MERGER AGREEMENT
This Agreement and Plan of Merger ("Agreement") is entered into by and
among NUELECTRIC, Inc., a Delaware corporation ("NUELECTRIC"), Zorax, Inc., a
Florida corporation ("ZORAX"), and UTEK Corporation, a Delaware corporation
("UTEK").
WHEREAS, UTEK is the majority shareholder of ZORAX; and
WHEREAS, ZORAX has the exclusive license to manufacture and market
products using the Cryptosporidium and Giardia extraction processes
("Invention") invented by Xx. X. X. Xxxxx and X. X. Xxxxxxx and covered by the
patent application pending US Serial # 09/006,999 ("Patent Application") listed
in Exhibit A; and
WHEREAS, ZORAX has executed and fully funded a Sponsored Research
Agreement (Sponsored Research) with the Xxxx Xxxxxxx University (UNIVERSITY)
listed in Exhibit B; and
WHEREAS, the parties desire to provide for the terms and conditions
upon which ZORAX will merge into NUELECTRIC in a statutory merger ("Merger") in
accordance with Corporation Law of Florida ("Florida Act")and Corporation Law of
Delaware ("Delaware Act"), upon consummation of which the assets and business of
ZORAX will be owned by NUELECTRIC, and all issued and outstanding shares of
capital stock of ZORAX will be exchanged for common stock of NUELECTRIC; and
WHEREAS, for federal income tax purposes, it is intended that the
Merger qualify as a tax-free reorganization within the meaning of Section 368
(a)(1)(A) of the Internal Revenue Code of 1986, as amended ("Code").
NOW, THEREFORE, in consideration of the premises and for other good and
valuable consideration, the receipt, adequacy and sufficiency of which are
hereby acknowledged, the parties agree as follows:
ARTICLE 1
THE MERGER
1.01 The Merger
(a) Agreement to Merge. Subject to the terms and conditions of this
Agreement, at the Effective Time, as defined below, ZORAX shall be merged with
and into NUELECTRIC in accordance with the provisions of this Agreement and the
Florida Act and Delaware Act; the separate corporate existence of ZORAX shall
cease; and NUELECTRIC shall continue as the surviving corporation ("Surviving
Corporation"). The constituent corporations ("Constituent Corporations") to the
Merger are NUELECTRIC and ZORAX. The name of the Surviving Corporation,
NUELECTRIC, Inc., shall not be changed by reason of the Merger.
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(b) Effective Time. The Merger shall become effective ("Effective Time"
upon the execution of this Agreement. Immediately following the execution of
this Agreement NUELECTRIC will file a Certificate of Merger ("Certificate of
Merger") with the Secretary of State of the State of Florida and State of
Delaware.
(c) Appointment of Service Agent. NUELECTRIC hereby irrevocably
appoints the Secretary of State of the State of Florida as its agent to accept
process in Florida in any proceeding for the enforcement of any obligation of
any Constituent Corporation in Florida as well as for the enforcement of any
obligation of the Surviving Corporation arising from or by reason of the Merger.
NUELECTRIC designates that all such process received by the Secretary of State
of Florida shall be sent to NUELECTRIC at 000 Xxxx Xxxxxx Xxxxxx, Xxxxxx
Xxxxxxx, Xxxxxxx 00000.
(d) Effect of the Merger. At the Effective Time, all rights, powers,
privileges, franchises, licenses and permits of the Constituent Corporations and
all property, real, personal and mixed, shall be vested in the Surviving
Corporation; and all debts, duties, liabilities and claims of every kind,
character and description of the Constituent Corporations shall be debts,
duties, liabilities and claims of the Surviving Corporation and may be enforced
against the Surviving Corporation to the same extent as if such debts, duties,
liabilities and claims had been incurred by it originally. All rights of
creditors of the Constituent Corporations and all liens upon property of any
Constituent Corporation shall be preserved unimpaired and shall not be altered
in any way by reason of the Merger.
1.02 Conversion of Stock. At the Effective Time, by virtue of the
Merger and without any action on the part of the shareholders of the Constituent
Corporations:
(i) All of the 1,000,000 shares of ZORAX that are issued and
outstanding at the Effective Time shall be converted into 600,000 unregistered
shares of common stock of the Surviving Corporation issued which by agreement of
the shareholders of ZORAX shall be issued to UTEK and to Xxxxx Xxxxxxx
University as they mutually agree; and
(ii) Each share of common stock of NUELECTRIC issued and outstanding at
the Effective Time shall remain issued and outstanding as one share of common
stock of the Surviving Corporation,
1.03 Effect of Merger.
(a) Shareholders Rights in ZORAX Cease. At and after the Effective
Time, the holder of each certificate of common stock of ZORAX shall cease to
have any rights as a shareholder of ZORAX. All dividends or other distributions
with respect to ZORAX common stock prior to the Effective Time shall be payable
to the shareholders of ZORAX without interest upon surrender of certificates
representing ZORAX common stock.
