STOCK PURCHASE AGREEMENT
This
Stock Purchase Agreement
(this “Agreement”) is made and
entered into as of November 18, 2008, by and among: Lime Energy Co., a
Delaware corporation (“Lime”), and certain
stockholders of Advanced Biotherapy, Inc., a Delaware corporation (the
“Company”) listed in
Schedule A (each a
“Seller,”
collectively
the
“Sellers”).
Recitals
A. The Sellers
are holders of outstanding shares of common stock, par value $0.001 per share
(“Company Common Stock”) of the Company and each
Seller is the record holder and has sole voting power over such number of
shares
of Company Common Stock as is set forth opposite such Seller’s name on
Schedule A (the
“Shares”).
B. Lime desires
to purchase from Sellers and Sellers desire to sell to Lime, all of the Shares
owned by Sellers, in exchange for shares of Lime’s common stock, par value
$0.0001 per share (the “Lime Common Stock”) at an
exchange ratio (the “Exchange Ratio”) set forth on
Schedule B (the
“Transaction”).
C. Under the
Marketplace Rules of The NASDAQ Stock Market, Inc. (the “Marketplace
Rules”), the issuance of the Lime Common Stock pursuant to the
Transaction requires the approval of the stockholders holding at least a
majority of the outstanding stock of Lime (the “Required
Approval”).
D. Lime intends
to obtain the necessary approval of its stockholders by written consent in
lieu
of meeting. To be effective, such approval must be communicated to all of
the
Lime’s stockholders through an information statement (the
“Information Statement”) pursuant to Section 14(c) of
the Securities Exchange Act of 1934, as amended, and the rules and regulations
promulgated thereunder (collectively, the “Exchange
Act”).
E. Immediately
after the closing of the Transaction, Lime will be the beneficial holder
of 90%
or more of the issued and outstanding Company Common Stock.
NOW,
THEREFORE, in consideration of the mutual benefits to be derived from this
Agreement and of the representations, warranties, conditions, agreements
and
promises contained in this Agreement, the parties agree as follows:
ARTICLE
1
DEFINITIONS
DEFINITIONS
Certain
capitalized terms used in this Agreement have the meanings set forth below
and
other capitalized terms used in this Agreement are defined in the Sections
of
this Agreement where they first appear. All capitalized terms shall be equally
applicable to both the singular and plural forms. Any agreement referred
to
below shall mean such agreement as amended, supplemented and modified from
time
to time to the extent permitted by the applicable provisions thereof and
by this
Agreement.
“Affiliate”
shall
mean, with respect to a Person, any other Person that,
directly or indirectly, Controls, is Controlled by or is under common Control
with such Person. The term “Affiliated” has the meaning correlative to the
foregoing.
“Consent” shall
mean any approval, consent, ratification, permission, waiver or authorization
from or by a Governmental Body including any governmental authorization in
the
form of (a) permit, license, certificate, franchise, permission, variance,
clearance, registration, qualification or authorization issued, granted,
given
or otherwise made available by or under the authority of any Governmental
Body
or pursuant to any Legal Requirement; or (b) right under any contract with
any Governmental Body.
“Control,”
“Controlled,” “Controlling” or
“under common
Control with” with respect to any Person,
means having the ability to direct the management and affairs of such Person,
whether through the ownership of voting securities, by contract or otherwise,
and such ability shall be deemed to exist when a Person holds at least 50%
of
the outstanding voting securities of such Person.
“Entity” shall
mean any corporation (including any non-profit corporation), general
partnership, limited partnership, limited liability partnership, joint venture,
estate, trust, company (including any company limited by shares, limited
liability company or joint stock company), firm, society or other enterprise,
association, organization or entity.
“GAAP” shall
mean generally accepted accounting principles for financial reporting in
the
United States, applied on a basis consistent with the basis on which the
financial statements referred to herein were prepared.
“Governmental Body”
shall
mean any: (a) nation, state, commonwealth, province,
territory, county, municipality, district or other jurisdiction of any nature;
(b) federal, state, local, municipal, foreign or other government; or
(c) governmental or quasi-governmental authority of any nature (including
any governmental division, department, agency, commission, instrumentality,
official, organization, unit, body or Entity and any court or other tribunal).
“Indemnification
Agreement” refers to the agreements between the Company and certain
of its officers and directors, copies of which have been provided to Lime.
“Legal Requirement”
shall
mean any federal, state, local, municipal, foreign or other
law, statute, constitution, principle of common law, resolution, ordinance,
code, edict, decree, rule, regulation, ruling or requirement issued, enacted,
adopted, promulgated, implemented or otherwise put into effect by or under
the
authority of any Governmental Body (or under the authority of any national
securities exchange on which Lime Common Stock is listed). Reference to any
Legal Requirement means such Legal Requirement as amended, modified, codified,
replaced or reenacted, in whole or in part, and in effect from time to time,
and
reference to any section or other provision of any Legal Requirement means
that
provision of such Legal Requirement from time to time in effect and constituting
the substantive amendment, modification, codification, replacement or
reenactment of such section or other provision.
“Lien” shall
mean any lien, pledge, hypothecation, charge, mortgage, security interest,
encumbrance, claim, infringement, interference, option, right of first refusal,
equitable interest, title retention or title reversion agreement, preemptive
right, community property interest or restriction of any nature, whether
accrued, absolute, contingent or otherwise (including any restriction on
the
voting of any security, any restriction on the transfer of any security or
other
asset, any restriction on the receipt of any income derived from any asset,
any
restriction on the use of any asset and any restriction on the possession,
exercise or transfer of any other attribute of ownership of any asset).
“Lime Purchaser”
shall mean either Lime or a wholly-owned Subsidiary of Lime, as determined
by
Lime in its sole discretion.
“Lime Shares”
shall
mean the number of shares of Lime Common Stock to be issued
to the Sellers upon the terms and subject to the conditions set forth in
this
Agreement.
“Losses”
shall
mean damages, liabilities, losses, claims, diminution in value, obligations,
liens, assessments, judgments, Taxes, fines, penalties, reasonable costs
and
expenses (including, without limitation, reasonable fees of counsel) and
including all amounts paid in investigation, defense or settlement of the
foregoing.
“Merger”
shall
mean the merger following the Closing of the Company with and into Lime,
the
Lime Purchaser or a wholly-owned Subsidiary of Lime not the Lime Purchaser,
in
accordance with Section 253 of the Delaware General Corporation Law
“Organizational Documents”
shall
mean an Entity’s certificate or articles of incorporation and
bylaws (in the case of a corporation) and similar organizational documents
(in
the case of other types of Entities).
“Person” shall
mean any individual, Entity or Governmental Body.
“Representatives”
shall
mean any party’s respective directors, officers, employees,
investment bankers, attorneys, accountants or other advisors or representatives.
“SEC” shall
mean
the United States Securities and Exchange Commission.
“SEC Reports”
shall
mean the reports, registration statements and definitive
proxy statements filed by an issuer with the SEC. “Company SEC
Reports” shall refer to the SEC Reports filed by the Company and
“Lime SEC Reports” shall refer to the SEC Reports filed
by Lime.
“Securities Act”
shall
mean the Securities Act of 1933, as amended, and the rules
and regulations promulgated thereunder.
An Entity shall be a
“Subsidiary” of another
Person if such Person directly
or indirectly owns, beneficially or of record, (a) an amount of voting
securities of other interests in such Entity that is sufficient to enable
such
Person to elect at leased a majority of the members of such Entity’s board of
directors or other governing body, or (b) at least 50% of the outstanding
equity or membership interests of such Entity.
