AGREEMENT AND PLAN OF MERGER
AGREEMENT
AND PLAN OF MERGER
THIS
AGREEMENT AND PLAN OF MERGER
is made
as of the 2nd
day of
July,
2007
AMONG:
TECH
LABORATORIES, INC.,
a
corporation formed pursuant to the laws of the State of New Jersey and having
an
office for business located at 0000 Xxxxx Xxxxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxxx
00000
(“TLBT”)
AND:
BSI
ACQUISITIONS, INC.,
a body
corporate formed pursuant to the laws of the State of Nevada and a wholly owned
subsidiary of TLBT
(the
"Acquirer")
AND:
BIODIESEL
SOLUTIONS, INC.,
a body
corporate formed pursuant to the laws of the State of Nevada and having an
office for business located at 0000 Xxxx Xxxxxx, Xxxxx #000, Xxxxxx, Xxxxxx
00000
("BSI")
AND:
XXXXXX
XXXXXXXXX,
an
individual having an address at 000 Xxxx Xxxxx Xxxxx, Xxxx, XX
00000
(“Xxxxxxxxx”)
AND:
XXXXXXX
XXXXXXXX,
an
individual having an address at 0000 Xxxx Xxxxx Xxxxx, Xxxxxx, XX 00000
(“Springer”)
AND:
XXX
XXXXXX AND XXXXXXXX XXXXXXXX, TRUSTEES OF THE XXXXXX- XXXXXXXX
TRUST,
having
an address at 00000 Xxxxxx Xxxxx Xxxxx, Xxxxxxx, XX 00000
(the
“BSI
Preferred Shareholder” and together with Springer and Xxxxxxxxx, the “BSI
Shareholders”)
WHEREAS:
A. BSI
is a
Nevada corporation engaged in the development
and marketing of equipment used to produce biodiesel fuels;
B. The
BSI
Shareholders own an aggregate of 7,773,794 BSI Common Shares (of which Xxxxxxxxx
owns 7,000,000 shares and Springer owns 773,794 shares) and the BSI Preferred
Shareholder owns 50,000 BSI Preferred Shares, being 100% of the presently issued
and outstanding equity of BSI;
C. TLBT
is a
reporting company whose common stock is quoted on the NASD “Bulletin Board” and
which is engaged in the business of producing personal-scale biodiesel
production equipment;
D. The
respective Boards of Directors of TLBT, BSI and the Acquirer deem it advisable
and in the best interests of TLBT, BSI and the Acquirer that the Acquirer merge
with and into BSI (the "Merger") pursuant to this Agreement and the Certificate
of Merger, and the applicable provisions of the laws of the State of Delaware
and the State of Nevada; and
E. It
is
intended that the Merger shall qualify for United States federal income tax
purposes as a reorganization within the meaning of Section 368(a)(1)(A) of
the
Internal Revenue Code of 1986, as amended.
NOW
THEREFORE THIS AGREEMENT WITNESSETH THAT
in
consideration of the premises and the mutual covenants, agreements,
representations and warranties contained herein, and other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged,
the
parties hereto hereby agree as follows:
ARTICLE
1
DEFINITIONS
AND INTERPRETATION
Definitions
1.1 In
this
Agreement the following terms will have the following meanings:
|
(a)
|
“Acquisition
Shares”
means the 49,000,000 TLBT Common Shares and (ii) the 1,000,000 BSI
New
Preferred Shares, which shares are to be issued and delivered to
the BSI
Shareholders at Closing pursuant to the terms of the
Merger;
|
|
(b)
|
“Agreement”
means this Agreement and Plan of Merger among TLBT, the Acquirer,
BSI, and
the BSI Shareholders;
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2
|
(c)
|
“BSI
Accounts Payable and Liabilities”
means all accounts payable and liabilities of BSI, due and owing
or
otherwise constituting a binding obligation of BSI (other than a
BSI
Material Contract) as of May 31, 2007 as set forth in Schedule “A”
hereto;
|
|
(d)
|
“BSI
Accounts Receivable”
means all accounts receivable and other debts owing to BSI, as of
May 31,
2007 as set forth in Schedule “B”
hereto;
|
|
(e)
|
“BSI
Assets”
means all the property and assets of the BSI Business of every kind
and
description wheresoever situated including, without limitation, BSI
Equipment, BSI Material Contracts, BSI Accounts Receivable, BSI Cash,
BSI
Intangible Assets, BSI Goodwill, BSI Unlisted Inventory, and all
credit
cards, charge cards and banking cards issued to
BSI;
|
|
(f)
|
“BSI
Bank Accounts”
means all of the bank accounts, lock boxes and safety deposit boxes
of BSI
or relating to the BSI Business as set forth in Schedule “C” hereto;
|
|
(g)
|
“BSI
Business”
means all aspects of the business conducted by
BSI;
|
|
(h)
|
“BSI
Cash”
means all cash on hand or on deposit to the credit of BSI on the
Closing
Date;
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(i)
|
“BSI
Debt to Related Parties”
means the debts owed by BSI and its subsidiaries to any of the BSI
Shareholders or to any family member thereof, or to any affiliate,
director or officer of BSI or the BSI Shareholders as described in
Schedule “D”;
|
|
(j)
|
“BSI
Equipment”
means all machinery, equipment, furniture, and furnishings used in
the BSI
Business, including, without limitation, the items more particularly
described in Schedule “E” hereto;
|
|
(k)
|
“BSI
Financial Statements”
means collectively, the financial statements of BSI for the years
ended
December 31, 2005 and 2006, and the period ended March 31, 2007,
all of
which were prepared on an accrual
basis in accordance with United States generally accepted accounting
principles (other than the treatment of the BSI Unlisted Inventory),
true
copies of which are attached as Schedule “F”
hereto;
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|
(l)
|
“BSI
Goodwill”
means the goodwill of the BSI Business together with the exclusive
right
of TLBT to represent itself as carrying on the BSI Business in succession
of BSI subject to the terms hereof, and the right to use any words
indicating that the BSI Business is so carried on including the right
to
use the name "BSI” or “BSI International" or any variation thereof as part
of the name of or in connection with the BSI Business or any part
thereof
carried on or to be carried on by BSI, the right to all corporate,
operating and trade names associated with the BSI Business, or any
variations of such names as part of or in connection with the BSI
Business, all telephone listings and telephone advertising contracts,
all
lists of customers, books and records and other information relating
to
the BSI Business, all necessary licenses and authorizations and any
other
rights used in connection with the BSI
Business;
|
3
|
(m)
|
“BSI
Insurance Policies”
means the public liability insurance and insurance against loss or
damage
to BSI Assets and the BSI Business as described in Schedule “G”
hereto;
|
|
(n)
|
“BSI
Intangible Assets”
means all of the intangible assets of BSI, including, without limitation,
BSI Goodwill, all trademarks, logos, copyrights, designs, licenses,
patents, and other intellectual and industrial property of BSI and
its
subsidiaries;
|
|
(o)
|
“BSI
Material Contracts”
means the burden and benefit of and the right, title and interest
of BSI
in, to and under all trade and non-trade contracts, engagements or
commitments, whether written or oral, to which BSI is entitled in
connection with the BSI Business whereunder BSI is obligated to pay
or
entitled to receive the sum of $10,000 or more including, without
limitation, any pension plans, profit sharing plans, bonus plans,
loan
agreements, security agreements, indemnities and guarantees, any
agreements with employees, lessees, licensees, managers, accountants,
suppliers, agents, distributors, officers, directors, attorneys or
others
which cannot be terminated without liability on not more than one
month's
notice, and those contracts listed in Schedule “I” hereto;
and
|
|
(p)
|
“BSI
Common Shares”
means the common stock, $0.001 par value per share, of
BSI;
|
|
(q)
|
“BSI
New Preferred Shares”
means the Series B Preferred Stock, $0.001 par value per share, of
BSI;
|
|
(r)
|
“BSI
Preferred Shares”
means the Series A Preferred Stock, $0.001 par value per share, of
BSI;
|
|
(s)
|
“BSI
Shares”
means collectively, all of the issued and outstanding BSI Common
Shares;
|
| (t) |
“NGCL”
means the Nevada General Corporation
Law;
|
|
(u)
|
“Closing”
means the completion, on the Closing Date, of the transactions
contemplated hereby in accordance with Article 9
hereof;
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|
(v)
|
“Closing
Date”
means the day on which all conditions precedent to the completion
of the
transaction as contemplated hereby have been satisfied or
waived;
|
| (w) |
“Commission”
means the Securities and Exchange Commission;
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|
(x)
|
“Effective
Time”
means the date of the filing of an appropriate Certificate of Merger
in
the form required by the State of Delaware and the State of Nevada,
which
provide that the Merger shall become effective upon such
filings;
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|
(y)
|
“Employment
Agreements”
means the employment agreements to be entered into on the Closing
Date
between BSI and Xxxxxxxxx and Xxxxxxxx in the forms attached hereto
as
Exhibit “A” and “B”, respectively;
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4
|
(z)
|
“Exchange
Act”
means the Securities Exchange Act of 1934, as
amended;
|
|
(aa)
|
“Lock
Up Agreement”
means the Lock Up Agreement to be entered into on the Closing Date
between
TLBT and the BSI Shareholders in respect of the Acquisition Shares
in the
form attached hereto as Exhibit
“F”;
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|
(bb)
|
“Merger”
means the merger, at the Effective Time, of BSI and the Acquirer
pursuant
to this Agreement and Plan of
Merger;
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|
(cc)
|
“Place
of Closing”
means the offices of Sichenzia Xxxx Xxxxxxxx Xxxxxxx LLP, 00 Xxxxxxxx,
Xxx
Xxxx, Xxx Xxxx 00000, or such other place as TLBT and BSI may mutually
agree upon;
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|
(dd)
|
“Registration
Rights Agreement”
means the Registration Rights Agreement to be entered into on the
Closing
Date between TLBT and the BSI Shareholders in respect of the Acquisition
Shares in the form attached hereto as Exhibit
“C”;
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|
(ee)
|
“SEC
Reports”
means all forms, reports and documents filed and required to be filed
by
TLBT with the Commission under the Exchange
Act;
|
|
(ff)
|
“Securities
Act”
means the Securities Act of 1933, as amended;
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|
(gg)
|
“Surviving
Company”
means BSI following the Merger with the
Acquirer;
|
|
(hh)
|
“TLBT
Business”
means all aspects of any business conducted by TLBT and its
subsidiaries;
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|
(ii)
|
“TLBT
Common Shares”
means the Common Stock, $0.01 par value per share, of TLBT;
and
|
|
(jj)
|
“TLBT
Financial Statements”
means, collectively, the audited consolidated financial statements
of TLBT
for the fiscal years ended December 31, 2005 and 2006, together with
the
unqualified auditors’ report thereon, and the unaudited financial
statements for the three month periods ended March 31, 2007 and 2006,
true
copies of which are attached as Schedule “I”
hereto.
|
Any
other
terms defined within the text of this Agreement will have the meanings so
ascribed to them.
