AGREEMENT AND PLAN OF MERGER
AGREEMENT
AND PLAN OF MERGER
THIS
AGREEMENT AND PLAN OF MERGER
is made
as of the 20th
day of
April,
2007
AMONG:
TECH
LABORATORIES, INC.,
a
corporation formed pursuant to the laws of the State of New Jersey and having
an
office for business located at 0000 Xxxxx Xxxxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxxx
00000
(“Tech
Lab”)
AND:
RENEWAL
FUELS ACQUISITIONS, INC.,
a
corporation formed pursuant to the laws of the State of Delaware and a wholly
owned subsidiary of Tech Lab
(the
"Acquirer")
AND:
RENEWAL
FUELS, INC.,
a
corporation formed pursuant to the laws of the State of Delaware and having
an
office for business located at 0000 Xxxxx Xxxxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxxx
00000
("Renewal")
WHEREAS:
A. Renewal
is a Delaware corporation engaged in the business of development and marketing
personal biodiesel processors which produce less than 200 gallons per
day;
B. The
Renewal Shareholders own an aggregate of Five Million Seven Hundred Twenty
Seven
Thousand Nine Hundred Seventy Nine (5,727,979) Renewal Shares, being 100% of
the
presently issued and outstanding Renewal Shares;
C. Tech
Lab
is a reporting company whose common stock is quoted on the OTC Bulletin Board
and which has been engaged in a search for potential merger candidates;
and
D. The
respective Boards of Directors of Tech Lab, Renewal and the Acquirer deem it
advisable and in the best interests of Tech Lab, Renewal and the Acquirer that
the Acquirer merge with and into Renewal (the "Merger") pursuant to this
Agreement and the Certificate of Merger, and the applicable provisions of the
laws of the State of Delaware.
NOW
THEREFORE, WITNESSETH THAT
in
consideration of the premises and the mutual covenants, agreements,
representations and warranties contained herein, and other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged,
the
parties hereto hereby agree as follows:
ARTICLE
1
DEFINITIONS
AND INTERPRETATION
Definitions
1.1 In
this
Agreement the following terms will have the following meanings:
| (a) |
“Acquisition
Shares”
means the 343,610 Tech Lab Preferred Shares, which shares are to
be issued
and delivered to the Renewal Shareholders at Closing pursuant to
the terms
of the Merger;
|
| (b) |
“Agreement”
means this agreement and plan of merger among Tech Lab, the Acquirer,
Renewal, and the Renewal
Shareholders;
|
| (c) |
“DGCL”
means the Delaware General Corporation
Law;
|
| (d) |
“Closing”
means the completion, on the Closing Date, of the transactions
contemplated hereby in accordance with Article 9
hereof;
|
| (e) |
“Closing
Date”
means the day on which all conditions precedent to the completion
of the
transaction as contemplated hereby have been satisfied or waived
and which
shall occur no later than April 18, 2007, unless such date is extended
by
written agreement of the parties;
|
| (f) |
“Commission”
means the Securities and Exchange Commission;
|
| (g) |
“Effective
Time”
means the date of the filing of an appropriate Certificate of Merger
in
the form required by the State of Delaware provided that the Merger
shall
become effective as provided in the
DGCL;
|
| (h) |
“Exchange
Act”
means the Securities Exchange Act of 1934, as
amended;
|
| (i) |
“Merger”
means the merger, at the Effective Time, of Renewal and the Acquirer
pursuant to this Agreement;
|
| (j) |
“Place
of Closing”
means such place as Tech Lab and Renewal may mutually agree
upon;
|
| (k) |
“SEC
Reports”
means all forms, reports and documents filed and required to be filed
by
Tech Lab with the Commission under the Exchange Act from June 7,
2002
through the date hereof;
|
| (l) |
“Securities
Act”
means the Securities Act of 1933, as amended;
|
| (m) |
“Surviving
Company”
means Renewal following the merger with the
Acquirer;
|
| (n) |
“Renewal
Accounts Payable and Liabilities”
means all accounts payable and liabilities of Renewal, due and owing
or
otherwise constituting a binding obligation of Renewal (other than
a
Renewal Material Contract) as of December 31,
2006;
|
| (o) |
“Renewal
Accounts Receivable”
means all accounts receivable and other amounts owing to Renewal,
as of
December 31, 2006;
|
| (p) |
“Renewal
Assets”
means all the property and assets of the Renewal Business of every
kind
and description wherever situated including, without limitation,
Renewal
Equipment, Renewal Inventory, Renewal Material Contracts, Renewal
Accounts
Receivable, Renewal Cash, Renewal Intangible Assets and Renewal Goodwill,
and all credit cards, charge cards and banking cards issued to
Renewal;
|
| (q) |
“Renewal
Bank Accounts”
means all of the bank accounts, lock boxes and safety deposit boxes
of
Renewal or relating to the Renewal Business;
|
| (r) |
“Renewal
Business”
means all aspects of the business conducted by
Renewal;
|
| (s) |
“Renewal
Cash”
means all cash on hand or on deposit to the credit of Renewal on
the
Closing Date, subject to reduction pursuant to Section 7.1(f)
below;
|
| (t) |
“Renewal
Debt to Related Parties”
means the debts owed by Renewal to any of the Renewal Shareholders
or to
any family member thereof, or to any affiliate, director or officer
of
Renewal or the Renewal
Shareholders;
|
| (u) |
“Renewal
Equipment”
means all machinery, equipment, furniture, and furnishings used in
the
Renewal Business;
|
| (v) |
“Renewal
Financial Statements”
means collectively, the auditedfinancial
statements of Renewal for the period ended December 31, 2006, which
shall
be delivered at Closing, all of which will be prepared in accordance
with
United States generally accepted accounting principles and the
requirements of Item 310 of Regulation SB as promulgated by the Securities
and Exchange Commission;
|
| (w) |
“Renewal
Goodwill”
means the goodwill of the Renewal Business together with the exclusive
right of Tech Lab to represent itself as carrying on the Renewal
Business
in succession of Renewal subject to the terms hereof, and the right
to use
any words indicating that the Renewal Business is so carried on including
the right to use the name "Renewal Fuels” or any variation thereof as part
of the name of or in connection with the Renewal Business or any
part
thereof carried on or to be carried on by Renewal, the right to all
corporate, operating and trade names associated with the Renewal
Business,
or any variations of such names as part of or in connection with
the
Renewal Business, all telephone listings and telephone advertising
contracts, all lists of customers, books and records and other information
relating to the Renewal Business, all necessary licenses and
authorizations and any other rights used in connection with the Renewal
Business;
|
| (x) |
“Renewal
Insurance Policies”
means the public liability insurance and insurance against loss or
damage
to Renewal Assets and the Renewal
Business;
|
| (y) |
“Renewal
Intangible Assets”
means all of the intangible assets of Renewal, including, without
limitation, Renewal Goodwill, all trademarks, logos, copyrights,
designs,
and other intellectual and industrial property of
Renewal;
|
| (z) |
“Renewal
Inventory”
means all inventory and supplies of the Renewal Business as of December
31, 2006
as increased or decreased in the ordinary course of
business;
|
| (aa) |
“Renewal
Material Contracts”
means the burden and benefit of and the right, title and interest
of
Renewal in, to and under all trade and non-trade contracts, engagements
or
commitments, whether written or oral, to which Renewal is entitled
in
connection with the Renewal Business under which Renewal is obligated
to
pay or entitled to receive the sum of Ten Thousand Dollars ($10,000)
or
more annually including, without limitation, any pension plans, profit
sharing plans, bonus plans, loan agreements, security agreements,
indemnities and guarantees, any agreements with employees, lessees,
licensees, managers, accountants, suppliers, agents, distributors,
officers, directors, attorneys or others which cannot be terminated
without liability on not more than one month's notice;
and
|
| (bb) |
“Renewal
Shares”
means all of the issued and outstanding shares of Renewal's equity
stock;
|
| (cc) |
“Tech
Lab Business”
means all aspects of any business conducted by Tech Lab and its
subsidiaries;
|
| (dd) |
“Tech
Lab Common Shares”
means the shares of common stock in the capital of Tech Lab;
|
| (ee) |
“Tech
Lab Preferred Shares”
means the shares of Tech Labs series A preferred stock;
and.
|
| (ff) |
“Tech
Lab Financial Statements”
means, collectively, the audited consolidated financial statements
of Tech
Lab for the two fiscal years ended December 31, 2005 and
2006.
|
Any
other
terms defined within the text of this Agreement will have the meanings so
ascribed to them.