(b) Closure of ZORAX Stock Records. From and after the Effective Time,
the stock transfer books of ZORAX shall be closed, and there shall be no further
registration of stock transfers on the records of ZORAX.
1.04 Certificate of Incorporation of the Surviving Corporation. The
certificate of Incorporation of the Surviving Corporation shall not be changed
by reason of the Merger, except that the name of the Surviving Corporation is
being changed to NUELECTRIC, Inc.
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1.05 Bylaws of the Surviving Corporation. The Bylaws of the
Surviving Corporation shall not be changed by reason of the Merger.
1.06 Directors of the Surviving Corporation. The directors of the
Surviving Corporation immediately after the Effective Time shall be the persons
named in Exhibit B until each of their respective successors is duly elected and
qualified.
1.07 Officers of the Surviving Corporation. The officers of the
Surviving Corporation immediately after the Effective Time shall be the persons
set forth in Exhibit B until each of their respective successors is duly elected
and qualified.
1.08 Closing. The Closing of the Merger shall take place at the
offices of Xxx Xxxxxx, 000 Xxxx Xxxxxx Xxxxxx, Xxxxx 000, Xxxxx, Xxxxxxx, 00000,
September 21, 2000, or at some other mutually agreed location ("Closing Date").
ARTICLE 11
REPRESENTATIONS AND WARRANTIES
2.01 General Representations and Warranties of UTEK. UTEK
represents and warrants to NUELECTRIC that the facts set forth below are true
and correct:
(a) Organization. ZORAX is a corporation duly organized, validly
existing and in good standing under the laws of the State of Florida, and that
ZORAX has the requisite power and authority to conduct its business.
(b) Authorization. The execution of this Agreement and the consummation
of the Merger and the other transactions contemplated hereby have been duly
authorized by the Board of Directors and shareholders of ZORAX; no other
corporate action on its part is necessary in order to execute, deliver,
consummate and perform it obligations hereunder; and ZORAX has all requisite
corporate and other authority to execute and deliver this Agreement and
consummate the transactions contemplated hereby.
(c) Capitalization. The authorized capital of ZORAX consists of
1,000,000 shares of common stock, par value $.00 per share; at the date hereof,
910,000 shares of common stock were issued and outstanding and owned by UTEK,
and 90,000 shares are owned by Xxxxx Xxxxxxx University and no shares were held
in its treasury. All issued and outstanding shares of common stock of ZORAX have
been duly and validly issued and are fully paid and non-assessable shares and
have not been issued in violation of any preemptive or other rights of any other
person or any applicable laws. There are no outstanding options, warrants,
commitments, calls or other rights or agreements requiring it to issue any
shares of ZORAX common stock or securities convertible into shares of ZORAX's
common stock to anyone for any reason whatsoever.
(d) Binding Effect. The execution, delivery, performance and
consummation of the Merger and the transactions contemplated hereby will not
violate any obligation to which ZORAX is a party and will not create a default
hereunder; and this Agreement constitutes a legal, valid and binding obligation
of ZORAX, enforceable in accordance with its terms, except as the enforcement
may be limited by bankruptcy, insolvency, moratorium, or similar laws affecting
creditor's rights generally and by the availability of injunctive relief,
specific performance or other equitable remedies.
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(e) Litigation Relating to this Agreement. There are no suits, actions
or proceedings pending or to the knowledge of ZORAX or UTEK threatened which
seek to enjoin the Merger or the transactions contemplated by this Agreement or
which, if adversely decided, would have a materially adverse effect on the
business, results of operations, assets, prospects, the Patent Applications, the
License, or the results of the operations of ZORAX.
(f) No Conflicting Agreements. Neither the execution and delivery of
this Agreement nor the fulfillment of or compliance by ZORAX with the terms or
provisions hereof will result in a breach of the terms, conditions or provisions
of, or constitute a default under, or result in a violation of, ZORAX's
corporate charter or bylaws, the Patent Applications, the License (as defined
below) or any agreement, contract, instrument, order, judgment or decree to
which ZORAX is a party or by which ZORAX or any of its assets is bound, or
violate any provision of any applicable law, rule or regulation or any order,
decree, writ or injunction of any court or government entity which materially
affects its assets or business.