Captions
and Section Numbers
1.2 The
headings and section references in this Agreement are for convenience of
reference only and do not form a part of this Agreement and are not intended
to
interpret, define or limit the scope, extent or intent of this Agreement or
any
provision thereof.
5
Section
References and Schedules
1.3 Any
reference to a particular “Article”, “section”, “paragraph”, “clause” or other
subdivision is to the particular Article, section, clause or other subdivision
of this Agreement and any reference to a Schedule or Exhibit by letter will
mean
the appropriate Schedule or Exhibit attached to this Agreement and by such
reference the appropriate Schedule or Exhibit is incorporated into and made
part
of this Agreement. The Schedules and Exhibits to this Agreement are as
follows:
Information
concerning BSI
BSI
Disclosure Letter, including the following Schedules appurtenant
thereto:
Schedule
“A” BSI
Accounts Payable and Liabilities
Schedule
“B” BSI
Accounts Receivable
Schedule
“C” BSI
Bank
Accounts
Schedule
“D” BSI
Debts
to Related Parties
Schedule
“E” BSI
Equipment
Schedule
“F” BSI
Financial Statements
Schedule
“G” BSI
Insurance Policies
Schedule
“H” BSI
Material Contracts
Information
concerning TLBT
Schedule
“I” TLBT
Financial Statements
Ancillary
Agreements
Exhibit
“A” Form
of
Employment Agreement for Xxxxxxxxx
Exhibit
“B” Form
of
Employment Agreement for Springer
Exhibit
“C” Form
of
Registration Rights Agreement
Exhibit
“D” BSI
Milestones
Exhibit
“E” Form
of
Option
Exhibit
“F” Form
of
Lock-Up Agreement
Severability
of Clauses
1.4 If
any
part of this Agreement is declared or held to be invalid for any reason, such
invalidity will not affect the validity of the remainder which will continue
in
full force and effect and be construed as if this Agreement had been executed
without the invalid portion, and it is hereby declared the intention of the
parties that this Agreement would have been executed without reference to any
portion which may, for any reason, be hereafter declared or held to be
invalid.
ARTICLE
2
THE
MERGER
The
Merger
2.1 The
Acquirer shall be merged with and into BSI pursuant to this Agreement and Plan
of Merger and the separate corporate existence of the Acquirer shall cease
and
BSI, as it exists from and after the Closing, shall be the Surviving Company.
At
Closing, Articles of Merger shall be filed with the Secretary of State of Nevada
in accordance with Chapter 92A of the NGCL. The merger shall become effective
upon the filing of the Articles of Merger with the Secretary of State of Nevada,
which date and time is sometimes herein referred to as the “Effective
Time”.
6
Effect
of the Merger
2.2 The
Merger shall have the effect provided therefor by the NGCL. Without limiting
the
generality of the foregoing, and subject thereto, at the Effective Time (i)
all
the rights, privileges, immunities, powers and franchises, of a public as well
as of a private nature, and all property, real, personal and mixed, and all
debts due on whatever account, including without limitation subscriptions to
shares, and all other choses in action, and all and every other interest of
or
belonging to or due to BSI or the Acquirer, as a group, subject to the terms
hereof, shall be taken and deemed to be transferred to, and vested in, the
Surviving Company without further act or deed; and all property, rights and
privileges, immunities, powers and franchises and all and every other interest
shall be thereafter as effectually the property of the Surviving Company, as
they were of BSI and the Acquirer, as a group, and (ii) all debts, liabilities,
duties and obligations of BSI and the Acquirer, as a group, subject to the
terms
hereof, shall become the debts, liabilities and duties of the Surviving Company
and the Surviving Company shall thenceforth be responsible and liable for all
debts, liabilities, duties and obligations of BSI and the Acquirer, as a group,
and neither the rights of creditors nor any liens upon the property of BSI
or
the Acquirer, as a group, shall be impaired by the Merger, and may be enforced
against the Surviving Company.
Articles
of Incorporation; Bylaws; Directors and Officers
2.3 The
Articles of Incorporation of the Surviving Company from and after the Closing
shall be the Articles of Incorporation of BSI until thereafter amended in
accordance with the provisions therein and as provided by the applicable
provisions of the NGCL. The Bylaws of the Surviving Company from and after
the
Closing shall be the Bylaws of BSI as in effect immediately prior to the
Closing, continuing until thereafter amended in accordance with their terms,
the
Articles of Incorporation of the Surviving Company and as provided by the NGCL.
The Directors of the Surviving Company at the Effective Time shall be Xxxx
Xxxx,
Xxxxx Xxxxx and Xxxx Xxxxxxxxx.
Conversion
of Securities
2.4 At
the
Effective Time, by virtue of the Merger and without any action on the part
of
the Acquirer, BSI or the BSI Shareholders, the shares of capital stock of each
of BSI and the Acquirer shall be converted as follows:
|
(a)
|
Capital
Stock of the Acquirer.
Each issued and outstanding share of the Acquirer's capital stock
shall
continue to be issued and outstanding and shall be converted into
one
share of validly issued, fully paid, and non-assessable common stock
of
the Surviving Company. Each stock certificate of the Acquirer evidencing
ownership of any such shares shall continue to evidence ownership
of such
shares of capital stock of the Surviving
Company.
|
|
(b)
|
Conversion
of BSI Shares.
Each BSI Share that is issued and outstanding at the Effective Time
shall
automatically be cancelled and extinguished and converted, without
any
action on the part of the holder thereof, into the right to receive
at the
time and in the amounts described in this Agreement an amount of
Acquisition Shares equal to (a) in the case of Xxxxxxxxx, 44,023,061
TLBT
Common Shares and all 1,000,000 of the BSI New Preferred Shares and
(b) in
the case of Springer, 4,976,939 TLBT Common Shares. All such BSI
Shares,
when so converted, shall no longer be outstanding and shall automatically
be cancelled and retired and shall cease to exist, and each holder
of a
certificate representing any such shares shall cease to have any
rights
with respect thereto, except the right to receive the Acquisition
Shares
paid in consideration therefor upon the surrender of such certificate
in
accordance with this Agreement.
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7
|
(c)
|
Cancellation
of BSI Preferred Shares.
Each BSI Preferred Share that is issued and outstanding at the Effective
Time shall automatically be cancelled and extinguished, without any
action
on the part of the holder thereof, in exchange for the right to receive
the Liquidation Consideration (as defined below) at the Closing.
All such
BSI Preferred Shares shall no longer be outstanding and shall
automatically be cancelled and retired and shall cease to exist,
and each
holder of a certificate representing any such shares shall cease
to have
any rights with respect thereto, except the right to receive the
Liquidation Consideration paid in consideration therefor upon the
surrender of such certificate in accordance with this
Agreement.
|
Additional
Consideration
2.5 (a) In
addition to the Acquisition Shares, TLBT shall pay the BSI Shareholders
additional consideration in the amount of $375,000 (“Cash
Consideration”).
The
Cash Consideration shall be paid to the applicable BSI Shareholders on the
Closing Date by certified check, bank check or wire transfer. Of such amount,
$275,000 shall be paid to Xxxxxxxxx and $100,000 shall be paid to
Springer.
(b) In
addition, TLBT shall pay the BSI Preferred Shareholder additional consideration
in the amount of $125,000 (“Liquidation Consideration”)
as a
liquidation payment in connection with the cancellation of the BSI Preferred
Shares at the Closing. The Liquidation Consideration shall be paid to the BSI
Preferred Shareholder on the Closing Date by certified check, bank check or
wire
transfer
2.6 The
BSI
Shareholders acknowledge that foregoing allocation of merger consideration
amongst them has been specifically negotiated and agreed to, and consent to
such
allocation for all intents and purposes and waive any claims arising from any
disparate allocation of the merger consideration relative to any other document
or BSI’s Articles of Incorporation or Bylaws.
Adherence
with Applicable Securities Laws
|
2.7
|
The
BSI Shareholders agree that they are acquiring the Acquisition Shares
for
investment purposes and will not offer, sell or otherwise transfer,
pledge
or hypothecate any of the Acquisition Shares issued to them (other
than
pursuant to an effective registration statement under the Securities
Act)
directly or indirectly unless:
|
| (a) |
the
sale is to TLBT;
|
|
(b)
|
the
sale is made pursuant to the exemption from registration under the
Securities
Act,
provided by Rule 144 thereunder; or
|
|
(c)
|
the
Acquisition Shares are sold in a transaction that does not require
registration under the Securities
Act,
or
any applicable United States state laws and regulations governing
the
offer and sale of securities, and, if requested by TLBT, the seller
has
furnished to TLBT an opinion of counsel to that effect or such other
written opinion as may be reasonably required by
TLBT.
