EXHIBIT 2.1
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AGREEMENT AND PLAN OF MERGER
among
Splinex Technology Inc.,
Ener1 Acquisition Corp. and
Ener1, Inc.
Dated as of
June 9, 2004
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Table of Contents
ARTICLE I THE MERGER.......................................................1
1.1 The Merger.....................................................1
1.2 Filing.........................................................1
1.3 Effective Time of the Merger...................................1
1.4 Effects of the Merger..........................................1
1.5 Certificate of Incorporation...................................1
1.6 Bylaws.........................................................2
1.7 Directors and Officers.........................................2
1.8 Dividend; Exchange Agent and Procedures........................2
1.9 No Further Ownership Rights in Acquisition Common Stock........3
1.10 Termination of Exchange Fund...................................3
1.11 No Liability...................................................3
ARTICLE II REPRESENTATIONS AND WARRANTIES OF ACQUISITION...................3
2.1 Corporate Organization, Etc....................................4
2.2 Subsidiaries...................................................4
2.3 Stock Record Books.............................................4
2.4 Books and Records..............................................4
2.5 Title to Stock.................................................4
2.6 Authorization, Etc.............................................4
2.7 No Violation...................................................4
2.8 No Operations..................................................5
2.9 Registration Statement.........................................5
2.10 Brokerage......................................................5
ARTICLE III REPRESENTATIONS AND WARRANTIES OF SPLINEX......................5
3.1 Corporate Organization, Etc....................................5
3.2 Subsidiaries...................................................5
3.3 Stock Record Books.............................................5
3.4 Books and Records..............................................6
3.5 Title to Stock.................................................6
3.6 Authorization, Etc.............................................6
3.7 No Violation...................................................6
3.8 Splinex Financial Statements...................................6
3.9 Employees......................................................7
3.10 Absence of Certain Changes.....................................7
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3.11 Contracts......................................................7
3.12 Title and Related Matters......................................7
3.13 Litigation.....................................................8
3.14 Tax Matters....................................................8
3.15 Intellectual Property..........................................8
3.16 Affiliate Transactions.........................................9
3.17 Insurance......................................................9
3.18 Brokerage......................................................9
3.19 Compliance with Law and Applicable Government Regulations......9
3.20 Loan Agreement.................................................9
3.21 Permits........................................................9
3.22 Foreign Corrupt Practices......................................9
3.23 Disclosure....................................................10
3.24 Registration Statement........................................10
ARTICLE IV REPRESENTATIONS AND WARRANTIES OF ENER1........................10
4.1 Corporate Organization, Etc...................................10
4.2 Authorization, Etc............................................10
4.3 No Violation..................................................11
4.4 Brokerage.....................................................11
4.5 Opinion of Ener1 Financial Advisor............................11
ARTICLE V MUTUAL COVENANTS OF ACQUISITION AND SPLINEX.....................11
5.1 Regular Course of Business....................................11
5.2 Amendments....................................................11
5.3 Capital Changes; Pledges......................................12
5.4 Dividends.....................................................12
5.5 Capital and Other Expenditures................................12
5.6 Borrowing.....................................................12
5.7 Other Commitments.............................................12
5.8 Preparation of Form S-1; OTC Bulletin Board...................12
5.9 Full Access and Disclosure....................................13
5.10 Confidentiality...............................................13
5.11 Further Assurances............................................14
5.12 Deliveries After Closing......................................14
5.13 Public Announcements..........................................14
5.14 SEC Filings...................................................14
ARTICLE VI CONDITIONS TO THE OBLIGATIONS OF SPLINEX.......................15
6.1 Representations and Warranties; Performance...................15
