitutes a legal, valid and binding
obligation of Buyer, enforceable in accordance with its terms, subject to
principles of equity and to the bankruptcy laws of the United States. The
execution, delivery and performance of this Agreement by Buyer in accordance
with its terms will not, with or without the giving of notice or the passage of
time, or both, conflict with, result in a default, right to accelerate or loss
of rights under, or result in the creation of any encumbrance pursuant to, or
require the consent of any third party or governmental authority pursuant to (i)
any provision of the certificate of incorporation or by-laws of Buyer, or (ii)
any franchise, mortgage, indenture or deed of trust or any material lease,
license or other agreement or any law, regulation, order, judgment or decree to
which Buyer is a party or by which Buyer (or any of his or its assets,
properties, operations or businesses) may be bound, subject to or affected.
(b) Buyer will acquire the Purchased Shares for its
own account, for investment purposes, and not with the view to, or for resale in
connection with, any
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distribution thereof, subject to Buyer being merged with and into the issuer of
the Purchased Shares ("Merger") and the intention that the Purchased Shares be
contributed to the capital of the issuer of the Purchased Shares and thereafter
cancelled. Buyer is now and at the time of purchase will be an accredited
investor as that term is defined in Rule 501 of Regulation D promulgated under
the Securities Act of 1933, as amended. Buyer acknowledges that Seller is
relying on the representation that it is an accredited investor in its sale of
the Purchased Shares to Buyer.
6. Conditions.
(a) The obligations of the Buyer to consummate the purchase of the
Purchased Shares are subject to satisfaction of the following conditions:
(1) All of the representations and warranties of the Seller
herein are true and complete on the date hereof and on the Closing Date.
(2) At the Closing, the Seller will have delivered to the
Buyer the Stock Certificates together with the executed stock power, medallion
guaranteed and the aforementioned corporate documents of authority.
(3) At the Closing, the Seller's counsel will have delivered
to the Buyer the Seller Opinion.
(4) All the conditions to the Merger of the Buyer and NZ
pursuant to the Agreement and Plan of Merger dated the date hereof, between NZ
and Buyer ("Merger Agreement") shall have been fulfilled or waived by the
relevant parties under that agreement, and NZ shall certify in writing to Buyer
their immediate intention to consummate the transactions contemplated by the
Merger Agreement.
(b) The obligations of the Seller to consummate the sale of the
Purchased Shares are subject to satisfaction of the following conditions:
(1) All of the representations and warranties of the Buyer
herein are true and complete on the date hereof and on the Closing Date;
(2) At the Closing, Buyer will have delivered to Seller or its
designee the Purchase Price;
(3) All the conditions to the Merger pursuant to the Merger
Agreement shall have been fulfilled or waived by the relevant parties under that
agreement, and the Buyer and NZ shall certify in writing to Seller their
immediate intention to consummate the transactions contemplated by the Merger
Agreement; and
(4) At the Closing, the Buyer's counsel will have delivered to
Seller the Buyer Opinion.
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7. Voting Agreement. Seller hereby agrees that while this
Agreement is in effect, at any meeting of the shareholders of NZ, however
called, or pursuant to any action by written consent, Seller shall (a) vote (or
cause to be voted) the Purchased Shares and all other Common Stock held of
record or beneficially by Seller or over which Seller has the right to direct
the vote (together all such securities "Voting Securities") in favor of the
Merger Agreement and the Merger between NZ and Buyer, the approval of the terms
thereof and all the transactions contemplated thereby, and any other transaction
proposed by NZ, including, but not limited to voting in favor of each of the
proposals to (i) change the name of NZ to "Lipid Sciences, Inc.," (ii) to
increase the capitalization of NZ to 85,000,000 shares of capital stock of which
75,000,000 will be designated shares of common stock and 10,000,000 shares will
be designated as shares of preferred stock, (iii) elect the persons specified in
Schedule 5.4 of the Merger Agreement as directors of NZ effective the effective
time of the Merger, (iv) eliminate the provision that each director must also be
a stockholder of NZ, (v) add a provision relating to the Seller's right to
nominate persons to the board of directors of NZ as set forth in Section 10
hereof; and (vi) approve the NZ Performance Equity Plan; (b) vote (or cause to
be voted) the Voting Securities against any action or agreement that would
result in a breach in any material respect of any covenant, representation or
warranty or any other obligation or agreement of NZ under the Merger Agreement
or of Seller under this Agreement; and (c) vote (or cause to be voted) the
Voting Securities against any of the following [other than the Merger Agreement
(including as it may have been, or may have been proposed by NZ to be, amended)
or the transactions contemplated thereby]: (i) any extraordinary corporate
transaction, such as a merger, consolidation or other business combination
involving NZ or its subsidiaries (including, but not limited to, any takeover
proposal or change in the application of Section 10-2721 of the Arizona Business
Corporation Law to NZ) or (ii) except as contemplated in the Merger Agreement a
sale or transfer of a material amount of assets of NZ or its subsidiaries and
affiliates or a reorganization, recapitalization or liquidation of NZ (any
matter under clauses (a), (b) or (c), a "Subject Proposal").
