AGREEMENT AND PLAN OF MERGER
This Agreement and Plan of Merger ("Agreement") is entered into by and
among CENTREX, INC., an Oklahoma corporation ("CENTREX"), E.COLI MEASUREMENT
SYSTEMS, INC., a Florida corporation ("EMS"), and UTEK, LLC, a Florida limited
liability company ("UTEK").
WHEREAS, UTEK is the majority shareholder of EMS; and
WHEREAS, Xx. Xxxxxx Xxxxxx has invented a new proprietary technology and
related processes for the instantaneous and continuous detection and measurement
of the e.coli bacteria in water systems and in process fluids ("Invention")
covered by the patents ("Patents") and patent applications pending ("Patent
Applications") listed in Schedule 1; and
WHEREAS, EMS has entered into that certain License Agreement ("License")
with the Regents of the University of California ("UC") as operator of the Los
Alamos National Laboratories ("LANL"), which grants EMS the exclusive worldwide
right to commercialize the Invention; and
WHEREAS, EMS has also entered into that certain Funds-In Agreement No
98-053 ("Research Agreement") with UC and the Los Alamos National Laboratory
("LANL"), which provides for the funding of certain sponsored research and the
completion of a prototype continuous e.coli detection and measurement system and
related research; and
WHEREAS, the parties desire to provide for the terms and conditions upon
which EMS will merge into CENTREX in a statutory merger ("Merger") in accordance
with 18 Oklahoma Statutes, Section 1082 of the Oklahoma General Business
Corporation Act ("Oklahoma Act") and Section 607.1107 of the Corporation Law of
Florida ("Florida Act"), upon consummation of which the assets and business of
EMS will be owned by CENTREX, all liabilities and obligations of EMS will become
the liabilities and obligations of CENTREX, and all issued and outstanding
shares of capital stock of EMS will be exchanged for common stock of CENTREX;
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)(l)(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:
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ARTICLE I
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, EMS shall be merged with and
into CENTREX in accordance with the provisions of this Agreement and the
Oklahoma Act; the separate corporate existence of EMS shall cease; and CENTREX
shall continue as the surviving corporation ("Surviving Corporation"). The
constituent corporations ("Constituent Corporations") to the Merger are CENTREX
and EMS. The name of the Surviving Corporation, CENTREX, INC., shall not be
changed by reason of the Merger.
(b) Effective Time. The Merger shall become effective ("Effective Time")
upon filing of a Certificate of Merger substantially in the form attached as
Exhibit A ("Certificate of Merger") with the Secretary of State of the State of
Oklahoma in accordance with applicable provisions of the Oklahoma Act.
(c) Appointment of Service Agent. CENTREX 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,
including any suit or other proceeding to enforce appraisal rights of any
shareholder of EMS. CENTREX designates that all such process received by the
Secretary of State of Florida shall be sent to CENTREX at 0000 Xxxxx Xxxx, Xxxxx
000, Xxxxx, Xxxxxxxx 00000-0000.
(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 of and claims against of the Surviving Corporation and may
be enforced against the Surviving Corporation to the same extent as if such
debts, duties, liabilities of and claims against 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) Each of the 1,000 shares of EMS that are issued and outstanding at the
Effective Time shall be converted into 540 shares of common stock of the
Surviving
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Corporation. The parties agree that the agreed fair market value of CENTREX
common stock is $.001 per share; and
(ii) All issued and outstanding options, warrants or other rights to
acquire any capital stock of EMS at the Effective Time shall be reason of the
Merger and without action on the part of the holders of any such rights be
automatically canceled for all purposes; and
(iii) Each share of common stock of CENTREX 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) Rights in EMS Cease. At and after the Effective Time, the holder of
each certificate of common stock of EMS shall cease to have any rights as a
shareholder of EMS. All dividends or other distributions with respect to EMS
common stock prior to the Effective Time shall be payable to the shareholders of
EMS without interest upon surrender of certificates representing EMS common
stock.
(b) Closure of EMS Stock Records. From and after the Effective Time, the
stock transfer books of EMS shall be closed, and there shall be no further
registration of stock transfers on the records of EMS.