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8
The
BSI
Shareholders acknowledge that the certificates representing the Acquisition
Shares shall bear the following legend:
THE
SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933. THE SHARES HAVE BEEN ACQUIRED FOR INVESTMENT. THEY
MAY
NOT BE MORTGAGED, PLEDGED, HYPOTHECATED, OR OTHERWISE TRANSFERRED WITHOUT AN
EFFECTIVE REGISTRATION STATEMENT FOR SUCH SHARES UNDER THE SECURITIES ACT OF
1933 AND OTHER APPLICABLE SECURITIES LAWS OR AN OPINION OF COUNSEL FOR THE
COMPANY THAT REGISTRATION IS NOT REQUIRED UNDER SUCH ACT AND OTHER APPLICABLE
SECURITIES LAWS. THE HOLDER MAY BE REQUIRED TO PROVIDE AN OPINION AT THE
HOLDER’S COST TO THE COMPANY THAT SUCH TRANSFER IS PERMITTED WITHOUT
REGISTRATION UNDER APPLICABLE STATE SECURITIES LAWS, WHICH OPINION MUST BE
ACCEPTABLE TO THE COMPANY’S COUNSEL.
ARTICLE
3
REPRESENTATIONS
AND WARRANTIES
OF
TLBT
Representations
and Warranties
3.1 TLBT
represents and warrants to BSI and the BSI Shareholders, with the intent that
BSI and the BSI Shareholders will rely thereon in entering into this Agreement
and in approving and completing the transactions contemplated hereby,
that:
TLBT
- Corporate Status and Capacity
|
(a)
|
Incorporation.
TLBT and each of its subsidiaries is a corporation duly organized,
validly
existing and in good standing under the laws of the state of its
incorporation, has the corporate power and authority to own, operate
and
lease its properties and to carry on its business as now conducted
or as
proposed to be conducted, and is qualified as a foreign corporation
in
each jurisdiction in which a failure to be so qualified could reasonably
be expected to have a material adverse effect on its present or expected
operations or financial condition.
|
|
(b)
|
Power
and Capacity.
Each of TLBT and Acquirer has the right, power, legal capacity and
authority to enter into and perform its obligations under this Agreement,
and all agreements to which TLBT and/or Acquirer is or will be a
party
that are required to be executed pursuant to this Agreement (the
“TLBT
Ancillary Agreements”).
The execution, delivery and performance of this Agreement and the
TLBT
Ancillary Agreements have been duly and validly approved and authorized
by
the respective Boards of Directors of TLBT and Acquirer, and the
stockholder of Acquirer, as required by applicable law and their
respective certificates of incorporation and
bylaws.
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9
|
(c)
|
No
Filings.
No filing, authorization or approval, governmental or otherwise,
is
necessary to enable TLBT and Acquirer to enter into, and to perform
their
respective obligations under, this Agreement and the TLBT Ancillary
Agreements, except for (a) the filing of the Certificate of Merger
with the Delaware and Nevada Secretaries of State and the filing
of
appropriate documents with the relevant authorities of other states
in
which TLBT is qualified to do business, if any, and (b) such filings
as may be required to comply with federal and state securities
laws.
|
|
(d)
|
Binding
Obligation.
This Agreement and the TLBT Ancillary Agreements are, or when executed
by
TLBT and/or Acquirer (as applicable) will be, valid and binding
obligations of TLBT and Acquirer enforceable in accordance with their
respective terms, except as to the effect, if any, of (a) applicable
bankruptcy and other similar laws affecting the rights of creditors
generally, and (b) rules of law governing specific performance, injunctive
relief and other equitable remedies
|
|
(e)
|
Reporting
Status; Listing.
TLBT’s common stock is registered under Section 12(b) or 12(g) of the
Exchange Act and TLBT is required to file current reports with the
Commission pursuant to section 13(a) of the Exchange Act. The TLBT
Common
Shares are quoted on the NASD "Bulletin Board” under the symbol
“TLBT”;
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Acquirer
- Corporate Status and Capacity
|
(f)
|
Carrying
on Business.
Other than corporate formation and organization, the Acquirer has
not
carried on any business activities to
date.
|
TLBT
- Capitalization
|
(g)
|
Authorized
Capital.
The authorized capital of TLBT consists of 3,000,000,000 TLBT Common
Shares, $0.01 par value and 20,000,000 shares of preferred stock.
$0.001
par value, of which 357,076,887 TLBT Common Shares and no shares
of Series
A Convertible Preferred Stock, are presently issued and outstanding;
|
|
(h)
|
No
Option.
Except as disclosed herein or in the TLBT SEC Reports, no person,
firm or
corporation has any agreement, warrant or option or any right capable
of
becoming an agreement, warrant or option for the acquisition of any
capital stock or equity interest in TLBT, except for the outstanding
shares of Series A Convertible Preferred
Stock;
|
|
(i)
|
Agreements
Concerning TLBT Capital Stock.
Except as disclosed herein or in the TLBT SEC Reports, there are
no
restrictions on the transfer, sale or other disposition of any capital
stock of TLBT contained in the charter documents of TLBT or under
any
other agreements. There are no stockholder agreements, investor rights
agreements, co-sale agreements, right of first refusal agreements,
voting
agreements, registration rights agreements or any other similar type
of
agreement to which TLBT, any subsidiary of TLBT or any officer or
director
of TLBT (or any subsidiary of TLBT) is a party.
|
10
Acquirer
- Capitalization
|
(j)
|
Authorized
Capital.
The authorized capital of the Acquirer consists of 100 shares of
common
stock, $0.001 par value, of which one share of common stock is presently
issued and outstanding;
|
|
(k)
|
No
Option.
No person, firm or corporation has any agreement, warrant or option
or any
right capable of becoming an agreement, warrant or option for the
acquisition of any capital stock or equity interest in
Acquirer;
|
TLBT
- Records and Financial Statements
|
(l)
|
Charter
Documents.
The charter documents of TLBT and the Acquirer have not been altered
since
the incorporation of each, respectively, except as filed in the record
books of TLBT or the Acquirer, as the case may be, copies of which
have
been provided to BSI;
|
|
(m)
|
TLBT
Financial Statements.
The TLBT Financial Statements present fairly, in all material respects,
the assets and liabilities (whether accrued, absolute, contingent
or
otherwise) of TLBT, on a consolidated basis, as of the respective
dates
thereof, and the results of operations and statement of cash flows
of TLBT
during the periods covered thereby, in all material respects and
have been
prepared in accordance with generally accepted accounting principles
consistently applied throughout the periods
indicated;
|
|
(n)
|
TLBT
has previously delivered or made available to BSI true and complete
copies
of (a) its Annual Report on Form 10-K for the fiscal year ended
December 31, 2006, (b) its Quarterly Reports on Form 10-Q for the
fiscal
quarter ended March 31, 2007, and (c) its Definitive Proxy Statement
on
Schedule 14A as filed on May 23, 2007, with the Securities and Exchange
Commission pursuant to the Securities Exchange Act of 1934, as amended
(the "Exchange
Act").
As of their respective dates, such reports and proxy statement
(collectively, the "Public
Filings")
(i) complied with all applicable provisions, rules and regulations of
federal securities laws and (ii) did not contain any untrue statement
of a material fact or omit to state a material fact required to be
stated
therein or necessary to make the statements contained therein, in
light of
the circumstances in which such statements were made, not
misleading.
|
|
(o)
|
Since
the date of the balance sheet included in TLBT’s most recently filed
report on Form 00-X, XXXX has conducted its business in the ordinary
course and there has not occurred: (a) any material adverse change in
the financial condition, liabilities, assets or business of TLBT;
(b) any amendment or change in the certificate of incorporation or
bylaws of TLBT, or any proposal to so amend; (c) any damage to,
destruction of or loss of any assets of TLBT (whether or not covered
by
insurance) that materially and adversely affects, or could reasonably
be
expected to materially and adversely affect, the financial condition
or
business of TLBT; or (d) any sale of a material amount of property of
TLBT, except in the ordinary course of
business;
|
11
TLBT - Applicable Laws and Legal Matters
|
(p)
|
Pending
or Threatened Litigation.
There is no material litigation or administrative or governmental
proceeding pending or, to TLBT’s knowledge, threatened against or relating
to TLBT, its subsidiaries, or the TLBT Business nor does TLBT have
any
knowledge of any act, fact or omission that would form any material
basis
for any such action or proceeding;
|
|
(q)
|
No
Bankruptcy.
Neither TLBT nor its subsidiaries have made any voluntary assignment
or
proposal under applicable laws relating to insolvency and bankruptcy
and
no bankruptcy petition has been filed or presented against TLBT or
its
subsidiaries and no order has been made or a resolution passed for
the
winding-up, dissolution or liquidation of TLBT or its subsidiaries;
|
|
(r)
|
Finder's
Fees.
Neither TLBT nor its subsidiaries are party to any agreement which
provides for the payment of finder's fees, brokerage fees, commissions
or
other fees or amounts which are or may become payable to any third
party
in connection with the execution and delivery of this Agreement and
the
transactions contemplated herein;
|
Execution
and Performance of Agreement
|
(s)
|
No
Violation or Breach.
The execution and performance of this Agreement will
not:
|
|
(i)
|
violate
the charter documents of TLBT or the Acquirer or result in any breach
of,
or default under, any loan agreement, mortgage, deed of trust, or
any
other agreement to which TLBT or its subsidiaries are
party,
|
|
(ii)
|
give
any person any right to terminate or cancel any agreement or any
right or
rights enjoyed by TLBT or its
subsidiaries,
|
|
(iii)
|
result
in any alteration of TLBT’ or its subsidiaries’ obligations under any
agreement to which TLBT or its subsidiaries are
party,
|
|
(iv)
|
result
in the creation or imposition of any lien, encumbrance or restriction
of
any nature whatsoever in favor of a third party upon or against the
assets
of TLBT,
|
|
(v)
|
result
in the imposition of any tax liability to TLBT or its subsidiaries
relating to the assets of TLBT, or
|
|
(vi)
|
violate
any court order or decree to which either TLBT or its subsidiaries
are
subject;
|
12
TLBT
- Acquisition Shares
|
(t)
|
Acquisition
Shares.