(g) Consents. No consent from or approval of any court, governmental
entity or any other person is necessary in connection with execution and
delivery of this Agreement by ZORAX or performance of the obligations of ZORAX
hereunder or under any other agreement to which ZORAX is a party; and the
consummation of the transactions contemplated by this Agreement will not require
the approval of any entity or person in order to prevent the termination of the
Patent Applications, the License, or any other material right, privilege,
license or agreement relating to ZORAX or its assets or business.
(h) Title to Assets. ZORAX has has good and marketable title to its
assets (tangible and intangible), free and clear of all liens, claims, charges,
mortgages, options, restrictions, security agreements and other encumbrances of
every kind or nature whatsoever.
(i) The Patent Applications and the License.
(1) To the knowledge of UTEK and ZORAX; the Patent Application
which is pending is being prosecuted in good faith with diligence.
(2) The Invention is owned by Xxxxx Xxxxxxx University, a
Corporation of the State of Maryland ("UNIVERSITY"). The UNIVERSITY has
all right, power, authority and ownership and entitlement to file,
prosecute and maintain in effect the Patents and Patent Applications
with respect to the Invention listed in Exhibit C hereto; and
(3) Xx. X. X. Xxxxx and X. X. Xxxxxxx are the only Inventors
of the Invention; and have assigned all their rights in the Invention
to UNIVERSITY; and
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(4) The Exclusive License Agreement ("License") date March 28,
2000 a final copy has been provided to NuELECTRIC by and between ZORAX
and the Foundation, covering the Invention when executed will be legal,
valid, binding and enforceable in accordance with its terms; and
(5) All of the tangible assets of ZORAX have been operated in
accordance with customary operating practices generally acceptable in
its industry to which and have been maintained and are in good working
order and repair in the ordinary course of business, subject only to
reasonable and ordinary wear and tear; and
(j) Liabilities of ZORAX. ZORAX has no assets, no liabilities of any
kind, character or description except those created by the License and Sponsored
Research Agreements with UNIVERSITY, final copies of which have been provided to
NUELECTRIC (Exhibit B).
(k) Financial Statements. The unaudited financial statements of ZORAX
attached as (Exhibit C) present fairly its financial position and the results of
its operations on the dates and for the periods shown therein; provided,
however, that interim financial statements are subject to customary year-end
adjustments and accruals that, in the aggregate, will not have a material
adverse effect on the overall financial condition or results of its operations.
ZORAX has not engaged in any business not reflected in its financial statements.
There have been no material adverse changes in the nature of its business,
prospects, the value of assets or the financial condition since the date of its
financial statements. There are no outstanding obligations or liabilities of
ZORAX except as specifically set forth in the ZORAX financial statements and
Licensing and Sponsored Research Agreements with UNIVERSITY.
(l) Taxes. All returns, reports, statements and other similar filings
required to be filed by ZORAX with respect to any federal, state, local or
foreign taxes, assessments, interests, penalties, deficiencies, fees and other
governmental charges or impositions have been timely filed with the appropriate
governmental agencies in all jurisdictions in which such tax returns are
required to be filed; all such tax returns properly reflect all liabilities of
ZORAX for taxes for the periods, property or events covered thereby; and all
taxes, whether or not reflected on those tax returns, and all taxes claimed to
be due from ZORAX by any taxing authority, have been properly paid, except to
the extent reflected on Schedule 2.01(m) where ZORAX has contested in good faith
by appropriate proceedings and reserves have been established on its financial
statements to the full extent if the contest is adversely decided against it.
ZORAX has not received any notice of assessment or proposed assessment in
connection with any tax returns, ZORAX has not extended or waived the
application of any statute of limitations of any jurisdiction regarding the
assessment or collection of any taxes. There are no tax liens (other than any
lien which arises by operation of law for current taxes not yet due and payable)
on any of its assets. There is no basis for any additional assessment of taxes,
interest or penalties. ZORAX has made all deposits required by law to be made
with respect to employees' withholding and other employment taxes, including
without limitation the portion of such deposits relating to taxes imposed upon
ZORAX.
