STOCK PURCHASE AGREEMENT
Exhibit 2.1.1
APPENDIX B
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
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
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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.
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“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
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.
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ARTICLE 3
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)
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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
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.
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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
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.
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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
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,
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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.
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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.
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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 other 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
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
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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
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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.
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ARTICLE 8
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.
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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
Attention: Xxxxxx Xxxxxxxxx
Fax no.: (000) 000-0000
00 X. Xxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000-0000
Attention: Xxxxxx Xxxxxxxxx
Fax no.: (000) 000-0000
B-14
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. 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]
B-15
LIME:
| By. |
/s/ Xxxxxxx
Xxxxxxx
|
Xxxxxxx Xxxxxxx
Executive Vice President and CFO
SELLERS:
For completion by Seller who is a natural person:
For completion by Seller who is a natural person:
Signature
Print Name
For completion by Seller who is not a natural person (trust,
partnership, etc.):
Print Name of Entity
By:
Print Name and Title
B-16
SCHEDULE A
Sellers, Shares, Lime Shares
|
Company |
Lime Shares |
|||||||
|
Common |
to be Received |
|||||||
|
Stock Held by |
by Seller at |
|||||||
|
Name and Address of Seller
|
Seller | Closing | ||||||
|
Xxxxxxx X. Xxxxxxx
c/o Xxxxxxx Xxxxx & Co. 000 Xxxx Xxxxx Xxxxxx Xxxxxxx, XX 00000-0000 |
952,846,582 | 2,023,847 | ||||||
|
Xxxxxxx X. Xxxxxx Revocable Trust
Xxxxxxx Xxxxxx, Trustee 0000 Xxxxxx Xxxx, Xxxxx 000 Xxxxxxxxxx, XX 00000 |
62,052,200 | 131,799 | ||||||
|
Xxxxx X. Xxxxxxxxxx, M.D.
000 Xxxxxxx Xxxxxx Xxxxxxxxx, XX 00000-0000 |
10,260,840 | 21,795 | ||||||
|
Xxxxxxx X. Xxxxxxx
c/o Xxxxxxx Xxxxx & Co. 000 Xxxx Xxxxx Xxxxxx Xxxxxxx, XX 00000-0000 |
6,666,666 | 14,160 | ||||||
|
Xxxxx X. Xxxxx
c/o Xxxxxxx Xxxxx & Co. 000 Xxxx Xxxxx Xxxxxx Xxxxxxx, XX 00000-0000 |
6,666,666 | 14,160 | ||||||
|
Xxxx & Xxxxxx Xxxxx
c/o Plaza Motors 00000 Xxxxx Xxxxxxxxx Xx. Xxxxx, XX 00000 |
3,333,333 | 7,080 | ||||||
|
Xxxxxxx Xxxxx
c/o Xxxxxxx Xxxxx & Co. LLC 000 Xxxx Xxxxx Xxxxxx Xxxxxxx, XX 00000 |
3,333,333 | 7,080 | ||||||
|
Xxxxx X. Xxxxxxxxx
Victory Park Capital 000 Xxxx Xxxxxx Xxxxxx, Xxxxx 0000 Xxxxxxx, XX 00000 |
3,333,333 | 7,080 | ||||||
|
Xxxxxxxxxxx X. Xxxxx
000 Xxxx Xxxxxx Xxxxxx, Xxxxx 0000 Xxxxxxx, XX 00000 |
2,666,667 | 5,665 | ||||||
|
Xxxxx Xxxxxxxxxx, M.D.
00 Xxxxxxxxx Xxxxxx Xxxxxxxxx, XX 00000-0000 |
2,585,384 | 5,492 | ||||||
|
Xxxxx Xxxxx
00 Xxxxxxxxx Xxxxxx Xxxxxxxxx, XX 00000-0000 |
2,765,555 | 5,875 | ||||||
|
Xxxxxx Xxxxx Xxxxxxxxxx
00 Xxxxxxxxx Xxxxxx Xxxxxxxxx, XX 00000-0000 |
3,911,325 | 8,308 | ||||||
Schedule A
B-17
SCHEDULE B
Exchange Ratio of Lime Common Stock for Company Common
Stock
Company stockholders shall receive 0.002124 share of Lime
Common Stock in exchange for each share of Company Common Stock
held by them, which number represents $0.008625 divided by
$4.06, the closing price of Lime Stock on November 14, 2008.