The Acquisition Shares when delivered to the holders of BSI Shares
or as
directed thereby pursuant to the Merger shall be validly issued and
outstanding as fully paid and non-assessable shares and the Acquisition
Shares shall be transferable upon the books of TLBT, in all cases
subject
to the provisions and restrictions of all applicable securities laws;
and
|
|
(u)
|
Securities
Law Compliance.
Except as set forth in the SEC Reports, TLBT has not issued any shares
of
its common stock (or securities convertible into or exercisable for
shares
of common stock) since March 31, 2007. The issuance of the Acquisition
Shares (including any shares of TLBT common stock issuable upon conversion
of the BSI New Preferred Shares) will be exempt from registration
under
applicable federal and state securities
laws.
|
Non-Merger
and Survival
3.2 The
representations and warranties of TLBT contained herein will be true at and
as
of Closing in all material respects as though such representations and
warranties were made as of such time. Notwithstanding the completion of the
transactions contemplated hereby, the waiver of any condition contained herein
(unless such waiver expressly releases a party from any such representation
or
warranty) or any investigation made by the BSI Shareholders, the representations
and warranties of TLBT shall survive the Closing for a period of eighteen (18)
months.
Indemnity
3.3 TLBT
agrees to indemnify and save harmless BSI and the BSI Shareholders from and
against any and all claims, demands, actions, suits, proceedings, assessments,
judgments, damages, costs, losses and expenses, including any payment made
in
good faith in settlement of any claim (subject to the right of TLBT to defend
any such claim) and reaonsable attorneys fees and expenses (collectively,
“Losses and Expenses”), resulting from the breach by it of any representation,
warranty or covenant made under this Agreement or from any misrepresentation
in
or omission from any certificate or other instrument furnished or to be
furnished by TLBT to BSI or the BSI Shareholders hereunder provided that there
shall be no indemnification obligation until aggregate Losses and Expenses
exceed $10,000 and, in such event, the indemnifying party shall be required
to
pay the entire amount of such Losses and Expenses in excess of $10,000. In
addition, TLBT agrees to indemnify the BSI Shareholders from and against any
and
all Losses and Expenses arising from the business operations of the Surviving
Company after the Closing of the Merger or on account of personal guarantees
or
personal indemnity agreements entered into by the BSI Shareholders in connection
with the obligations of BSI (which Losses and Expenses shall be recoverable
without reference to the $10,000 threshold set forth in the preceding
sentence).
13
ARTICLE
4
COVENANTS
OF TLBT
Covenants
4.1 TLBT
covenants and agrees with BSI and the BSI Shareholders that it
will:
|
(a)
|
Conduct
of Business.
Until the Closing, conduct its business diligently and in the ordinary
course consistent with the manner in which it generally has been
operated
up to the date of execution of this Agreement;
|
|
(b)
|
Access.
Until the Closing, give the BSI Shareholders and their representatives
full access to all of the properties, books, contracts, commitments
and
records of TLBT, and furnish to the BSI Shareholders and their
representatives all such information as they may reasonably request,
and
following the Closing, give the BSI Shareholders and their representatives
full access to all of the properties, books, contracts, commitments
and
records of BSI and TLBT, and furnish to the BSI Shareholders and
their
representatives all such information as they may reasonably request
in
connection with their indemnification obligations under Section 5.3
below;
|
|
(c)
|
Procure
Consents.
Take all reasonable steps required to obtain, prior to Closing, any
and
all third party consents required to permit the
Merger;
|
|
(d)
|
Tech
Labs Development Corp.
Upon achievement of the milestones set forth on Exhibit “D,” TLBT shall
incorporate “Tech Labs Development Corp.,” or a variation thereof, and
appoint Xxxxxxxxx as its chief executive officer. TLBT will fund
such
entity at an appropriate level necessary to achieve its goals and
shall
provide Xxxxxxxxx with appropriate compensation for the services
to be
provided.
|
|
(e)
|
Renewal
Fuels.
At a reasonable time subsequent to the Closing Date, TLBT shall retain
a
general manager for its subsidiary, Renewal Fuels, Inc., with oversight
by
BSI; provided, however, that notwithstanding any oversight, management
or
legal affiliation between the entities, Renewal Fuels, Inc. and BSI
shall
maintain separate accounting records, with each entity reporting
results
and financial information to TLBT.
|
|
(f)
|
Additional
Financing.
TLBT further agrees to provide BSI with an aggregate of $1,500,000
for
working capital purposes in accordance with the following
schedule:
|
| (1) |
Upon
the Closing, TLBT shall automatically forgive that certain loan made
to
BSI in the principal amount of $200,000 on May 24,
2007;
|
| (2) |
On
the Closing Date TLBT shall provide BSI with $500,000;
|
| (3) |
Within
seventy-five days of the Closing Date, shall provide BSI with $400,000;
and
|
| (4) |
Shall
provide BSI with the remaining $400,000 within 10 business days of
the
unconditional booking (and receipt of 50% deposit) for the sale of
the
first BiodieselMaster unit by BSI.
|
|
(g)
|
Employee
Securities.
TLBT shall grant an aggregate of 1,000,000 TLBT Common Shares and
an
aggregate of 2,000,000 options to purchase TLBT Common Shares to
the
individuals, other than officers of BSI, employed by BSI prior to
the
Closing Date. Such options shall be in the form attached hereto as
Exhibit
“E” and shall be granted, along with the TLBT Common Shares, on the
Closing Date in the amounts to be mutually agreed upon by TLBT and
BSI.
|
14
|
(h)
|
Delivery
of Registration Rights Agreement.
On the Closing Date, TLBT will deliver the executed Registration
Rights
Agreement to the BSI Shareholders.
|
|
(i)
|
Employment
Agreements.
On the Closing Date, TLBT shall cause the Surviving Company to execute
and
deliver the Employment Agreements to Xxxxxxxxx and
Xxxxxxxx.
|
|
(j)
|
Conversion
Shares.
Upon conversion of any of the BSI New Preferred Shares in accordance
with
the Certificate of Designation to be filed by BSI on or about the
Closing,
TLBT will promptly issue and deliver to the converting holder thereof
a
stock certificate representing the appropriate number of shares of
TLBT
Common Stock into which BSI New Preferred Shares have been
converted.
|
Authorization
4.2 TLBT
hereby agrees to authorize and direct any and all federal, state, municipal,
foreign and international governments and regulatory authorities having
jurisdiction respecting TLBT and its subsidiaries to release any and all
information in their possession respecting TLBT and its subsidiaries to BSI.
TLBT shall promptly execute and deliver to BSI any and all consents to the
release of information and specific authorizations which BSI reasonably requires
to gain access to any and all such information.
Survival
4.3 The
covenants set forth in this Article shall survive the Closing for the benefit
of
the BSI Shareholders.
ARTICLE
5
REPRESENTATIONS
AND WARRANTIES OF
BSI
AND THE PRINCIPAL STOCKHOLDERS
Representations
and Warranties
5.1 BSI,
Xxxxxxxxx and Springer, jointly and severally, represent and warrant to TLBT
and
the Acquirer, with the intent that they will rely thereon in entering into
this
Agreement and in approving and completing the transactions contemplated hereby,
that, except as disclosed in the BSI Disclosure Letter:
BSI
- Corporate Status and Capacity
.
|
(a)
|
Incorporation.
BSI is a corporation duly organized, validly existing and in good
standing
under the laws of the state of its incorporation, has the corporate
power
and authority to own, operate and lease its properties and to carry
on its
business as now conducted or as proposed to be conducted, and is
qualified
as a foreign corporation in each jurisdiction in which a failure
to be so
qualified could reasonably be expected to have a material adverse
effect
on its present or expected operations or financial
condition.
|
15
|
(b)
|
Power
and Capacity.
BSI has the right, power, legal capacity and authority to enter into
and
perform its obligations under this Agreement, and all agreements
to which
BSI is or will be a party that are required to be executed pursuant
to
this Agreement (the “BSI
Ancillary Agreements”).
The execution, delivery and performance of this Agreement and the
BSI
Ancillary Agreements has been duly and validly approved and authorized
by
the Board of Directors and stockholders of BSI, as required by applicable
law and its articles of incorporation and bylaws. Each of the BSI
Shareholders has the right, power, legal capacity and authority to
enter
into and perform their obligations under this Agreement, and all
agreements to which they will be a party that are required to be
executed
pursuant to this Agreement
|
|
(c)
|
No
Filings.
No filing, authorization or approval, governmental or otherwise,
is
necessary to enable BSI to enter into, and to perform its obligations
under, this Agreement and the BSI Ancillary Agreements, except for
(a) the filing of the Agreement of Merger with the Delaware and
Nevada Secretaries of State, the recording of the Agreement of Merger
in
the office of the Recorder of the Delaware county in which TLBT’s
registered office is located, and the filing of appropriate documents
with
the relevant authorities of other states in which BSI is qualified
to do
business, if any, (b) such filings as may be required to comply with
federal and state securities laws, and (c) certain third-party consents,
which have been disclosed in BSI’s Disclosure
Letter.
|
|
(d)
|
Binding
Obligation.