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(m) Absence of Certain Changes or Events. ZORAX has not, and without
the written consent of NUELECTRIC, it will not have:
(i) Sold, encumbered, assigned or transferred any of its
material assets or its interest in the Patent Applications,
the License or any other material asset; or
(ii) Amended or terminated the License; or
(iii) Suffered any material damage, destruction or loss; or
(iv) Made any commitments or agreements for capital
expenditures or otherwise; or
(v) Entered into any transaction or made any commitment not
disclosed to NUELECTRIC; or
(n) Material Contracts. A complete and accurate copy of all material
agreements, contracts and commitments of the following types, whether written or
oral to which it is a party or is bound, has been provided to NUELECTRIC and
such agreements are in full force and effect without amendment. In addition:
(i) There are no outstanding unpaid promissory notes,
mortgages, indentures, deed of trust, security agreements and
other agreements and instruments relating to the borrowing of
money by or any extension of credit to ZORAX; and
(ii) There are no outstanding operating agreements, lease
agreements or similar agreements by which ZORAX is bound; and
(iii) The complete final drafts of the License Agreement, and
the Patent Applications and Sponsored Research Agreement with
all schedules, exhibits and amendments relating thereto have
been provided to NUELECTRIC; and
(iv) There are no outstanding licenses to or from others of
any intellectual property and trade names; and
(v) There are not outstanding contracts or commitments to
sell, lease or otherwise dispose of any of ZORAX's property;
and
(o) Compliance with Laws. ZORAX is in compliance with all applicable
laws, rules, regulations and orders promulgated by any federal, state or local
government body or agency relating to its business and operations. ZORAX owns
all franchises, licenses, permits, easements, rights, applications, filings,
registration and other authorizations which are necessary for it to conduct
business, all of which are valid and in full force and effect and ZORAX is in
full compliance therewith.
(p) Litigation. There is no suit, action or any arbitration,
administrative, legal or other proceeding of any kind or character, or any
governmental investigation pending or threatened against ZORAX or the Patents,
the Patent Applications, the License or the Research Agreement affecting its
assets or business. There are no pending or threatened actions or proceedings
before any court, arbitrator or administrative agency which would, if adversely
determined, individually or in the aggregate, materially and adversely affect
its assets or business.
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(q) Employees. ZORAX has no employees. ZORAX is not a party to or bound
by any employment agreement or any collective bargaining agreement with respect
to any of the employees.
(r) Employee Benefit Plans. There are no employee benefit plans in
effect, and there are no outstanding or unfunded liabilities to employees of
ZORAX.
(s) Books and Records. The books and records of ZORAX are complete and
accurate in all material respects, fairly present its business and operations,
have been maintained in accordance with good business practices, and accurately
reflect in all material respects its business, financial condition and
liabilities.
(t) No Broker's Fees. Neither UTEK nor ZORAX has incurred any finder's,
broker's, investment banking, financial, advisory or other similar fees or
obligations.
(u) Full Disclosure. All representations or warranties of UTEK and
ZORAX are true, correct and complete in all material respects to the best of our
knowledge on the date hereof and shall be true, correct and complete in all
material respects as of the Closing as if they were made on such date.
2.02 General Representations and Warranties of NUELECTRIC.
NUELECTRIC represents and warrants to UTEK and ZORAX that the facts set forth
are true and correct.
(a) Organization. NUELECTRIC is a corporation duly organized, validly
existing and in good standing under the laws of the State of Delaware, is
qualified to do business as a foreign corporation in each other jurisdiction in
which the conduct of its business or the ownership of its properties require
such qualification, and has all requisite power and authority to conduct its
business and operate properties.
(b) Authorization. The execution of this Agreement and the consummation
of the Merger and the other transactions contemplated hereby have been duly
authorized by the Board of Directors and shareholders of NUELECTRIC; no other
corporate action on its part is necessary in order to execute, deliver,
consummate and perform its obligations hereunder; and it has all requisite
corporate and other authority to execute and deliver this Agreement and
consummate the transactions contemplated hereby.
(c) Capitalization. The authorized capital of NUELECTRIC consists of
50,000,000 shares of common stock, par value $.001 per share; and at the
Effective Time of the Merger, up to 4,712,855 shares of its common stock will be
issued and outstanding immediately after the Effective Time. All issued and
outstanding shares of common stock of NUELECTRIC have been duly and validly
issued and are fully paid and non-assessable shares and have not been issued in
violation of any preemptive or other rights of any other person or any
applicable laws. There will be no outstanding options, warrants, commitments,
calls or other rights or agreements requiring it to issue any shares of
NUELECTRIC common stock or securities convertible into shares of its common
stock to anyone for any reason whatsoever immediately after the Effective Time.
