MERGER AGREEMENT AND PLAN OF REORGANIZATION
MERGER
AGREEMENT AND PLAN OF REORGANIZATION
THIS
MERGER AGREEMENT AND PLAN OF REORGANIZATION
is made
as of the 28th day of June, 2008, by and among Trinterprise LLC, a Texas limited
liability company having its principal place of business at 0000 Xxxx Xxx
Xxxxxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxx 00000 (“Trinterprise”),
InovaChem, Inc., a Delaware corporation, having its principal place of business
at 0000 Xxxx Xxx Xxxxxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxx 00000 (“InovaChem”),
InovaChem Mergerco, LLC, a Texas limited liability company, having its principal
place of business at 0000 Xxxx Xxx Xxxxxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxx 00000
(“Mergerco”),
and
Xxxxxxx X. Xxx (“Zuo”),
Xxxxxxxx Xx (“Li”),
Shao
Xxx Xx (“Xu”),
Xxxxx
Toh (“Toh”),
and
Xx Xxx (“Xxx”
and
together with Zuo, Xx, Xx and Toh, the “Trinterprise
Members”).
WHEREAS,
the
Board of Directors of InovaChem and the Managers of Mergerco and Trinterprise
deem it advisable and generally to the advantage and welfare of Trinterprise,
InovaChem and Mergerco and their respective shareholders and/or members that
Mergerco be merged with and into Trinterprise under the terms and conditions
hereinafter set forth (the “Merger”),
the
Merger to be effected pursuant to the Business Organization Code of the State
of
Texas (the “Business
Organization Code”)
and to
be a tax free reorganization under Section 368(a)(1)(A) of the Internal Revenue
Code of 1986, as amended (the “Code”);
and
WHEREAS,
InovaChem is authorized to issue an aggregate of 200,000,000 shares
(“InovaChem
Shares”)
of its
common stock, par value $.001 per share (the “InovaChem
Common Stock”),
of
which 2,500,000 shares are issued and outstanding on the date hereof (the
“Outstanding
InovaChem Common Shares”);
and
WHEREAS,
all of
the membership interests of Trinterprise (the “Trinterprise
Membership Interest”)
are
owned by the Trinterprise Members in the proportions set forth on Schedule
1
attached
hereto; and
WHEREAS,
Mergerco is a wholly owned subsidiary of InovaChem and all of the membership
interests of Mergerco (the “Mergerco
Membership Interest”),
are
owned by InovaChem; and
WHEREAS,
the
parties desire to merge Mergerco with and into Trinterprise so that Trinterprise
is the surviving entity in such merger and becomes a wholly owned subsidiary
of
InovaChem and the Trinterprise Members receive shares of the Common Stock of
InovaChem in exchange therefore.
NOW,
THEREFORE,
in
consideration of the premises, the parties hereto do mutually agree as
follows:
| 1. |
MERGER
OF MERGERCO AND
TRINTERPRISE.
|
1.1 Merger.
On the
Effective Date (as that term is defined in Section 1.9), Mergerco shall be
merged with and into Trinterprise, which shall be the surviving entity of the
Merger (the “Surviving
Entity”),
pursuant to the Plan of Merger attached as Exhibit
A
hereto
(the “Plan
of Merger”)
and
the Trinterprise Members shall receive an aggregate of 16,666,667 shares of
InovaChem Common Stock (the “Merger
Stock”);
provided, however, that an aggregate of 4,166,667 shares of Merger Stock (the
“Escrowed
Stock”)
shall
be held in escrow pursuant to the terms of the Escrow Agreement of even date
herewith among InovaChem, the Trinterprise Members and Broad and Xxxxxx of
even
date herewith (the “Escrow
Agreement”).
1.2 Effect
of the Merger.
Upon the
Merger becoming effective, the separate existence of Mergerco shall cease,
and
the Surviving Entity shall succeed to and possess all the properties, rights,
privileges, powers, franchises, and immunities, of a public as well as of a
private nature, and be subject to all the debts, liabilities, obligations,
restrictions, disabilities, and duties of Mergerco, all without further act
or
deed, as provided in Section 10.008 of the Business Organization
Code.
1.3 Name
of the Surviving Entity.
On the
Effective Date, the name of Surviving Entity shall remain “Trinterprise
LLC”
1.4 Articles
of Organization and Operating Agreement.
The
Articles of Organization and Operating Agreement of Mergerco shall be the
Articles of Organization and Operating Agreement of the Surviving Entity.
1.5 Managers.
Zuo
and
Li, the Managers of Trinterprise immediately prior to the Effective Date, shall
be the managers of the Surviving Entity on or after the Effective Date until
the
earlier of their resignation or removal or until their respective successors
are
duly elected and qualified, as the case may be.
1.6 Officers.
There
shall not be any officers of the Surviving Entity.