This Agreement and the BSI Ancillary Agreements are, or when executed
by
BSI will be, valid and binding obligations of BSI enforceable in
accordance with their respective terms, except as to the effect,
if any,
of (a) applicable bankruptcy and other similar laws affecting the
rights
of creditors generally, and (b) rules of law governing specific
performance, injunctive relief and other equitable remedies. This
Agreement and the BSI Ancillary Agreements are, or when executed
by each
BSI Shareholders will be, valid and binding obligations of such person,
enforceable in accordance with their respective terms, except as
to the
effect, if any, of (a) applicable bankruptcy and other similar laws
affecting the rights of creditors generally, and (b) rules of law
governing specific performance, injunctive relief and other equitable
remedies.
|
BSI
- Capitalization
|
(e)
|
Authorized
Capital.
The authorized capital of BSI consists of 40,000,000 shares of common
stock, $0.001 par value per share and 10,000,000 shares of preferred
stock, $0.001 par value per share;
|
|
(f)
|
Ownership
of BSI Shares.
The issued and outstanding share capital of BSI will on Closing consist
of
7,773,794 shares of common stock (being the BSI Shares) and 50,000
BSI
Preferred Shares, which shares on Closing shall be validly issued
and
outstanding as fully paid and non-assessable shares. The BSI Shareholders
will be at Closing the registered and beneficial owner of the BSI
Shares.
The BSI Shares owned by the BSI Shareholders will on Closing be free
and
clear of any and all liens, charges, pledges, encumbrances, restrictions
on transfer and adverse claims
whatsoever;
|
16
|
(g)
|
No
Option.
No person, firm or corporation has any agreement, warrant or option
or any
right capable of becoming an agreement, warrant or option for the
acquisition of any capital stock or equity interest in
BSI;
|
|
(h)
|
No
Restrictions.
There are no restrictions on the transfer, sale or other disposition
of
BSI Shares contained in the charter documents of BSI or under any
agreement that would prohibit the consummation of the transactions
contemplated herein;
|
BSI
- Records and Financial Statements
|
(i)
|
Charter
Documents.
The charter documents of BSI have not been altered since its incorporation
date, except as filed in the record books of
BSI;
|
|
(j)
|
Corporate
Minute Books. The
corporate minute books of BSI are complete and each of the minutes
contained therein accurately reflect the actions that were taken
at a duly
called and held meeting or by consent without a meeting. All actions
by
BSI which required director or shareholder approval are reflected
on the
corporate minute books of BSI. BSI is not in violation or breach
of, or in
default with respect to, any term of its Articles of Incorporation
(or
other charter documents) or by-laws, except where such breach or
default
would not have a material adverse effect upon
BSI;
|
|
(k)
|
BSI
Financial Statements.
The BSI Financial Statements present fairly, in all material respects,
the
assets and liabilities (whether accrued, absolute, contingent or
otherwise) of BSI as of the respective dates thereof, and the results
of
operations and statement of cash flows of BSI during the periods
covered
thereby, in all material respects, and were prepared on an accrual
basis in accordance with generally accepted accounting principles
consistently applied throughout the periods indicated, except for
(i) the
treatment of the BSI Unlisted Inventory and (ii) footnote
disclosure;
|
|
(l)
|
BSI
Accounts Payable and Liabilities.
There are no material liabilities, contingent or otherwise, of BSI
which
are not disclosed in Schedule “A” hereto or the BSI Disclosure Letter or
reflected in the BSI Financial Statements except those incurred in
the
ordinary course of business since the date of the said schedule and
the
BSI Financial Statements, and BSI has not guaranteed or agreed to
guarantee any debt, liability or other obligation of any person,
firm or
corporation. Without limiting the generality of the foregoing, all
accounts payable and liabilities of BSI as of May 31, 2007 are described
in Schedule “A” hereto;
|
|
(m)
|
BSI
Accounts Receivable.
All BSI Accounts Receivable result from bona fide business transactions
and services actually rendered without, to the knowledge and belief
of
BSI, any claim by the obligor for set-off or
counterclaim;
|
17
|
(n)
|
BSI
Bank Accounts.
All of the BSI Bank Accounts, their location, numbers and the authorized
signatories thereto are as set forth in Schedule “C”
hereto;
|
|
(o)
|
No
Debt to Related Parties.
BSI is not, or on Closing will not be, materially indebted to the
BSI
Shareholders nor to any family member thereof, nor to any affiliate,
director or officer of BSI or the BSI Shareholders except accounts
payable
on account of bona fide business transactions of BSI incurred in
normal
course of BSI Business, including employment agreements with the
BSI
Shareholders and attached to Schedule “D” hereto is an accounts payable
aging ledger;
|
|
(p)
|
No
Related Party Debt to BSI.
Neither the BSI Shareholders nor any director, officer or affiliate
of BSI
are now indebted to or under any financial obligation to BSI on any
account whatsoever, except for advances on account of travel and
other
expenses not exceeding $5,000 in
total;
|
|
(q)
|
No
Dividends.
No dividends or other distributions on any shares in the capital
of BSI
have been made, declared or authorized since the date of the BSI
Financial
Statements (which for all purposes under this Agreement shall mean
March
31, 2007);
|
|
(r)
|
No
Payments.
No payments of any kind have been made or authorized since the date
of the
BSI Financial Statements to or on behalf of the BSI Shareholders
or to or
on behalf of officers, directors, shareholders or employees of BSI,
except
payments made in the ordinary course of business and at the regular
rates
of salary or other remuneration payable to
them;
|
|
(s)
|
No
Pension Plans.
There are no pension, profit sharing, group insurance or similar
plans or
other deferred compensation plans affecting
BSI;
|
|
(t)
|
No
Adverse Events.
Since the date of the BSI Financial
Statements:
|
| (i) |
there
has not been any material adverse change in the properties, results
of
operations, financial position or condition of BSI, its liabilities
or the
BSI Assets or any damage, loss or other change in circumstances materially
affecting BSI, the BSI Business or the BSI Assets or BSI’s right to carry
on the BSI Business, other than changes in the ordinary course of
business,
|
| (ii) |
there
has not been any damage, destruction, loss or other event (whether
or not
covered by insurance) materially and adversely affecting BSI, the
BSI
Business or the BSI Assets,
|
| (iii) |
there
has not been any material increase in the compensation payable or
to
become payable by BSI to the BSI Shareholders or to any of BSI's
officers,
employees or agents or any bonus, payment or arrangement made to
or with
any of them,
|
| (iv) |
the
BSI Business has been and continues to be carried on in the ordinary
course,
|
18
| (v) |
BSI
has not waived or surrendered any right of material
value,
|
| (vi) |
BSI
has not discharged or satisfied or paid any lien or encumbrance or
obligation or liability other than current liabilities in the ordinary
course of business, and
|
| (vii) |
no
capital expenditures in excess of $10,000 individually or $30,000
in total
have been authorized or made;
|
BSI
- Income Tax Matters
|
(u)
|
Tax
Returns.
All tax returns and reports of BSI required by law to be filed have
been
filed based on a cash
basis, and are true, complete and correct, and any taxes payable
in
accordance with any return filed by BSI or in accordance with any
notice
of assessment or reassessment issued by any taxing authority have
been so
paid;
|
|
(v)
|
Current
Taxes.
Adequate provisions have been made for taxes payable for the current
period for which tax returns are not yet required to be filed and
there
are no agreements, waivers, or other arrangements providing for an
extension of time with respect to the filing of any tax return by,
or
payment of, any tax, governmental charge or deficiency by BSI. BSI
is not
aware of any contingent tax liabilities or any grounds which would
prompt
a reassessment;
|
BSI
- Applicable Laws and Legal Matters
|
(w)
|
Licenses.
BSI holds all licenses and permits as may be requisite for carrying
on the
BSI Business in the manner in which it has heretofore been carried
on,
which licenses and permits have been maintained and continue to be
in good
standing except where the failure to obtain or maintain such licenses
or
permits would not have a material adverse effect on the BSI
Business;
|
|
(x)
|
Applicable
Laws.
BSI has not been charged with or received notice of breach of any
laws,
ordinances, statutes, regulations, by-laws, orders or decrees to
which it
is subject or which applies to it the violation of which would have
a
material adverse effect on the BSI Business, and, to BSI’s knowledge, BSI
is not in breach of any laws, ordinances, statutes, regulations,
by-laws,
orders or decrees the contravention of which would result in a material
adverse impact on the BSI Business;
|
|
(y)
|
Pending
or Threatened Litigation.
There is no material litigation or administrative or governmental
proceeding pending or, to BSI’s knowledge, threatened against or relating
to BSI, the BSI Business, or any of the BSI Assets, nor does BSI
have any
knowledge of any act, fact or omission that would form any material
basis
for any such action or proceeding;
|
|
(z)
|
No
Bankruptcy.
BSI has not made any voluntary assignment or proposal under applicable
laws relating to insolvency and bankruptcy and no bankruptcy petition
has
been filed or presented against BSI and no order has been made or
a
resolution passed for the winding-up, dissolution or liquidation
of
BSI;
|
19
|
(aa)
|
Labor
Matters.
BSI is not a party to any collective agreement relating to the BSI
Business with any labor union or other association of employees and
no
part of the BSI Business has been certified as a unit appropriate
for
collective bargaining or, to the knowledge of BSI, has made any attempt
in
that regard and BSI has no reason to believe that any current employees
will leave BSI's employ as a result of this
Merger;
|
|
(bb)
|
Finder's
Fees.
BSI is not a party to any agreement which provides for the payment
of
finder's fees, brokerage fees, commissions or other fees or amounts
which
are or may become payable to any third party in connection with the
execution and delivery of this Agreement and the transactions contemplated
herein;
|
Execution
and Performance of Agreement
|
(cc)
|
No
Violation or Breach.