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6.2 Consents and Approvals........................................15
6.3 No Proceeding or Litigation...................................15
6.4 Proceedings and Documents.....................................15
6.5 Secretary's Certificate.......................................16
6.6 Certificates of Good Standing.................................16
6.7 Other Documents...............................................16
6.8 Effectiveness of Registration Statement.......................16
ARTICLE VII CONDITIONS TO THE OBLIGATIONS OF ACQUISITION AND ENER1........16
7.1 Representations and Warranties; Performance...................16
7.2 Consents and Approvals........................................16
7.3 Opinion of Counsel............................................17
7.4 No Proceeding or Litigation...................................17
7.5 Secretary's Certificate.......................................17
7.6 Certificates of Good Standing.................................17
7.7 Other Documents...............................................17
7.8 Proceedings and Documents.....................................17
7.9 Effectiveness of Registration Statement.......................17
7.10 Loan Agreement................................................17
7.11 Election by Certain Convertible Securities Holders............17
7.12 Contribution..................................................18
ARTICLE VIII CLOSING......................................................18
8.1 Closing.......................................................18
8.2 Intervening Litigation........................................18
ARTICLE IX TERMINATION AND ABANDONMENT....................................18
9.1 Methods of Termination........................................18
9.2 Procedure Upon Termination....................................18
ARTICLE X INDEMNIFICATION.................................................19
10.1 Indemnification by Splinex....................................19
10.2 Indemnification by Ener1......................................19
10.3 Procedures....................................................20
10.4 Survival......................................................20
10.5 Contribution..................................................20
ARTICLE XI MISCELLANEOUS PROVISIONS.......................................20
11.1 Amendment and Modification....................................21
11.2 Waiver of Compliance; Consents................................21
11.3 Certain Definitions and Rules of Construction.................21
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11.4 Notices.......................................................25
11.5 Assignment....................................................27
11.6 Governing Law.................................................27
11.7 Counterparts..................................................27
11.8 Headings......................................................27
11.9 Entire Agreement..............................................27
11.10 Consent to Jurisdiction; Service of Process...................27
11.11 Binding Effect................................................27
11.12 Injunctive Relief.............................................27
11.13 Delays or Omissions...........................................28
11.14 Severability..................................................28
11.15 Expenses......................................................28
11.16 Waiver of Jury Trial..........................................28
EXHIBITS
A Certificate of Merger for Delaware Secretary of State
B Form of Officer's Certificate
C Form of Secretary's Certificate
SCHEDULES
3.8(b) Splinex Postclosing Indebtedness
3.15 Splinex Material Proprietary Rights
3.16 Splinex Affiliate Transactions
4.3 Ener1 Absence of Violations
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This Agreement and Plan of Merger (the "AGREEMENT"), dated as of June
9, 2004, is by and among Splinex Technology Inc., a Delaware corporation
("SPLINEX") Ener1 Acquisition Corp., a Delaware corporation ("Acquisition") and
Ener1, Inc., a Florida corporation ("ENER1") . Terms used herein and not
otherwise defined have the meanings set forth in Section 11.3 hereof.
WHEREAS, Acquisition, which is a wholly-owned subsidiary of Ener1, and
Splinex have agreed to merge pursuant to the terms and conditions hereof and in
accordance with the requirements of Delaware law (the "Merger").
NOW, THEREFORE, in consideration of the representations and warranties,
covenants and agreements, and subject to the conditions contained herein, the
parties hereby agree as follows:
ARTICLE I
THE MERGER
1.1 THE MERGER. At the Effective Time,
(a) Acquisition shall be merged with and into Splinex and the separate
corporate existence of Acquisition shall cease, and Splinex shall continue as
the surviving corporation under the laws of the State of Delaware under the name
of "Splinex Technology Inc." (the "SURVIVING CORPORATION"); and
(b) the common stock of Acquisition then issued and outstanding shall,
by virtue of the Merger and without any action on the part of the holder
thereof, be converted into the Merger Consideration. No fractional shares of the
common stock of the Surviving Corporation shall be issued in the Merger or upon
further redistribution of the Merger Consideration.