Schedule B
B-18
Schedules 3.2(b), 3.4, and 6.11 — which consist of
schedules of ADVB outstanding options, warrants, and patent
numbers — are omitted. Lime will furnish
supplementally a copy of any omitted schedule to the Commission
upon request.
B-19
EXHIBIT 1
RELEASE
AGREEMENT
This Release Agreement (the “Release”) is entered into
as of November 18, 2008, by and between Lime Energy Co., a
Delaware corporation (“Lime”) and Advanced Biotherapy,
Inc., a Delaware corporation (“Company”).
RECITALS
A. Lime and certain stockholders of the Company have
entered into a Stock Purchase Agreement (the
“Agreement”), dated as of November 18, 2008,
which contemplates the purchase by Lime of 90% or more of the
issued and outstanding shares of Company common stock
(“Transaction”).
B. The parties to the Agreement agreed to cause this
Release to be executed and delivered promptly following the
Closing (as that term is defined in the Agreement), which
Release provides that Lime release each of the potential
defendants in any action from potential claims as described in
Section 1.1 below.
NOW THEREFORE, in consideration of the foregoing recitals, the
Agreement and the mutual covenants hereinafter set forth,
the parties hereto agree as follows:
ARTICLE I
RELEASE
1.1 Release. Lime and its
officers, directors, and stockholders, and each of them, for
themselves and for others who may claim through them, hereby
release, remise, and forever discharge the Company, its
officers, directors, agents, attorneys, investment bankers,
affiliates, record and beneficial security holders (including
without limitation, trustees and beneficiaries of trusts holding
such securities), advisors and representatives of and from all
claims, demands, debts, damages, liabilities, actions, causes of
actions, suits, sums of money, accounts, obligations, costs,
expenses, covenants, agreements, contracts and promises (in law
and in equity) or the like and whether known or unknown
(collectively the “Claims”), of any description, kind
or nature and whether by act or omission relating directly or
indirectly to (i) the conduct and management of the Company
and its business, (ii) the discharge of statutory and
common law fiduciary duties with respect to the Company and its
stockholders, and (iii) the negotiation, execution and
performance of the Agreement. The Claims shall exclude
(i) claims or causes of action made or brought prior to the
Closing relating to any material breach by any Seller of this
Agreement between the date hereof and the Closing, or
(ii) claims or causes of action relating to the Agreement
and the negotiation, execution and performance thereof, to the
extent that such claim or cause of action arises directly from
actual fraud, intentional misconduct, or a knowing, material
violation of law by the person against whom such claim is made
or against whom such cause of action is alleged (the
“Exclusions”).
1.2 General Release. In
furtherance of the intention that this Release be a full and
final accord and satisfaction and release of the Claims subject
only to the Exclusions, Lime, for itself and for others who may
claim through it, expressly waives and relinquishes, any and all
rights and benefits which it has or may have under any
applicable laws to the full extent that it may lawfully waive
all such rights and benefits. Lime hereby acknowledges that it
is aware that it may hereafter discover facts in addition to or
different from those which it now knows or believes to be true
with respect to the subject matter of this Release, but that it
is the intention of each hereby, finally and forever and subject
only to the Exclusions, to settle and release any and all
Claims, disputes and differences, known or unknown, suspected
and unsuspected, which do now exist, may hereafter exist or
heretofore have existed between it, on the one hand, and those
persons
and/or
entities released by it on the other hand, and that in
furtherance of such intention, the releases are binding and
effective notwithstanding the discovery or existence of any such
additional or different facts.
1.3 No Assignment. Lime
hereby warrants and represents to the Company that it has not
heretofore assigned or transferred or purported to assign or
transfer to any person, firm or entity whatsoever, any Claim or
any part or portion thereof.
1.4 No Admission. It is
understood and agreed that neither this Release nor the
consideration granted under the Agreement nor anything else
contained or implied herein shall constitute or be deemed or
construed so as to constitute an admission of liability of any
party hereto of any Claim, demand or cause of action hereby
released.