The execution and performance of this Agreement will
not
|
|
(i)
|
violate
the charter documents of BSI or result in any breach of, or default
under,
any loan agreement, mortgage, deed of trust, or any other agreement
to
which BSI is a party,
|
|
(ii)
|
give
any person any right to terminate or cancel any agreement including,
without limitation, BSI Material Contracts, or any right or rights
enjoyed
by BSI,
|
|
(iii)
|
result
in any material alteration of BSI's obligations under any agreement
to
which BSI is a party including, without limitation, the BSI Material
Contracts,
|
|
(iv)
|
result
in the creation or imposition of any material lien, encumbrance or
restriction of any nature whatsoever in favor of a third party upon
or
against the BSI Assets,
|
|
(v)
|
result
in the imposition of any tax liability to BSI relating to BSI Assets
or
the BSI Shares, or
|
|
(vi)
|
violate
any court order or decree to which either BSI is subject;
|
BSI
Assets - Ownership and Condition
|
(dd)
|
Business
Assets.
The BSI Assets comprise all of the property and assets of the BSI
Business, and neither the BSI Shareholders nor any other person,
firm or
corporation owns any assets used by BSI in operating the BSI Business,
whether under a lease, rental agreement or other
arrangement;
|
|
(ee)
|
Title.
Other than to the extent of any leased assets, BSI is the legal and
beneficial owner of the BSI Assets, free and clear of all mortgages,
liens, charges, pledges, security interests, encumbrances or other
claims
whatsoever;
|
20
|
(ff)
|
No
Option.
No person, firm or corporation has any agreement or option or a right
capable of becoming an agreement for the purchase of any of the BSI
Assets;
|
|
(gg)
|
BSI
Insurance Policies.
BSI maintains the public liability insurance and insurance against
loss or
damage to the BSI Assets and the BSI Business as described in Schedule
“G”
hereto;
|
|
(hh)
|
BSI
Material Contracts.
The BSI Material Contracts listed in Schedule “H” constitute all of the
material contracts of BSI;
|
|
(ii)
|
No
Default.
There has not been any default in any material obligation of BSI
or to the
knowledge of BSI any other party to be performed under any of BSI
Material
Contracts, each of which to the knowledge of BSI is in good standing
and
in full force and effect and unamended, and BSI is not aware of any
default in the obligations of any other party to any of the BSI Material
Contracts;
|
|
(jj)
|
No
Compensation on Termination.
There are no agreements, commitments or understandings relating to
severance pay or separation allowances on termination of employment
of any
employee of BSI. BSI is not obliged to pay benefits or share profits
with
any employee after termination of employment except as required by
law;
|
BSI
Assets - BSI Equipment
|
(kk)
|
BSI
Equipment.
The BSI Equipment has been maintained in a manner consistent with
that of
a reasonably prudent owner and to the knowledge of BSI such equipment
is
in good working condition;
|
BSI
Assets - BSI Goodwill and Other Assets
|
(ll)
|
BSI
Goodwill.
BSI carries on the BSI Business only under the name "Biodiesel Solutions,
Inc." and variations thereof and under no other business or trade
names.
BSI does not have any knowledge of any infringement by BSI of any
patent,
trademark, copyright or trade
secret;
|
The
Business of BSI
|
(mm)
|
Maintenance
of Business.
Since the date of the BSI Financial Statements, the BSI Business
has been
carried on in the ordinary course and BSI has not entered into any
material agreement or commitment except in the ordinary course;
and
|
|
(nn)
|
Subsidiaries.
BSI does not own any subsidiaries and does not otherwise own, directly
or
indirectly, any shares or interest in any other corporation, partnership,
joint venture or firm and BSI does not own any subsidiary and does
not
otherwise own, directly or indirectly, any shares or interest in
any other
corporation, partnership, joint venture or
firm.
|
Non-Merger
and Survival
5.2 The
representations and warranties of BSI contained herein will be true at and
as of
Closing in all material respects as though such representations and warranties
were made as of such time. Notwithstanding the completion of the transactions
contemplated hereby, the waiver of any condition contained herein (unless such
waiver expressly releases a party from any such representation or warranty)
or
any investigation made by TLBT, the representations and warranties of BSI shall
survive the Closing for a period of eighteen (18) months.
21
Indemnity
5.3 Xxxxxxxxx
and Xxxxxxxx jointly and severally agree to indemnify and save harmless TLBT
from and against any and all Losses and Expenses resulting from the breach
by
BSI of any representation, warranty or covenant of BSI made under this Agreement
or from any misrepresentation in or omission from any certificate or other
instrument furnished or to be furnished by BSI or the BSI Shareholders to TLBT
hereunder provided that (i) there shall be no indemnification obligation until
aggregate Losses and Expenses exceed $10,000 and, in such event, the
indemnifying party shall be required to pay the entire amount of such Losses
and
Expenses in excess of $10,000, (ii) neither Xxxxxxxxx nor Springer will be
liable to the extent that any such claims exceed the amount of merger
consideration actually received by such BSI Shareholder hereunder, other than
to
the extent of claims based on fraud by such BSI Shareholder, for which there
shall be no dollar limit, and (iii) the obligations of Xxxxxxxxx and/or
Springer may be satisfied in cash or surrender of Acquisition Shares (valued
consistent with the method used to calculate the number of shares of such
security issued at Closing - which in the case of TLBT Common Shares shall
be
equal to. the greater of (a) the average closing price of TLBT Common Shares
for
the 10 trading days immediately preceding the Closing Date, or (b) $0.05 per
share, and in the case of the BSI New Preferred Shares shall be their State
Value as set forth in the applicable Certificate of Designation for such
shares), or any combination thereof, at the election of the applicable BSI
shareholder.
ARTICLE
6
COVENANTS
OF BSI AND
THE
BSI SHAREHOLDERS
Covenants
6.1 BSI,
Xxxxxxxxx and Xxxxxxxx covenant and agree with TLBT that they will:
|
(a)
|
Conduct
of Business.
Until the Closing, conduct the BSI Business diligently and in the
ordinary
course consistent with the manner in which the BSI Business generally
has
been operated up to the date of execution of this Agreement and will
not
enter into any material obligations or compensatory arrangements
without
the prior consent of TLBT;
|
|
(b)
|
Preservation
of Business.
Until the Closing, use their best efforts to preserve the BSI Business
and
the BSI Assets and, without limitation, preserve for TLBT BSI’s
relationships with their suppliers, customers and others having business
relations with them;
|
|
(c)
|
Access.
Until the Closing, give TLBT and its representatives full access
to all of
the properties, books, contracts, commitments and records of BSI
relating
to BSI, the BSI Business and the BSI Assets, and furnish to TLBT
and its
representatives all such information as they may reasonably
request;
|
22
|
(d)
|
Procure
Consents.
Until the Closing, take all reasonable steps required to obtain,
prior to
Closing, any and all third party consents required to permit the
Merger
and to preserve and maintain the BSI Assets, including the BSI Material
Contracts, notwithstanding the change in control of BSI arising from
the
Merger;
|
|
(e)
|
Delivery
of Registration Rights Agreement.
On the Closing Date, the BSI Shareholders will deliver the executed
Registration Rights Agreement to
TLBT;
|
|
(f)
|
Employment
Agreements.
On the Closing Date, Xxxxxxxxx and Springer will deliver the executed
Employment Agreements to TLBT; and
|
|
(g)
|
Delivery
of Lock Up Agreement.
On the Closing Date, the BSI Shareholders will deliver the executed
Lock
Up Agreement to TLBT.
|
Authorization
6.2 BSI
hereby agrees to authorize and direct any and all federal, state, municipal,
foreign and international governments and regulatory authorities having
jurisdiction respecting BSI to release any and all information in their
possession respecting BSI to TLBT. BSI shall promptly execute and deliver to
TLBT any and all consents to the release of information and specific
authorizations which TLBT reasonably require to gain access to any and all
such
information.
Survival
6.3 The
covenants set forth in this Article shall survive the Closing for the benefit
of
TLBT.
ARTICLE
7
CONDITIONS
PRECEDENT
Conditions
Precedent in favor of TLBT
7.1 TLBT’s
obligations to carry out the transactions contemplated hereby are subject to
the
fulfillment of each of the following conditions precedent on or before the
Closing:
|
(a)
|
all
documents or copies of documents required to be executed and delivered
to
TLBT by BSI or the BSI Shareholders under Section 9.2 will have been
so
executed and delivered;
|
|
(b)
|
all
of the terms, covenants and conditions of this Agreement to be complied
with or performed by BSI or the BSI Shareholders at or prior to the
Closing will have been complied with or
performed;
|
|
(c)
|
TLBT
shall have completed its review and inspection of the books and records
of
BSI and shall be satisfied with same in all material
respects;
|
|
(d)
|
title
to the BSI Shares held by the BSI Shareholders and to the BSI Assets
will
be free and clear of all mortgages, liens, charges, pledges, security
interests, encumbrances or other claims
whatsoever;
|
23
|
(e)
|
the
Articles of Merger shall be executed by BSI in form acceptable for
filing
with the Nevada Secretary of State;
|
|
(f)
|
subject
to Article 8 hereof, there will not have
occurred
|
|
(i)
|
any
material adverse change in the financial position or condition of
BSI, its
liabilities or the BSI Assets or any damage, loss or other change
in
circumstances materially and adversely affecting the BSI Business
or the
BSI Assets or BSI's right to carry on the BSI Business, other than
(i)
changes described in the Schedule “A” hereto and (ii) changes in the
ordinary course of business, none of which has been materially adverse,
or
|
|
(ii)
|
any
damage, destruction, loss or other event, including changes to any
laws or
statutes applicable to BSI or the BSI Business (whether or not covered
by
insurance) materially and adversely affecting BSI, the BSI Business
or the
BSI Assets;
|
|
(i)
|
BSI
debt obligations shall consist of no more than $100,000 of unsecured
bank
debt and $72,000 in unsecured vendor debt, such amounts to be reduced
by
any payments made using the $200,000 previously loaned to BSI by
TLBT;
|
|
(j)
|
BSI
cash assets shall consist of no less than $200,000, such amount to
be
reduced by any payments made to debt referenced in
7.1(i);
|
|
(g)
|
TLBT
shall have received satisfactory confirmation that the customer
relationships of BSI shall not be negatively impacted by the Merger;
and
|
|
(h)
|
the
transactions contemplated hereby shall have been approved by all
other
regulatory authorities having jurisdiction over the subject matter
hereof,
if any.
|
Waiver
by TLBT
7.2 The
conditions precedent set out in the preceding section are inserted for the
exclusive benefit of TLBT and any such condition may be waived in whole or
in
part by TLBT at or prior to Closing by delivering to BSI and the BSI
Shareholders a written waiver to that effect signed by TLBT. In the event that
the conditions precedent set out in the preceding section are not satisfied
on
or before the Closing, TLBT shall be released from all obligations under this
Agreement.