1.04. Certificate of Incorporation of the Surviving Corporation. The
Certificate of the Surviving Corporation shall not be changed by reason of the
Merger.
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 Coporation. 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
Xxxxxxxxx X. Xxxxxxx, 0000 X. Xxxx, Xxxxx 000, Xxxxx, Xxxxxxxx 00000-0000 at
5:00 p.m. local time on a mutually agreed date on or before June 30, 1999, or on
an earlier date as the parties mutually agree ("Closing Date"). The parties
agree to use their good faith efforts to Close the Merger on or as soon after
March 31, 1999 as is reasonably possible.
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ARTICLE II
REPRESENTATIONS AND WARRANTIES
2.01. General Representations and Warranties of UTEK. UTEK represents and
warrants to CENTREX that the facts set forth below are true and correct:
(a) Organization. EMS is a corporation duly organized, validly existing and
in good standing under the laws of the State of Florida, 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 EMS's
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 EMS; no other corporate
action on its part is necessary in order to execute, deliver, consummate and
perform its obligations hereunder; and EMS 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 EMS consists of 1,000 shares
of common stock, par value $.001 per share; at the date hereof, 950 shares of
its common stock were issued and outstanding and owned by UTEK and 50 shares
were owned by Xx. Xxxxx, and no shares were held in its treasury. All issued and
outstanding shares of common stock of EMS 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 EMS common stock or securities
convertible into shares of the common stock of EMS 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 EMS is a party and will not create a default hereunder; and
this Agreement constitutes a legal, valid and binding obligation of EMS,
enforceable in accordance with its terms, except as the enforcement maybe
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 the knowledge of EMS 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,
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prospects, the Patents, the Patent Applications, the License, the Research
Agreement or the results of the operations of EMS.
(f) No Conflicting Agreements. Neither the execution and delivery of this
Agreement nor the fulfillment of or compliance by EMS 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, the corporate
charter or bylaws of EMS, the Patents, the Patent Applications, the License, the
Research Agreement, or any agreement, contract, instrument, order, judgment or
decree to which EMS is a party or by which EMS 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 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 execution and delivery of
this Agreement by EMS or performance of the obligations of EMS hereunder or
under any other agreement to which EMS is a party; and the consummation of the
transactions contemplated by this Agreement will not require the approval of any
entity or person or prevent the termination of the Patents, the Patent
Applications, the License, the Research Agreement or any other material right,
privilege, license or agreement relating to EMS or its assets or business.
(h) Title to Assets. EMS has or will by Closing have 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 Patents, the Patent Applications, the License and the Research
Agreement.
(1) To the knowledge of UTEK and EMS, the Patents listed in Schedule
1 are valid and are in full force and effect to the extent the
Patents have been granted; the Patent Applications which are
pending are being prosecuted in good faith with diligence; and
neither UTEK nor EMS has any reason to believe that these Patent
Applications will not be granted; and
(2) To the knowledge of UTEK and EMS, the Invention does not and will
not infringe the intellectual or other rights of another. This
representation and warranty is not a representation or warranty
that there are no infringing intellectual rights of any other but
is a representation and warranty only that neither EMS nor UTEK
has any knowledge thereof; and CENTREX acknowledges that neither
UTEK nor EMS has conducted an independent investigation to
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determine whether the Invention infringes the rights of any other
party or that the Invention itself is marketable; and
(3) The Invention is owned by UC and UC has all right, power,
authority, ownership and entitlement to file, prosecute and
maintain in effect the Patents and Patent Applications with
respect to the Invention listed in Schedule 1 hereto; and
(4) Xx. Xxxxxx is the only Inventor of the Invention; and he has
assigned all his rights in the Invention to UC; and
(5) The License Agreement is in full force and effect and is legal,
valid, binding and enforceable in accordance with its terms; and
(6) The Research Agreement is in full force and effect and is legal,
valid, binding and enforceable in accordance with its terms.
(j) Liabilities of EMS. EMS has no assets, no liabilities of any kind,
character or description except those created by the License Agreement or the
Research Agreement. All attorneys' fees and expenses relating to the filing and
the prosecution of the Patents and the Patent Applications which were incurred
prior to Closing will be paid before Closing.
(k) Condition of Tangible Assets. All of the tangible assets of EMS 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.