Captions
and Section Numbers
1.2 The
headings and section references in this Agreement are for convenience of
reference only and do not form a part of this Agreement and are not intended
to
interpret, define or limit the scope, extent or intent of this Agreement or
any
provision hereof.
Section
References and Schedules
1.3 Any
reference to a particular “Article”, “section”, “paragraph”, “clause” or other
subdivision is to the particular Article, section, clause or other subdivision
of this Agreement and any reference to a Schedule by letter will mean the
appropriate Schedule attached to this Agreement and by such reference the
appropriate Schedule is incorporated into and made part of this Agreement.
Severability
of Clauses
1.4 If
any
part of this Agreement is declared or held to be invalid for any reason, such
invalidity will not affect the validity of the remainder which will continue
in
full force and effect and be construed as if this Agreement had been executed
without the invalid portion, and it is hereby declared the intention of the
parties that this Agreement would have been executed without reference to any
portion which may, for any reason, be hereafter declared or held to be
invalid.
ARTICLE
2
THE
MERGER
The
Merger
2.1 At
Closing, the Acquirer shall be merged with and into Renewal pursuant to this
Agreement and the separate corporate existence of the Acquirer shall cease
and
Renewal, as it exists from and after the Closing, shall be the Surviving
Company.
Effect
of the Merger
2.2 The
Merger shall have the effect provided therefore by the DGCL. Without limiting
the generality of the foregoing, and subject thereto, at Closing (i) all the
rights, privileges, immunities, powers and franchises, of a public as well
as of
a private nature, and all property, real, personal and mixed, and all debts
due
on whatever account, including without limitation subscriptions to shares,
and
all other choices in action, and all and every other interest of or belonging
to
or due to Renewal or the Acquirer, as a group, subject to the terms hereof,
shall be taken and deemed to be transferred to, and vested in, the Surviving
Company without further act or deed; and all property, rights and privileges,
immunities, powers and franchises and all and every other interest shall be
thereafter as effectually the property of the Surviving Company, as they were
of
Renewal and the Acquirer, as a group, and (ii) all debts, liabilities, duties
and obligations of Renewal and the Acquirer, as a group, subject to the terms
hereof, shall become the debts, liabilities and duties of the Surviving Company
and the Surviving Company shall thenceforth be responsible and liable for all
debts, liabilities, duties and obligations of Renewal and the Acquirer, as
a
group, and neither the rights of creditors nor any liens upon the property
of
Renewal or the Acquirer, as a group, shall be impaired by the Merger, and may
be
enforced against the Surviving Company.
Articles
of Incorporation; Bylaws; Directors and Officers
2.3 The
Articles of Incorporation of the Surviving Company from and after the Closing
shall be the Articles of Incorporation of Renewal as in effect immediately
prior
to the Closing until thereafter amended in accordance with the provisions
therein and as provided by the applicable provisions of the DGCL. The Bylaws
of
the Surviving Company from and after the Closing shall be the Bylaws of Renewal
as in effect immediately prior to the Closing, continuing until thereafter
amended in accordance with their terms, the Articles of Incorporation of the
Surviving Company and as provided by the DGCL. The sole director of the Acquirer
at the Effective Time shall be the sole director of the Surviving
Company.
Conversion
of Securities
2.4 At
the
Effective Time, by virtue of the Merger and without any action on the part
of
the Acquirer, Renewal or the Renewal Shareholders, the shares of capital stock
of each of Renewal and the Acquirer shall be converted as follows:
| (a) |
Capital
Stock of the Acquirer.
Each issued and outstanding share of the Acquirer's capital stock
shall
continue to be issued and outstanding and shall be converted into
one
share of validly issued, fully paid, and non-assessable common stock
of
the Surviving Company. Each stock certificate of the Acquirer evidencing
ownership of any such shares shall continue to evidence ownership
of such
shares of capital stock of the Surviving
Company.
|
| (b) |
Conversion
of Renewal Shares.
Each Renewal Share that is issued and outstanding at the Effective
Time
shall automatically be cancelled and extinguished and converted,
without
any action on the part of the holder thereof, into the right to receive
at
the time and in the amounts described in this Agreement an amount
of
Acquisition Shares equal to the number of Acquisition Shares divided
by
the number of the Renewal Shares outstanding immediately prior to
Closing.
All such Renewal Shares, when so converted, shall no longer be outstanding
and shall automatically be cancelled and retired and shall cease
to exist,
and each holder of a certificate representing any such shares shall
cease
to have any rights with respect thereto, except the right to receive
the
Acquisition Shares paid in consideration therefor upon the surrender
of
such certificate in accordance with this Agreement.
|
ARTICLE
3
REPRESENTATIONS
AND WARRANTIES
OF
TECH LAB
Representations
and Warranties
3.1 Tech
Lab
and the Acquirer jointly and severally represent and warrant in all material
respects to Renewal, with the intent that Renewal will rely thereon in entering
into this Agreement and in approving and completing the transactions
contemplated hereby, that:
Tech
Lab - Corporate Status and Capacity
| (a) |
Incorporation.
Tech Lab is a corporation duly incorporated and validly existing
under the
laws of the State of New Jersey, and is in good standing with the
office
of the Secretary of State for the State of New
Jersey;
|
| (b) |
Carrying
on Business.
Tech Lab currently does not carry on any material business activity
in any
jurisdiction. The nature of the Tech Lab Business does not require
Tech
Lab to register or otherwise be qualified to carry on business in
any
jurisdiction ;
|
| (c) |
Corporate
Capacity.
Tech Lab has the corporate power, capacity and authority to own its
assets
and to enter into and complete this
Agreement;
|
| (d) |
Reporting
Status; Listing.
Tech Lab’s common stock is registered under Section 12(b) or 12(g) of the
Exchange Act and Tech Lab is required to file current reports with
the
Commission pursuant to section 13(a) of the Exchange Act. The Tech
Lab
Common Shares are quoted on the OTC Bulletin Board under the symbol
“TLBT”;
|
| (e) |
SEC
Reports.
Tech Lab has
filed all SEC Reports with the Commission under the Exchange Act.
The SEC
Reports, at the time filed, complied as to form in all material respects
with the requirements of the Exchange Act. None of the SEC Reports,
including without limitation any financial statements or schedules
included therein, contains any untrue statements of a material fact
or
omits to state a material fact necessary in order to make the statements
made, in light of the circumstances under which they were made, not
misleading;
|
Acquirer
- Corporate Status and Capacity
| (f) |
Incorporation.
The Acquirer is a corporation duly incorporated and validly existing
under
the laws of the State of Delaware, and is in good standing with the
office
of the Secretary of State for the State of
Delaware;
|
| (g) |
Carrying
on Business.
Other than corporate formation and organization, the Acquirer has
not
carried on business activities to
date.
|
| (h) |
Corporate
Capacity.
The Acquirer has the corporate power, capacity and authority to enter
into
and complete this Agreement;
|
Tech
Lab - Capitalization
| (i) |
Authorized
Capital.
The authorized capital of Tech Lab consists of 3,000,000,000 Tech
Lab
Common Shares, $0.01 par value, 343,610 shares of Tech Labs Preferred
Stock, $.01 par value, and 19,656,390 shares of preferred stock,
$0.01 par
value, of which 10,100,201 Tech Lab Common Shares are presently issued
and
outstanding;
|
| (j) |
No
Option.
Except as set forth in the SEC Reports, no person, firm or corporation
has
any agreement or option or any right capable of becoming an agreement
or
option for the acquisition of Tech Lab Common Shares or for the purchase,
subscription or issuance of any of the unissued shares in the capital
of
Tech Lab;
|
Acquirer
- Capitalization
| (k) |
Authorized
Capital.
The authorized capital of the Acquirer consists of 200 shares of
common
stock, of which 200 shares of common stock are presently issued and
outstanding and which are owned by Tech
Lab;
|
| (l) |
No
Option.
No person, firm or corporation has any agreement or option or any
right
capable of becoming an agreement or option for the acquisition of
any
common or preferred shares in Acquirer or for the purchase, subscription
or issuance of any of the unissued shares in the capital of
Acquirer;
|
Tech
Lab - Records and Financial Statements
| (m) |
Charter
Documents.
The charter documents of Tech Lab and the Acquirer have not been
altered
since the incorporation of each, respectively, except as filed in
the
record books of Tech Lab or the Acquirer, as the case may
be;
|
| (n) |
Corporate
Minute Books.