“Tax” shall
mean
any tax (including any income tax, franchise tax, capital gains tax, gross
receipts tax, value-added tax, surtax, excise tax, ad valorem tax, transfer
tax,
stamp tax, sales tax, use tax, property tax, business tax, withholding tax
or
payroll tax), levy, assessment, tariff, duty (including any customs duty),
deficiency or fee, and any related charge or amount (including any fine,
penalty
or interest), imposed, assessed or collected by or under the authority of
any
Governmental Body.
“Warrants” shall
mean any options, stock appreciation rights, warrants, convertible or
exchangeable securities or other rights, contracts, commitments, agreements,
understandings or arrangements of any kind relating to the issuance of any
equity interests, or similar rights of an issuer or granting to any Person
any
right to participate in the equity or income of the issuer or to participate
in
or direct the election of any director or officer of the issuer or the manner
in
which any shares of capital stock or other securities of the issuer are voted,
or other rights of any kind (absolute, contingent or otherwise) entitling
any
party to acquire or otherwise receive from the issuer any shares of capital
stock or other securities or receive or exercise any benefits or rights similar
to any rights enjoyed by or inuring to the holder of capital stock of the
issuer, including without limitation “phantom stock” or stock appreciation
rights. “Lime Warrants”
shall mean the foregoing definition
as
applied to Lime as the issuer and “Company Warrants”
shall mean the foregoing definition as applied
to the Company as the issuer.
ARTICLE 2
TRANSACTIONS AT THE CLOSING
TRANSACTIONS AT THE CLOSING
2.1
Purchase and Sale of Shares. Upon the terms and subject
to the conditions
set forth in this Agreement and in reliance upon the representations and
warranties contained herein, at the Closing, each Seller shall sell and deliver
to the Lime Purchaser the Shares owned by such Seller as set forth on
Schedule A and the Lime Purchaser shall purchase
the Shares free and clear of all Liens, for the Purchase Price determined
in
accordance with this Section 2.
2.2
Purchase Price. The consideration (the
“Purchase
Price”) to be paid by the Lime Purchaser to each Seller for its
Shares shall be a number of Lime Shares as reflected on
Schedule A.
2.3
Conditions to Closing. The closing of the Transaction
(the
“Closing”) is subject to (i) the representations
and warranties contained in Articles 3, 4 and 5 being true and correct at
and as of the Closing Date (as defined below) as if made or given on and
as of
the Closing Date; (ii) Lime shall have been afforded access to information
as provided in Section 6.3; and (iii) Lime shall have obtained the
Required Approval and it shall have become effective pursuant to Section
14(c)
of the Exchange Act.
2.4
Closing. The Closing shall take
place at the offices of Xxxx Xxxxx LLP,
00 X. Xxxxxx Xxxxx, Xxxxxxx Xxxxxxxx 00000, or at such other place as the
Company shall designate in writing to Sellers. Lime shall provide Sellers
with
at least five (5) business days’ notice in advance of the closing date (the
“Closing Date”), which notice shall identity the Lime
Purchaser and shall include a certification by Lime’s Chief Executive Officer
that the Required Approval has been obtained and become effective pursuant
to
Section 14(c) of the Exchange Act. At the Closing, the Sellers shall convey
and
deliver to the Lime Purchaser stock certificates representing all of the
Shares,
duly endorsed in blank or accompanied by stock powers duly executed in blank,
against payment of the Purchase Price for the Shares, as provided in
Section 2.2, and Lime, on behalf of the Lime Purchaser, shall
deliver to each Seller the Lime Shares indicated on
Schedule A.
ARTICLE 3
REPRESENTATIONS AND WARRANTIES CONCERNING THE COMPANY
REPRESENTATIONS AND WARRANTIES CONCERNING THE COMPANY
Sellers’
Representative hereby represents
and warrants to Lime, as of the date hereof and
as of the Closing Date:
3.1
Organization. The Company is a corporation,
validly existing and in good
standing under the laws of the State of Delaware and has all corporate power
and
authority to own, lease, and operate its properties and to carry on its business
as it is now being conducted. To the best knowledge of Sellers’ Representative,
the Company is duly organized under the laws of the State of Delaware and
has
all necessary governmental approvals to own, lease, and operate its properties
and to carry on its business as it is now being conducted. Sellers’
Representative has delivered to Lime complete and correct copies of the
Organizational Documents, the stockholder record list, prepared by the Company’s
transfer agent as of November 4, 2008 (the “Stock
Ledger”) and originals or copies of minutes of director meetings
and consents in lieu of meetings in possession of the Company since
June 2004 (collectively, the “Minutes”). To the
best knowledge of Sellers’ Representative, the Stock Ledger is complete,
accurate and current and
the Minutes are complete, accurate
and
current in all material respects. The Company has no direct or indirect
Subsidiaries.
3.2
Capitalization; Title to Shares
(a) The
Company’s authorized capital stock consists solely of 2,000,000,000 shares of
Company Common Stock and 20,000,000 shares of preferred stock. The Shares
represent at least ninety percent (90%) of the issued and outstanding shares
of
Company Common Stock. As of the date hereof (i) 1,167,621,940 shares of
Company Common Stock are issued and outstanding, and (ii) 832,378,060
shares of Company Common Stock are held by the Company as non-voting treasury
shares. No preferred stock is issued and outstanding. All outstanding shares
of
Common Stock are and will on the Closing Date be validly issued, fully paid
and
non-assessable.
(b) To
the best knowledge of Sellers’ Representative, (i) Schedule 3.2(b)
is a true and complete list as of the date hereof, and as of the Closing
Date,
of all issued and outstanding Warrants, the number of shares of Company Common
Stock subject to each such Warrant, and the name of each Warrant holder;
and
(ii) except as set forth on Schedule 3.2(b), there are no
outstanding Warrants.
(c) To
the best knowledge of Sellers’ Representative: (i) the Company has not
issued any securities in violation of any preemptive or similar rights;
(ii) except for 109,902,680 shares of Company Common Stock reserved for
issuance upon exercise of Warrants, there are no shares of capital stock
or
other securities of the Company reserved for issuance for any purpose; and
(iii)
the Company is not a party to any voting agreements, voting trusts, proxies
or
other agreements, instruments or understandings with respect to the voting
of
any shares of the capital stock or other securities of the Company, or any
agreement with respect to the transferability, purchase or redemption of
any
shares of capital stock or other securities of the Company.
3.3
Company SEC Reports. To the best knowledge
of Sellers’ Representative, as
of their respective dates, the Company SEC Reports: (a) were prepared
in accordance and complied in all material respects with the requirements
of the
Securities Act or the Exchange Act, as the case may be, applicable to such
Company SEC Reports; and (b) did not at the time they were filed (and if
amended or superseded by a filing, then on the date of such filing and as
so
amended or superseded) contain any untrue statement of a material fact or
omit
to state a material fact required to be stated therein or necessary in order
to
make the statements therein, in light of the circumstances under which they
were
made, not misleading.