1.7 Status
and Conversion of Securities.
(a) Conversion
of Outstanding Trinterprise Membership Interest into Right to Receive Merger
Stock.
At the
Effective Date, the Trinterprise Membership Interest, shall, by reason of the
Merger and without any action on the part of the Trinterprise Members, be
converted into the right to receive the Merger Stock.
(b) Issuance
of Merger Stock.
At the
Effective Date, InovaChem, or such other person as may be designated by
InovaChem (the “Exchange
Agent”),
shall
issue, in exchange for the Trinterprise Membership Interest, the number of
shares of Merger Stock into which the Trinterprise Membership Interest
theretofore owned by the Trinterprise Members shall have been converted.
(c) Conversion
of Mergerco Membership Interest.
As of
the Effective Date, the Mergerco Membership Interest shall be converted into
a
newly issued Trinterprise Membership Interest representing 100% of the issued
and outstanding Trinterprise Membership Interest.
2
(d) Dissenting
Trinterprise Membership Interest Holders.
Notwithstanding anything in this Agreement to the contrary, any of the
Trinterprise Membership Interest issued and outstanding immediately prior the
Effective Date and held by any Trinterprise Member that did not vote in favor
of
the Merger and complies with Section 10.354 of the Business Organization Code
(the “Dissenting
Interest”)
shall
not be converted into or be exchangeable for the right to the Merger Stock,
but,
instead, shall be converted into the right to receive such consideration as
may
be determined to be due such holder pursuant to the Business Organization Code.
If any such member shall have failed to perfect or shall have effectively
withdrawn or lost his rights to appraisal under the Business Organization Code,
that member’s Trinterprise Membership Interest shall thereupon be converted into
and become exchangeable for the right to receive, as of the Effective Date,
the
Merger Stock without any interest. The Surviving Entity shall give InovaChem
(a)
prompt notice of any written demands for appraisal from the holders of any
of
the Trinterprise Membership Interest, attempted withdrawals of such demands
and
any other instruments served pursuant to the Business Organization Code and
received by Surviving Entity relating to members' rights of appraisal and (b)
the opportunity to participate in all negotiations and proceedings with respect
to demands for appraisal under the Business Organization Code. The Surviving
Entity shall not, except with the prior written consent of InovaChem,
voluntarily make any payment with respect to any demands for appraisal of
membership interests of Surviving Entity, offer to settle, or settle any demands
or approve any withdrawal of any such demands.
1.8 Further
Documents.
From
time to time, on and after the Effective Date, as and when requested by
InovaChem, or by its successors or assigns, the appropriate officers and
managers of Trinterprise as of the Effective Date shall, for and on behalf
of
and in the name of Mergerco or otherwise, execute and deliver all such deeds,
bills of sale, assignments, and other instruments and shall take or cause to
be
taken such further or other actions as the Surviving Entity, Mergerco, or their
respective successors or assigns may deem reasonably necessary or desirable
in
order to confirm of record or otherwise to vest in the Surviving Entity title
to
and possession of all of the properties, rights, privileges, powers, franchises,
and immunities of Mergerco and otherwise to carry out fully the provisions
and
purposes of this Agreement.
1.9 Effective
Date and Closing Date.
The
Merger shall become effective on the date the Plan of Merger and Certificate
of
Merger (substantially in the form of Exhibit
A
annexed
hereto) are accepted for filing by the Secretary of State of the State of Texas
(the “Effective
Date”),
which
shall be the date hereof, and all applicable legal requirements have been
fulfilled to consummate the merger. The closing (the “Closing”)
shall
occur immediately following the Effective Date (the “Closing
Date”),
which
shall also be the date hereof.
1.10 Deliveries
at Closing.
At
Closing, the parties shall deliver the following documents and
instruments:
(a) Deliveries
by Trinterprise:
(1) Trinterprise
shall cause Polymed Therapeutics, Inc. (“Polymed”) to execute and deliver to
InovaChem a Supply Agreement of even date herewith between InovaChem and Polymed
with respect to sourcing and manufacturing of Trinterprise’s products in
accordance with its patent rights.
3
(2) Trinterprise
shall cause the assignment of the following two (2) reports: (i) Covance report
dated March 11, 2008, Sucralose C071202 Specifications, Sample No. 80104857,
Batch No. 80104857; and (ii) Covance report dated March 11, 2008, Sucralose
Specifications, Sample No. 80104857, Batch No. 80104857 (collectively, the
“Covance
Report”)
from
the Covance Laboratory, Inc. (“Covance”)
addressed to Polymed, from Polymed to Trinterprise and deliver to InovaChem
an
assignment of the Covance Report in the form attached hereto as Exhibit
B.
(3) Trinterprise
shall deliver to InovaChem a letter from Xu stating that the sucralose samples
tested by Covance, which are the subject of the Covance Report, were
manufactured in accordance with the Intellectual Property (as defined below).