Tech
Lab and its subsidiaries are not in violation or breach of, or in
default
with respect to, any term of their respective Certificates of
Incorporation (or other charter documents) or
by-laws;
|
| (o) |
Tech
Lab Financial Statements.
The Tech Lab Financial Statements present fairly, in all material
respects, the assets and liabilities (whether accrued, absolute,
contingent or otherwise) of Tech Lab, on a consolidated basis, as
of the
respective dates thereof, and the results of operations and changes
in
financial position of Tech Lab during the periods covered thereby,
in all
material respects and have been prepared in accordance with generally
accepted accounting principles consistently applied throughout the
periods
indicated;
|
| (p) |
Tech
Lab Accounts Payable and Liabilities.
There are no material liabilities, contingent or otherwise, of Tech
Lab or
its subsidiaries which are not reflected in the Tech Lab Financial
Statements except those incurred in the ordinary course of business
since
the date of the Tech Lab Financial Statements, and neither Tech Lab
nor
its subsidiaries have guaranteed or agreed to guarantee any debt,
liability or other obligation of any person, firm or
corporation;
|
| (q) |
Tech
Lab Accounts Receivable.
All the accounts receivable of Tech Lab result from bona fide business
transactions and services actually rendered without, to the knowledge
and
belief of Tech Lab, any claim by the obligor for set-off or
counterclaim;
|
| (r) |
No
Debt to Related Parties.
Neither Tech Lab nor its subsidiaries are, and on Closing will not
be,
materially indebted to any affiliate, director or officer of Tech
Lab
except for accounts payable on account of bona fide business transactions
of Tech Lab incurred in the normal course of the Tech Lab Business,
including employment agreements, none of which are more than thirty
(30)
days in arrears;
|
| (s) |
No
Related Party Debt to Tech Lab.
No director or officer or affiliate of Tech Lab is now indebted to
or
under any financial obligation to Tech Lab or its subsidiaries on
any
account whatsoever, except for advances on account of travel and
other
expenses not exceeding Five Thousand Dollars ($5,000) in
total;
|
| (t) |
No
Dividends.
No dividends or other distributions on any shares in the capital
of Tech
Lab have been made, declared or authorized since the date of the
Tech Lab
Financial Statements;
|
| (u) |
No
Payments.
No payments of any kind have been made or authorized since the date
of the
Tech Lab Financial Statements to or on behalf of officers, directors,
shareholders or employees of Tech Lab or its subsidiaries or under
any
management agreements with Tech Lab or its subsidiaries, except payments
made in the ordinary course of business and at the regular rates
of salary
or other remuneration payable to
them;
|
| (v) |
No
Pension Plans.
There are no pension, profit sharing, group insurance or similar
plans or
other deferred compensation plans affecting Tech Lab or its
subsidiaries;
|
| (w) |
No
Adverse Events.
Since December 31, 2006,
|
| (i) |
there
has not been any material adverse change in the properties, results
of
operations, financial position or condition (financial or otherwise)
of
Tech Lab, its subsidiaries, its assets or liabilities or any damage,
loss
or other change in circumstances materially affecting Tech Lab, the
Tech
Lab Business or Tech Lab’ right to carry on the Tech Lab Business, other
than non-material changes in the ordinary course of
business,
|
| (ii) |
there
has not been any damage, destruction, loss or other event (whether
or not
covered by insurance) materially and adversely affecting Tech Lab,
its
subsidiaries, or the Tech Lab
Business,
|
| (iii) |
there
has not been any material increase in the compensation payable or
to
become payable by Tech Lab to any of Tech Lab’ officers, employees or
agents or any bonus, payment or arrangement made to or with any of
them,
|
| (iv) |
the
Tech Lab Business has been and continues to be carried on in the
ordinary
course,
|
| (v) |
Tech
Lab has not waived or surrendered any right of material
value,
|
| (vi) |
Neither
Tech Lab nor its subsidiaries have discharged, satisfied or paid
any lien
or encumbrance or obligation or liability other than current liabilities
in the ordinary course of business, except for the settlement of
litigation with Stursberg & Xxxxx;
and
|
| (vii) |
no
capital expenditures in excess of Ten Thousand Dollars ($10,000)
individually or Thirty Thousand Dollars ($30,000) in total have been
authorized or made by Tech Lab.
|
Tech
Lab - Income Tax Matters
| (x) |
Tax
Returns.
All tax returns and reports of Tech Lab and its subsidiaries required
by
law to be filed have been filed and are true, complete and correct,
and
any taxes payable in accordance with any return filed by Tech Lab
and its
subsidiaries or in accordance with any notice of assessment or
reassessment issued by any taxing authority have been so
paid;
|
| (y) |
Current
Taxes.
Adequate provisions have been made for taxes payable for the current
period for which tax returns are not yet required to be filed and
there
are no agreements, waivers, or other arrangements providing for an
extension of time with respect to the filing of any tax return by,
or
payment of, any tax, governmental charge or deficiency by Tech Lab
or its
subsidiaries. Tech Lab is not aware of any contingent tax liabilities
or
any grounds which would prompt a reassessment including aggressive
treatment of income and expenses in filing earlier tax
returns;
|
Tech
Lab - Applicable Laws and Legal Matters
| (z) |
Licenses.
Tech Lab and its subsidiaries hold all licenses and permits as may
be
requisite for carrying on the Tech Lab Business in the manner in
which it
has heretofore been carried on, which licenses and permits have been
maintained and continue to be in good standing except where the failure
to
obtain or maintain such licenses or permits would not have a material
adverse effect on the Tech Lab
Business;
|
| (aa) |
Applicable
Laws.
Neither Tech Lab nor its subsidiaries have been charged with or received
notice of breach of any laws, ordinances, statutes, regulations,
by-laws,
orders or decrees to which they are subject or which apply to them
the
violation of which would have a material adverse effect on the Tech
Lab
Business, and to Tech Lab’ knowledge, neither Tech Lab nor its
subsidiaries are in breach of any laws, ordinances, statutes, regulations,
bylaws, orders or decrees the contravention of which would result
in a
material adverse impact on the Tech Lab
Business;
|
| (bb) |
Pending
or Threatened Litigation.
Except as set forth in the SEC Reports, there is no material litigation
or
administrative or governmental proceeding pending or threatened against or
relating to Tech Lab, its subsidiaries, or the Tech Lab Business
nor does
Tech Lab have any knowledge of any act or omission of Tech Lab or
its
subsidiaries that would form any material basis for any such action
or
proceeding;
|
| (cc) |
No
Bankruptcy.
Neither Tech Lab nor its subsidiaries have made any voluntary assignment
or proposal under applicable laws relating to insolvency and bankruptcy
and no bankruptcy petition has been filed or presented against Tech
Lab or
its subsidiaries and no order has been made or a resolution passed
for the
winding-up, dissolution or liquidation of Tech Lab or its subsidiaries;
|
| (dd) |
Labor
Matters.
Neither Tech Lab nor its subsidiaries are party to any collective
agreement relating to the Tech Lab Business with any labor union
or other
association of employees and no part of the Tech Lab Business has
been
certified as a unit appropriate for collective bargaining or, to
the
knowledge of Tech Lab, has made any attempt in that
regard;
|
| (ee) |
Finder's
Fees.
Neither Tech Lab nor its subsidiaries are party to any agreement
which
provides for the payment of finder's fees, brokerage fees, commissions
or
other fees or amounts which are or may become payable to any third
party
in connection with the execution and delivery of this Agreement and
the
transactions contemplated herein;
|
Execution
and Performance of Agreement
| (ff) |
Authorization
and Enforceability.
The execution and delivery of this Agreement, and the completion
of the
transactions contemplated hereby, have been duly and validly authorized
by
all necessary corporate action on the part of Tech Lab and the
Acquirer;
|
| (gg) |
No
Violation or Breach.