3.4
Company Changes. To the best knowledge
of Sellers’ Representative, except
as set forth on Schedule 3.4 or disclosed in the SEC Reports, other
than any loans made by the Company to Lime, since December 31, 2007, there
have not been: (a) any transactions by the Company, or any changes in the
assets or liabilities of the Company, which, either individually or in the
aggregate, are material to the financial condition of the Company; (b) any
changes in the accounting practices, depreciation or amortization policies
or
rates theretofore adopted by any of the Company, or any revaluation of any
of
its assets; (c) the entry into any material contract or other binding
obligation with any party other than Lime which is not immediately terminable
by
the Company without penalty; (d) any declaration, setting aside or payment
of any dividend (whether in cash, stock or property) with respect to the
Company
Common Stock, or any other distribution to the stockholders of the Company,
whether of record or beneficial other than in the ordinary course of business;
(e) any amendment to the Organizational Documents of the Company;
(f) the issuance or repricing of any Warrants with respect to Company
Common Stock; (g) any reclassification of shares of Company Common Stock;
(h) the authorization, issuance or reservation of any shares of capital
stock of the Company; (i) any new, or changes in any, Tax election or
method of
accounting for Tax purposes; or
(j) any agreement by the Company to do any of the things described in the
preceding clauses.
3.5
Full Disclosure. To the best knowledge
of Sellers’ Representative, no
written information furnished by Sellers’ Representative to Lime in connection
with this Agreement contains, as of the date of such written information,
any
untrue statement of a material fact or omits to state a material fact required
to be stated therein or necessary in order to make the statements therein,
in
light of the circumstances under which they were made, not misleading.
3.6
Litigation. To the best knowledge
of Sellers’ Representative, there is no
litigation, claim, proceeding, or governmental investigation pending or
threatened against the Company or the Sellers that seeks to delay or prevent
the
consummation of, or which would be reasonably likely to adversely affect
the
Sellers’ ability to consummate, the Transaction.
ARTICLE 4
REPRESENTATIONS AND WARRANTIES OF EACH SELLER
REPRESENTATIONS AND WARRANTIES OF EACH SELLER
Each Seller represents and warrants
to
Lime, for himself and not on behalf of any other Seller, as of the date hereof
and as of the Closing Date as follows:
4.1
Authority; No Conflict.
(a) Seller
has all necessary individual power, capacity and authority to execute and
deliver this Agreement, to perform Seller’s obligations hereunder, and to
consummate the Transaction. This Agreement has been duly and validly executed
and delivered by Seller and constitutes the legal, valid and binding obligation
of Seller, enforceable against Seller in accordance with its terms, subject
to
the effect of (i) applicable bankruptcy, insolvency, reorganization,
moratorium or other similar laws now or hereafter in effect relating to rights
of creditors generally and (ii) rules of law and equity governing specific
performance, injunctive relief and other equitable remedies.
(b) Neither
the execution and delivery of this Agreement nor the performance thereof
do or
will, directly or indirectly (with or without notice or lapse of time or
both),
(i) contravene, conflict with, or result in a violation of any Legal
Requirements to which the Seller, or any of the Seller’s Shares, are subject; or
(ii) contravene, conflict with, or result in a violation or breach of any
provision of, or give any Person the right to declare a default or exercise
any
remedy under, or to accelerate the maturity or performance of, or to cancel,
terminate, or modify, any contract to which the Seller is a party, except,
in
the case of clauses (i) and (ii), for any such conflicts, violations,
breaches, defaults or other occurrences that would not prevent the Seller
from
performing Seller’s obligations under this Agreement in any material respect.
(c) The
execution and delivery of this Agreement by the Seller does not, and the
performance of this Agreement will not, require any Consent of, or filing
with
or notification to, any Governmental Body, except (i) for applicable
requirements, if any, of the Exchange Act, the Securities Act and state
securities or “blue sky” laws (“Blue Sky Laws ”), and
(ii) such other Consents, filings or notifications where failure to obtain
such Consents, or to make such filings or notifications, would not prevent
the
Seller from performing his, her or its obligations under this Agreement.
4.2
Ownership. Seller owns, beneficially
or of record, the number of Shares
set forth opposite the Seller’s name on Schedule A
hereto, free and clear of any and all Liens or other restrictions on transfer,
other than those arising under the Exchange Act, the Securities Act, Blue
Sky
Laws and other
securities laws. Except as set forth
on
Schedule 3.2(b), Seller does not own any Warrants of the Company
other than the Shares.
4.3
Access to Information. Seller has had an opportunity
to review this
Agreement with assistance of counsel and other advisors of Seller’s own
choosing.
4.4
Review of Lime SEC Reports. Seller has had access
to the Lime SEC Reports
and the Company SEC Reports and has had an opportunity to review the Lime
SEC
Reports and the Company SEC Reports with assistance of counsel
and other advisors of Seller’s own
choosing. Seller and Seller’s advisors have been afforded the opportunity to ask
questions of and receive answers from Lime regarding Lime and the Lime SEC
Reports.
ARTICLE 5
REPRESENTATIONS AND WARRANTIES OF LIME
REPRESENTATIONS AND WARRANTIES OF LIME
Lime represents and warrants to
the
Sellers as of the date hereof and as of the Closing Date as follows:
5.1
Organization and Good Standing. Lime is a corporation
duly organized,
validly existing, and in good standing under the laws of its jurisdiction
of
incorporation, with full corporate power and authority to conduct its business
as now being conducted, to own or use its properties and assets that it purports
to own or use, and to perform all of its obligations under contracts to which
Lime is party or by which Lime or any of its assets are bound. Lime is duly
qualified to do business as a foreign corporation and is in good standing
(where
such concept is applicable) under the laws of each state or other jurisdiction
in which either the ownership or use of the properties owned or used by it,
or
the nature of the activities conducted by it, requires such qualification,
except where the failure to be so qualified could not reasonably be expected
to,
individually or in the aggregate, result in a material adverse effect on
Lime.
5.2
Authority; No Conflict.
(a) Other
than obtaining the Required Approval: (i) Lime has all necessary corporate
power and authority to execute and deliver this Agreement and to perform
its
obligations hereunder; (ii) the execution and delivery of this Agreement by
Lime have been duly and validly authorized by all necessary corporate action
and
no other corporate proceedings on the part of Lime are necessary to authorize
this Agreement; (iii) this Agreement has been duly and validly executed and
delivered by Lime and, assuming the due execution and delivery of this Agreement
by the Sellers, constitutes the legal, valid and binding obligation of Lime,
enforceable against Lime in accordance with its terms subject to the effect
of
(A) applicable bankruptcy, insolvency, reorganization, moratorium or other
similar laws now or hereafter in effect relating to rights of creditors
generally, and (B) rules of law and equity governing specific performance,
injunctive relief and other equitable remedies.
(b) The
execution and delivery of this Agreement does not and will not, directly
or
indirectly (with or without notice or lapse of time or both);
(i) contravene, conflict with, or result in a violation of any provision of
the Organizational Documents of Lime, or (ii) contravene, conflict with, or
result in a violation of, any Legal Requirement.
(c) The
execution and delivery of this Agreement by Lime does not require any Consent
of, or filing with or notification to, any Governmental Body, except
(i) for applicable requirements, if any, of the Exchange Act, the
Securities Act, the Marketplace Rules, and Blue Sky Laws, and (ii) such
other Consents, filings or notifications where failure to obtain such Consents,
or to make
such filings or notifications, would
not
prevent Lime from performing its obligations under this Agreement in any
material respect.