1.2 FILING. As soon as practicable following fulfillment of the
conditions specified in Article VII and Article VIII hereof, and provided that
this Agreement has not been terminated and abandoned pursuant to Article XI
hereof, Acquisition and Splinex will cause an executed counterpart of a
certificate of merger in substantially the form of EXHIBIT A hereto (the
"CERTIFICATE OF MERGER") to be filed with the office of the Secretary of State
of the State of Delaware in accordance with the provisions of Sections 103 and
252 of the Delaware General Corporation Law (the "DGCL").
1.3 EFFECTIVE TIME OF THE MERGER. The Merger shall be effective at the
time that the filing of the Certificate of Merger referred to in Section 1.2 is
completed, which time is herein sometimes referred to as the "EFFECTIVE TIME."
1.4 EFFECTS OF THE MERGER. The Merger shall have the effects set forth
in DGCL Section 259.
1.5 CERTIFICATE OF INCORPORATION. At the Effective Time, the
certificate of incorporation of Splinex ("CERTIFICATE OF INCORPORATION"),
amended as set forth in the Certificate of Merger, shall be the certificate of
incorporation of the Surviving Corporation and may be amended from time to time
after the Effective Time as provided by law.
1.6 BYLAWS. The bylaws of Splinex as in effect immediately prior to the
Effective Time shall continue unchanged as the bylaws of the Surviving
Corporation until the same shall thereafter be altered, amended or repealed in
accordance with law, the Certificate of Incorporation or said bylaws.
1.7 DIRECTORS AND OFFICERS.
(a) The members of the board of directors of Splinex immediately prior
to the Effective Time shall be the members of the board of directors of the
Surviving Corporation.
(b) The officers of Splinex immediately prior to the Effective Time
shall be the officers of the Surviving Corporation from and after the Effective
Time.
1.8 DIVIDEND; EXCHANGE AGENT AND PROCEDURES.
(a) Immediately following the Effective Time, Ener1 shall distribute
all of the Merger Consideration on a pro rata basis (the "DISTRIBUTION") to (i)
the holders as of the Ener1 Record Date of the outstanding common stock, par
value $0.01 per share, of Ener1 (the "ENER1 COMMON STOCK") and (ii) the holders
as of the Ener1 Record Date of Convertible Securities, the distribution to the
holders of such Convertible Securities to be made in accordance with the terms
of such Convertible Securities.
(b) As soon as practicable after the Effective Time (but no later than
five business days after the Closing Date), the Surviving Corporation shall
deposit with the Exchange Agent, for the benefit of the shareholders of Ener1
Common Stock and of Convertible Securities as of the Ener1 Record Date,
certificates representing the Merger Consideration (together with any dividends
or distributions thereon having a record date after the Effective Time and a
payment date prior to the delivery of such shares by the Exchange Agent, being
hereinafter referred to as the "EXCHANGE FUND") issuable pursuant to Section
1.1(b). The Exchange Agent shall, pursuant to irrevocable instructions, deliver
to the shareholders of Ener1 Common Stock and of Convertible Securities as of
the Ener1 Record Date Merger Consideration contemplated to be issued pursuant to
Section 1.1 from the shares of stock held in the Exchange Fund. The Exchange
Fund shall not be used for any other purpose. The Surviving Corporation shall
deliver all such dividends referred to above to the Exchange Agent.