Such letter shall be in the form attached hereto as Exhibit
C.
(4) Trinterprise
shall cause the assignment of the patent applications set forth on Schedule
3
from
Polymed to Trinterprise and deliver to InovaChem assignments of each patent
application in the form attached hereto as Exhibit
D.
(5) Trinterprise
shall cause Xxxxxxxx Xxxxxxxxx & Xxxxxx, PC (“Xxxxxxxx
Ingersoll”)
to
execute and deliver to InovaChem a new version of the Freedom to Operate Opinion
of Counsel of Xxxxxxxx Xxxxxxxxx, dated March 31, 2008, regarding Process for
Preparing Sucralose, Xxxxxxxx Ingersoll reference number 0070785-00003,
addressed to Xx. Xxxxxxx Xxx, in the form attached hereto as Exhibit
E,
which
new version is addressed to InovaChem, Inc..
(6) Trinterprise
shall deliver a Secretary’s certificate of even date herewith stating that the
Merger contemplated by this Agreement has been approved by the Managers and
all
of the Trinterprise Members.
(b) Deliveries
by Mergerco:
(1) Mergerco
shall deliver a Secretary’s certificate of even date herewith stating that the
Merger contemplated by this Agreement has been approved by the Managers and
the
sole member of Mergerco.
(c) Deliveries
by InovaChem:
(1) InovaChem
shall deliver to Trinterprise a Secretary’s certificate of even date herewith
stating that the Merger contemplated by this Agreement has been approved by
the
Board of Directors of InovaChem.
(2) InovaChem
shall execute, and shall cause the Escrow Agent to execute, the Escrow Agreement
and deliver it to the Trinterprise Members.
(3) InovaChem
shall deliver to the Trinterprise Members, in proportion to their ownership
of
the Trinterprise Membership Interest, the certificates representing the Merger
Stock, less the Escrow Stock.
(4) InovaChem
shall deliver the Escrow Stock to the Escrow Agent.
4
(d) Deliveries
by the Trinterprise Members:
(1) The
Trinterprise Members shall execute the Escrow Agreement and deliver it to the
Escrow Agent and InovaChem.
| 2. |
REPRESENTATIONS
AND WARRANTIES RELATING TO TRINTERPRISE.
|
The
Managers of Trinterprise, jointly and severally, hereby represent and warrant
to
Mergerco and InovaChem as follows:
(a) Trinterprise
is a duly formed and validly existing limited liability company in good standing
under the laws of the State of Texas, authorized to issue the Trinterprise
Membership Interest. The Trinterprise Membership Interest, which is owned by
the
Trinterprise Members, as set forth and in the proportions on Schedule
1,
has
been duly authorized, validly issued and fully paid and nonassessable. There
are
no issued or outstanding rights, or options to purchase all or a portion of
the
Trinterprise Membership Interest or any issued or outstanding securities of
any
nature convertible into all or a portion of the Trinterprise Membership
Interest. The outstanding Trinterprise Membership Interest has been issued
in
accordance with applicable securities laws or regulations in connection with
the
offer or sale of such membership interests. No certificates representing the
Trinterprise Membership Interest were ever issued to the Trinterprise Members.
The Certificate of Formation of Trinterprise LLC that was filed with the
Secretary of State for the State of Texas on February 14, 2008, Company
Agreement of Trinterprise LLC dated February 18, 2008, and Minutes of the
Organizational Meeting of Trinterprise LLC dated February 18, 2008, which have
been provided to InovaChem, are all of the documents comprising the corporate
books and records of Trinterprise, and no such other documents exist.
(b) Trinterprise
has full power and authority to enter into this Agreement and to consummate
the
transactions contemplated hereby. Trinterprise has caused a meeting of its
Managers and the Trinterprise Members to approve the Merger. This Agreement
and
the transactions contemplated hereby have been duly approved by the Managers
and
all of the Trinterprise Members. This Agreement has been duly executed and
delivered by Trinterprise and constitutes a valid and binding obligation of
Trinterprise enforceable against Trinterprise in accordance with its terms,
except that such enforcement may be subject to bankruptcy, insolvency,
reorganization, moratorium or other similar laws now, or hereafter, in effect
relating to creditors' rights.
(c) Trinterprise
is qualified as a foreign corporation in all jurisdictions where its business
or
ownership of assets or properties so requires, except where the failure to
be so
qualified would not have a material adverse effect on the business or financial
condition of Trinterprise (a “Trinterprise
Material Adverse Effect”).
The
business of Trinterprise does not require it to be registered as an investment
company or investment adviser as such terms are defined under the Investment
Company Act of 1940 and the Investment Advisers Act of 1940, each as
amended.
(d) Trinterprise
has no subsidiaries.
(e) Trinterprise
does not have any operations and has not generated any revenue since its
inception.