5.3
Capitalization. The authorized capital
stock of Lime consists of
200,000,000 shares of Lime Common Stock and 1,000,000 shares of Series A-1
Convertible Preferred Stock, US $0.01 par value per share (“Lime
Preferred Stock”). As of the date hereof, (a) 9,555,053 shares
of Lime Common Stock are issued and outstanding, all of which are duly
authorized, validly issued, fully paid and nonassessable, (b) 546,424
shares of Lime Common Stock are reserved for issuance upon exercise of
outstanding Warrants, and (c) 358,710 shares of Lime Preferred Stock are
issued and outstanding, all of which are duly authorized, validly issued,
fully
paid and nonassessable. Lime has accepted subscription agreements for another
933,049 shares of Lime Common Stock and for Warrants to purchase 233,263
shares
of Lime Common Stock, and such shares and warrants will be issued prior to
the
Closing in accordance with the terms of the subscription agreements.
5.4
Availability of Common Stock. Lime has authorized but
unissued shares of
Lime Common Stock in an amount sufficient to consummate the Transaction.
5.5
Lime SEC Reports. As of their respective
dates, the Lime SEC Reports:
(a) were prepared in accordance and complied in all material respects with
the requirements of the Securities Act or the Exchange Act, as the case may
be,
applicable to such Lime SEC Reports, and (b) did not at the time they were
filed (and if amended or superseded by a filing, then on the date of such
filing
and as so amended or superseded) contain any untrue statement of a material
fact
or omit to state a material fact required to be stated therein or necessary
in
order to make the statements therein, in light of the circumstances under
which
they were made, not misleading.
5.6
Absence of Certain Changes. Except as described in
that certain Written
Consent in Lieu of Meeting, executed by the stockholders of Lime on
November 13, 2008, a copy of which has previously been delivered to
Sellers, since September 30, 2008, there has not been any change which by
itself or in conjunction with all other such changes, has had or could
reasonably be expected to have a material adverse effect, except as disclosed
in
the Lime SEC Reports.
5.7
Full Disclosure. No written information
furnished by Lime to Sellers in
connection with this Agreement contains, as of the date of such written
information, any untrue statement of a material fact or omits to state a
material fact required to be stated therein or necessary in order to make
the
statements therein, in light of the circumstances under which they were made,
not misleading.
5.8
Litigation. There is no litigation,
claim, proceeding, or governmental
investigation pending or threatened against Lime that seeks to delay or prevent
the consummation of, or which would be reasonably likely to adversely affect
the
Lime’s ability to consummate, the Transaction.
ARTICLE 6
ADDITIONAL AGREEMENTS
ADDITIONAL AGREEMENTS
6.1 No
Company Changes. From the date hereof through the Closing Date, each Seller
who is a director or officer of the Company agrees that such Seller will
not,
directly or indirectly, as a stockholder, director or officer of the Company,
take or permit to occur any action or inaction which could result in any
of the
representations and warranties set forth in Article 3 to be no
longer true in all material respects.
6.2
Required Approval. Lime agrees to use its
reasonable best efforts to
obtain the consent of a majority of its stockholders and to file the Information
Statement on or before February 1, 2009 for the purpose of obtaining the
Required Approval, and each Seller agrees to vote or cause to be voted all
shares of Lime Common Stock and Lime Preferred Stock over which Seller has
voting power in favor of such action.
6.3 Due
Diligence. From the date hereof through the Closing Date, Sellers’
Representative agrees to give, and to cause the Company to give, Lime,
its
counsel, accountants and other representatives access to the properties,
books,
records, contracts and documents of the Company for purpose of such inspection
as Lime deems appropriate, and shall furnish or cause to be furnished to
Lime
and its representatives all information with respect to the business and
affairs
of the Company as Lime may request.
6.4
Market Standoff. From the date hereof through
the Closing Date or date of
termination of this Agreement, if applicable, each Seller hereby agrees not
to
sell, offer to sell, contract to sell (including, without limitation, any
short
sale), grant any option to purchase, pledge or otherwise transfer or dispose
of
(other than to donees who agree to be similarly bound) any Lime Common Stock
or
Company Common Stock beneficially owned by such Seller.
6.5
Other Company Stockholders. Following the Closing
Date, Lime will offer
or otherwise effect to the remaining stockholders of the Company an exchange
of
Lime Common Stock for their shares of Company Common Stock at the Exchange
Ratio.
6.6
General Release. Effective upon the Closing
Date:
(a) Each
Seller, for Seller and Seller’s heirs, devisees, legal representatives,
successors, and assigns (each, a “Releasing Party” and,
collectively, the “Releasing Parties”), does hereby
acknowledge complete satisfaction of and does hereby fully, finally, and
forever
release and discharge each of the Company and its directors and officers
(collectively, the “Released Parties”) of and from any
and all commitments, actions, debts, claims, counterclaims, suits, causes
of
action, damages, demands, liabilities, obligations, costs, expenses, and
compensation of every kind or nature whatsoever, past, present, or future,
at
law or in equity, whether known or unknown, contingent or otherwise, which
such
Releasing Parties, or any of them, had, has, or may have had at any time
in the
past and through and including the Closing Date, against the Released Parties,
or any of them, which relate to or arise out of such Releasing Party’s
relationship with the Company or any of its predecessors or Affiliates, or
such
Releasing Party’s rights or status as a stockholder of the Company or any of its
predecessors or Affiliates, and further including, without limitation, any
claims of fraud or fraudulent inducement in connection with the negotiation,
execution, delivery, and performance of this Agreement (collectively, the
“Causes of Action”); provided, however, that nothing in
this Section shall release, acquit, or discharge any Causes of Action or
preclude a lawsuit or claim in respect of any Causes of Action that a Releasing
Party may have or bring arising under this Agreement or the other documents
and
agreements executed and delivered pursuant to this Agreement, or that a
Releasing Party may have or bring arising under his respective Indemnification
Agreement or the bylaws of the Company, or any other rights of indemnification
or constitution of law or in equity.
(b) Each
Releasing Party represents, warrants, covenants, and agrees that such Releasing
Party (a) has not and will not assign any Causes of Action or possible
Causes of Action against any Released Party, (ii) fully intends to release
all Causes of Action against the Released Parties, including, without
limitation, unknown and contingent Causes of Action (other than those
specifically reserved above), and (iii) has consulted with counsel with
respect to the matters covered hereby and has been fully apprised of the
consequences hereof.
(c) Each
Releasing Party covenants and agrees not to institute any litigation, lawsuit,
claim, or action against any of the Released Parties with respect to any
released Causes of Action.
6.7
Best Efforts. As soon as practicable,
Lime shall commence and continue in
good faith to take all reasonable action required to obtain all consents,
approvals and agreements of, and to give all notices to and make all filings
with, any third parties, including Governmental Authorities, necessary or
appropriate to authorize, approve or permit the full and complete consummation
of the Transaction and the Merger. In addition, Lime shall use its best efforts
to take, or cause to be taken, all action or do, or cause to be done, all
things
necessary, proper or advisable under this Agreement, applicable laws and
regulations to enable, consummate, make effective and evidence the Transaction
and the Merger.
6.8
Directors’ and Officers’ Insurance and Indemnification.
(a)
Continuation of Existing Indemnification. Lime agrees that all rights
to
indemnification now existing or hereafter arising at or prior to the Closing
in
favor of the directors or officers of the Company as provided in its Certificate
of Incorporation or Bylaws as in effect on the date hereof or pursuant to
the
Indemnification Agreements in effect on the date hereof shall survive the
Closing and shall continue in full force and effect for a period of not less
than six years from the Closing; provided, however, that in the event any
claim
or claims are asserted or made within such six year period, all rights to
indemnification in respect of any such claim or claims shall continue until
final disposition of any and all such claims. After the Closing, Lime shall
continue to perform the obligations of the Company under the Indemnification
Agreements. Without limiting the foregoing, in the event that any party covered
by existing indemnification protection becomes involved in any capacity in
any
action, proceeding or investigation in connection with any matter, including
the
transactions contemplated hereby, occurring prior to, and including, the
Closing, Lime shall periodically advance to such party its legal and other
expenses (including the cost of any investigation and preparation incurred
in
connection therewith), provided that such funds advanced shall be promptly
returned to the Company in the event it shall be judicially determined that
such
party is not entitled to indemnification by the Company or Lime.