Conditions
Precedent in Favor of BSI and the BSI Shareholders
7.3 The
obligations of BSI and the BSI Shareholders to carry out the transactions
contemplated hereby is subject to the fulfillment of each of the following
conditions precedent on or before the Closing:
|
(a)
|
all
documents or copies of documents required to be executed and delivered
to
BSI or the BSI Shareholder by TLBT or Acquirer under Section 9.3
will have
been so executed and delivered;
|
24
|
(b)
|
all
of the terms, covenants and conditions of this Agreement to be complied
with or performed by TLBT at or prior to the Closing will have been
complied with or performed;
|
|
(c)
|
BSI
shall have completed its review and inspection of the books and records
of
TLBT and its subsidiaries and shall be satisfied with same in all
material
respects;
|
|
(d)
|
TLBT
will have delivered the Acquisition Shares to be issued pursuant
to the
terms of the Merger to the BSI Shareholders at the Closing and the
Acquisition Shares will be registered on the books of TLBT in the
name of
the BSI Shareholders at the Effective
Time;
|
|
(e)
|
title
to the Acquisition Shares will be free and clear of all mortgages,
liens,
charges, pledges, security interests, encumbrances or other claims
whatsoever;
|
|
(f)
|
payment
of the Cash Consideration required to be paid as of the Closing Date
shall
have been made;
|
|
(g)
|
the
Articles of Merger shall be executed by the Acquirer in form acceptable
for filing with the Nevada Secretary of State;
|
|
(h)
|
subject
to Article 8 hereof, there will not have
occurred
|
|
(i)
|
any
material adverse change in the financial position or condition of
TLBT,
its subsidiaries, their assets of liabilities or any damage, loss
or other
change in circumstances materially and adversely affecting TLBT or
the
TLBT Business or TLBT’ right to carry on the TLBT Business, other than
changes in the ordinary course of business, none of which has been
materially adverse, or
|
|
(ii)
|
any
damage, destruction, loss or other event, including changes to any
laws or
statutes applicable to TLBT or the TLBT Business (whether or not
covered
by insurance) materially and adversely affecting TLBT, its subsidiaries
or
its assets; and
|
|
(i)
|
the
transactions contemplated hereby shall have been approved by all
other
regulatory authorities having jurisdiction over the subject matter
hereof,
if any.
|
Waiver
by BSI and the BSI Shareholders
7.4 The
conditions precedent set out in the preceding section are inserted for the
exclusive benefit of BSI and the BSI Shareholders and any such condition may
be
waived in whole or in part by BSI or the BSI Shareholders at or prior to the
Closing by delivering to TLBT a written waiver to that effect signed by BSI
and
the BSI Shareholders. In the event that the conditions precedent set out in
the
preceding section are not satisfied on or before the Closing BSI and the BSI
Shareholders shall be released from all obligations under this
Agreement.
25
Termination
7.6 Notwithstanding
any provision herein to the contrary, if the Closing does not occur on or before
June 30, 2007, this Agreement will be at an end and will have no further force
or
effect, unless otherwise agreed upon by the parties in writing.
Confidentiality
7.7 Notwithstanding
any provision herein to the contrary, the parties hereto agree that the
existence and terms of this Agreement are confidential and that if this
Agreement is terminated pursuant to the preceding section the parties agree
to
return to one another any and all financial, technical and business documents
delivered to the other party or parties in connection with the negotiation
and
execution of this Agreement and shall keep the terms of this Agreement and
all
information and documents received from BSI and TLBT and the contents thereof
confidential and not utilize nor reveal or release same, provided, however,
that
TLBT may be required to issue news releases regarding the execution and
consummation of this Agreement and file a Current Report on Form 8-K with the
Securities and Exchange Commission respecting the proposed Merger contemplated
hereby together with such other documents as are required to maintain the
currency of TLBT’ filings with the Securities and Exchange
Commission.
No-Shop
Provision
7.8 From
the
date hereof until the close of business on June 30, 2007, the parties hereto
agree that they shall not, nor will they cause their directors, officers,
employees, agents and representatives to, directly or indirectly, solicit or
entertain offers from, hold meetings or discussions with, or in any manner
encourage, accept or consider any proposal of, any other person relating to
the
acquisition of BSI, shares of BSI’s capital stock, securities convertible into
or exchangeable for shares of BSI’s capital stock, or BSI’s assets or business,
in whole or in part, whether directly or indirectly, through purchase, merger,
consolidation, original issuance, or otherwise. BSI and the BSI Shareholders
will immediately notify TLBT in writing regarding any such contact from the
date
hereof until the close of business on June 30, 2007.
ARTICLE
8
RISK
Material
Change in the Business of BSI
8.1 If
any
material loss or damage to the BSI Business occurs prior to Closing and such
loss or damage, in TLBT' reasonable opinion, cannot be substantially repaired
or
replaced within sixty (60) days, TLBT shall, within two (2) days following
any
such loss or damage, by notice in writing to BSI, at its option,
either:
|
(a)
|
terminate
this Agreement, in which case no party will be under any further
obligation to any other party; or
|
|
(b)
|
elect
to complete the Merger and the other transactions contemplated hereby,
in
which case the proceeds and the rights to receive the proceeds of
all
insurance covering such loss or damage will, as a condition precedent
to
TLBT' obligations to carry out the transactions contemplated hereby,
be
vested in BSI or otherwise adequately secured to the satisfaction
of TLBT
on or before the Closing Date.
|
26
Material
Change in the TLBT Business
8.2 If
any
material loss or damage to the TLBT Business occurs prior to Closing and such
loss or damage, in BSI's reasonable opinion, cannot be substantially repaired
or
replaced within sixty (60) days, BSI shall, within two (2) days following any
such loss or damage, by notice in writing to TLBT, at its option,
either:
|
(a)
|
terminate
this Agreement, in which case no party will be under any further
obligation to any other party; or
|
|
(b)
|
elect
to complete the Merger and the other transactions contemplated hereby,
in
which case the proceeds and the rights to receive the proceeds of
all
insurance covering such loss or damage will, as a condition precedent
to
BSI's obligations to carry out the transactions contemplated hereby,
be
vested in TLBT or otherwise adequately secured to the satisfaction
of BSI
on or before the Closing Date.
|
ARTICLE
9
CLOSING
Closing
9.1 The
Merger and the other transactions contemplated by this Agreement will be closed
at the Place of Closing in accordance with the closing procedure set out in
this
Article.
Documents
to be Delivered by BSI
9.2 On
or
before the Closing, BSI, Xxxxxxxxx and Xxxxxxxx will deliver or cause to be
delivered to TLBT:
|
(a)
|
the
original or certified copies of the charter documents of BSI and
all
corporate records documents and instruments of BSI, the corporate
seal of
BSI and all books and accounts of
BSI;
|
|
(b)
|
all
reasonable consents or approvals required to be obtained by BSI for
the
purposes of completing the Merger and preserving and maintaining
the
interests of BSI under any and all BSI Material Contracts and in
relation
to BSI Assets;
|
|
(c)
|
certified
copies of such resolutions of the shareholders and directors of BSI
as are
required to be passed to authorize the execution, delivery and
implementation of this Agreement;
|
|
(d)
|
an
acknowledgement from BSI and the BSI Shareholders of the satisfaction
of
the conditions precedent set forth in section 7.3
hereof;
|
|
(e)
|
the
Employment Agreements, duly executed by BSI, Xxxxxxxxx and
Springer;
|
|
(f)
|
the
Articles of Merger, duly executed by BSI;
|
|
(g)
|
the
Registration Rights Agreement, duly executed by the BSI
Shareholders;
|
27
|
(h)
|
the
Lock Up Agreement, duly executed by the BSI Shareholders;
and
|
|
(i)
|
such
other documents as TLBT may reasonably require to give effect to
the terms
and intention of this Agreement.
|
Documents
to be Delivered by TLBT
9.3 On
or
before the Closing, TLBT shall deliver or cause to be delivered to BSI and
the
BSI Shareholders:
|
(a)
|
share
certificates representing the Acquisition Shares duly registered
in the
names of the BSI Shareholders;
|
|
(b)
|
the
Cash Consideration due to be paid on the Closing
Date;
|
|
(c)
|
certified
copies of such resolutions of the directors of TLBT as are required
to be
passed to authorize the execution, delivery and implementation of
this
Agreement;
|
|
(d)
|
a
certified copy of a resolution of the directors of BSI dated as of
the
Closing Date, approving the Employment
Agreements;
|
|
(e)
|
an
acknowledgement from TLBT of the satisfaction of the conditions precedent
set forth in section 7.1 hereof;
|
|
(f)
|
the
Employment Agreements, duly executed by TLBT:
|
|
(g)
|
the
Registration Rights Agreement, duly executed by TLBT;
|
|
(h)
|
the
Articles of Merger, duly executed by the
Acquirer;
|
|
(i)
|
such
other documents as BSI may reasonably require to give effect to the
terms
and intention of this Agreement.
|
ARTICLE
10
POST-CLOSING
MATTERS
Forthwith
after the Closing, TLBT, BSI and the BSI Shareholders agree to use all their
best efforts to:
|
(a)
|
file
the Articles of Merger with Secretary of State of
Nevada;
|
|
(b)
|
cause
the directors of BSI to be Xxxx Xxxx, Xxxxx Xxxxx and Xxxx Xxxxxxxxx
and
to cause the appointment of an additional director to be chosen by
Xxxx
Xxxx and Xxxxx Xxxxx;
|
|
(c)
|
issue
a news release reporting the
Closing;
|
|
(d)
|
file
reports on Form 3 (and Form 13D, where applicable) with the Securities
and
Exchange Commission disclosing the acquisition of the Acquisition
Shares
by the BSI Shareholders.
|
28
ARTICLE
11
GENERAL
PROVISIONS
Submission
to Jurisdiction; Consent to Service of Process.