(l) Financial Statements. The unaudited financial statements of EMS
attached as Schedule 2.01(1) as of the Closing will 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. EMS 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 EMS except as specifically set forth in the EMS financial
statements, including the obligation to maintain the Patents from and after the
date of the License Agreement, or in a schedule attached hereto and specifically
agreed to by CENTREX. In the event the Inventor ceases to be employed by LANL
prior to the Closing and become employed by another qualified institution
eligible to accept sponsored research funds, EMS shall use its best good faith
efforts to cause the new institution to agree to continue the Research Agreement
relating to the Invention in accordance with an agreement acceptable to CENTREX.
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(m) Taxes. All returns, reports, statements and other similar filings
required to be filed by EMS 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
EMS 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 EMS by any taxing authority, have been properly paid, except to the
extent contested in good faith by appropriate proceedings and reserves have been
established in its financial statements to the full extent if the contest is
adversely decided against it. EMS has not received any notice of assessment or
proposed assessment in connection with any tax returns, EMS 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. EMS 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 EMS.
(n) Absence of Certain Changes or Events. EMS has not, and without the
written consent of CENTREX, it will not have:
(i) Sold, encumbered, assigned or transferred any of its material
assets or its interest in the Patents, the Patent Applications,
the Research Agreement, the License or any other material asset;
or
(ii) Amended or terminated the License or the Research Agreement; or
(iii) Suffered any material damage, destruction or loss; or
(iv) Received notice or have knowledge of any material adverse effect
on the Patents, the Patent Applications, the Research Agreement
or the License or any other material asset or liability of EMS;
or
(v) Made any commitments or agreements for capital expenditures or
otherwise; or
(vi) Entered into any transaction or made any commitment not disclosed
to CENTREX; or
(vii)Agreed to take any of the actions set forth in this paragraph.
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(o) 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 CENTREX and such
agreements are in full force and effect without amendment. In addition:
(i) There are no outstanding unpaid promissory notes, mortgages,
indentures, deeds of trust, security agreements and other
agreements and instruments relating to the borrowing of money by
or any extension of credit to EMS; and
(ii) There are no outstanding operating agreements, lease agreements
or similar agreements by which EMS is bound; and
(iii)The complete and executed License Agreement and the Research
Agreement and the Patents and the Patent Applications with all
schedules, exhibits and amendments related thereto and all
material correspondence with the patent authorities relating
thereto have been provided to CENTREX; and
(iv) There are no outstanding licenses to or from others of any
intellectual property and trade names; and
(v) There are no outstanding contracts or commitments to sell, lease
or otherwise dispose of any of the property of EMS.
(p) Compliance with Laws. EMS 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. EMS 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 EMS is in
full compliance therewith.
(q) Litigation. There is no suit or action or any arbitration,
administrative, legal or other proceeding of any kind or character, or any
governmental investigation pending or threatened against EMS or the Patents, the
Patent Applications, the License or the Research Agreement affecting its assets
or business, and there is no factual basis therefor. 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.
(r) Employees. EMS has no employees. EMS is not a party to or bound by any
employment agreement or any collective bargaining agreement with respect to any
of the employees.
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(s) Employee Benefit Plans. There are no employee benefit plans in effect,
and there are no outstanding or unfunded liabilities to employees of EMS.
(t) Books and Records. The books and records of EMS 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.
(u) No Broker's Fees. Neither UTEK nor EMS has incurred any finder's,
broker's, investment banking, financial, advisory or other similar fees or
obligations.
(v) Full Disclosure. All representations or warranties of UTEK and EMS 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 EMS herein or in the exhibits
and schedules hereto or any document delivered by EMS 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.
2.02. General Representations and Warranties of CENTREX. CENTREX represents
and warrants to UTEK and EMS that the facts set forth are true and correct:
(a) Organization. CENTREX is a corporation duly organized, validly existing
and in good standing under the laws of the State of Oklahoma, 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 CENTREX; 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 CENTREX consists of
45,000,000 shares of common stock, par value $.00l per share, of which up to
7,000,000 shares will be issued and outstanding immediately after the Effective
Time, and 5,000,000 shares of Preferred Stock, none of which is issued and
outstanding. All issued and outstanding shares of common stock of CENTREX 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,
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commitments, calls or other rights or agreements requiring it to issue any
shares of CENTREX common stock or securities convertible into shares of its
common stock to anyone for any reason whatsoever immediately after the Effective
Time.