(b)
Cooperation. In the event any action,
suit, proceeding or investigation
challenging this Agreement or the ability of the parties hereto to consummate
the Transaction is commenced by a third party, whether before or after the
Closing, Lime and the Sellers’ Representative agree (except for matters
involving any breach of an Article 4 representation, in which chase the
applicable Seller agrees) to cooperate and use all reasonable efforts to
defend
against and respond thereto.
6.9
Indemnity of Sellers. Each Seller makes no representation
or warranty
regarding and shall have no responsibility for (a) the truth or accuracy of
any information with respect to or supplied by Lime, or any of its Affiliates
(except for information supplied in writing by such Seller) contained in
the
Information Statement or the Registration Statement or any amendment or
supplement thereto, or (b) the conformance of the Information Statement
with the requirements of the Exchange Act and other applicable law, or
(c) the conformance of the Registration Statement with the requirements of
the Securities Act and other applicable law. With respect to such information,
and in addition to the obligations under Section 6.8 above, Lime
shall indemnify each Seller, director and officer of the Company as of the
date
hereof (collectively, the "Indemnified Party”), against
any (i) losses, claims, damages or liabilities, joint or several, and
amounts paid in any settlement approved by Lime (which approval shall not
be
unreasonably withheld or delayed) in connection with the foregoing, to which
any
of such persons may be subject, and (ii) legal or other expenses reasonably
incurred by such persons in connection with investigating or defending against
any such losses, claims, damages or liabilities insofar as such losses, claims,
damages or liabilities are caused by (A) any untrue statement or alleged
untrue statement of a material fact contained in the Information Statement
or
Registration Statement, or any
amendment or supplement thereto,
(B) arise out of or are based upon the omission or alleged omission to
state therein a material fact required to be stated therein or necessary
to make
the statements therein not misleading, (C) the failure of the Information
Statement to comply with the requirements of the Exchange Act and other
applicable law, or (D) the failure of the Registration Statement to comply
with the requirements of the Securities Act and other applicable law. This
indemnity shall be payable as incurred and on demand. Each person entitled
to be
indemnified pursuant to this Section 6.9 shall give notice to Lime
in writing promptly after obtaining knowledge of any claim or litigation
for
which indemnity may be had hereunder, but failure to do so shall not affect
the
right to indemnity hereunder. Lime shall only be obligated under this Section
to
pay the costs and expenses of one counsel for the Indemnified Parties as
a
group. If the indemnification provisions above are unavailable or insufficient
to hold harmless the Indemnified Party in respect of any losses, claims,
damages, or liabilities, then Lime shall contribute to the amount paid or
payable by such Indemnified Party as a result of such losses, claims, damages
or
liabilities in such proportion as is appropriate to reflect the relative
fault
of such Indemnified Party, on the one hand, and Lime, on the other hand.
6.10
Notification of Certain Matters.
(a) Lime
shall give prompt notice to the Sellers’ Representative of (i) the
occurrence, or failure to occur, of any event which occurrence or failure
to
occur would be likely to cause any representation or warranty made by Lime
in
this Agreement to be untrue or inaccurate in any material respect at any
time
from the date hereof to the Closing; (ii) any notice of, or other
communication relating to, a default or event which, with notice or lapse
of
time or both, would become a default, received by Lime prior to the Closing,
under any agreement, indenture or instrument to which Lime or any of its
subsidiaries is a party or is subject which default would materially and
adversely affect the ability of Lime to perform its obligations hereunder
and to
effect the Closing; (iii) any notice or other communication from any third
party received by Lime alleging that the consent of such third party is or
may
be required in connection with the transactions contemplated by this Agreement;
and (iv) any notice or other communication from any regulatory authority
received by Lime in connection with the Transaction or the Merger.
(b) Sellers’
Representative shall give prompt
notice to Lime (i) upon Seller’s
Representative obtaining knowledge of the occurrence, or failure to occur,
of
any event which occurrence or failure to occur would be likely to cause any
representation or warranty made by any Seller in this Agreement to be untrue
or
inaccurate in any material respect at any time from the date hereof to the
Closing; (ii) of any notice of, or other communication relating to, a
default or event which, with notice or lapse of time or both, would become
a
default, received by Sellers’ Representative prior to the Closing, under any
agreement, indenture or instrument to which any Seller is a party or is subject
which default would materially and adversely affect the ability of such Seller
to perform Seller’s obligations hereunder and to effect the Closing;
(iii) of any notice or other communication from any third party received by
Sellers’ Representative alleging that the consent of such third party is or may
be required in connection with the transactions contemplated by this Agreement;
and (iv) of any notice or other communication from any regulatory authority
received by Sellers’ Representative in connection with the Transaction or the
Merger .
6.11
Company Patents. Lime shall maintain in
effect, for a period of not less
than one (1) year following the Closing, the Company patents set forth in
Schedule 6.11.
6.12
Company Warrants. Notwithstanding any provisions
to the contrary in the
Company Warrants which may provide for expiration or cancellation on a change
of
control or merger of the Company, Lime agrees to offer (the
“Warrant Offer”)
to each Company Warrant holder the right to exchange such holder’s Company
Warrants for new Lime Warrants to acquire such number of shares of
Lime Common Stock as such holder
would
have received had the holder exercised the Company Warrant in full prior
to the
Merger. Any such new Warrant will have an aggregate exercise price equal
to the
aggregate exercise price under the applicable Company Warrant, shall have
the
same expiration date as the applicable Company Warrant, and shall otherwise
be
in form and substance reasonably acceptable to Sellers’ Representative. The
Warrant Offer shall be transmitted to each Warrant holder within 30 days
following the Closing together with the form of the new Lime Warrant. Copies
of
each Warrant Offer and form of new Lime Warrant shall also be provided to
Sellers’ Representative.
6.13 No
Legal Actions. Lime shall, and Sellers’ Representative shall cause the
Company to, execute contemporaneously with the execution hereof, a general
release and agreement (the "General Release”) in
substantially the form attached hereto as
Exhibit 1. The General Release shall constitute a
separate agreement, the consideration for which shall be the agreement of
each
Seller to approve and execute this Agreement and the General Release shall
survive the expiration or other termination of this Agreement.
6.14
Appointment of Board of Directors. Within ten (10) days following
the Closing, Lime shall use its best efforts to cause Xxxxxxxxxxx X. Xxxxx
to be
appointed as a director of Lime. Unless otherwise notified by Xxxxxxx X.
Xxxxxxx, for so long as Xxxxxxx X. Xxxxxxx shall own any of the capital stock
of
Lime, Lime shall use its best efforts to cause Xx. Xxxxx to be nominated as
a director for each election of directors, unless Xx. Xxxxx shall have
resigned or been removed in accordance with Delaware law.
6.15
Registration Statement. Lime shall prepare and
file a registration
statement with the SEC under the Securities Act on Form S-4, registering
the
Lime Common Stock to be issued in connection with the Merger (the
“Registration Statement”), no later than
December 31, 2008. Thereafter, Lime shall use its best efforts to cause
such Registration Statement to be declared effective as soon as possible.