8. Proxy. (a) While this Agreement is in effect, Seller hereby
irrevocably grants to, and appoints Buyer, and any individual designated in
writing by Buyer, and each of them individually, as the Seller's proxy, agent
and attorney-in-fact (with full power of substitution), for and in the name,
place and stead of Seller, to vote (or cause to be voted) the Voting Securities,
or grant a consent or approval in respect of the Voting Securities, in each
case, with respect to a Subject Proposal, in a manner consistent with Section 7
above, but as to no other matter.
(b) Seller understands and acknowledges that Buyer is entering
into the Merger Agreement in reliance upon Seller's execution and delivery of
this Agreement. Seller hereby affirms that the irrevocable proxy set forth in
this Section 8 is given in connection with the execution of the Merger
Agreement, and that such irrevocable proxy is given to secure the performance of
the duties of the Seller under this Agreement. Seller hereby further affirms
that the irrevocable proxy is coupled with an interest and may under no
circumstances be revoked prior to the expiration of this Agreement. Seller
hereby
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ratifies and confirms all that such irrevocable proxy may lawfully do or cause
to be done by virtue hereof. Such irrevocable proxy is executed and intended to
be irrevocable in accordance with the provisions of 10-722 of the Arizona
Business Corporation Law. Seller will take such further action or execute such
other instruments as may be necessary to effectuate the intent of this proxy and
hereby revokes any proxy previously granted by it with respect to the Voting
Securities that would be inconsistent with the proxy granted pursuant to this
Section 8. Seller shall not hereafter, unless and until this Agreement
terminates pursuant to Section 11 hereof, purport to vote (or execute a consent
with respect thereto) the Voting Securities with respect to any Subject Proposal
(other than through this irrevocable proxy) or grant any other proxy or power of
attorney with respect to any Voting Securities to vote with respect to any
Subject Proposal, deposit any Voting Securities into a voting trust or enter
into any agreement (other than this Agreement), arrangement or understanding
with any person, directly or indirectly, to vote with respect to any Subject
Proposal, or grant any proxy or give instructions with respect to the voting of
such Voting Securities with respect to any Subject Proposal.
9. Limitations on Proxy. Notwithstanding the provisions of Section
7 and Section 8 of this Agreement, if the "fundamental economic provisions" of
the Merger Agreement are modified by NZ and Buyer after the execution hereof,
then the Seller shall not be required to vote any of the Purchased Shares and
all other Common Stock held of record or beneficially by the Seller or over
which Seller has the right to direct the vote for any of the matters enumerated
in Section 7 and the proxy granted by Buyer pursuant to Section 8 may be revoked
by Seller. "Fundamental economic provisions" means the following: (i) the
conversion ratio of 1.55902 set forth in Section 1.6(a)(i) is increased; (ii)
the Right as provided in Section 1.6(c)(ii) is eliminated, (iii) the initial
Closing Price of $12.00 is decreased, the period of 20 days is decreased, the
Minimum Volume of 1,500,000 is decreased or the number of days in the Hundred
Day Average price is changed, each as set forth in Section 1.6(c)(iii), (iv) the
opinion of Xxxxxxxx Xxxxx Xxxxxx & Xxxxx Financial Advisors, Inc. is withdrawn
prior to the Effective Time of the Merger (as defined in the Merger Agreement),
(v) the provisions of Section 5.8 are modified to not appoint the persons who
are the nominees of Seller; (vi) the provisions of Section 5.17 are modified;
(vii) the provisions of Section 5.18 are modified; (viii) the dollar amounts set
forth in Section 9.2 are modified as follows, the $200,000 amount is increased
or the $650,000 amount is decreased; and (ix) any other provision that modifies
the fundamental rights or obligations of NZ or the Buyer.