(d) Binding Effect. The execution, delivery, performance and consummation
of the Merger and the transactions contemplated hereby will not violate any
obligation to which CENTREX is a party and will not create a default hereunder;
and this Agreement constitutes a legal, valid and binding obligation of CENTREX,
enforceable in accordance with its terms, except as the enforcement maybe
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 CENTREX.
(f) No Conflicting Agreements. Neither the execution and delivery of this
Agreement nor the fulfillment of or compliance by CENTREX 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, 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 CENTREX hereunder or
under any other agreement to which CENTREX 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 CENTREX or its assets or business.
(h) Title to Its Assets. CENTREX has good and marketable title to its
assets (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.
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(j) Financial Statements. The unaudited financial statements of CENTREX
attached as Schedule 2.02(j) as of the Closing will 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. CENTREX 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 CENTREX except as specifically set forth in the CENTREX financial
statements.
(k) Taxes. All returns, reports, statements and other similar filings
required to be filed by it 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
it 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 it by any taxing authority, have been properly paid, except to the extent
it has contested in good faith by appropriate proceedings and adequate reserves
have been established in its financial statements to the full extent if the
contest is adversely decided against it. CENTREX has not received any notice of
assessment or proposed assessment in connection with any tax returns. CENTREX
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. CENTREX has no knowledge of
any basis for any additional assessment of taxes. CENTREX 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 it.
(l) Absence of Certain Changes or Events. CENTREX has not and, without the
written consent of EMS, 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 have knowledge of any material adverse effect
on its material assets; or
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(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 EMS:
(i) All material promissory notes, mortgages, indentures, deeds 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. CENTREX 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. CENTREX
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, and there is no factual basis therefor. 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. CENTREX has 4 employees. CENTREX 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 CENTREX are complete and
accurate in all material respects, fairly present its business and operations,
have been
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maintained in accordance with good business practices, and accurately reflect in
all material respects its business and financial condition.
(s) No Broker's Fees. CENTREX has incurred no finder's, broker's,
investment banking, financial, advisory or other similar fee in connection with
this Agreement, except the fee payable to UTEK.
(t) Full Disclosure. All representations or warranties of CENTREX 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 and
schedules 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 Shareholders. UTEK and Xx. Xxxxx
each individually represents and warrants to CENTREX that:
(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 CENTREX issuable 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
as 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 CENTREX in connection with this Agreement is
true and correct. It acknowledges that an investment in the Shares involves a
very high degree of risk. It has conducted all investigations and due diligence
concerning CENTREX which it deems appropriate, and it has found all such
information obtained fully acceptable. It is knowledgeable about the prospects,
business, financial condition, operations and possible acquisitions of CENTREX.
It has had an opportunity to ask questions of the officers and directors of
CENTREX concerning the Shares and the business and financial condition of and
prospects for CENTREX, and the officers and directors of CENTREX have adequately
answered all questions asked and made all relevant information requested
available to it. It understands that success of CENTREX is dependent upon
CENTREX's receipt of funds necessary to provide working capital, which may not
occur. It understands and agrees that the following restrictions and limitations
are applicable to the purchase, resale and distribution of the Shares pursuant
to applicable securities laws.
(b) Stock Transfer Restrictions.
(i) It is aware that it must bear the full economic risk of an
investment in the Shares of CENTREX for an indefinite period of
time, because the transaction
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in which the Shares are being issued has not been registered
under the Securities Act of 1933, as amended ("Securities Act"),
or the securities laws of any state; and, therefore, the Shares
cannot be sold, pledged, transferred or otherwise disposed of
unless registered under applicable securities laws or an
exemption from registration is available. It further understands
that only CENTREX can take action to register the Shares, and the
cost of registration is prohibitive.