Without limiting the foregoing, Lime will promptly respond to all SEC comments,
inquiries and requests.
6.16
Merger. Lime shall effect the
Merger within forty-five (45) days
following the Closing, or, if later, within 5 business days after the
effectiveness of the Registration Statement. Among the terms of the Merger,
the
separate corporate existence of the Company will terminate and each of the
outstanding shares of Company Common Stock not already owned by Lime shall
be,
at the Company stockholder’s election, converted into shares of Lime Common
Stock at the Exchange Ratio set forth on Schedule B or converted into the
right to receive cash at the rate of $0.008625 per share.
6.17
Reports under Exchange Act. With a view to making
available to the
Sellers the benefits of Rule 144 under the Securities Act, or any other
similar rule or regulation of the SEC that may at any time permit the Sellers
to
sell the Lime Shares to the public without registration
(“Rule 144”), Lime agrees to: (a) make and
keep adequate current public information available, within the meaning of
Rule 144; (b) file with the SEC in a timely manner all reports and
other documents required of Lime under the Securities Act and the Exchange
Act
so long as Lime remains subject to such requirements and the filing of such
reports and other documents is required for the applicable provisions of
Rule 144; and (c) furnish to each Seller so long as such Seller owns
any Lime Shares, promptly upon request (i) a written statement by Lime, if
true, that it has complied with the reporting requirements of Rule 144, the
Securities Act and the Exchange Act, (ii) a copy of or free online access
to the most recent Lime SEC Reports, and (iii) such oher information as may
reasonably be requested by a Seller in order to sell Lime Shares pursuant
to
Rule 144 without registration.
ARTICLE 7
SURVIVAL; INDEMNIFICATION
SURVIVAL; INDEMNIFICATION
7.1
Survival.
(a) The
representations, warranties, covenants, and agreements of the Sellers made
herein and in all agreements, documents, and instruments executed and delivered
by each Seller in connection herewith (i) are material, shall be deemed to
have been relied upon by Lime, and shall survive the execution hereof regardless
of any investigation on the part of Lime or its Representatives, with Lime
reserving its rights hereunder, and (ii) shall bind each Seller’s
successors and assigns, whether so expressed or not, and shall inure to the
benefit of Lime and its respective successors and assigns.
(b) The
representations and warranties of the parties made herein and in all agreements,
documents, and instruments executed and delivered by any party in connection
herewith shall expire and be of no further force or effect on March 31,
2009, except that any written claim for breach thereof made prior to such
expiration date and delivered to the party against whom such claim is made
shall
survive thereafter and, as to any such claim, such applicable expiration
will
not effect the rights to indemnification of any party hereunder; provided,
however, that any such written claim with respect to fraud, intentional
misrepresentation or willful breach, may be given at any time.
7.2
Indemnification.
(a)
Indemnification by the Sellers. Each Seller acknowledges
and agrees that
Lime has relied on the representations, warranties, covenants and other
agreements of such Seller contained in this Agreement. Accordingly, each
Seller,
on his/her/its own behalf and on behalf of his/her/its Seller’s successors,
executors, administrators, estate, heirs and assigns (collectively, the
“Stockholder Indemnifying Parties”) agrees to severally
defend, indemnify and hold Lime, its directors, officers, employees and agents
(collectively, the “Lime Indemnified Parties”) harmless
from and against any and all Losses as the same are incurred, of any kind
or
nature whatsoever (whether or not arising out of third-party claims) which
may
be sustained or suffered by any such Lime Indemnified Party based upon, arising
out of, or by reason of (i) any breach of any representation or warranty
made by such Seller in this Agreement; (ii) any breach of any covenant or
agreement made by such Seller in this Agreement, and (iii) the inaccuracy
or incompleteness of any information provided to Lime in writing by such
Seller
and stated specifically to be used for inclusion in the Information Statement
or
the Registration Statement.
(b)
Notice; Payment of Losses; Defense
of Third-Party Claims.
(i) With respect
to any claim for
indemnification based on breach of any covenant or agreement made by the
Sellers
in this Agreement, and as to which there is no third party claim, Lime shall
notify Sellers’ Representative of such breach and claim, which notice shall
provide reasonable detail as to the alleged breach and Sellers’ Representative
shall have ten (10) business days to effect a cure of such breach. If such
cure cannot be effected, or if the Sellers’ Representative contests such breach,
the parties shall proceed with the claim for indemnification as provided
in
Section 7.2(b)(iii) below.
(ii) For all indemnification
claims
other than those provided for in Section 7.2(b)(i) above, a Lime
Indemnified Party shall give written notice of a claim for indemnification
to
the applicable Stockholder Indemnifying Party promptly after receipt of any
written claim by any third party and in any event not later than twenty
(20) business days after receipt of any such
written claim (or
not
later than ten (10) business days after the receipt of any such written
claim in the event such written claim in the form of a formal complaint filed
with a court of competent jurisdiction and served on the Lime Indemnified
Party
or in the form of a final determination by any Governmental Body); provided,
however, that failure to give such notice shall not limit the right of the
Lime
Indemnified Party to recover indemnity or reimbursement except to the extent
that the Stockholder Indemnifying Party suffers any material prejudice or
material harm with respect to such claim as a result of such failure. The
Lime
Indemnified Party shall provide the Stockholder Indemnifying Party with such
further information concerning any such claims as the Stockholder Indemnifying
Party may reasonably request by written notice.
(iii) Within ten
(10) business
days after receiving notice of a claim for indemnification or reimbursement,
the
Stockholder Indemnifying Party shall, by written notice to the Lime Indemnified
Party, either (i) concede or deny liability for the claim in whole or in
part, or (ii) in the case of a claim asserted by a third party, advise that
the matters set forth in the notice are, or will be, subject to contest or
legal
proceedings not yet finally resolved. If the Stockholder Indemnifying Party
concedes liability in whole or in part, it shall, within twenty
(20) business days of such concession, pay the amount of the claim to the
Lime Indemnified Party to the extent of the liability conceded. Any such
payment
shall be made in immediately available funds equal to the amount of such
claim
so payable. If the Stockholder Indemnifying Party denies liability in whole
or
in part or advises that the matters set forth in the notice are, or will
be,
subject to contest or legal proceedings not yet finally resolved, then the
Stockholder Indemnifying Party shall make no payment (except for the amount
of
any conceded liability payable as set forth above and reimbursement of expenses
as set forth herein) until the matter is resolved in accordance with this
Agreement.