5
(f) There
are
no liabilities (including, but not limited to tax liabilities) or claims of
or
against Trinterprise (whether such liabilities or claims are contingent or
absolute, direct or indirect, matured or unmatured) except for the contractual
liabilities under the Contracts set forth on Schedule
2,
none of
which are past due.
(g) Since
its
inception, Trinterprise has not incurred any taxes or performed any activity
for
which any taxes would be assessed. Trinterprise is not a party to any pending
action or proceeding by any governmental authority for the assessment of any
tax, and no claim for assessment or collection of any tax has been asserted
in
writing against Trinterprise that has not been paid. There are no liens for
taxes upon the assets of Trinterprise (other than liens for taxes not yet due
and payable). There is no valid basis, to the knowledge of the Trinterprise
Members, for any assessment, deficiency, notice, 30-day letter or similar
intention to assess any tax to be issued to Trinterprise by any governmental
authority.
(h) Trinterprise
has good and marketable title to all its assets and such assets are owned free
and clear of all security interests, pledges, liens, restrictions and
encumbrances of every kind and nature.
(i) Trinterprise
has no employees and has never employed any employees since its inception.
(j) Trinterprise
does not have, and has not had since its inception, any accounts receivable.
(k) Copies
of
all written agreements, contracts, arrangements, understandings and commitments,
including, without limitation, real estate leases, legal opinions, and loan
agreements (each a “Contract,”
collectively, “Contracts”),
to
which Trinterprise is a party, by which Trinterprise is bound, or from which
Trinterprise is entitled to receive substantial benefits, and a summary of
the
provisions of each oral contract, are listed on Schedule
2.
Trinterprise is not in default under any such Contract. Each such contract
is
valid and enforceable. The validity and enforceability of, and the rights of
Trinterprise contained in, each such Contract shall not be adversely affected
by
the Merger or the transactions contemplated hereby and no consent from the
other
party or parties to any Contract is required in connection with the Merger
or
the transactions contemplated hereby.
(l) Although
not stated in the Covance Report, the Covance Report was issued based on testing
of sucralose samples submitted to Covance by Polymed, which samples were
manufactured applying the processes that are the subject of the patent
applications set forth on Schedule
3.
(m) There
are
no legal, administrative, arbitral or other proceedings, claims, actions or
governmental investigations of any nature against Trinterprise or which
challenge the validity or propriety of any Intellectual Property (as hereafter
defined) owned by Trinterprise including set forth on Schedule
3
or the
transactions contemplated by this Agreement and, to the knowledge of the
Trinterprise Members, there is no reasonable basis for any such proceeding,
claim, action or governmental investigation against Trinterprise. Trinterprise
is not a party to or bound by any order, judgment or decree.
6
(n) Trinterprise
has not (i) made any loans to, or entered into any transactions with, any of
the
officers or Managers of Trinterprise or their families; (ii) declared or paid
any distributions since its inception; or (iii) purchased any portion of the
Trinterprise Membership Interest.
(o) Trinterprise
has not issued or committed itself to issue any of the Trinterprise Membership
Interest or any options, rights, warrants, or other securities convertible
into
any portion of the Trinterprise Membership Interest.
(p) “Intellectual
Property”
shall
mean and refer to: (i) domestic and foreign patents and patent applications
(or
equivalents thereto); (ii) domestic and foreign copyrights and copyright
registrations; (iii) domestic and foreign trademarks, service marks, trade
names
and respective registrations thereof; (iv) trade secrets, privacy rights, and
any other protection for confidential information or ideas, and (v) technical
information and documentation, proprietary technology and processes, and
know-how.
As
of the
date hereof:
(1) Trinterprise
owns the entire right, title and interest to all Intellectual
Property set forth on Schedule
3,
free
and clear of all mortgages, liens, pledges, security interests,
charges, claims, restrictions and encumbrances of any nature whatsoever.
(2) None
of
the Intellectual
Property set forth on Schedule
3
nor
Trinterprise,
has violated, misappropriated, infringed, induced infringement
of, or contributed to the infringement of any patent, copyright, trade
secret,
trademark, service xxxx, trade name, Internet domain name or other intellectual
property right of any other person or entity.
(3) Trinterprise
has not made, asserted or threatened any claim of violation, misappropriation
or
infringement of the Intellectual Property set forth on Schedule
3 against
any other person or entity, and Trinterprise is not aware of
any
such violation, misappropriation or infringement.
(4) The
transactions contemplated herein will not invalidate or adversely impact
Trinterprise’s rights in any of the Intellectual Property and will not require
the consent of any third party.
(q) Since
its
inception, Trinterprise has, in all material respects, conducted its affairs
in
compliance with all applicable laws, rules and regulations.