(c) As promptly as practicable after the Effective Time, Ener1 and the
Surviving Corporation shall cause the Exchange Agent to mail or deliver to the
holders of Ener1 Common Stock as of the Ener1 Record Date (i) certificates
representing the number of whole shares of common stock of the Surviving
Corporation that such holder has the right to receive pursuant to Section 1.1(b)
and (ii) the amount of dividends and other distributions, if any, with a record
date after the Effective Time which theretofore became payable with respect to
such shares of common stock of the Surviving Corporation. As promptly as
practicable after the conversion or exercise of any Convertible Securities into
Ener1 Common Stock, Ener1 and the Surviving Corporation shall cause the Exchange
Agent to mail or deliver to the shareholders of the Convertible Securities so
converted or exercised, (i) certificates representing the number of whole shares
of common stock of the Surviving Corporation that such holder has the right to
receive pursuant to Section 1.1(b) and (ii) the amount of dividends and other
distributions, if any, with a record date after the Effective Time which
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theretofore became payable with respect to such shares of common stock of the
Surviving Corporation. The Surviving Corporation shall be entitled, and may
instruct the Exchange Agent, to deduct and withhold from the consideration
otherwise payable pursuant to this Agreement such amounts required to be
deducted and withheld with respect to the making of such payments under the Code
or any provision of U.S., State or local or foreign tax law. Any withheld
amounts shall be treated for all purposes of this Agreement as having been paid
to the applicable shareholder of Ener1 Common Stock.
(d) Notwithstanding anything herein to the contrary, no certificate or
scrip representing fractional shares of common stock of the Surviving
Corporation shall be issued in the Distribution and, to the extent any Ener1
shareholder as of the Ener1 Record Date would be entitled to receive a
fractional share of common stock of the Surviving Corporation, such fractional
share interests will not entitle any such shareholder to vote or to any rights
as a stockholder of the Surviving Corporation. All fractional interests in the
common stock of the Surviving Corporation that would otherwise be issuable in
the Distribution shall be aggregated; provided, that if a fractional interest
results from such aggregation, the holder shall not be entitled to receive such
fractional interest. Ener1 may direct the Exchange Agent to aggregate all
fractional interests in the common stock of the Surviving Corporation resulting
from the Merger and sell shares representing such aggregate interests in the
public market and pay such proceeds to Ener1.
1.9 NO FURTHER OWNERSHIP RIGHTS IN ACQUISITION COMMON STOCK. All shares
of common stock of the Surviving Corporation issued pursuant to Section 1.1(b)
shall be deemed to have been issued in full satisfaction of all rights
pertaining to the shares of common stock of Splinex converted in the Merger in
accordance with Section 1.1.
1.10 TERMINATION OF EXCHANGE FUND. Any portion of the Exchange Fund
made available to the Exchange Agent that remains undistributed to the
shareholders of Ener1 as of the Record Date on the six-month anniversary of the
Effective Time shall be delivered to the Surviving Corporation, upon demand, and
any shareholder of Ener1 Common Stock as of the Ener1 Record Date shall
thereafter look only to the Surviving Corporation for payment of their claim for
common stock of the Surviving Corporation and any dividends or distributions
with respect to common stock of the Surviving Corporation; PROVIDED, HOWEVER,
that Ener1 may direct the Exchange Agent to retain any portion of the Exchange
Fund to be distributed to holders of Convertible Securities in accordance with
the terms of such Convertible Securities for a period of time designated by
Ener1.
1.11 NO LIABILITY. None of the parties hereto shall be liable to any
shareholder of Ener1 Common Stock as of the Ener1 Record Date for shares of
common stock of the Surviving Corporation (or dividends or distributions with
respect thereto) delivered to a public official pursuant to any applicable
abandoned property, escheat or similar law.
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF ACQUISITION
Acquisition represents and warrants to Splinex as of the date hereof
and as of the Closing Date:
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2.1 CORPORATE ORGANIZATION, ETC. Acquisition is a corporation duly
organized, validly existing and in good standing under the laws of its
jurisdiction of incorporation with full corporate power and authority to carry
on its business as it is now being conducted and to own, operate and lease its
properties and assets. It is duly qualified or licensed to do business and is in
corporate and Tax good standing in the State of its jurisdiction of
incorporation which is the only jurisdictions in which it conducts its business,
owns or leases its properties, or is required to be so qualified or licensed.