(iv) In the case
of any third party
claim, if, within ten (10) business days after receiving the notice
described in the preceding paragraph (a), the Stockholder Indemnifying Party
gives written notice to the Lime Indemnified Party stating that the Stockholder
Indemnifying Party would be liable under the provisions hereof for indemnity
in
the amount of such claim if such claim were valid and that the Stockholder
Indemnifying Party disputes and intends to defend against such claim, liability
or expense at the Stockholder Indemnifying Party’s own cost and expense, then,
except as provided below, counsel for the defense shall be selected by the
Stockholder Indemnifying Party (subject to the consent of such Lime Indemnified
Party which consent shall not be unreasonably withheld) and such Stockholder
Indemnifying Party shall not be required to make any payment to such Lime
Indemnified Party with respect to such claim, liability or expense as long
as
the Stockholder Indemnifying Party is conducting a good faith and diligent
defense at its own expense; provided, however, that the assumption of defense
of
any such matters by the Stockholder Indemnifying Party shall relate solely
to
the claim, liability or expense that is subject or potentially subject to
indemnification. If the Stockholder Indemnifying Party assumes such defense
in
accordance with the preceding sentence, it shall have the right, with the
consent of such Lime Indemnified Party, which consent shall not be unreasonably
withheld, to settle all indemnifiable matters related to claims by third
parties
which are susceptible to being settled provided the Stockholder Indemnifying
Party’s obligation to indemnify such Lime Indemnified Party therefor will be
fully satisfied only by payment of money by the Stockholder Indemnifying
Party
pursuant to a settlement which includes a complete release of such Lime
Indemnified Party. The Stockholder Indemnifying Party shall keep such Lime
Indemnified Party apprised of the status of the claim, liability, or expense
and
any resulting suit, proceeding or enforcement action, shall furnish such
Lime
Indemnified Party with all documents and information that such Lime Indemnified
Party shall reasonably request, and shall consult with such Lime Indemnified
Party prior to acting on major matters, including settlement discussions.
Notwithstanding anything herein stated, such Lime Indemnified Party shall
at all
times have the
right to
fully participate in such defense at its own expense directly or through
counsel; provided, however, if the named parties to the action or proceeding
include both the Stockholder Indemnifying Party and such Lime Indemnified
Party
and representation of both parties by the same counsel would be inappropriate
under applicable standards of professional conduct as set forth in a reasoned
written opinion issued by counsel for such Lime Indemnified Party, the
reasonable expense of separate counsel for such Lime Indemnified Party shall
be
paid by the Stockholder Indemnifying Party. If (A) no such notice of intent
to dispute and defend is given by the Stockholder Indemnifying Party, or
if such
diligent good faith defense is not being or ceases to be conducted, or
(B) the third party claim relates to breaches of representations and
warranties made by a Stockholder Indemnifying Party that relate to the Company,
its business or operations, Lime may undertake the defense of such claim,
liability, or expense at the Stockholder Indemnifying Party’s own cost and
expense (with counsel selected by Lime), and shall have the right to compromise
or settle, such claim, liability, or expense (exercising reasonable business
judgment). If such claim, liability, or expense is one that by its nature
cannot
be defended solely by the Stockholder Indemnifying Party, then such Lime
Indemnified Party shall make available all information and assistance that
the
Stockholder Indemnifying Party may reasonably request and shall cooperate
with
the Stockholder Indemnifying Party in such defense.
(c)
Limitation on Contribution and
Certain Other Rights. Each Seller hereby
agrees that if, following the Closing Date, any Losses become due from such
Seller pursuant to this Section 7.2 (a “Loss Payment
”), such Seller shall have no rights against
Lime, the Company or
any of their directors, officers or employees (in their capacity as such),
whether by reason of contribution, indemnification, subrogation or otherwise,
in
respect of any such Loss Payment, and each Seller shall not take any action
against Lime or any such Person with respect thereto.
(d)
Limitations. The aggregate liability
of each Seller under
Section 7.2 shall not exceed an amount equal to the number of shares
of Company Common Stock sold by such Seller multiplied by $0.008625, together
with the value of any Lime Warrants received by such Seller pursuant to
Section 6.12.
ARTICLE 8
MISCELLANEOUS PROVISIONS
MISCELLANEOUS PROVISIONS
8.1
Fees, Expenses and Taxes. Lime shall pay the fees
and expenses of Xxxxxx
Xxxxx & Davidoff Incorporated, as counsel for the Sellers’ Representative,
in connection with this Agreement and the Transaction. All other fees, expenses
and Taxes incurred in connection with this Agreement and the Transaction
shall
be paid by the party incurring such fees, expenses, or Taxes. Lime and the
Sellers understand that the Transaction is a taxable event to the Sellers
and
agree that the Transaction is not intended to be a tax-free reorganization.
8.2
Termination. This Agreement shall terminate
by mutual agreement of Lime
and the Sellers’ Representative or if the Closing has not occurred by
March 31, 2009. Upon termination of this Agreement no party shall have any
liability to any other party, unless the reason for termination is that the
Closing has failed to occur due to a breach of a party’s obligations hereunder.
8.3
Amendment. This Agreement may not
be amended, except by an instrument in
writing signed by or on behalf of Lime and the Sellers’ Representative.
8.4
Waiver.
(a) Neither
any failure nor any delay by any party in exercising any right, power or
privilege under this Agreement or any of the documents referred to in this
Agreement will operate as a waiver of such right, power or privilege and
no
single or partial exercise of any such right, power or privilege will preclude
any other or further exercise of such right, power or privilege or the exercise
of any other right, power or privilege. To the maximum extent permitted by
Legal
Requirements, (i) no waiver that may be given by a party will be applicable
except in the specific instance for which it is given; and (ii) no notice
to or demand on one party will be deemed to be a waiver of any obligation
of
that party or of the right of the party giving such notice or demand to take
further action without notice or demand as provided in this Agreement or
the
documents referred to in this Agreement.
(b) At
any time prior to the Closing Date, Lime (with respect to the Sellers) and
the
Sellers’ Representative (with respect to Lime), may, to the extent legally
allowed, (i) extend the time for the performance of any of the obligations
or other acts of such other party to this Agreement, (ii) waive any
inaccuracies in the representation and warranties contained in this Agreement
or
any document delivered pursuant to this Agreement and (iii) waive
compliance with any covenants, obligations or conditions contained in this
Agreement. Any agreement on the part of a party to this Agreement to any
such
extension or waiver shall be valid only if set forth in a written instrument
signed on behalf of such party.
8.5
Entire Agreement. This Agreement and the
documents and instruments and
other agreements among the parties hereto as contemplated by or referred
to
herein constitute the entire agreement among the parties to this Agreement
and
supersede all prior agreements and understandings, both written and oral,
among
or between any of the parties with respect to the subject matter hereof.
8.6
Execution of Agreement; Counterparts;
Electronic Signatures.
(a) This
Agreement may be executed in several counterparts, each of which shall be
deemed
an original and all of which shall constitute one and the same instrument,
and
shall become effective when counterparts have been signed by each of the
parties
and delivered to the other parties; it being understood that all parties
need
not sign the same counterpart.
(b) The
exchange of copies of this Agreement and of signature pages by facsimile
transmission (whether directly from one facsimile device to another by means
of
a dial-up connection or whether mediated by the worldwide web), by electronic
mail in “portable document format”(“.pdf” format), or by any other electronic
means intended to preserve the original graphic and pictorial appearance
of a
document, or by a combination of such means, shall constitute effective
execution and delivery of this Agreement as to the parties and may be used
in
lieu of an original Agreement for all purposes. Signatures of the parties
transmitted by facsimile shall be deemed to be their original signatures
for all
purposes.
8.7
Governing Law. Except to the extent that
the corporate laws of the State
of Delaware apply to a party, this Agreement shall be governed by, and construed
in accordance with, the laws of the State of Illinois, regardless of the
laws
that might otherwise govern under applicable principles of conflicts of law
thereof.
8.8
Consent to Jurisdiction; Venue. In any action or proceeding
between Lime
and any of the Sellers arising out of or relating to this Agreement or the
Transaction, each of the parties: (a) irrevocably and unconditionally
consents and submits to the exclusive jurisdiction and venue of any state
or
federal court located in the City of Chicago, Illinois (each, a
“Chicago Court ”); and (b) agrees
that all claims in respect of such
action or proceeding may be heard and determined exclusively in any Chicago
Court. Each of the parties hereto agrees that a final judgment in any such
action or proceeding and may be enforced in other jurisdictions by suit on
the
judgment or in any other manner provided by law.