The execution and performance of this Agreement will
not:
|
| (i) |
violate
the charter documents of Tech Lab or the Acquirer or result in any
breach
of, or default under, any loan agreement, mortgage, deed of trust,
or any
other agreement to which Tech Lab or its subsidiaries are
party,
|
| (ii) |
give
any person any right to terminate or cancel any agreement or any
right or
rights enjoyed by Tech Lab or its
subsidiaries,
|
| (iii) |
result
in any alteration of Tech Lab’ or its subsidiaries’ obligations under any
agreement to which Tech Lab or its subsidiaries are
party,
|
| (iv) |
result
in the creation or imposition of any lien, encumbrance or restriction
of
any nature whatsoever in favor of a third party upon or against the
assets
of Tech Lab,
|
| (v) |
result
in the imposition of any tax liability to Tech Lab or its subsidiaries
relating to the assets of Tech Lab,
or
|
| (vi) |
violate
any court order or decree to which either Tech Lab or its subsidiaries
is
subject;
|
The
Tech Lab Business
| (hh) |
Maintenance
of Business.
Since the date of the Tech Lab Financial Statements, Tech Lab and
its
subsidiaries have not entered into any material agreement or commitment
except in the ordinary course and except as disclosed herein or in
the
Tech Lab SEC Reports;
|
| (ii) |
Subsidiaries.
Except for the Acquirer, Tech Lab does not own any subsidiaries and
does
not otherwise own, directly or indirectly, any shares or interest
in any
other corporation, partnership, joint venture or
firm;
|
Tech
Lab - Acquisition Shares
| (jj) |
Acquisition
Shares.
The Acquisition Shares when delivered to the holders of Renewal Shares
pursuant to the Merger shall be validly issued and outstanding as
fully
paid and non-assessable shares and the Acquisition Shares shall be
transferable upon the books of Tech Lab, in all cases subject to
the
provisions and restrictions of all applicable securities laws;
and
|
| (kk) |
Securities
Law Compliance.
Except as set forth in the SEC Reports, Tech Lab has not issued any
shares
of its common stock (or securities convertible into or exercisable
for
shares of common stock). Neither Tech Lab nor any person acting on
its
behalf has taken or will take any action (including, without limitation,
any offering of any securities of Tech Lab under circumstances which
would
require the integration of such offering with the offering of the
Acquisition Shares issued to the Renewal Shareholders) which subject
the
issuance or sale of such shares to the Renewal Shareholders to the
registration requirements of Section 5 of the Securities
Act.
|
Non-Merger
and Survival
3.2 The
representations and warranties of Tech Lab and the Acquirer contained herein
are
true and correct as of the date of this Agreement and will be true at and as
of
Closing in all material respects as though such representations and warranties
were made as of such time. Notwithstanding the completion of the transactions
contemplated hereby, the waiver of any condition contained herein (unless such
waiver expressly releases a party from any such representation or warranty)
or
any investigation made by the Renewal Shareholders, the representations and
warranties of Tech Lab shall survive the Closing for a period of two (2) years.
Indemnity
3.3 Tech
Lab
shall defend, indemnify and save harmless the Renewal Shareholders from and
against any and all claims, demands, actions, suits, proceedings, assessments,
judgments, damages, costs, losses and expenses, including any payment made
in
good faith in settlement of any claim (subject to the right of Tech Lab to
defend any such claim), resulting from the breach by it of any representation
or
warranty made under this Agreement or from any misrepresentation in or omission
from any certificate or other instrument furnished or to be furnished by Tech
Lab and/or the Acquirer to the Renewal Shareholders hereunder provided that
each
individual claim or series of related claims exceeds Five Thousand Dollars
($5,000).
ARTICLE
4
COVENANTS
OF TECH LAB
Covenants
4.1 Tech
Lab
covenants and agrees with Renewal that Tech Lab will:
| (a) |
Conduct
of Business.
Until the Closing, conduct its business diligently and in the ordinary
course consistent with the manner in which it generally has been
operated
up to the date of execution of this Agreement;
|
| (b) |
Access.
Until the Closing, give the Renewal Shareholders and their representatives
full access to all of the properties, books, contracts, commitments
and
records of Tech Lab, and furnish to the Renewal Shareholders and
their
representatives all such information as they may reasonably
request;
|
| (c) |
Procure
Consents.
Until the Closing, take all reasonable steps required to obtain,
prior to
Closing, any and all third party consents required to permit the
Merger;
|
| (d) |
Public
Information.
Make and keep public information available, as those terms are understood
and defined in Rule 144; and
|
| (e) |
SEC
Filings.
File with the Commission in a timely manner, all reports and other
documents required of Tech Lab under either the Securities Act or
the
Exchange Act.
|
Authorization
4.2 Tech
Lab
hereby agrees to authorize and direct any and all federal, state, municipal,
foreign and international governments and regulatory authorities having
jurisdiction respecting Tech Lab and its subsidiaries to release any and all
information in their possession respecting Tech Lab and its subsidiaries to
Renewal. Tech Lab shall promptly execute and deliver to Renewal any and all
consents to the release of information and specific authorizations which Renewal
reasonably requires to gain access to any and all such information.
Reports
Under the Exchange Act
4.3 With
a
view to making available to the Renewal Shareholders the benefits of Rule 144
promulgated under the Securities Act or any other similar rule or regulation
of
the Commission that may at any time permit the Renewal Shareholders to sell
securities of Tech Lab to the public without registration and without imposing
restrictions arising under the federal securities laws on the purchases thereof
(“Rule 144”), and provided that the one year holding period imposed by paragraph
d of Rule 144 has been met, Tech Lab agrees to furnish to each Renewal
Shareholder, so long as such Renewal Shareholder owns Tech Lab Common Shares,
promptly upon request, (i) a written statement by Tech Lab that it has complied
with the reporting requirements of Rule 144, the Securities Act and the Exchange
Act, (ii) a copy of the most recent annual or quarterly report of Tech Lab
and
such other reports and documents so filed by Tech Lab, and (iii) such other
information as may be reasonably requested to permit the Renewal Shareholders
to
sell such securities pursuant to Rule 144 without registration.
Survival
4.4 The
covenants set forth in this Article shall survive the Closing for the benefit
of
the Renewal Shareholders.
ARTICLE
5
REPRESENTATIONS
AND WARRANTIES OF
RENEWAL
Representations
and Warranties
5.1 Renewal
represents and warrants in all material respects to Tech Lab, with the intent
that it will rely thereon in entering into this Agreement and in approving
and
completing the transactions contemplated hereby, that:
Renewal
- Corporate Status and Capacity
| (a) |
Incorporation.
Renewal is a corporation duly incorporated and validly existing under
the
laws of the State of Delaware, and is in good standing with the office
of
the Secretary of State for the State of
Delaware;
|
| (b) |
Carrying
on Business.
Renewal carries on business primarily in the State of Nevada and
does not
carry on any material business activity in any other jurisdiction.
The
nature of the Renewal Business does not require Renewal to register
or
otherwise be qualified to carry on business in any other
jurisdiction;
|
| (c) |
Corporate
Capacity.
Renewal has the corporate power, capacity and authority to own the
Renewal
Assets and to carry on the Renewal Business and Renewal has the corporate
power, capacity and authority to enter into and complete this
Agreement;
|
Renewal
- Capitalization
| (d) |
Authorized
Capital.
The authorized capital of Renewal consists of 5,800,000 shares of
common
stock, $0.01 par value per share;
|
| (e) |
Ownership
of Renewal Shares.
The issued and outstanding share capital of Renewal will on Closing
consist of 5,727,979 common shares (being the Renewal Shares), which
shares on Closing shall be validly issued and outstanding as fully
paid
and non-assessable shares. The Renewal Shareholders will be at Closing
the
registered and beneficial owner of the Renewal Shares. The Renewal
Shares
owned by the Renewal Shareholders will on Closing be free and clear
of any
and all liens, charges, pledges, encumbrances, restrictions on transfer
and adverse claims whatsoever not created by or through Tech Lab
and/or
the Acquirer;
|
| (f) |
No
Option.
No person, firm or corporation has any agreement, option, warrant,
preemptive right or any other right capable of becoming an agreement
or
option for the acquisition of Renewal Shares held by the Renewal
Shareholders or for the purchase, subscription or issuance of any
of the
unissued shares in the capital of
Renewal;
|
| (g) |
No
Restrictions.
There are no restrictions on the transfer, sale or other disposition
of
Renewal Shares contained in the charter documents of Renewal or under
any
agreement;
|
Renewal
- Records and Financial Statements
| (h) |
Charter
Documents.
The charter documents of Renewal have not been altered since its
incorporation date, except as filed in the record books of
Renewal;
|
| (i) |
Corporate
Minute Books.