2.2 SUBSIDIARIES. Acquisition has no Subsidiaries.
2.3 STOCK RECORD BOOKS. Acquisition's stock record books have been made
available to Splinex for inspection prior to the date hereof and are complete
and correct in all respects. The outstanding capital stock of Acquisition
consists of ten shares of common stock, which is held entirely by Ener1, Inc., a
Florida corporation. There are no shares of capital stock of Acquisition held in
its treasury and no shares of capital stock of Acquisition are currently
reserved for issuance for any purpose or upon the occurrence of any event or
condition.
2.4 BOOKS AND RECORDS. The corporate minute books of Acquisition have
been made available to Splinex for inspection and are complete and correct in
all material respects and contain all of the proceedings of the shareholders and
directors of Acquisition.
2.5 TITLE TO STOCK. All of the outstanding shares of the capital stock
of Acquisition are duly authorized, validly issued, fully paid and
nonassessable, are free of all Liens and Contracts, and have been issued in
compliance with all applicable securities laws. There is no outstanding Option
or Contract with Acquisition or any other Person to purchase, redeem or
otherwise acquire any outstanding shares of the capital stock of Acquisition, or
securities or obligations of any kind convertible into any shares of the capital
stock of Acquisition.
2.6 AUTHORIZATION, ETC. Acquisition has full power and authority to
enter into this Agreement and the agreements contemplated hereby and to
consummate the transactions contemplated hereby and thereby. The execution,
delivery and performance of this Agreement and all other agreements and
transactions contemplated hereby have been duly authorized by the board of
directors of Acquisition and the stockholders of Acquisition and no other
proceedings by the board of directors or stockholders of Acquisition are
necessary to authorize this Agreement and the transactions contemplated hereby.
This Agreement and all other agreements contemplated hereby to be entered into
by Acquisition each constitutes a legal, valid and binding obligation of
Acquisition enforceable against it in accordance with its terms.
2.7 NO VIOLATION. The execution, delivery and performance by
Acquisition of this Agreement, and all other agreements contemplated hereby, and
the fulfillment of and compliance with the respective terms hereof and thereof
by Acquisition, do not and will not (i) conflict with or result in a breach of
the terms, conditions or provisions of, (ii) constitute a default or event of
default under (with due notice, lapse of time or both), (iii) result in the
creation of any Lien upon Acquisition's capital stock or assets pursuant to,
(iv) give any third party the right to accelerate any obligation under, (v)
result in a violation of or (vi) require any authorization, consent, approval,
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exemption or other action by, notice to, or filing with any Authority pursuant
to, the charter or bylaws of Acquisition or any applicable Regulation, Order or
any Contract to which Acquisition is subject, other than filing the Certificate
of Merger with the Secretary of State of the State of Delaware. Acquisition has
complied with all applicable Regulations and Orders in connection with the
execution, delivery and performance of this Agreement and the transactions
contemplated hereby.
2.8 NO OPERATIONS. Except for obligations incurred in connection with
its incorporation or the negotiation and consummation of this Agreement and the
agreements contemplated hereby and the transactions contemplated hereby and
thereby, Acquisition has neither incurred any obligation or liability nor
engaged in any business or activity of any type or kind whatsoever or entered
into any agreement or arrangement with any person.
2.9 REGISTRATION STATEMENT. None of the information regarding
Acquisition or its subsidiaries provided by Acquisition for inclusion in, or
incorporation by reference into, the Registration Statement will, at the time it
becomes effective and at the Effective Time, contain an untrue statement of a
material fact or omit to state any material fact required to be stated therein
or necessary in order to make the statements therein, in the light of the
circumstances under which they are made, not misleading.