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(d) Binding Effect. The execution, delivery, performance and
consummation of the Merger and the transactions contemplated hereby will not
violate any obligation to which NUELECTRIC is a party and will not create a
default hereunder, and this Agreement constitutes a legal, valid and binding
obligation of NUELECTRIC, enforceable in accordance with its terms, except as
the enforcement may be limited by bankruptcy, insolvency, moratorium, or similar
laws affecting creditor's rights generally and by the availability of injunctive
relief, specific performance or other equitable remedies.
(e) Litigation Relating to this Agreement. There are no suits, actions
or proceedings pending or to its knowledge threatened which seek to enjoin the
Merger or the transactions contemplated by this Agreement or which, if adversely
decided, would have a materially adverse effect on its business, results of
operations, assets, prospects or the results of its operations of NUELECTRIC.
(f) No Conflicting Agreements. Neither the execution and delivery of
this Agreement nor the fulfillment of or compliance by NUELECTRIC with the terms
or provisions thereof will result in a breach of the terms, conditions or
provisions of, or constitute a default under, or result in a violation of, its
corporate charter or bylaws, or any agreement, contract, instrument, order,
judgment or decree to which it is a party or by which it or any of the assets is
bound, or violate any provision of any applicable law, rule or regulation or any
order, decree, writ or injunction of any court or governmental entity which
materially affects its assets or business.
(g) Consents. No consent from or approval of any court, governmental
entity or any other person is necessary in connection with its execution and
delivery of this Agreement and performance of the obligations of NUELECTRIC
hereunder or under any other agreement to which NUELECTRIC is a party; and the
consummation of the transactions contemplated by this Agreement will not require
the approval of any entity or person in order to prevent the termination of any
material right, privilege, license or agreement relating to NUELECTRIC or its
assets or business.
(h) Title to Its Assets. NUELECTRIC has good and marketable title to
its assess (tangible and intangible), free and clear of all charges, claims,
liens, mortgages, options, restrictions, security agreements and other
encumbrances of every kind or nature whatsoever.
(i) Condition of Tangible Assets. All of its tangible assets have been
operated in accordance with customary operating practices generally acceptable
in its industry to which and have been maintained and are in good working order
and repair in the ordinary course of business, subject only to reasonable and
ordinary wear and tear.
(j) Financial Statements. The unaudited financial statements of
NUELECTRIC attached as Exhibit D present fairly its financial position and the
results of its operations on the dates and for the periods shown therein;
provided, however, that interim financial statements are subject to customary
year-end adjustments and accruals that, in the aggregate, will not have a
material adverse effect on the overall financial condition or results of its
operations. NUELECTRIC has not engaged in any business not reflected in its
financial statements. There have been no material adverse changes in the nature
of its business, prospects, the value of assets or the financial condition since
the date of its financial statements. There are no outstanding obligations or
liabilities of NUELECTRIC except as specifically set forth in the NUELECTRIC
financial statements.
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(k) Taxes. All returns, reports, statements and other similar filings
required to be filed by NUELECTRIC with respect to any federal, state, local or
foreign taxes, assessments, interests, penalties, deficiencies, fees and other
governmental charges or impositions have been timely filed with the appropriate
governmental agencies in all jurisdictions in which such tax returns are
required to be filed; all such tax returns properly reflect all liabilities of
NUELECTRIC for taxes for the periods, property or events covered thereby; and
all taxes, whether or not reflected on those tax returns, and all taxes claimed
to be due from NUELECTRIC by any taxing authority, have been properly paid,
except to the extent reflected in Exhibit E where NUELECTRIC has contested in
good faith by appropriate proceedings and reserves have been established on its
financial statements to the full extent if the contest is adversely decided
against it. NUELECTRIC has not received any notice of assessment or proposed
assessment in connection with any tax returns, NUELECTRIC has not extended or
waived the application of any statute of limitations of any jurisdiction
regarding the assessment or collection of any taxes. There are no tax liens
(other than any lien which arises by operation of law for current taxes not yet
due and payable) on any of its assets. There is no basis for any additional
assessment of taxes, interest or penalties. NUELECTRIC has made all deposits
required by law to be made with respect to employees' withholding and other
employment taxes, including without limitation the portion of such deposits
relating to taxes imposed upon NUELECTRIC.
(l) Absence of Certain Changes or Events. NUELECTRIC has not and,
without the written consent of ZORAX, it will not have:
(i) Sold, encumbered, assigned or transferred any of its
material assets for less than fair consideration; or
(ii) Amended or terminated any material agreement; or
(iii) Suffered any material damage, destruction or loss; or
(iv) Received notice or had knowledge of any material adverse
effect on its material assets; or
(v) Made any commitments or agreements for capital
expenditures; or
(vi) Entered into any transaction other than in the ordinary
course of business consistent with past practice; or
(vii) Agreed to take any of the actions set forth in this
paragraph.