The corporate minute books of Renewal are complete and each of the
minutes
contained therein accurately reflect the actions that were taken
at a duly
called and held meeting or by consent without a meeting. All actions
by
Renewal which required director or shareholder approval are reflected
on
the corporate minute books of Renewal. Renewal is not in violation
or
breach of, or in default with respect to, any term of its Articles
of
Incorporation (or other charter documents) or
by-laws;
|
| (j) |
Renewal
Financial Statements.
The Renewal Financial Statements present fairly, in all material
respects,
the assets and liabilities (whether accrued, absolute, contingent
or
otherwise) of Renewal as of the respective dates thereof, and the
results
of operations and changes in financial position of Renewal during
the
periods covered thereby, and will be prepared in accordance with
generally
accepted accounting principles consistently applied throughout the
periods
indicated;
|
| (k) |
Renewal
Accounts Payable and Liabilities.
There are no material liabilities, contingent or otherwise, of Renewal
which are not reflected in the Renewal Financial Statements except
those
incurred in the ordinary course of business since the date of the
Renewal
Financial Statements, and Renewal has not guaranteed or agreed to
guarantee any debt, liability or other obligation of any person,
firm or
corporation;
|
| (l) |
Renewal
Accounts Receivable.
All Renewal Accounts Receivable result from bona fide business
transactions and services actually rendered without, to the knowledge
and
belief of Renewal, any claim by the obligor for set-off or
counterclaim;
|
| (m) |
No
Debt to Related Parties.
Renewal is not, and on Closing will not be, materially indebted to
the
Renewal Shareholders nor to any family member thereof, nor to any
affiliate, director or officer of Renewal or the Renewal Shareholders
except accounts payable on account of bona fide business transactions
of
Renewal incurred in normal course of Renewal
Business;
|
| (n) |
No
Related Party Debt to Renewal.
Neither the Renewal Shareholders nor any director, officer or affiliate
of
Renewal are now indebted to or under any financial obligation to
Renewal
on any account whatsoever, except for advances on account of travel
and
other expenses not exceeding Five Thousand Dollars ($5,000) in
total;
|
| (o) |
No
Dividends.
No dividends or other distributions on any shares in the capital
of
Renewal have been made, declared or authorized since the date of
the
Renewal Financial Statements;
|
| (p) |
No
Payments.
No payments of any kind have been made or authorized since the date
of the
Renewal Financial Statements to or on behalf of the Renewal Shareholders
or to or on behalf of officers, directors, shareholders or employees
of
Renewal, except payments made in the ordinary course of business
and at
the regular rates of salary or other remuneration payable to
them;
|
| (q) |
No
Pension Plans.
Except as otherwise disclosed, there are no pension, profit sharing,
group
insurance or similar plans or other deferred compensation plans affecting
Renewal;
|
| (r) |
No
Adverse Events.
Since the date of the Renewal Financial
Statements:
|
| (i) |
there
has not been any material adverse change in the properties, results
of
operations, financial position or condition of Renewal, its liabilities
or
the Renewal Assets or any damage, loss or other change in circumstances
materially affecting Renewal, the Renewal Business or the Renewal
Assets
or Renewal’s right to carry on the Renewal Business, other than changes in
the ordinary course of business,
|
| (ii) |
there
has not been any damage, destruction, loss or other event (whether
or not
covered by insurance) materially and adversely affecting Renewal,
the
Renewal Business or the Renewal
Assets,
|
| (iii) |
there
has not been any material increase in the compensation payable or
to
become payable by Renewal to the Renewal Shareholders or to any of
Renewal's officers, employees or agents or any bonus, payment or
arrangement made to or with any of them except in the ordinary course,
or
as required by written agreement;
|
| (iv) |
the
Renewal Business has been and continues to be carried on in the ordinary
course,
|
| (v) |
Renewal
has not waived or surrendered any right of material
value,
|
| (vi) |
Renewal
has not discharged or satisfied or paid any lien or encumbrance or
obligation or liability other than current liabilities in the ordinary
course of business, and
|
| (vii) |
no
capital expenditures in excess of Ten Thousand Dollars ($10,000)
individually or Thirty Thousand Dollars ($30,000) in total have
been
authorized or made;
|
Renewal
- Income Tax Matters
| (s) |
Tax
Returns.
All tax returns and reports of Renewal required by law to be filed
have
been filed and to the best of Renewal’s knowledge and belief are true,
complete and correct, and any taxes payable in accordance with any
return
filed by Renewal or in accordance with any notice of assessment or
reassessment issued by any taxing authority have been so
paid;
|
| (t) |
Current
Taxes.
Adequate provisions have been made for taxes payable for the current
period for which tax returns are not yet required to be filed and
there
are no agreements, waivers, or other arrangements providing for an
extension of time with respect to the filing of any tax return by,
or
payment of, any tax, governmental charge or deficiency by Renewal.
Renewal
is not aware of any contingent tax liabilities or any grounds which
would
prompt a reassessment including aggressive treatment of income and
expenses in filing earlier tax
returns;
|
Renewal
- Applicable Laws and Legal Matters
| (u) |
Licenses.
Renewal holds all licenses and permits as may be requisite for carrying
on
the Renewal Business in the manner in which it has heretofore been
carried
on, which licenses and permits have been maintained and continue
to be in
good standing except where the failure to obtain or maintain such
licenses
or permits would not have a material adverse effect on the Renewal
Business;
|
| (v) |
Applicable
Laws.
Renewal has not been charged with or received notice of breach of
any
laws, ordinances, statutes, regulations, by-laws, orders or decrees
to
which it is subject or which applies to it the violation of which
would
have a material adverse effect on the Renewal Business, and, to Renewal’s
knowledge and belief, Renewal is not in breach of any laws, ordinances,
statutes, regulations, by-laws, orders or decrees the contravention
of
which would result in a material adverse impact on the Renewal Business;
|
| (w) |
Pending
or Threatened Litigation.
There is no material litigation or administrative or governmental
proceeding pending or threatened against or relating to Renewal,
the
Renewal Business, or any of the Renewal Assets, nor does Renewal
have any
knowledge of any deliberate act or omission of Renewal that would
form any
material basis for any such action or
proceeding;
|
| (x) |
No
Bankruptcy.
Renewal has not made any voluntary assignment or proposal under applicable
laws relating to insolvency and bankruptcy and no bankruptcy petition
has
been filed or presented against Renewal and no order has been made
or a
resolution passed for the winding-up, dissolution or liquidation
of
Renewal;
|
| (y) |
Labor
Matters.
Renewal is not a party to any collective agreement relating to the
Renewal
Business with any labor union or other association of employees and
no
part of the Renewal Business has been certified as a unit appropriate
for
collective bargaining or, to the knowledge of Renewal, has made any
attempt in that regard and Renewal has no reason to believe that
any
current employees will leave Renewal's employ as a result of this
Merger;
|
| (z) |
Finder's
Fees.
Renewal is not a party to any agreement which provides for the payment
of
finder's fees, brokerage fees, commissions or other fees or amounts
which
are or may become payable to any third party in connection with the
execution and delivery of this Agreement and the transactions contemplated
herein;
|
Execution
and Performance of Agreement
| (aa) |
Authorization
and Enforceability.
The execution and delivery of this Agreement, and the completion
of the
transactions contemplated hereby, have been duly and validly authorized
by
all necessary corporate action on the part of Renewal and the Renewal
Shareholders;
|
| (bb) |
No
Violation or Breach.
The execution and performance of this Agreement will
not
|
| (i) |
violate
the charter documents of Renewal or result in any breach of, or default
under, any loan agreement, mortgage, deed of trust, or any other
agreement
to which Renewal is a party,
|
| (ii) |
give
any person any right to terminate or cancel any agreement including,
without limitation, Renewal Material Contracts, or any right or rights
enjoyed by Renewal,
|
| (iii) |
result
in any material alteration of Renewal's obligations under any agreement
to
which Renewal is a party including, without limitation, the Renewal
Material Contracts,
|
| (iv) |
result
in the creation or imposition of any lien, encumbrance or restriction
of
any nature whatsoever in favor of a third party upon or against the
Renewal Assets,
|
| (v) |
result
in the imposition of any tax liability to Renewal relating to Renewal
Assets or the Renewal Shares, or
|
| (vi) |
violate
any court order or decree to which Renewal is subject;
|
Renewal
Assets - Ownership and Condition
| (cc) |
Business
Assets.
The Renewal Assets comprise all of the property and assets of the
Renewal
Business, and neither the Renewal Shareholders nor any other person,
firm
or corporation owns any assets used by Renewal in operating the Renewal
Business, whether under a lease, rental agreement or other
arrangement;
|
| (dd) |
Title.