(r) Except
for the filing of the Certificate of Merger and the Plan of Merger, no consents
or approvals of, or filings or registrations with, any third party or any public
body or authority are necessary in connection with (i) the execution and
delivery by Trinterprise of this Agreement and (ii) the consummation by
Trinterprise of the Merger and the other transactions contemplated
hereby.
7
(s) The
execution and delivery by Trinterprise of this Agreement, the consummation
and
performance of the transactions herein contemplated, and compliance with the
terms of this Agreement by Trinterprise will not conflict with, result in a
breach of, or constitute a default under any indenture, mortgage, deed of trust
or other agreement, instrument or Contract to which Trinterprise is now a party
or by which it or any of its assets or properties is bound or the Articles
of
Organization or the Operating Agreement of Trinterprise, in each case as
amended, or any law, order, rule or regulation, writ, injunction, judgment
or
decree of any government, governmental instrumentality or court, domestic or
foreign, having jurisdiction over Trinterprise or any of its business or
properties, including its Intellectual Property.
| 3. |
REPRESENTATIONS
AND WARRANTIES RELATING TO MERGERCO.
|
Mergerco
and InovaChem, jointly and severally, represent and warrant to the Trinterprise
Members as follows:
(a) Mergerco
is a duly formed and validly existing limited liability company in good standing
under the laws of the State of Texas, authorized to issue only the Mergerco
Membership Interest. The Mergerco Membership Interest, which is owned solely
by
InovaChem, has been duly authorized, validly issued and fully paid and
nonassessable. There are no issued or outstanding rights, or options to purchase
all or a portion of the Mergerco Membership Interest or any issued or
outstanding securities of any nature convertible into all or a portion of the
Mergerco Membership Interest. The outstanding Mergerco Membership Interest
has
been issued in accordance with applicable securities laws or regulations in
connection with the offer or sale of such membership interests.
(b) Mergerco
has full power and authority to enter into this Agreement and to consummate
the
transactions contemplated hereby. Mergerco has caused a meeting of its Managers
and sole Member to approve the Merger. This Agreement and the transactions
contemplated hereby have been duly approved by the Managers and sole
member of
Mergerco. This Agreement has been duly executed and delivered by Mergerco,
and
constitutes a valid and binding obligation of Mergerco, enforceable against
Mergerco in accordance with its terms, except that such enforcement may be
subject to bankruptcy, insolvency, reorganization, moratorium or other similar
laws now or hereafter in effect relating to creditors' rights.
| 4. |
REPRESENTATIONS
AND WARRANTIES RELATING TO INOVACHEM.
|
InovaChem
represents and warrants to the Trinterprise Members as follows:
(a) InovaChem
is a duly organized and validly existing corporation in good standing under
the
laws of the State of Delaware, authorized to issue 200,000,000 shares of
InovaChem Common Stock, $.001 par value per share. There are 2,500,000
Outstanding InovaChem Common Shares, all of which are fully paid and
nonassessable. The Merger Stock to be issued in the Merger will be, when issued,
duly and validly issued, fully paid and nonassessable.
8
(b) InovaChem
has full power and authority to enter into this Agreement and to consummate
the
transactions contemplated hereby. InovaChem caused a special meeting of its
Board of Directors to authorize the issuance of the Common Stock in the Merger.
This Agreement and the transactions contemplated hereby have been duly approved
by the Board of Directors of InovaChem. This Agreement has been duly executed
and delivered by InovaChem and constitutes a valid and binding obligation of
InovaChem enforceable against InovaChem in accordance with its terms, except
that such enforcement may be subject to bankruptcy, insolvency, reorganization,
moratorium or other similar laws now or hereafter in effect relating to
creditors' rights.
(c) As
of its
filing date, as any such filing may have been amended prior to the date hereof,
each document InovaChem filed with the Securities and Exchange Commission (an
“SEC
Document”)
complied, as to form and content in all material respects with the applicable
requirements of the Securities Act of 1933 (the “Securities
Act”)
and
the Securities Exchange Act of 1934 Act, as amended, as the case may be,
and
did not
contain any untrue statement of a material fact or omit to state any material
fact necessary in order to make the statements made therein, in the light of
the
circumstances under which they were made, not misleading.
| 5. |
REPRESENTATIONS
AND WARRANTIES RELATING TO THE TRINTERPRISE
MEMBERS
|
|
Each
Trinterprise Member represents and warrants to InovaChem as
follows:
|
(a) Acknowledgment.
Each
Trinterprise Member understands and agrees that the Merger Stock has not been
registered under the Securities Act or the securities laws of any state of
the
United State and that the issuance of the Merger Stock is being effected in
reliance upon one or more exemptions from registration afforded under the
Securities Act.
(b) Status.