(m) Material Contracts. A complete and accurate copy of all material
agreements, contracts and commitments of the following types, whether written or
oral to which it is a party or is bound, has been provided to ZORAX:
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(i) All material promissory notes, mortgages, indentures, deed
of trust security agreements and other agreements and
instruments relating to the borrowing of money by or any
extension of credit to it; and
(ii) All material operating agreements and lease agreements;
and
(iii) All material licenses to or from others of any
intellectual property and trade names.
(n) Compliance with Laws. NUELECTRIC is in compliance with all
applicable laws, rules, regulations and orders promulgated by any federal, state
or local governmental body or agency relating to its business and operations.
NUELECTRIC owns all franchises, licenses, permits, easements, rights,
applications, filings, registration and other authorizations which are necessary
for it to conduct business, all of which are valid and in full force and effect,
and it is in full compliance therewith.
(o) Litigation. There is no suit, action or any arbitration,
administrative, legal or other proceeding of any kind or character, or any
governmental investigation pending or threatened against it affecting its assets
or business. There are no pending or threatened actions or proceedings before
any court, arbitrator or administrative agency which would, if adversely
determined, individually or in the aggregate, materially and adversely affect
its assets or business.
(p) Employees. NUELECTRIC has three employees. NUELECTRIC has no
written agreements with its employees.
(q) Employee Benefit Plans and Arrangements. There are no employee
benefit plans in effect, and there are no unfunded liabilities to employees.
(r) Books and Records. The books and records of NUELECTRIC are complete
and accurate in all material respects, fairly present its business and
operations, have been maintained in accordance with good business practices, and
accurately reflect in all material respects its business and financial
condition.
(s) No Broker's Fees. NUELECTRIC has incurred no finder's, broker's,
investment banking, financial, advisory or other similar fee.
(t) Full Disclosure. All representations or warranties of NUELECTRIC
are true, correct and complete in all material respects on the date hereof and
shall be true, correct and complete in all material respects as of the Closing
as if they were made on such date. No statement made by it herein or in the
exhibits hereto or any document delivered by it or on its behalf pursuant to
this Agreement contains an untrue statement of material fact or omits to state
all material facts necessary to make the statements therein not misleading in
any material respect.
2.03. Investment Representations of UTEK. UTEK represents and
warrants to NUELECTRIC that:
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(a) General. It has such knowledge and experience in financial and
business matters as to be capable of evaluating the risks and merits of an
investment in the shares ("Shares") of common stock of NUELECTRIC pursuant to
the Merger. It is able to bear the economic risk of the investment in the
Shares, including the risk of a total loss of the investment in the Shares. The
acquisition of the Shares is for its own account and is for investment. Except a
permitted by law, it has a no present intention of selling, transferring or
otherwise disposing in any way of all or any portion of the shares. All
information that it has supplied to NUELECTRIC is true and correct. It has
conducted all investigations and due diligence concerning NUELECTRIC which it
deems appropriate, and it has found all such information obtained fully
acceptable. It has had an opportunity to ask questions of the officer and
directors of NUELECTRIC concerning the Shares and the business and financial
condition of and prospects for NUELECTRIC, and the officers and directors
NUELECTRIC have adequately answered all questions asked and made all relevant
information available to them.
(b) Stock Transfer Restrictions. There will be a 24-month stock
transfer restrictions on the shares issued by NUELECTRIC in connection with this
Agreement.
ARTICLE III
TRANSACTIONS PRIOR TO CLOSING
3.01. Corporate Approvals. Prior to Closing, each of the parties shall
submit this Agreement to its Board of Directors and shareholders and obtain
approval thereof. Copies of corporate actions taken shall be provided to each
party.
3.02 Access to Information. Each party agrees to permit upon reasonable
notice the attorneys, accountants, and other representatives of the other
parties reasonable access during normal business hours to its properties and its
books and records to make reasonable investigations with respect to its affairs,
and to make its officers and employees available to answer questions and provide
additional information as reasonably requested.
3.03 Expenses. Each party agrees to bear its own expenses in connection
with the negotiation and consummation of the Merger and the transactions
contemplated hereby.