2.10 BROKERAGE. Other than amounts to be paid to Capitalink, L.C.,
there are no claims for brokerage commissions, finders' fees or similar
compensation in connection with the transactions contemplated by this Agreement
based on any arrangement or agreement binding upon Acquisition.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF SPLINEX
Splinex represents and warrants to Acquisition and Ener1 as follows as
of the date hereof and as of the Closing Date:
3.1 CORPORATE ORGANIZATION, ETC. Splinex is a corporation duly
organized, validly existing and in good standing under the laws of its
jurisdiction of incorporation with full corporate power and authority to carry
on its business as it is now being conducted and to own, operate and lease its
properties and assets. It is duly qualified or licensed to do business and is in
corporate and Tax good standing in the States of Florida and Delaware, which are
the only jurisdictions in which it conducts its business, owns or leases its
properties, or is required to be so qualified or licensed.
3.2 SUBSIDIARIES. Splinex has no Subsidiaries.
3.3 STOCK RECORD BOOKS. Splinex's stock record books have been made
available to Acquisition for inspection prior to the date hereof and are
complete and correct in all respects. The authorized, issued and outstanding
capital stock of Splinex consists of 1,000 shares of common stock, which is held
entirely by Splinex, LLC, a Florida limited liability company. There are no
shares of capital stock of Splinex held in its treasury and no shares of capital
stock of Splinex are currently reserved for issuance for any purpose or upon the
occurrence of any event or condition. Splinex does not have outstanding any
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bonds, debentures, notes or other obligations the holders of which have the
right to vote (or are convertible or exercisable for securities having the right
to vote) with the stockholders of Splinex on any matter.
3.4 BOOKS AND RECORDS. The corporate minute books of Splinex have been
made available to Acquisition for inspection are complete and correct in all
material respects and contain all of the proceedings of the shareholders and
directors of Splinex. Splinex has no material records, systems, controls, data
or information recorded, stored, maintained, operated or otherwise wholly or
partly dependent upon or held by any means (including any electronic, mechanical
or photographic process, whether computerized or not) which (including all means
of access thereto and therefrom) are not under its exclusive ownership and
direct control.
3.5 TITLE TO STOCK. All of the outstanding shares of the capital stock
of Splinex are duly authorized, validly issued, fully paid and nonassessable,
are free of all Liens and Contracts, and have been issued in compliance with all
applicable securities laws and are not subject to any preemptive rights. There
are no Contracts, arrangements or commitments of any character relating to the
issued or unissued capital stock of Splinex or requiring Splinex make any
investment (in the form of a loan, capital contribution or otherwise) in any
other Person. Splinex has not redeemed any securities in violation of any
Contract or Regulation.
3.6 AUTHORIZATION, ETC. Splinex has full power and authority to enter
into this Agreement and the agreements contemplated hereby and to consummate the
transactions contemplated hereby and thereby. The execution, delivery and
performance of this Agreement and all other agreements and transactions
contemplated hereby have been duly authorized by the board of directors of
Splinex and the stockholder of Splinex and no other proceedings by the directors
or stockholder of Splinex are necessary to authorize this Agreement and the
transactions contemplated hereby. This Agreement and all other agreements
contemplated hereby to be entered into by Splinex each constitutes a legal,
valid and binding obligation of Splinex enforceable against it in accordance
with its terms.
3.7 NO VIOLATION. The execution, delivery and performance by Splinex of
this Agreement, and all other agreements contemplated hereby, and the
fulfillment of and compliance with the respective terms hereof and thereof by
Splinex, do not and will not (i) conflict with or result in a breach of the
terms, conditions or provisions of, (ii) constitute a default or event of
default under (with due notice, lapse of time or both), (iii) result in the
creation of any Lien upon Splinex's capital stock or assets pursuant to, (iv)
give any third party the right to accelerate any obligation under, (v) result in
a violation of or (vi) require any authorization, consent, approval, exemption
or other action by, notice to, or filing with any Authority pursuant to, the
charter or bylaws of Splinex or any applicable Regulation, Order or any Contract
to which Splinex is subject other than filing the Certificate of Merger with the
Secretary of State of the State of Delaware. Splinex has complied with all
applicable Regulations and Orders in connection with the execution, delivery and
performance of this Agreement and the transactions contemplated hereby.