B-20
1.5 Advice of Counsel. Each
party hereto acknowledges that it has been represented by and
received advice from independent counsel of its own choosing
prior to the execution hereof, and that it has executed this
instrument after having received the advice of said counsel.
Each of the parties hereto acknowledges that it has entered into
this Release of its own free will, and free of any duress or
undue influence by any party hereto or any third party
whatsoever. Each of the parties hereto mutually acknowledges to
each other party hereto that no other party hereto, nor any
agent or attorney for any other party hereto, has made any
promise, representation or warranty whatever, express, implied,
or statutory, not contained herein concerning the subject matter
hereof to induce it to execute this Release, and each of the
parties hereto further acknowledges that none of them have
executed this Release in reliance on any such attempted or
purported oral modification, agreement or change hereof.
1.6 Intended Third Party
Beneficiaries. All persons and entities
referenced in Section 1.1 are intended third party
beneficiaries of this Release and may enforce this Release as if
party hereto.
ARTICLE II
MISCELLANEOUS
2.1 Independent
Consideration. This Release is delivered in
consideration for the Sellers entering into the Agreement, which
consideration is independent of the mutual covenants contained
therein. This Release shall survive any termination,
cancellation, or abandonment of the Agreement.
2.2 Severability. If any
covenant or agreement of this Release or the application thereof
to any person or circumstance shall be held to be invalid or
unenforceable, then in each such event the remainder of this
Release or the application of such covenant or agreement to any
other person or any other circumstance shall not be thereby
affected. In such event, the parties shall negotiate in good
faith to replace the invalid or unenforceable provision with
another reflecting the same relative distribution of economic
benefits and burdens.
2.3 Governing Law. This
Release shall be governed by and construed in accordance with
the internal laws of the State of Delaware, without regard to
its conflicts of law provisions.
2.4 Assignment. No party to
this Release may assign or transfer any of its rights or
interest in this Release without the express written consent of
the other parties. Subject to the foregoing, all covenants and
agreements contained in this Release shall bind and inure to the
benefit of the parties hereto, their respective heirs, devisees,
executors, administrators, successors and assigns and all
persons claiming by, through, or under them.
2.5 Attorneys’ Fees. If
either party institutes any action or proceeding to enforce this
Release or any provision hereof, or for damages by reason of any
alleged breach of this Release or of any provision hereof, or
for a declaration of rights hereunder, the prevailing party in
any such action or proceeding shall be entitled to receive from
the other party all costs and expenses, including reasonable
attorneys’ fees, incurred by the prevailing party in
connection with such action or proceeding.
2.6 Further Assurances. Each
of the parties hereto agrees to execute such additional
documents and instruments and perform such further acts as may
be necessary to fulfill the purpose and intent of this Release.
2.7 Interpretation. The
headings and titles to the paragraphs of this Release are not a
part of this Release and shall have no effect upon the
construction or interpretation of any part hereof. All parties
to this Release have assisted in the drafting of this Release
and its provisions shall not be construed against any party. It
is expressly agreed that this Release and the Agreement contain
or incorporate all of the terms, covenants, conditions,
warranties, and agreements of the parties relating in any manner
to the Transaction and that no prior agreement or understanding,
if any, pertaining to the same shall be valid or of any force or
effect. This Release cannot be modified, amended or terminated,
except in writing signed by Lime, the Company and the
Sellers’ Representative (as that term is defined in the
Agreement) on behalf of all Sellers.
2.8 Counterparts. This
Release may be executed in any number of counterparts, but all
together shall constitute but one original.
B-21
IN WITNESS WHEREOF, the parties hereto have executed this
Release as of the date first written above.
| LIME ENERGY CO. | ADVANCED BIOTHERAPY, INC. | |
|
By:
Xxxxxxx
X. Xxxxxxx
Executive Vice President and CFO |
By: Xxxxxxxxxxx X. Xxxxx President and Chief Executive Officer |
|
|
READ AND APPROVED by Sellers’ Representative |
||
|
Xxxxxxx X. Xxxxxxx, Sellers’ Representative |
B-22