3.04 Covenants. Except as permitted in writing, each party agrees that
it will:
(i) Use its good faith efforts to obtain all requisite
licenses, permits, consents, approvals and authorizations
necessary in order to consummate the Merger; and
(ii) Notify the other parties upon the occurrence of any event
which would have a materially adverse effect upon the Merger
or the transactions contemplated hereby or upon the business,
assets or results of operations; and
(iii) Not modify its corporate structure, except as necessary
or advisable in order to consummate the Merger and the
transactions contemplated hereby.
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ARTICLE IV
CONDITIONS PRECEDENT
The obligation of the parties to consummate the Merger and the
transactions contemplated hereby are subject to the following conditions which
may be waived to the extent permitted by law:
(a) Each party must obtain the approval of its Board of Directors and
shareholders in accordance with applicable law, and such approval shall not have
been rescinded or restricted; and
(b) Each party shall obtain all requisite licenses, permits, consents,
authorizations and approvals required to complete the Merger and the
transactions contemplated hereby; and
(c) There shall be no effective injunction, writ or preliminary
restraining order or other order of a similar nature issued by any court or
governmental agency having jurisdiction directing that the Merger or the
transactions contemplated hereby shall not be consummated; and
(d) The representations and warranties of the parties shall be true and
correct in all material respects at the Effective Time; and
(e) The Patent Applications have been prosecuted in good faith with
reasonable diligence.
(f) The License Agreement is valid and in full force and effect without
any default therein.
ARTICLE V
INDEMNIFICATION
(a) By UTEK. UTEK agrees to indemnify, defend and hold harmless
NUELECTRIC and its shareholders, directors, officers, employees, agents and
representatives and their respective successors and assigns against and in
respect of any cost, damage, expense (including reasonable legal fees and actual
expenses), liability or loss incurred or suffered by any of them resulting from
or arising out of the (I) breach, inaccuracy, misrepresentation or untruth of
any representation or warranty, or the nonfulfillment of any agreement or
covenant of UTEK contained in this Agreement or in any document delivered by
UTEK or ZORAX to NUELECTRIC pursuant hereto; and (ii) any action, assessment,
claim, demand, proceeding or suit incident to any of the foregoing. The
liability of UTEK hereunder shall be satisfied by the return to NUELECTRIC of
shares of NUELECTRIC common stock issued pursuant hereto.
(b) By NUELECTRIC. NUELECTRIC agrees to indemnify, defend and hold
harmless UTEK and its shareholders, officers, directors, employees, agents and
representatives and their respective successors and assigns against and in
respect of any cost, damage, expense (including reasonable legal fees and actual
expenses), liability or loss incurred or suffered by any of them resulting from
or arising out of: (I) the breach, inaccuracy, misrepresentation or untruth of
any representation, warranty, or the nonfulfillment of any agreement or covenant
of NUELECTRIC contained in this Agreement or in any document delivered by it to
UTEK pursuant hereto; and (ii) any action, assessment, claim, demand, proceeding
or suit incident to any of the foregoing.
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(c) Costs. The indemnification rights and obligations of a party hereto
shall include the right to receive and the duty to pay and reimburse the
indemnified party all its reasonable costs and expenses incurred in the
enforcement of its rights hereunder.
(d) Survival of Representations and Warranties.
(1) The representations and warranties made by UTEK shall
survive for a period of one year after Closing, and thereafter all such
representation and warranties shall be extinguished, except with
respect to claims then pending for which specific notice has been given
during such one year period. UTEK shall have liability and
responsibility for the surviving representations and warranties made by
it herein, notwithstanding any due diligence investigation or
examination by NUELECTRIC.
(2) The representations and warranties made by NUELECTRIC
shall survive for a period of one year after Closing, and thereafter
all such representations and warranties shall be extinguished, except
with respect to claims then pending for which specific notice has been
given during such one year period. NUELECTRIC shall have liability and
responsibility for the surviving representations and warranties made to
NUELECTRIC, notwithstanding any due diligence investigation or
examination by UTEK.
(e) Limitations on Liability. Notwithstanding any other provision
herein to the contrary, neither party hereto shall be liable to the other party
for any cost, damage, expense, liability or loss under this indemnification
provision until after the sum of all amounts individually when added to all
other such amounts in the aggregate exceeds $500, and then such liability shall
apply only to matters in excess of $500.