Renewal is the legal and beneficial owner of the Renewal Assets,
free and
clear of all mortgages, liens, charges, pledges, security interests,
encumbrances or other claims
whatsoever;
|
| (ee) |
No
Option.
No person, firm or corporation has any agreement or option or a right
capable of becoming an agreement for the purchase of any of the Renewal
Assets;
|
| (ff) |
Renewal
Insurance Policies.
Renewal maintains the public liability insurance and insurance against
loss or damage to the Renewal Assets and the Renewal
Business;
|
| (gg) |
Renewal
Material Contracts.
The Renewal Material Contracts constitute all of the material contracts
of
Renewal;
|
| (hh) |
No
Default.
There has not been any default in any material obligation of Renewal
or
any other party to be performed under any of Renewal Material Contracts,
each of which is in good standing and in full force and effect and
unamended, and Renewal is not aware of any default in the obligations
of
any other party to any of the Renewal Material Contracts, except
with
respect to the previously due promissory note payable to Biodiesel
Solutions, Inc.;
|
| (ii) |
No
Compensation on Termination.
To the best of the Renewal Shareholders’ knowledge, there are no
agreements, commitments or understandings relating to severance pay
or
separation allowances on termination of employment of any employee
of
Renewal. Renewal is not obliged to pay benefits or share profits
with any
employee after termination of employment except as required by
law;
|
Renewal
Assets
- Renewal Equipment
| (jj) |
Renewal
Equipment.
The Renewal Equipment has been maintained in a manner consistent
with that
of a reasonably prudent owner and such equipment is in good working
condition, reasonable wear and tear
excepted;
|
Renewal
Assets - Renewal Goodwill and Other Assets
| (kk) |
Renewal
Goodwill.
Renewal carries on the Renewal Business only under the name "Renewal
Fuels, Inc.” and variations thereof and under no other business or trade
names. Renewal does not have any knowledge of any infringement by
Renewal
of any patent, trademark, copyright or trade
secret;
|
The
Business of Renewal
| (ll) |
Maintenance
of Business.
Since the date of the Renewal Financial Statements, the Renewal Business
has been carried on in the ordinary course and Renewal has not entered
into any material agreement or commitment except in the ordinary
course;
and
|
| (mm) |
Subsidiaries.
Renewal does not have any subsidiaries and does not otherwise own,
directly or indirectly, any shares or interest in any other corporation,
partnership, joint venture or firm.
|
Non-Merger
and Survival
5.2 The
representations and warranties of Renewal contained herein will be true at
and
as of Closing in all material respects as though such representations and
warranties were made as of such time. Notwithstanding the completion of the
transactions contemplated hereby, the waiver of any condition contained herein
(unless such waiver expressly releases a party from any such representation
or
warranty) or any investigation made by Tech Lab, the representations and
warranties of Renewal shall survive the Closing for a period of two (2) years.
Indemnity
5.3 Renewal
agrees to indemnify and save harmless Tech Lab from and against any and all
claims, demands, actions, suits, proceedings, assessments, judgments, damages,
costs, losses and expenses, including any payment made in good faith in
settlement of any claim (subject to the right of Renewal to defend any such
claim), resulting from the breach by any of them of any representation or
warranty of such party made under this Agreement or from any misrepresentation
in or omission from any certificate or other instrument furnished or to be
furnished by Renewal to Tech Lab hereunder provided that each individual claim
or series of related claims exceeds Five Thousand Dollars ($5,000). Legal fees
and other costs of defending and prosecuting this action shall be borne by
Renewal. To the extent Renewal prevails in this action, the recovery shall
be
applied first to reimburse Renewal for expenses incurred in such action, and
any
remaining balance shall be split between Renewal and the Renewal
Shareholders.
ARTICLE
6
COVENANTS
OF RENEWAL
Covenants
6.1 Renewal
covenants and agrees with Tech Lab that it will:
| (a) |
Conduct
of Business.
Until the Closing, conduct the Renewal Business diligently and in
the
ordinary course consistent with the manner in which the Renewal Business
generally has been operated up to the date of execution of this Agreement;
|
| (b) |
Preservation
of Business.
Until the Closing, use their best efforts to preserve the Renewal
Business
and the Renewal Assets and, without limitation, preserve for Tech
Lab
Renewal’s relationships with their suppliers, customers and others having
business relations with them;
|
| (c) |
Access.
Until the Closing, give Tech Lab and its representatives full access
to
all of the properties, books, contracts, commitments and records
of
Renewal relating to Renewal, the Renewal Business and the Renewal
Assets,
and furnish to Tech Lab and its representatives all such information
as
they may reasonably request;
|
| (d) |
Procure
Consents.
Until the Closing, take all reasonable steps required to obtain,
prior to
Closing, any and all third party consents required to permit the
Merger
and to preserve and maintain the Renewal Assets, including the Renewal
Material Contracts, notwithstanding the change in control of Renewal
arising from the Merger; and
|
| (e) |
Reporting
and Internal Controls.
From and after the Effective Time, forthwith take all required actions
to
implement internal controls on the business of the Surviving Company
to
ensure that the Surviving Company complies with Section 13(b)(2)
of the
Exchange Act.
|
Authorization
6.2
Renewal
hereby agrees to authorize and direct any and all federal, state, municipal,
foreign and international governments and regulatory authorities having
jurisdiction respecting Renewal to release any and all information in their
possession respecting Renewal to Tech Lab. Renewal shall promptly execute
and
deliver to Tech Lab any and all consents to the release of information and
specific authorizations which Tech Lab reasonably require to gain access
to any
and all such information.
Survival
6.3
The
covenants set forth in this Article shall survive the Closing for the benefit
of
Tech Lab.
ARTICLE
7
CONDITIONS
PRECEDENT
Conditions
Precedent in favor of Tech Lab
7.1 Tech
Lab’
obligations to carry out the transactions contemplated hereby are subject to
the
fulfillment (or waiver by Tech Lab) of each of the following conditions
precedent on or before the Closing:
| (a) |
all
documents or copies of documents required to be executed and delivered
to
Tech Lab hereunder will have been so executed and
delivered;
|
| (b) |
all
of the terms, covenants and conditions of this Agreement to be complied
with or performed by Renewal or the Renewal Shareholders at or prior
to
the Closing will have been complied with or
performed;
|
| (c) |
Tech
Lab shall have completed its review and inspection of the books and
records of Renewal and shall be reasonably satisfied with same in
all
material respects;
|
| (d) |
title
to the Renewal Shares held by the Renewal Shareholders and to the
Renewal
Assets will be free and clear of all mortgages, liens, charges, pledges,
security interests, encumbrances or other claims whatsoever not created
by
or through Tech Lab and/or the
Acquirer;
|
| (e) |
the
Certificate of Merger shall be executed by Renewal in form acceptable
for
filing with the Delaware Secretary of
State;
|
| (f) |
subject
to Article 8 hereof, there will not have
occurred:
|
| (i) |
any
material adverse change in the financial position or condition of
Renewal,
its liabilities or the Renewal Assets or any damage, loss or other
change
in circumstances materially and adversely affecting the Renewal Business
or the Renewal Assets or Renewal's right to carry on the Renewal
Business,
other than changes in the ordinary course of business, none of which
has
been materially adverse, or
|
| (ii) |
any
damage, destruction, loss or other event, including changes to any
laws or
statutes applicable to Renewal or the Renewal Business (whether or
not
covered by insurance) materially and adversely affecting Renewal,
the
Renewal Business or the Renewal
Assets;
|
| (g) |
the
transactions contemplated hereby shall have been approved by all
other
regulatory authorities having jurisdiction over the subject matter
hereof,
if any; and
|
| (h) |
all
representations and warranties of Renewal and the Renewal Shareholders
contained herein shall be true and correct as of the Closing
Date.
|
Waiver
by Tech Lab
7.2 The
conditions precedent set out in the preceding section are inserted for the
exclusive benefit of Tech Lab and any such condition may be waived in whole
or
in part by Tech Lab at or prior to Closing by delivering to Renewal and the
Renewal Shareholders a written waiver to that effect signed by Tech Lab. In
the
event that the conditions precedent set out in the preceding section are not
satisfied on or before the Closing, Tech Lab shall be released from all
obligations under this Agreement.