(ii) A legend will be placed on the certificates representing the
common stock of CENTREX in substantially the following form:
NOTICE OF TRANSFER RESTRICTIONS
The shares evidenced by this Certificate have been acquired for investment
only and have not been registered under the Securities Act of 1933, as amended,
or the securities laws of any state. The Shares may not be sold, transferred,
pledged or otherwise disposed of without the receipt of an opinion of counsel
acceptable to CENTREX that no such registration is required.
(iii)Stop transfer instructions have been placed in CENTREX's
transfer records with respect to the Shares to insure that any
transfer or disposition thereof is in full compliance with
applicable law. It agrees that CENTREX may refuse or delay
transfer of the Shares or impose other restrictions on the
transfer of the Shares if CENTREX is not satisfied that the
transfer is lawful. However, CENTREX acknowledges and agrees that
this determination must be made within a reasonable time; and if
CENTREX finds the transfer is satisfactory and permitted by
applicable law, CENTREX will not refuse or delay the transfer.
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.
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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.
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) CENTREX shall pay EMS the following amounts:
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(1) Initial License Fee of $7,000, payable to UC on or before
Closing; and
(2) Up-Front Annual License Fee of $2,500, payable to UC on or before
January 1, 2000; and
(3) Initial Research Fee of $70,000 pursuant to the Funds In Research
Agreement, payable to UC on or before Closing.
(f) CENTREX shall enter into a Consulting Agreement with UTEK.
(g) The Patents are valid and in full force and effect; and the Patent
Applications have been prosecuted in good faith with reasonable diligence.
(h) The Research Agreement is valid and in full force and effect and there
has been no default therein; and
(i) The License is valid and in full force and effect and there has been no
default therein.
(j) The Inventor has entered into a Consulting Agreement with CENTREX in
mutually agreed form and substance which provides that Xx. Xxxxxx will be
available to provide consulting services and technical advice to CENTREX from
time to time about the Invention, so long as such advice and consulting services
do not unreasonably interfere with his duties and responsibilities with LANL and
UC.
ARTICLE V
INDEMNIFICATION
(a) By UTEK. UTEK agrees to indemnify, defend and hold harmless CENTREX 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 EMS to
CENTREX pursuant hereto; and (ii) any action, assessment, claim, demand,
proceeding or suit incident to any of the foregoing. The liability of UTEK
hereunder may be satisfied by the return to CENTREX of shares of CENTREX common
stock issued pursuant hereto valued at the fair market value on the date the
breach is discovered to the extent of the breach.
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Sequentially numbered page 159
(b) By CENTREX. CENTREX agrees to indemnify, defend and hold harmless UTEK
and its member, managers, 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:
(i) the breach, inaccuracy, misrepresentation or untruth of any representation,
warranty, or the nonflilfillment of any agreement or covenant of CENTREX
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.
(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 3 years 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 3 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 CENTREX.
(2) The representations and warranties made by CENTREX shall
survive for a period of 3 years 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 3 year
period. CENTREX shall have liability and responsibility for the surviving
representations and warranties made to CENTREX, 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 or 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,
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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 its 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 party, 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.
(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
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 arbitrations shall
be conducted in Tulsa, Oklahoma, 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 VII
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
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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
construed in accordance with the laws of the State of Oklahoma 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.
ARTICLE VIII
PIGGYBACK REGISTRATION RIGHTS
CENTREX covenants and agrees that if it files with the Securities and
Exchange Commission an underwritten registration statement on SEC Form S-SB1 or
Form S-1 or its equivalent which includes the offer of shares owned by
shareholders of CENTREX, CENTREX will use its best efforts to include some or
all of the shares of CENTREX common stock issued to and then held by UTEK
pursuant to this Agreement. If the underwriters include any selling shareholder
shares, UTEK shall be permitted to include some or all of its CENTREX shares on
a pro rata basis to the extent and upon the same terms and conditions as other
CENTREX shareholders are permitted to have their CENTREX shares included in the
proposed offering. If the underwriters do not permit for any reason the
inclusion of selling shareholder shares in the offering, UTEK shares shall also
not be included. It is the expressed intent of this Article that UTEK be treated
exactly the same as any other selling CENTREX shareholder in connection with any
underwritten offering of CENTREX common stock, no better and no worse. If
CENTREX proposes an underwritten offering, CENTREX will give UTEK 15 days' prior
written notice thereof, and UTEK shall give CENTREX notice within 10 days
thereafter of UTEK's desire as to the number of shares, if any, that UTEK
desires to include in the offering. CENTREX will notify the lead underwriters of
UTEK's desire, and CENTREX will include UTEK shares in accordance with this
Article. As a condition of including any UTEK shares in the offering, UTEK shall
(1) sign all underwriting agreements, representations, warranties, certificates
and other papers as the underwriters require of UTEK and other CENTREX
shareholders whose shares are to be included in the offering; (2) pay pro rata
all costs of the offering to the same extent as other CENTREX selling
shareholders are required to pay; and (3) take all other actions and do all
other things as are required of other selling shareholders. Failure of UTEK to
respond within 10 days after notice of CENTREX's intention to file an
underwritten offering shall constitute a waiver of the rights set forth in this
Article.