(f) Rights of Indemnitors. The indemnified party shall notify the
indemnifying party of the assertion of commencement of such action, claim or
proceeding within a reasonable period of time or, if citation or service of
process has been made, within 15 days thereafter. The indemnified party may, at
its option and at its sole expense, participate in the defense of and contest
any such action, claim or proceeding; provided, however, the indemnified party
shall at all times also have the right to participate fully therein. If the
indemnifying party, within a reasonable time after receiving such notice, fails
to participate, the indemnified party shall have the right, but shall not be
obligated, to undertake the defense of the action, claim or proceeding for the
account of and at the risk of the indemnifying party; provided, however, in the
event that the indemnified party shall determine to compromise or settle
(exercising its judgment in good faith) any such action, claim or proceeding,
the indemnified party shall be required to give the indemnifying party 15 days'
notice of such determination after it receipt of actual notice of the claim. The
indemnified party shall then be entitled to compromise or settle the action,
claim, or proceeding for the account of and at the risk of the indemnifying
party; provided, however, the settlement shall be effective without the consent
of both the indemnifying and indemnified parties, which consent shall not be
reasonably withheld. The parties agree that any indemnified party may join any
indemnifying party in any action, claim or proceeding brought by a third part,
as to which any right of indemnity created by this Agreement would or might
apply, for the purpose of enforcing any right of the indemnity granted to such
indemnified party pursuant to this Agreement.
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(g) Additional Rights. Any right of indemnity of any party pursuant to
this Agreement shall be in addition to and shall not operate as a limitation on
any other right to indemnity of such party pursuant to this Agreement, any
document or instrument executed in connection with the consummation of the
transaction contemplated hereby or otherwise.
ARTICLE VI
COVENANT
NUELECTRIC will promptly provide financial statements to UTEK
Corporation following the end of each fiscal quarter. This covenant will survive
this Merger Agreement and will continue as long as UTEK owns stock in
NUELECTRIC.
ARTICLE VII
ARBITRATION
In the event a dispute arises with respect to the interpretation or
effect of this Agreement or concerning the rights or obligations of the parties
hereto, the parties agree to negotiate in good faith with reasonable diligence
in an effort to resolve the dispute in a mutually acceptable manner. Failing to
reach a resolution thereof, either party shall have the right to submit the
dispute to be settled by arbitration under the Commercial Rules of Arbitration
of the American Arbitration Association. The parties agree that all arbitration
shall be conducted in Tampa, Florida, unless the parties mutually agree to the
contrary. The cost of arbitration shall be borne by the party against whom the
award is rendered or, if in the interest of fairness, as allocated in accordance
with the judgment of the arbitrators. All awards in arbitration made in good
faith and not infected with fraud or other misconduct shall be final and
binding.
ARTICLE VIII
MISCELLANEOUS
No party may assign this Agreement or any right or obligation of it
hereunder without the prior written consent of the other parties hereto. No
permitted assignment shall relieve a party of its obligations under this
Agreement without the separate written consent of the other parties. This
Agreement shall be binding upon and enure to the benefit of the parties and
their respective permitted successors and assigns. Each party agrees that it
will comply with all applicable laws, rules and regulations in the execution and
performance of its obligations under this Agreement. This Agreement shall be
governed by and construct in accordance with the laws of the State of Florida.
This document constitutes a complete and entire agreement among the parties with
reference to the subject matters set forth herein. No statement or agreement,
oral or written, made prior to or at the execution hereof and no prior course of
dealing or practice by either party shall vary or modify the terms set forth
herein without the prior consent of the other parties hereto. This Agreement may
be amended only by a written document signed by the parties. Notices or other
communications required to be made in connection with this Agreement shall be
delivered to the parties at the address set forth below or at such other address
as may be changed from time to time by giving written notice to the other
parties. This Agreement may be executed in multiple counterparts, each of which
shall constitute one and a single Agreement.
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IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed by a duly authorized officer this 21st day of September 2000.
NUELECTRIC, INC. ZORAX, INC.
By:______________________ By:________________________
Xxxxxx Xxxxx, President Xxx Xxxxxxx, President
UTEK Corporation
By:________________________
Xxxxxxxx X. Xxxxx
Chief Executive Officer
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Exhibit A
Patent Application
US Serial #09/006,999
Apparatus for the Separation of Cystic Parasite Forms from Water
The following patent application is confidential and should not be
distributed without the prior written consent of Xxxxx Xxxxxxx University.
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Exhibit B
License Agreement Between ZORAX and Xxxxx Xxxxxxx University
Sponsored Research Agreement Between Zorax, Inc. and Xxxxx Xxxxxxx University
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Exhibit C
Financial Statement of ZORAX
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Exhibit D
Financial Statement of NUELECTRIC, Inc.
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