Conditions
Precedent in Favor of Renewal and the Renewal Shareholders
7.3 The
obligations of Renewal and the Renewal Shareholders to carry out the
transactions contemplated hereby are subject to the fulfillment of each of
the
following conditions precedent on or before the Closing:
| (a) |
all
documents or copies of documents required to be executed and delivered
to
Renewal or the Renewal Shareholders hereunder will have been so executed
and delivered;
|
| (b) |
all
of the terms, covenants and conditions of this Agreement to be complied
with or performed by Tech Lab or the Acquirer at or prior to the
Closing
will have been complied with or
performed;
|
| (c) |
Renewal
shall have completed its review and inspection of the books and records
of
Tech Lab and its subsidiaries and shall be reasonably satisfied with
same
in all material respects;
|
| (d) |
Tech
Lab will have delivered the Acquisition Shares to be issued pursuant
to
the terms of the Merger to the Renewal Shareholders at the Closing
and the
Acquisition Shares will be registered on the books of Tech Lab in
the name
of the Renewal Shareholders at the Effective
Time;
|
| (e) |
title
to the Acquisition Shares will be free and clear of all mortgages,
liens,
charges, pledges, security interests, encumbrances or other claims
whatsoever;
|
| (f) |
the
Certificate of Merger shall be executed by the Acquirer in form acceptable
for filing with the Delaware Secretary of State;
|
| (g) |
subject
to Article 8 hereof, there will not have
occurred
|
| (i) |
any
material adverse change in the financial position or condition of
Tech
Lab, its subsidiaries, their assets of liabilities or any damage,
loss or
other change in circumstances materially and adversely affecting
Tech Lab
or the Tech Lab Business or Tech Lab’ right to carry on the Tech Lab
Business, other than changes in the ordinary course of business,
none of
which has been materially adverse,
or
|
| (ii) |
any
damage, destruction, loss or other event, including changes to any
laws or
statutes applicable to Tech Lab or the Tech Lab Business (whether
or not
covered by insurance) materially and adversely affecting Tech Lab,
its
subsidiaries or its assets;
|
| (i) |
the
transactions contemplated hereby shall have been approved by all
other
regulatory authorities having jurisdiction over the subject matter
hereof,
if any; and
|
| (j) |
all
representations and warranties of Tech Lab and the Acquirer contained
herein shall be true and correct as of the Closing
Date.
|
Waiver
by Renewal and the Renewal Shareholders
7.4 The
conditions precedent set out in the preceding section are inserted for the
exclusive benefit of Renewal and the Renewal Shareholders and any such condition
may be waived in whole or in part by Renewal or the Renewal Shareholders at
or
prior to the Closing by delivering to Tech Lab a written waiver to that effect
signed by Renewal and the Renewal Shareholders. In the event that the conditions
precedent set out in the preceding section are not satisfied on or before the
Closing Renewal and the Renewal Shareholders shall be released from all
obligations under this Agreement.
Nature
of Conditions Precedent
7.5 The
conditions precedent set forth in this Article are conditions of completion
of
the transactions contemplated by this Agreement and are not conditions precedent
to the existence of a binding agreement. Each party acknowledges receipt of
the
sum of $1.00 and other good and valuable consideration as separate and distinct
consideration for agreeing to the conditions precedent in favor of the other
party or parties set forth in this Article.
Confidentiality
7.6 Notwithstanding
any provision herein to the contrary, the parties hereto agree that the
existence and terms of this Agreement are confidential and that if this
Agreement is terminated pursuant to the preceding section the parties agree
to
return to one another any and all financial, technical and business documents
delivered to the other party or parties in connection with the negotiation
and
execution of this Agreement and shall keep the terms of this Agreement and
all
information and documents received from Renewal and Tech Lab and the contents
thereof confidential and not utilize nor reveal or release same, provided,
however, that Tech Lab may be required to issue news releases regarding the
execution and consummation of this Agreement and file a Current Report on Form
8-K with the Securities and Exchange Commission respecting the proposed Merger
contemplated hereby together with such other documents as are required to
maintain the currency of Tech Lab’ filings with the Securities and Exchange
Commission.
ARTICLE
8
RISK
Material
Change in the Business of Renewal
8.1 If
any
material loss or damage to the Renewal Business occurs prior to Closing and
such
loss or damage, in Tech Lab' reasonable opinion, cannot be substantially
repaired or replaced within sixty (60) days, Tech Lab shall, within two (2)
days
following any such loss or damage, by notice in writing to Renewal, at its
option, either:
| (a) |
terminate
this Agreement, in which case no party will be under any further
obligation to any other party; or
|
| (b) |
elect
to complete the Merger and the other transactions contemplated hereby,
in
which case the proceeds and the rights to receive the proceeds of
all
insurance covering such loss or damage will, as a condition precedent
to
Tech Lab' obligations to carry out the transactions contemplated
hereby,
be vested in Renewal or otherwise adequately secured to the satisfaction
of Tech Lab on or before the Closing
Date.
|
Material
Change in the Tech Lab Business
8.2 If
any
material loss or damage to the Tech Lab Business occurs prior to Closing and
such loss or damage, in Renewal's reasonable opinion, cannot be substantially
repaired or replaced within sixty (60) days, Renewal shall, within two (2)
days
following any such loss or damage, by notice in writing to Tech Lab, at its
option, either:
| (a) |
terminate
this Agreement, in which case no party will be under any further
obligation to any other party; or
|
| (b) |
elect
to complete the Merger and the other transactions contemplated hereby,
in
which case the proceeds and the rights to receive the proceeds of
all
insurance covering such loss or damage will, as a condition precedent
to
Renewal's obligations to carry out the transactions contemplated
hereby,
be vested in Tech Lab or otherwise adequately secured to the satisfaction
of Renewal on or before the Closing
Date.
|
ARTICLE
9
CLOSING
Closing
9.1 The
Merger and the other transactions contemplated by this Agreement will be closed
at the Place of Closing in accordance with the closing procedure set out in
this
Article.
Documents
to be Delivered by Renewal
9.2 On
or
before the Closing, Renewal and the Renewal Shareholders will deliver or cause
to be delivered to Tech Lab:
| (a) |
the
original or certified copies of the charter documents of Renewal
and all
corporate records documents and instruments of Renewal, the corporate
seal
of Renewal, if one exists, and all books and accounts of
Renewal;
|
| (b) |
all
reasonable consents or approvals required to be obtained by Renewal
for
the purposes of completing the Merger and preserving and maintaining
the
interests of Renewal under any and all Renewal Material Contracts
and in
relation to Renewal Assets;
|
| (c) |
certified
copies of such resolutions of the shareholders and directors of Renewal
as
are required to be passed to authorize the execution, delivery and
implementation of this Agreement;
|
| (d) |
an
acknowledgement from Renewal of the satisfaction of the conditions
precedent set forth in section 7.3
hereof;
|
| (e) |
such
other documents as Tech Lab may reasonably require to give effect
to the
terms and intention of this
Agreement.
|
Documents
to be Delivered by Tech Lab
9.3 On
or
before the Closing, Tech Lab and the Acquirer shall deliver or cause to be
delivered to Renewal and the Renewal Shareholders:
| (a) |
share
certificates representing the Acquisition Shares duly registered
in the
names of the Renewal Shareholders;
|
| (b) |
certified
copies of such resolutions of the directors of Tech Lab and the Acquirer
as are required to be passed to authorize the execution, delivery
and
implementation of this Agreement;
|
| (c) |
an
acknowledgement from Tech Lab of the satisfaction of the conditions
precedent set forth in section 7.1
hereof;
|
| (d) |
undated
resignation of Xxxxx Xxxxxxxxx as a director of Tech Lab;
and
|
| (e) |
such
other documents as Renewal may reasonably require to give effect
to the
terms and intention of this
Agreement.
|
ARTICLE
10
POST-CLOSING
MATTERS
General
10.1 Forthwith
after the Closing, Tech Lab, Renewal and the Renewal Shareholders agree to
use
all their best efforts to:
| (a) |
file
the Certificate of Merger with the Secretary of State of
Delaware;
|
| (b) |
issue
a news release reasonably acceptable to each party reporting the
Closing;
|
| (c) |
file
with the Securities and Exchange Commission a report on Form 14f-1
disclosing the change in control of Tech Lab and, 10 days after such
filing, date and accept the resignation of Xxxxx Xxxxxxxxx as a director
of Tech Lab;
|
| (d) |
file
a Form 8-K with the Securities and Exchange Commission disclosing
the
terms of this Agreement which includes audited financial statements
of
Renewal as well as pro forma financial information of Renewal and
Tech Lab
as required by Regulation SB as promulgated by the Securities and
Exchange
Commission (all at no cost to the Renewal Shareholders);
and
|
| (e) |
file
reports on Form 3 (and Form 13D, where applicable) with the Securities
and
Exchange Commission disclosing the acquisition of the Acquisition
Shares
by the Renewal Shareholders.
|
| (f) |
Complete
the funding of at least $1,000,000 by Cornell Capital Partners, LP.
|
ARTICLE
11
GENERAL
PROVISIONS
Arbitration
11.1 The
parties hereto shall attempt to resolve any dispute, controversy, difference
or
claim arising out of or relating to this Agreement by negotiation in good faith.