8.9
WAIVER OF JURY TRIAL. EACH OF THE PARTIES IRREVOCABLY
WAIVES ANY AND ALL
RIGHTS TO TRIAL BY JURY IN ANY ACTION OR PROCEEDING BETWEEN THE PARTIES ARISING
OUT OF OR RELATING TO THIS AGREEMENT AND THE TRANSACTIONS CONTEMPLATED BY
THIS
AGREEMENT.
8.10
Attorneys’ Fees. In any action at law or
suit in equity to enforce this
Agreement or the rights of any of the parties hereunder, and except as provided
in Section 7 and Section 8.1 , the prevailing party in
such action or suit shall be entitled to receive a reasonable sum for its
attorneys’ fees and all other reasonable costs and expenses incurred in such
action or suit.
8.11
Assignments and Successors. This Agreement shall be
binding upon, and
shall be enforceable by and inure solely to the benefit of, the parties hereto
and their respective successors and assigns; provided, however, that neither
this Agreement nor any of the Sellers’ rights hereunder may be assigned by any
Seller without the prior written consent of Lime, provided the assignment
of
rights by any Seller to the Sellers’ Representative shall not require any such
consent.. Any attempted assignment of this Agreement or of any such rights
by
any Seller without such consent shall be void and of no effect.
8.12 No
Third Party Rights. Except for the persons referenced in Sections
6.4, 6.6, 6.8, 6.9, 6.12, 6.13, and
6.14 who are intended third
party beneficiaries of such Sections and this
Agreement, nothing in this Agreement, express or implied, is intended to
or
shall confer upon any Person (other than the parties hereto) any right, benefit
or remedy of any nature whatsoever under or by reason of this Agreement.
8.13
Notices. All notices, Consents,
waivers and other communications required
or permitted by this Agreement shall be in writing and shall be deemed given
to
a party when (a) delivered to the appropriate address by hand or by nationally
recognized overnight courier service (costs prepaid); or (b) sent by
facsimile or e-mail with confirmation of transmission by the transmitting
equipment confirmed with a copy delivered as provided in clause (a), in each
case to the following addresses or facsimile numbers and marked to the attention
of the person (by name or title) designated below (or to such other address,
facsimile number, e-mail address or person as a party may designate by notice
to
the other parties) between the hours of 9:00 a.m. and 5:00 p.m. in the
recipient’s time zone:
If to Lime:
Lime Energy Co.
0000 Xxxxxxxxx Xxxx
Xxx Xxxxx Xxxxxxx, Xxxxxxxx 00000-0000
Attention: Xxxxxxx X. Xxxxxxx
Fax no.: (000) 000-0000
0000 Xxxxxxxxx Xxxx
Xxx Xxxxx Xxxxxxx, Xxxxxxxx 00000-0000
Attention: Xxxxxxx X. Xxxxxxx
Fax no.: (000) 000-0000
with a copy
to:
Xxxx Xxxxx LLP
00 X. Xxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000-0000
00 X. Xxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000-0000
Attention: Xxxxxx
Xxxxxxxxx
Fax no.: (000) 000-0000
Fax no.: (000) 000-0000
If to any Seller, to the Sellers’
Representative and counsel on
behalf of the Sellers’ Representative:
Xxxxxxx X.
Xxxxxxx
Xxxxxxx Xxxxx & Co.
000 X. Xxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Fax no.: (000) 000-0000
Xxxxxxx Xxxxx & Co.
000 X. Xxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Fax no.: (000) 000-0000
with a copy
to:
Xxxxxx Xxxxx &
Davidoff Incorporated
0000 Xxxxxx xx xxx Xxxxx, Xxxxx 0000
Xxx Xxxxxxx, XX 00000-0000
Attention: Xxxx Xxxxxxxxx
Fax no.: (000) 000-0000
0000 Xxxxxx xx xxx Xxxxx, Xxxxx 0000
Xxx Xxxxxxx, XX 00000-0000
Attention: Xxxx Xxxxxxxxx
Fax no.: (000) 000-0000
8.14
Legal Representation of the
Parties . This Agreement was negotiated by
the parties with the benefit of legal representation and any rule of
construction or interpretation otherwise requiring this Agreement to be
construed or interpreted against any party shall not apply to any construction
or interpretation hereof.
8.15
Enforcement of Agreement. Except as otherwise expressly
provided herein,
any and all remedies herein expressly conferred upon a party hereunder shall
be
deemed cumulative with and not exclusive of any other remedy conferred hereby
or
by law on such party, and the exercise of any one remedy shall not preclude
the
exercise of any other. The parties acknowledge and agree that each other
party
hereunder would be irreparably damaged if any of the provisions of this
Agreement are not performed in accordance with their specific terms and that
any
breach of this Agreement by a party hereunder could not be adequately
compensated in all cases by monetary damages alone. Accordingly, in addition
to
any other right or remedy to which a party hereunder may be entitled, at
law or
in equity, it shall be entitled to enforce any provision of this Agreement
by a
decree of specific performance and temporary, preliminary and permanent
injunctive relief to prevent breaches or threatened breaches of any of the
provisions of this Agreement, without posting any bond or other undertaking.
8.16
Severability. If any provision of this
Agreement is held invalid or
unenforceable by any court of competent jurisdiction, the other provisions
of
this Agreement will remain in full force and effect. Any provision of this
Agreement held invalid or unenforceable only in part or degree will remain
in
full force and effect to the extent not held invalid or unenforceable.
8.17
Appointment of Sellers’ Representative. Each Seller hereby irrevocably
authorizes and appoints Xxxxxxx X. Xxxxxxx (the “Sellers’
Representative”) as such Seller’s representative and
attorney-in-fact to act in the capacity contemplated by this Agreement. If
the
Sellers’ Representative or any successor shall resign, die or become unable to
act as Sellers’ Representative, a replacement shall be promptly appointed by a
writing signed by Sellers who hold a majority of the Shares being sold hereby,
which replacement shall thereafter be the Sellers’ Representative with the same
powers and duties as the previous Sellers’ Representative. Sellers’
Representative shall not be liable to any Seller or any other person for
anything which he may do or refrain from doing in connection with this Agreement
except in the event of fraud, or willful misconduct by Sellers’ Representative.
In connection with the exercise of his
duties, Sellers’ Representative will be
entitled to consult with and rely upon legal counsel and other professional
advisors, with the costs thereof to be allocated among the Sellers, and Sellers’
Representative will have no liability hereunder for actions taken in good
faith
reliance upon the advice of such advisors.
8.18
Sellers (other than Sellers’ Representative) shall, jointly and severally,
indemnify Sellers’ Representative for, and hold him harmless against, any Losses
arising out of or in connection with his duties as Sellers’ Representative
including the cost and expenses of defending himself against any Losses,
except
for Losses arising from the fraud or willful misconduct of Sellers’
Representative.
[ Remainder of page intentionally
left blank – signature pages follow ]
-18A-
LIME ENERGY CO. AND SELLERS
(listed on Schedule A)
LIME:
Lime Energy Co.
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By:
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/s/ Xxxxxxx Xxxxxxx | |||
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Executive Vice President and CFO |
SELLERS:
For completion by Seller who is
a
natural person:
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| For completion by Seller who is not a natural person (trust, partnership, etc.): | ||
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By:
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-19-