Each
Trinterprise Member represents and warrants to InovaChem that such Trinterprise
Member is an “Accredited Investor” as defined in the rules promulgated under the
Securities Act. Each Trinterprise Member understands that the Merger Stock
is
being offered and sold to such Trinterprise Member in reliance upon the truth
and accuracy of the representations, warranties, agreements, acknowledgments
and
understandings of such Trinterprise Member set forth in this Agreement, in
order
that InovaChem may determine the applicability and availability of the
exemptions from registration of the Merger Stock on which InovaChem is
relying.
(c) Stock
Legends.
Each
Trinterprise Member hereby agrees with InovaChem as follows:
Securities
Act Legend.
The
certificates evidencing the Merger Stock will bear the following
legend:
THE
SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE “ACT”), OR ANY STATE SECURITIES LAWS AND
NEITHER SUCH SECURITIES NOR ANY INTEREST THEREIN MAY BE OFFERED, SOLD, PLEDGED,
ASSIGNED OR OTHERWISE TRANSFERRED EXCEPT (1) PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT UNDER THE SECURITIES ACT AND APPLICABLE STATE SECURITIES
LAWS OR (2) PURSUANT TO AN AVAILABLE EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT AND APPLICABLE STATE SECURITIES LAWS, IN
WHICH CASE THE HOLDER MUST, PRIOR TO SUCH TRANSFER, FURNISH TO THE COMPANY
AN
OPINION OF COUNSEL, WHICH COUNSEL AND OPINION ARE REASONABLY SATISFACTORY TO
THE
COMPANY, THAT SUCH SECURITIES MAY BE OFFERED, SOLD, PLEDGED, ASSIGNED OR
OTHERWISE TRANSFERRED IN THE MANNER CONTEMPLATED PURSUANT TO AN AVAILABLE
EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND
APPLICABLE STATE SECURITIES LAWS.
9
Other
Legends.
The
certificates representing the Merger Stock, and each certificate issued in
transfer or exchange thereof, will also bear any other legend required under
any
applicable law, including, without limitation, any United States state corporate
and state securities law, or contract.
Opinion.
No
Trinterprise Member will transfer any or all of the Merger Stock absent an
effective registration statement under the Securities Act and applicable state
securities law covering the disposition of such Merger Stock, without first
providing InovaChem with an opinion of counsel (which counsel and opinion are
reasonably satisfactory to InovaChem) to the effect that such transfer will
be
exempt from the registration and the prospectus delivery requirements of the
Securities Act and the registration or qualification requirements of any
applicable United States state securities laws.
(d) Review
of InovaChem SEC Documents.
Each
Trinterprise Member has reviewed the InovaChem SEC Documents, including the
exhibits thereto.
| 6. |
SURVIVAL
AND INDEMNIFICATION.
|
(a) Survival.
All of
the representations and warranties contained in this Agreement (including all
statements contained in any certificate or other instrument delivered by or
on
behalf of Trinterprise, InovaChem or Mergerco pursuant hereto or in connection
with the transactions contemplated hereby) shall survive the closing for a
period of one year.
(b) Indemnification
by Trinterprise Members.
From
and after the Closing, the Trinterprise Members, severally and jointly, shall
indemnify, defend and hold harmless InovaChem and its officers, directors,
shareholders, employees, agents and affiliates and their successors and assigns
against any loss, claim, damage, cost, obligation, liability, penalty and
expense, including all legal and other expenses reasonably incurred in
connection with investigating or defending against any such loss, claim, damage,
cost, obligation, liability, penalty or expense or action in respect of such
matters (collectively referred to as "Indemnified Damages"), occasioned by,
arising out of or resulting from (i) any breach or default of any representation
or warranty by, or covenant of, such Trinterprise Members contained in this
Agreement or any other agreement provided for in this Agreement; (ii) claims
that Trinterprise does not own all rights to its assets, including without
limitation the Intellectual Property, and (iii) liabilities of Trinterprise
arising out of or resulting from compliance or noncompliance with any law or
order, the basis of which arose on or before the Effective Date.
10
(c) Indemnification
by InovaChem.
From
and after the Closing, InovaChem shall indemnify, defend and hold harmless
the
Trinterprise Members and their heirs, personal representatives, agents,
successors, and affiliates against any Indemnified Damages occasioned by,
arising out of or resulting from any breach or default of any representation
or
warranty by, or covenant of, InovaChem contained in this Agreement or any other
agreement provided for in this Agreement.
(d) Notice
of Indemnification.
Upon
receipt by an indemnified party of notice of the commencement against it of
any
action involving a claim, such indemnified party, if a claim in respect of
such
action is to be made by it against any indemnifying party under this Article
6,
shall promptly notify in writing the indemnifying party of such commencement.