11.1 The
parties hereto hereby irrevocably submit to the exclusive jurisdiction of any
federal or state court located within the State of Nevada over any dispute
arising out of or relating to this Agreement or any of the transactions
contemplated hereby and each party hereby irrevocably agrees that all claims
in
respect of such dispute or any suit, action proceeding related thereto may
be
heard and determined in such courts. The parties hereby irrevocably waive,
to
the fullest extent permitted by applicable Law, any objection which they may
now
or hereafter have to the laying of venue of any such dispute brought in such
court or any defense of inconvenient forum for the maintenance of such dispute.
Each of the parties hereto agrees that a judgment in any such dispute may be
enforced in other jurisdictions by suit on the judgment or in any other manner
provided by law.
11.2 Each
of
the parties hereto hereby consents to process being served by any party to
this
Agreement in any suit, action or proceeding by the mailing of a copy thereof
in
accordance with the provisions of Section 11.6.
Procedure
for Indemnity Claims
11.3 In
the
event that any legal proceedings shall be instituted or that any claim or demand
(“Claim”) shall be asserted by any person in respect of which payment may be
sought under this Agreement, the indemnified party shall reasonably and promptly
cause written notice of the assertion of any Claim of which it has knowledge
which is covered by this indemnity to be forwarded to the indemnifying party.
The indemnifying party shall have the right, at its sole option and expense,
to
be represented by counsel of its choice, which must be reasonably satisfactory
to the indemnified party, and to defend against, negotiate, settle or otherwise
deal with any Claim which relates to any Losses and Expenses with respect to
which indemnification is provided hereunder. If the indemnifying party elects
to
defend against, negotiate, settle or otherwise deal with any Claim which relates
to any Losses and Expenses indemnified against hereunder, it shall within five
(5) days (or sooner, if the nature of the Claim so requires) notify the
indemnified party of its intent to do so. If the indemnifying party elects
not
to defend against, negotiate, settle or otherwise deal with any Claim which
relates to any Losses and Expenses indemnified against hereunder, fails to
notify the indemnified party of its election as herein provided or contests
its
obligation to indemnify the indemnified party for such Losses and Expenses
under
this Agreement, the indemnified party may defend against, negotiate, settle
or
otherwise deal with such Claim. If the indemnified party defends any Claim,
then
the indemnifying party shall reimburse the indemnified party for the Losses
and
Expenses of defending such Claim upon submission of periodic bills. If the
indemnifying party shall assume the defense of any Claim, the indemnified party
may participate, at his or its own expense, in the defense of such Claim;
provided, however, that such indemnified party shall be entitled to participate
in any such defense with separate counsel at the expense of the indemnifying
party if, (i) so requested by the indemnifying party to participate or (ii)
in
the reasonable opinion of counsel to the indemnifying party, a conflict or
potential conflict exists between the indemnified party and the indemnifying
party that would make such separate representation advisable; and provided,
further, that the indemnifying party shall not be required to pay for more
than
one such counsel for all indemnified parties in connection with any Claim.
The
parties hereto agree to cooperate fully with each other in connection with
the
defense, negotiation or settlement of any such Claim. Any settlement of any
Claim by the indemnifying party shall provide for a full release of Claims
against the indemnified party and any settlement of any Claim by the indemnified
party is subject to the reasonable consent of the indemnified
party.
29
11.4 After
any
final judgment or award shall have been rendered by a court, arbitration board
or administrative agency of competent jurisdiction and the expiration of the
time in which to appeal therefrom, or a settlement shall have been consummated,
or the indemnified party and the indemnifying party shall have arrived at a
mutually binding agreement with respect to a Claim hereunder, the indemnified
party shall forward to the indemnifying party notice of any sums due and owing
by the indemnifying party pursuant to this Agreement with respect to such matter
and the indemnifying party shall be required to pay all of the sums so due
and
owing to the indemnified party by wire transfer of immediately available funds
within 10 business days after the date of such notice.
11.5 The
failure of the indemnified party to give reasonably prompt notice of any Claim
shall not release, waive or otherwise affect the indemnifying party’s
obligations with respect thereto except to the extent that the indemnifying
party can demonstrate actual loss and prejudice as a result of such
failure.
Notice
11.6 Any
notice required or permitted to be given by any party will be deemed to be
given
when in writing and delivered to the address for notice of the intended
recipient by personal delivery, prepaid single certified or registered mail,
or
Facsimile. Any notice delivered by mail shall be deemed to have been received
on
the fourth business day after and excluding the date of mailing, except in
the
event of a disruption in regular postal service in which event such notice
shall
be deemed to be delivered on the actual date of receipt. Any notice delivered
personally or by Facsimile shall be deemed to have been received on the actual
date of delivery.
Addresses
for Service
11.5 The
address for service of notice of each of the parties hereto is as
follows:
(a) TLBT
or
the Acquirer:
Tech
Laboratories, Inc.
0000
Xxxxx Xxxxxxx Xxxxxx
Xxxxxxxxx,
Xxxxxxxxx 00000
Attention:
Xxxx Xxxx, Chief Executive Officer
Telephone:
(000) 000-0000
Facsimile:
(000) 000-0000
30
Copy
to:
Xxxxxx
X.
Xxxx, Esq.
Sichenzia
Xxxx Xxxxxxxx Xxxxxxx LLP
00
Xxxxxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Phone:
(000) 000-0000
Facsimile:
(000) 000-0000
(b) BSI
or
the BSI Shareholders
Biodiesel
Solutions, Inc.
0000
Xxxx
Xxxxxx, Xxxxx #000
Xxxxxx,
Xxxxxx 00000
Attention:
Xxxx Xxxxxxxxx, President and Chief Executive Officer
Telephone:
(000) 000-0000
Facsimile:
(000) 000-0000
Copy
to:
Xxxx
Xxxx
0000
Xxxxxxx Xxxx, Xxxxxx Xxxxx
Xxxx,
Xxxxxx 00000
Attention:
Xxxxx X. Xxxxxx, Esq.
Telephone:
(000) 000-0000
Facsimile:
(000) 000-0000
Change
of Address
11.6 Any
party
may, by notice to the other parties change its address for notice to some other
address in North America and will so change its address for notice whenever
the
existing address or notice ceases to be adequate for delivery by hand. A post
office box may not be used as an address for service.
Further
Assurances
11.7 Each
of
the parties will execute and deliver such further and other documents and do
and
perform such further and other acts as any other party may reasonably require
to
carry out and give effect to the terms and intention of this
Agreement.
Time
of the Essence
11.8 Time
is
expressly declared to be the essence of this Agreement.
Entire
Agreement
11.9 The
provisions contained herein constitute the entire agreement among BSI, the
BSI
Shareholders, the Acquirer and TLBT respecting the subject matter hereof and
supersede all previous communications, representations and agreements, whether
verbal or written, among BSI, the BSI Shareholders, the Acquirer and TLBT with
respect to the subject matter hereof.
31
Successors
and Assigns
11.10 This
Agreement will inure to the benefit of and be binding upon the parties hereto
and their respective heirs, executors, administrators, successors and permitted
assigns.
Assignment
11.11 This
Agreement is not assignable without the prior written consent of the parties
hereto.
Counterparts
11.12 This
Agreement may be executed in counterparts, each of which when executed by any
party will be deemed to be an original and all of which counterparts will
together constitute one and the same Agreement. Delivery of executed copies
of
this Agreement by Facsimile will constitute proper delivery, provided that
originally executed counterparts are delivered to the parties within a
reasonable time thereafter.
Applicable
Law
11.13 This
Agreement is subject to the laws of the State of Nevada.
[Remainder
of page intentionally left blank.]
32
IN
WITNESS WHEREOF
the
parties have executed this Agreement effective as of the day and year first
above written.
| TECH LABORATORIES, INC. | ||
| |
|
|
| By: | /s/ Xxxx Xxxx | |
|
Xxxx Xxxx, CEO |
||
| BSI ACQUISITIONS, INC. | ||
| |
|
|
| By: | /s/ Xxxx Xxxx | |
|
Xxxx Xxxx, CEO |
||
| BIODIESEL SOLUTIONS, INC. | ||
| |
|
|
| By: | /s/ Xxxxxx Xxxxxxxxx | |
|
Xxxxxx Xxxxxxxxx, President |
||
| /s/ Xxxxxx Xxxxxxxxx | ||
|
Xxxxxx Xxxxxxxxx |
||
| /s/ Xxxxxxx Xxxxxxxx | ||
|
Xxxxxxx Xxxxxxxx |
||
|
XXX
XXXXXX AND
XXXXXXXX
XXXXXXXX,
TRUSTEES
OF THE XXXXXX-
XXXXXXXX
TRUST
|
||
| |
|
|
| By: | /s/ Xxx Xxxxxx | |
|
|
||
| By: | /s/ Xxxxxxxx Xxxxxxxx | |
|
Name: |
||
| Title:Trustee | ||
33