10. Nomination of Persons to Board. So long as Seller beneficially
owns 500,000 shares of Common Stock of NZ (or its successor) which were owned at
the Closing Date after the sale of the Purchased Shares (as adjusted for stock
splits, stock dividends, stock recombinations and similar events relating to the
Common Stock), Seller will have the right to nominate two persons for election
as directors of NZ (or its successor) if the entire board of directors consists
of eight or less persons, but if the board of directors consists of nine or more
persons, then the Seller will have the right to nominate such number of
directors as represents 1/3 of the total number of
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directors serving on the board. If the foregoing computation results in the
Seller having the right to a fractional number of directors, the number of
directors the Seller shall be entitled to nominate shall be rounded down if the
calculation results in a fraction of .50 or less, and rounded up if the
calculation results in a fraction of .51 or more. By way of example, and without
limiting the foregoing, if the board of directors of the NZ (or its successor)
consisted of 11 members, Seller would be entitled nominate four directors (11 x
.3334 = 3.6666, rounded up to 4). Notwithstanding the foregoing, if the Seller
owns less than 500,000 shares of Common Stock of NZ, but 250,000 or more shares
of Common Stock, adjusted as provided above, then Seller will have the right to
nominate one person for election as a director of NZ (or its successor). NZ will
use its commercially reasonable efforts to take all such action to confirm the
nomination and present the persons nominated by Seller for election by the
shareholders of NZ (or its successor) by means of a vote of the shareholders at
a meeting called for that purpose or consent of the shareholders in any
solicitation on behalf of NZ (or its successor) or of the then management of NZ
(or its successor).
11. Termination.
(a) This Agreement may be terminated at any time prior to the
Closing Date by mutual written consent of the Seller and Buyer.
(b) This Agreement shall be terminated if the Merger Agreement
is terminated for any reason or the Merger is not consummated on or before
October 31, 2001.
(c) This Agreement may be terminated by Seller at any time
based upon a material breach of this Agreement or the Merger Agreement by the
Buyer.
(d) This Agreement may be terminated by the Buyer at any time
based upon a material breach of this Agreement by the Seller.
(e) If this Agreement is terminated because (i) of a breach of
this Agreement by Buyer, or (ii) the Merger Agreement is terminated or the
Merger is not consummated as a result of (A) a breach by the Buyer (after any
applicable notice and cure periods) to perform any of its obligations under the
Merger Agreement, or (B) any of the representations and warranties of Buyer in
the Merger Agreement are not materially true and correct as made on the date of
the Merger Agreement, or (C) there is a Lipid Sciences Material Adverse Change,
other than solely based on a material adverse change in the "prospects" of Lipid
Sciences where Lipid Sciences or its directors, officers, employees or agents
acting at the direction of Lipid Sciences directors, officers or employees did
not materially contribute to such adverse change by its action, failure to act
or conduct (as such terms are defined in the Merger Agreement), then Buyer will
pay to Seller as liquidated damages, and not as a penalty, an amount equal to
the interest paid or payable by Seller to Bridge Financial Corporation on the
Bridge Loan from the date of the making of the Bridge Loan to the date of
termination of this Agreement up to a maximum dollar amount of $500,000 (the
"Seller Termination Fee"). The Seller Termination Fee shall be paid from the
Seller Termination Fee Escrow (as defined in the
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Escrow Agreement) in accordance with the terms and conditions of the Escrow
Agreement. If this Agreement is terminated (i) by mutual agreement of the Seller
and Buyer, pursuant to Section 11(a) above (other than under the circumstances
set forth in the first sentence of this paragraph 11(e)) or by reason of a
breach of this Agreement by the Seller or (ii) because the Merger Agreement is
terminated or the Merger is not consummated as a result of (A) the breach of NZ
(after any applicable notice and cure periods) to perform any of its obligations
under the Merger Agreement, (B) any of the representations and warranties of NZ
in the Merger Agreement are not materially true and correct as made on the date
of the Merger Agreement, (C) there is a NZ Material Adverse Change (as such
terms are defined in the Merger Agreement), or (D) NZ terminates the Merger
Agreement because NZ has entered into an agreement to effect a transaction
described in Section 5.11(a) permitted by Section 5.11(b) of the Merger
Agreement, then each of the Seller and Buyer agree that neither party will be
responsible for any loss or expense incurred by the other party hereto by reason
of this Agreement or the Bridge Loan.