In
case any such action is brought against any indemnified party, and it notifies
an indemnifying party of such commencement, the indemnifying party will be
entitled to participate in the defense and, to the extent that it may wish,
jointly with any other indemnifying party similarly notified, assume the defense
of the action, with counsel reasonably satisfactory to such indemnified party,
and after notice from the indemnifying party to such indemnified party of its
election to assume the defense, the indemnifying party will not be liable to
such indemnified party under this Section for any legal or other expenses
subsequently incurred by such indemnified party in connection with the defense
other than reasonable costs of investigation. Any such indemnifying party shall
not be liable to any such indemnified party on account of any settlement of
any
claim or action effected without the consent of such indemnifying party unless
the indemnifying party had determined not to assume the defense of the action.
The indemnifying party will not settle or compromise any claim or action without
the written consent of the indemnified party (which consent shall not be
unreasonably withheld).
(e) Indemnification
Not Exclusive Remedy.
If a
party breaches any aspect of this Agreement, the non-breaching parties shall
be
entitled to seek all remedies available to them under applicable law and shall
not be limited to just the remedies of indemnification provided for in this
Agreement. ADDITIONALLY,
IF ANY PARTY IS FOUND TO HAVE MADE AN INTENTIONAL MISSTATEMENT OR OTHERWISE
ACTED WITH FRAUDULENT INTENT WITH RESPECT TO A REPRESENTATION OR WARRANTY,
THE
OTHER PARTIES MAY SEEK ALL REMEDIES TO WHICH THEY MAY BE ENTITLED UNDER
APPLICABLE LAW, INCLUDING BUT NOT LIMITED TO, A CLAIM FOR RESCISSION OF THE
ENTIRE AGREEMENT, COMPENSATORY AND PUNITIVE DAMAGES, AND, IF APPLICABLE,
INJUNCTIVE RELIEF.
(f) Escrowed
Stock.
InovaChem may, but shall not be required to, assert any claim it may have
hereunder against the Trinterprise Members, pursuant to the terms of the Escrow
Agreement.
11
| 7. |
EXPENSES;
ATTORNEYS FEES.
|
Each
party shall bear its expenses in connection with the Merger. In
the
event of any action, dispute, litigation or other proceeding with respect to
this Agreement, the prevailing party shall be entitled to recover from the
non-prevailing party all reasonable fees, costs, and expenses of counsel
incurred in connection with such action, dispute, litigation or other
proceeding, whether or not litigation is instituted, and if instituted, at
both
trial and appellate levels, in addition to any other relief to which the parties
may be entitled.
| 8. |
THIRD
PARTY BENEFICIARIES.
|
The
representations and warranties made by any party to this Agreement are intended
to be relied upon only by the other parties to this Agreement, and by no other
person. Nothing contained in this Agreement shall be deemed to confer upon
any
person not a party to this Agreement any third party beneficiary rights or
any
other rights of any nature whatsoever, and only to the extent expressly referred
to herein.
| 9. |
FURTHER
INSTRUMENTS AND ACTIONS.
|
Each
party shall deliver such further instruments and take such further action as
may
be reasonably requested by any other parties in order to carry out the intents
and purposes of this Agreement.
| 10. |
GOVERNING
LAW; JURISDICTION.
|
This
Agreement shall be governed by the laws of the State of Texas without giving
effect to its conflicts of laws principles. Each of the parties hereby
irrevocably submits to the exclusive jurisdiction of the courts of the State
of
Texas and the United States District
Court for the State of Texas, for the purpose of any action or proceeding
arising out of or relating to this Agreement and each of the parties hereby
irrevocably agrees that all claims in respect
of such action or proceeding may be heard and determined exclusively in any
Texas
state or federal court. Each of the parties agrees that a final judgment in
any
action or proceeding shall be conclusive and may be enforced in other
jurisdictions by suit on the judgment in any other matter provided by law.
| 11. |
NOTICES.
|
All
notices or other communications to be sent by any party to this Agreement to
any
other party to this Agreement shall be sent by certified mail, return receipt
requested, nationwide overnight delivery service or by personal delivery to
the
addresses set forth on the signature pages hereto, or such other addresses
as
may hereafter be designated in writing by a party. All notices shall be deemed
given and received upon the earlier of five days after being sent by certified
mail, or upon actual receipt, if addressed to the parties at their addresses
as
provided in this Section:
12
If
to Trinterprise:
Trinterprise
LLC
0000
Xxxx
Xxx Xxxxxxxxx,
Xxxxx
0000,
Xxxxxxx,
Xxxxx 00000
Attention:
Xxxxxxx X. Xxx
If
to InovaChem:
0000
Xxxx
Xxx Xxxxxxxxx,
Xxxxx
0000,
Xxxxxxx,
Xxxxx 00000
Attention:
Xxxxx Toh
If
to Mergco:
Mergco,
LLC
0000
Xxxx
Xxx Xxxxxxxxx,
Xxxxx
0000,
Xxxxxxx,
Xxxxx 00000
Attention:
Xxxxx Toh
If
to Zuo:
0000
Xxxx
Xxx Xxxxxxxxx,
Xxxxx
0000,
Xxxxxxx,
Xxxxx 00000
If
to Li:
0000
Xxxx
Xxx Xxxxxxxxx,
Xxxxx
0000,
Xxxxxxx,
Xxxxx 00000
If
to Xu:
0000
Xxxx
Xxx Xxxxxxxxx,
Xxxxx
0000,
Xxxxxxx,
Xxxxx 00000
13
If
to Toh:
0000
Xxxx
Xxx Xxxxxxxxx,
Xxxxx
0000,
Xxxxxxx,
Xxxxx 00000
If
to Yiu:
0000
Xxxx
Xxx Xxxxxxxxx,
Xxxxx
0000,
Xxxxxxx,
Xxxxx 00000
| 12. |
BINDING
AGREEMENT.