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Sequentially numbered page 162
IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed by a duly authorized officer this ________ day of March, 1999.
CENTREX, INC. E.COLI MEASUREMENT SYSTEMS,
INC.
By:/ s / Xxxxxxx X. Xxxxx By:/ s / Xxxxxxxx X Xxxxx
__________________________ ________________________________
Xxxxxxx X. Xxxxx, CEO Xx. Xxxxxxxx X. Xxxxx, President
UTEK, LLC
/ s / Xxxxxxxx X. Xxxxx By:/ s / Xxxxxxxx X. Xxxxx
__________________________ ________________________________
Xx. Xxxxxxxx X. Xxxxx, Individually as to Xx. Xxxxxxxx X. Xxxxx, Chief
Paragraph 2.03 only Executive Officer
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Sequentially numbered page 163
CERTIFICATE OF MERGER
TO THE SECRETARY OF STATE OF THE STATE OF OKLAHOMA, 000 Xxxxx Xxxxxxx Xxxx.,
Xxxxxxxx Xxxx, XX 00000.
This Certificate of Merger is being filed pursuant to Section 1082 of the
Oklahoma General Corporation Act. In lieu of filing an executed Agreement and
Plan of Merger, the Surviving Corporation hereby states and certifies as
follows:
1. The names and states of incorporation of each of the Constituent
Corporations are:
NAME OF CORPORATION STATE OF INCORPORATION
Centrex, Inc. Oklahoma
E.coli Measurement System, Inc. Florida
2. An Agreement and Plan of Merger has been approved, adopted, certified,
executed and acknowledged by each Constituent Corporation, in accordance
with the provisions of Section 1082 of Title 18 of the Oklahoma Statutes
and Section 601.1107 of the Corporation Laws of Florida.
3. The name of the Surviving Corporation is Centrex, Inc.
4 The Certificate of Incorporation of the Surviving Corporation is not being
changed by reason of the Merger.
5. The executed Agreement and Plan of Merger is on file at the principal place
of business of the Surviving Corporation at 0000 X. Xxxx, Xxxxx 000, Xxxxx,
XX 00000-0000.
6. A copy of the Agreement and Plan of Merger will be furnished on request and
without cost to any shareholder of any Constituent Corporation.
7. The authorized capital of E.coli Measurement System, Inc. is 1,000 shares
of common stock, par value $1.00 per share, and 1,000 shares are issued,
outstanding and voted for the Merger.
1
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Exhibit B
to
Agreement and Plan of Merger
Directors
Xxxxxxx X. Xxxxx
Xxxxxx X. Xxxxxxx
Officers
Xxxxxxx X. Xxxxx President and CEO
Xxxxxx X. Xxxxxxx Vice President and CFO
Xxxxxxxxx X. Xxxxxxx Vice President and General Counsel
Xxxxxx Xxxxxxxx, M.D Vice President
Xxxxxx X. Xxxxxxx Treasurer
Xxxxxx X. Xxxxxxx Secretary
Sequentially numbered page 165
SCHEDULE 1
PATENT POSITION
o US Provisional Patent No._______ dated December 18, 1998 under the title
"Method for the Detection of Specific Nucleic Acid Sequences by Polymerase
Nucleotide Incorporation"
o Canadian Patent No.______ dated _______
o Pending Patents: None
Sequentially numbered page 166