(f) If the Merger Agreement is terminated by NZ pursuant to
Section 9.1(f), then (i) Seller will not be entitled to receive, and Buyer shall
not be obligated to pay, the Seller Termination Fee as provided in Section 11(e)
hereof, and (ii) Seller shall instead receive liquidated damages in lieu of any
other payment, liability or obligation equal to the sum of $250,000, to be paid
from the Seller Termination Fee Escrow maintained with the Escrow Agent under
the Escrow Agreement.
12. Lipid Sciences Lockup Agreements. Buyer agrees that (i) for a
period of one year following the Closing, it will take no action to terminate,
amend, modify or waive any lock up agreements with the persons listed on
Schedule A hereto which restrict the sale of shares of Buyer's common stock and
securities into which such stock may be converted or exchanged without the
written consent of Seller (which consent shall not be unreasonably withheld);
(ii) after such one year period, such agreements may only be terminated,
amended, modified or waived by the board of directors of NZ, acting in a manner
consistent with their fiduciary duties; (iii) such agreements will remain in
full force and effect following the Merger and will relate to the shares of
Common Stock of NZ exchanged in the Merger for shares of the Buyer's common
stock or, as the case may be, the shares of Common Stock which may be issued
under outstanding warrants options and other conversion agreements; and (iv)
Seller will be a third party beneficiary of each of such agreements. As a
condition to the purchase and sale of the Purchased Shares, Buyer will have
agreements (in substantially the same form as the person currently has with the
Buyer) with each of the persons on Schedule A that provide that such persons
will lock up their shares of NZ common stock received in the Merger for the
period as specified on Schedule A.
13. Seller Lock-Up. Commencing the date of this Agreement and
ending on the earlier of its termination or the sale and purchase of the
Purchased Shares, Seller will not (i) lend, offer, pledge (other than to Bridge
Financial Corporation), sell, contract to sell, sell any option or contract to
purchase, purchase any option or contract to sell, grant any option, right or
warrant to purchase, or otherwise transfer or dispose of, directly or
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indirectly, any shares of Common Stock of NZ or any securities convertible into
or exercisable or exchangeable for Common Stock of NZ, whether such shares or
any such securities are now owned by the Seller or are acquired after the date
of this Agreement or (ii) enter into any swap or other arrangement that
transfers to another, in whole or in part, any of the economic consequences of
ownership of the Common Stock of NZ, whether any such transaction described in
clause (i) or (ii) above is to be settled by delivery of such common stock or
such other securities, in cash or otherwise.
14. Non-Shop Agreement. Until the earlier of the Closing or the
termination of this Agreement, the Seller and its respective affiliates (other
than NZ Corporation), subsidiaries, agents or representatives will not (i)
solicit or encourage, directly or indirectly, any inquiries, discussions or
proposals for, (ii) continue, propose or enter into any negotiations or
discussions looking toward, or (iii) enter into any agreement or understanding
providing for any acquisition of any Common Stock, or any security convertible
into or exercisable for Common Stock (collectively "Securities"), other than as
contemplated by this Agreement. In addition, Seller and its respective
affiliates (other than NZ Corporation), subsidiaries, agents or representatives
will not provide any information to any person or entity for the purpose of
evaluating or determining whether to make or pursue any such inquiries or
proposals with respect to any Securities. Seller will immediately notify Buyer
of any such inquiries, proposals or requests and provide Buyer with the
particular thereof.
15. Miscellaneous.
(a) Except as otherwise set forth herein, the warranties,
representations, and covenants of the Seller and the Buyer contained in or made
pursuant to this Agreement shall survive the closing of the transaction
contemplated by this Agreement, except that the representations and warranties
set forth in Section 4(c) hereof will survive for one year after the Closing
Date.
(b) The parties agree that neither may publish or disclose the
nature of its commitments, arrangements and understandings under this Agreement
except as may be required by applicable law after prior notice to the other
party and NZ and consultation regarding the content of the public disclosure or
by the written consent of the other party. NZ will be deemed to be a third party
beneficiary of this provision with the right to disclose such information
separately from any disclosure the parties may make.