If such good negotiation fails to resolve such dispute, controversy, difference
or claim within thirty (30) days after any party delivers to any other party
a
notice of its intent to submit such matter to arbitration, then any party to
such dispute, controversy, difference or claim may submit such matter to
arbitration.
Any
action or proceeding seeking to enforce any provision of, or based upon any
right arising out of, this Agreement shall be settled by binding arbitration
by
a panel of three (3) arbitrators in accordance with the Commercial Arbitration
Rules of the American Arbitration Association and governed by the laws of the
State of Delaware (without regard to the choice-of-law rules or principles
of
that jurisdiction). Judgment upon the award may be entered in any court located
in the State of Delaware, and all the parties hereto hereby expressly waive
any
objections or defense based upon lack of personal jurisdiction.
Each
of
the plaintiff and defendant party to the arbitration shall select one (1)
arbitrator (or where multiple plaintiffs and/or defendants exist, one (1)
arbitrator shall be chosen collectively by such parties comprising the
plaintiffs and one (1) arbitrator shall be chosen collectively by those parties
comprising the defendants) and then the two (2) arbitrators shall mutually
agree
upon the third arbitrator. Where no agreement can be reached on the selection
of
either a third arbitrator or an arbitrator to be named by either a group of
plaintiffs or a group of defendants, any implicated party may apply to a judge
of the courts of the State of Delaware, to name an arbitrator. Process in any
such action or proceeding may be served on any party anywhere in the
world.
Indemnification
Provisions
11.2 Notice
to
Indemnifying Party. If any party (the "Indemnitee") receives notice of any
claim
or the commencement of any action or proceeding with respect to which the other
party (or parties) is obligated to provide indemnification (the "Indemnifying
Party") pursuant to Sections 3.3 or 5.3 hereof, the Indemnitee shall give the
Indemnifying Party written notice thereof within a reasonable period of time
following the Indemnitee’s receipt of such notice. Such notice shall describe
the claim in reasonable detail and shall indicate the amount (estimated if
necessary) of the losses that have been or may be sustained by the Indemnitee.
The Indemnifying Party may, subject to the other provisions of this Section
11.2, compromise or defend, at such Indemnifying Party's own expense and by
such
Indemnifying Party's own counsel, any such matter involving the asserted
liability of the Indemnitee in respect of a third-party claim. If the
Indemnifying Party elects to compromise or defend such asserted liability,
it
shall within thirty (30) days (or sooner, if the nature of the asserted
liability so requires) notify the Indemnitee of its intent to do so, and the
Indemnitee, shall reasonably cooperate, at the request and reasonable expense
of
the Indemnifying Party, in the compromise of, or defense against, such asserted
liability. The Indemnifying Party will not be released from any obligation
to
indemnify the Indemnitee hereunder with respect to a claim without the prior
written consent of the Indemnitee, unless the Indemnifying Party delivers to
the
Indemnitee a duly executed agreement settling or compromising such claim with
no
monetary liability to or injunctive relief against the Indemnitee and a complete
release of the Indemnitee with respect thereto. The Indemnifying Party shall
have the right to conduct and control the defense of any third-party claim
made
for which it has been provided notice hereunder. All costs and fees incurred
with respect to any such claim will be borne by the Indemnifying Party. The
Indemnitee will have the right to participate, but not control, at its own
expense, the defense or settlement of any such claim; provided, that if the
Indemnitee and the Indemnifying Party shall have conflicting claims or defenses,
the Indemnifying Party shall not have control of such conflicting claims or
defenses and the Indemnitee shall be entitled to appoint a separate counsel
for
such claims and defenses at the cost and expense of the Indemnifying Party.
If
the Indemnifying Party chooses to defend any claim, the Indemnitee shall make
available to the Indemnifying Party any books, records or other documents within
its control that are reasonably required for such defense.
Notice
11.3 Any
notice required or permitted to be given by any party will be deemed to be
given
when in writing and delivered to the address for notice of the intended
recipient by personal delivery, prepaid certified or registered mail, or
Facsimile. Any notice delivered by mail shall be deemed to have been received
on
the fourth business day after and excluding the date of mailing, except in
the
event of a disruption in regular postal service in which event such notice
shall
be deemed to be delivered on the actual date of receipt. Any notice delivered
personally or by Facsimile shall be deemed to have been received on the actual
date of delivery.
Addresses
for Service
11.4 The
address for service of notice of each of the parties hereto is as
follows:
| (a) |
Tech
Lab or the Acquirer:
|
Tech
Laboratories, Inc.
0000
Xxxxx Xxxxxxx Xxxxxx
Xxxxxxxxx,
Xxxxxxxxx 00000
Attn:
Xxxx Xxxx, Chief Executive Officer
Phone:
(000) 000-0000
Facsimile:
000-000-0000
| (b) |
Renewal:
|
Renewal
Fuels, Inc.
0000
Xxxxx Xxxxxxx Xxxxxx
Xxxxxxxxx,
Xxxxxxxxx 00000
Attn:
Xxxx Xxxx, Chief Executive Officer
Phone:
(000) 000-0000
Facsimile:
000-000-0000
Change
of Address
11.5 Any
party
may, by notice to the other parties change its address for notice to some other
address in North America and will so change its address for notice whenever
the
existing address or notice ceases to be adequate for delivery by hand. A post
office box may not be used as an address for service.
Further
Assurances
11.6 Each
of
the parties will execute and deliver such further and other documents and do
and
perform such further and other acts as any other party may reasonably require
to
carry out and give effect to the terms and intention of this
Agreement.
Time
of the Essence
11.7 Time
is
expressly declared to be the essence of this Agreement.
Entire
Agreement
11.8 The
provisions contained herein constitute the entire agreement among Renewal,
the
Renewal Shareholders, the Acquirer and Tech Lab respecting the subject matter
hereof and supersede all previous communications, representations and
agreements, whether verbal or written, among Renewal, the Renewal Shareholders,
the Acquirer and Tech Lab with respect to the subject matter
hereof.
Enurement
11.9 This
Agreement will enure to the benefit of and be binding upon the parties hereto
and their respective heirs, executors, administrators, successors and permitted
assigns.
Assignment
11.10 This
Agreement is not assignable without the prior written consent of the parties
hereto.
Expenses
11.11
Each
party agrees to pay, without right of reimbursement from any other party and
regardless of whether or not the transaction is consummated, the costs incurred
by it in connection with this transaction, including legal fees and other costs
incidental to the negotiation of the terms of the transaction and the
preparation of related documentation.
Counterparts
11.12 This
Agreement may be executed in counterparts, each of which when executed by any
party will be deemed to be an original and all of which counterparts will
together constitute one and the same Agreement. Delivery of executed copies
of
this Agreement by Facsimile will constitute proper delivery, provided that
originally executed counterparts are delivered to the parties within a
reasonable time thereafter.
Applicable
Law
11.13 This
Agreement is subject to the laws of the State of Delaware.
[Remainder
of page intentionally left blank.]
IN
WITNESS WHEREOF
the
parties have executed this Agreement effective as of the day and year first
above written.
|
TECH
LABORATORIES, INC.
|
||
| |
|
|
| By: | /s/ XXXX XXXX | |
|
Xxxx Xxxx, Chief Executive Officer |
||
|
RENEWAL
FUELS ACQUISITIONS, INC.
|
||
| |
|
|
| By: | /s/ XXXX XXXX | |
|
Xxxx Xxxx, Chief Executive Officer |
||
|
RENEWAL
FUELS, INC.
|
||
| |
|
|
| By: | /s/ XXXX XXXX | |
|
Xxxx Xxxx, Chief Executive Officer |
||