|
This
Agreement represents the entire agreement among the parties hereto with respect
to the matters described herein and is binding upon and shall inure to the
benefit of the parties hereto and their legal representatives, successors and
permitted assigns. This Agreement may not be assigned and, except as stated
herein, may not be altered or amended except in writing executed by the parties
hereto.
| 13. |
COUNTERPARTS.
|
This
Agreement may be executed in one or more counterparts, each of which shall
be
deemed an original and all of which, when taken together, shall constitute
one
and the same Agreement.
| 14. |
SEVERABILITY.
|
The
provisions of this Agreement shall be severable, so that the unenforceability,
validity or legality of any one provision shall not affect the enforceability,
validity or legality of the remaining provisions hereof.
[SIGNATURE
BLOCK ON FOLLOWING PAGE]
14
IN
WITNESS WHEREOF, the parties hereto have made and executed this Agreement as
of
the day and year first above written.
|
TRINTERPRISE LLC
|
||
|
By:
|
/s/
Xxxxxxxx Xx
|
|
|
Title: Manager
|
||
|
By:
|
/s/
Xxxxxxx X. Xxx
|
|
|
Title: President
|
||
|
INOVACHEM MERGERCO, LLC
|
||
|
By:
|
/s/
Xxxxxxx X. Xxx
|
|
|
Title: Manager
|
||
|
TRINTERPRISE MEMBERS
|
||
|
/s/ Xxxxxxx X. Xxx
|
||
|
Xxxxxxx X. Xxx
|
||
|
/s/ Xxxxxxxx Xx
|
||
|
Xxxxxxxx Xx
|
||
|
/s/ Shao Xxx Xx
|
||
|
Xxxx Xxx Xx
|
||
|
/s/ Xxxxx Toh
|
||
|
Xxxxx Toh
|
||
|
/s/ Xx Xxx
|
||
|
Xx
Xxx
|
||
15
Schedule
1
Trinterprise
Membership Interest
|
Number of Units Owned
|
Percentage Ownership
|
||||||
|
Xxxxxxx
Xxx
|
325,000
|
32.50
|
%
|
||||
|
Xxxxxxxx
Xx
|
325,000
|
32.50
|
%
|
||||
|
Shao
Xxx Xx
|
200,000
|
20.00
|
%
|
||||
|
Xxxxx
Toh
|
100,000
|
10.00
|
%
|
||||
|
Xxx
Xx
|
50,000
|
5.00
|
%
|
||||
|
Total:
|
1,000,000
|
100.00
|
%
|
||||
16
Schedule
2
Trinterprise
Contracts
1.
Covance Report dated March 11, 2008, Sucralose C071202 Specifications, Sample
No. 80104857, Batch No. 80104857 from Covance addressed to Xxxxx Xxxxxxx, Sales
& Marketing Manager, Polymed Therapeutics, Inc., and assignment thereof of
even date herewith to Trinterprise.
2.
Covance Report dated March 11, 2008, Sucralose Specifications, Sample No.
80104857, Batch No. 80104857 from Covance addressed to Xxxxx Xxxxxxx, Sales
& Marketing Manager, Polymed Therapeutics, Inc., and assignment thereof of
even date herewith to Trinterprise.
17
Schedule
3
Intellectual
Property
1.
U.S.
Patent Application No. 11/806,810, “NOVEL CHLORINATION PROCESS FOR PREPARING
SUCRALOSE”.
2.
U.S.
Patent Application No. 11/898/652, “NOVEL PROCESS FOR PREPARING
SUCROSE-6-ESTERS”.
3.
U.S.
Patent Application No. 12/003,850, CIP of 11/806,810.
18
Exhibit
A
Plan
of Merger and Certificate of Merger
19
Exhibit
B
Assignment
of the Covance Report
20
Exhibit
C
Letter
of Xx. Xxxx Xxx Xx
21
Exhibit
D
Assignments
of Patent Applications
22
Exhibit
E
Legal
Opinion
23