(c) This Agreement shall be binding upon and inure to the
benefit of each party hereto, and its respective heirs, executors, legal
representatives, successors and assigns. This Agreement constitutes the entire
understanding and agreement between the parties with regard to the subject
matter hereof and may not be amended or modified except by a written agreement
specifically referring to this Agreement signed by all the parties. No waiver of
any breach or default hereunder shall be considered valid unless in writing and
signed by the party giving such waiver, and no such waiver shall be deemed a
waiver of any subsequent breach or default of the same or similar nature.
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(d) This Agreement shall be governed by and construed under
the internal laws of the State of Arizona, disregarding any principles of
conflicts of laws.
(e) This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
(f) The Seller represents that it neither is nor will be
obligated for any finder's fee or commission in connection with this
transaction. The Buyer represents that it neither is nor will be obligated for
any finder's fee or commission in connection with this transaction. Seller
agrees to indemnify and hold harmless the Buyer from any liability for any
commission or compensation in the nature of a finder's fee (and the costs and
expenses of defending against such liability or asserted liability) for which
Seller or any of its representatives is responsible. Buyer agrees to indemnify
and hold harmless the Seller from any liability for any commission or
compensation in the nature of a finder's fee (and the costs and expenses of
defending against such liability or asserted liability) for which Buyer or any
of its representatives is responsible.
(g) In the event that any provision of this Agreement would be
held to be invalid, prohibited or unenforceable in any jurisdiction for any
reason, unless such provision is narrowed by judicial construction, this
Agreement shall, as to such jurisdiction, be construed as if such invalid,
prohibited or unenforceable provision had been more narrowly drawn so as not to
be invalid, prohibited or unenforceable. If, notwithstanding the foregoing, any
provision of this Agreement would be held to be invalid, prohibited or
unenforceable in any jurisdiction for any reason, such provision, as to such
jurisdiction, shall be ineffective to the extent of such invalidity, prohibition
or unenforceability, without invalidating the remaining portion of such
provision or the other provisions of this Agreement or affecting the validity or
enforceability of such provision in any other jurisdiction.
(h) Any notice required or permitted under this Agreement
shall be given in writing and shall either be delivered personally or sent by
certified mail, return receipt requested, postage prepaid, or by express courier
next business day service with signed receipt required, if to Seller, at its
address at 0000 X. Xxxxxxxxx Xxxx, Xxxxx 000, Xxxxxxx, Xxxxxxx 00000, Attention:
Xxxxxxx X. Xxxx, with a copy to Xxxxx Xxxx LLP, Xxx Xxxxx Xxxxxxx Xxxxxx,
Xxxxxxx, Xxxxxxx 00000, Attention: Xxxxx X. Xxxxxxxx, Esq., if to Buyer, at its
address at 0000 Xxxx Xxxxxx Xxxxxxx, Xxxxx 000, Xxxxxxxxxx, Xxxxxxxxxx 00000,
Attention: Xxxx Xxxxxxx, President and CEO, with a copy to Xxxxxx X. Xxxxxxx,
Esq., Xxxxxxxx Xxxxxx, 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 and to Xxxxxx
Xxxxx, Esq., Xxxxxx Xxxxxx White & XxXxxxxxx LLP, 0000 Xxxxxxxxx Xxxxxx, 0xx
Xxxxx, XxXxxxx, Xxxxxxxxxx 00000, or to such other address as either shall have
specified by notice in writing to the other, and shall be deemed duly given
hereunder when so delivered.
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(i) The section headings are inserted only as a matter of
convenience and for reference and in no way define, limit or describe the scope
or intent of any provision of this Agreement.
(j) This Agreement shall inure to the benefit of and be
binding upon the successors and assigns of the parties.
(k) The failure of the Closing to occur shall not act as a
waiver by any party of any claims such party may have against any other party
for any breach of this Agreement.
IN WITNESS WHEREOF, the parties have duly executed and delivered
this Agreement as of the date first above written.
SELLER: BUYER:
SUN NZ L.L.C. LIPID SCIENCES, INC.
By: Sun NMA, Inc., By: /s/ Xxxxxxx Xxxxxxx
an Arizona corporation, and _______________________
Managing Member of Sun NZ L.L.C. Xxxx Xxxxxxx,
President and CEO
By: /s/ Xxxxxxx Xxxx
_______________________
Xxxxxxx Xxxx, President
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