3.8 SPLINEX FINANCIAL STATEMENTS. (a) Splinex has made available its
audited year-end financial statements for the year ended March 31, 2004 (the
"SPLINEX FINANCIAL STATEMENTS") for inspection by Acquisition and Ener1. The
Splinex Financial Statements fairly present the financial condition of Splinex
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at the respective date of, and the results of operations and cash flows for the
period covered by such statements, have been prepared in accordance with GAAP
and were prepared from the books and records of Splinex.
(b) Except as set forth in the Splinex Financial Statements or on
SCHEDULE 3.8(B) hereto, Splinex does not have any Indebtedness, obligation or
liability (whether accrued, absolute, contingent, unliquidated or otherwise,
known or unknown to Splinex, whether due or to become due) and has no knowledge
or any basis for such liabilities, except for Indebtedness, obligations or
liabilities incurred in the ordinary course of business since March 31, 2004.
3.9 EMPLOYEES. Splinex has no collective bargaining agreements and,
since its organization, there have been no strikes, work stoppages nor any
demands for collective bargaining by any union or labor organization.
3.10 ABSENCE OF CERTAIN CHANGES. Since March 31, 2004, there has not
been any: (i) Material Adverse Change in the business, operations, properties,
assets, condition (financial or otherwise), results, plans, strategies or
prospects of Splinex; (ii) damage, destruction or loss, whether covered by
insurance or not, having a Material Adverse Effect, with regard to Splinex's
property and business; (iii) declaration, setting aside or payment of any
dividend or distribution (whether in cash, stock or property) in respect of
Splinex's capital stock, or any redemption or other acquisition of such stock by
Splinex; (iv) entry into any material Contract or other transaction not in the
ordinary course of business, including without limitation, any borrowing or
capital expenditure; (v) change by Splinex in accounting methods or principles;
(vi) failure by Splinex to promptly pay and discharge current liabilities; (vii)
Lien placed on any property of Splinex other than Permitted Liens; or (viii)
increase in the compensation payable to or to become payable by Splinex to its
officers or employees or any adoption of or increase in any bonus, incentive,
pension or other employee benefit plan, payment or arrangement made to, for or
with any such officers or employees or any Affiliate of Splinex.
3.11 CONTRACTS. Splinex has made available to Acquisition and Ener1
true and complete copies of all the Contracts to which Splinex is a party.
Splinex has performed all obligations required to be performed by it and is not
in default in any respect under or in breach of nor in receipt of any Claim of
default or breach under any material Contract to which Splinex is subject
(including without limitation all performance bonds, warranty obligations or
otherwise); no event has occurred which with the passage of time or the giving
of notice or both would result in a default, material breach or event of
non-compliance under any material Contract to which Splinex is subject
(including without limitation all performance bonds, warranty obligations or
otherwise); Splinex does not have any present expectation or intention of not
fully performing all such material obligations; Splinex does not have any
knowledge of any breach or anticipated breach by the other parties to any such
Contract to which it is a party.
3.12 TITLE AND RELATED MATTERS. (a) Splinex has good and marketable
title to all real and personal property and other assets reflected in the
Splinex Financial Statements or acquired after the Financial Statement Date,
free and clear of all Liens, except Permitted Liens. All properties used in
Splinex's business operations as of the Financial Statement Date are reflected
in the Splinex Financial Statements and are reflected therein in accordance with
and to the extent required by GAAP, except as to those assets that are leased.
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(b) Splinex has received no written notice that the landlord with
respect to any real property lease would refuse to renew such lease upon
expiration of the period thereof upon substantially the same terms, except for
rent increases consistent with past experience or market rentals.
(c) There has not been since the Financial Statement Date, and will not
be prior to the Closing Date, any sale, lease, or any other disposition or
distribution by Splinex of any of its assets or properties, now or hereafter
owned by it, except transactions in the ordinary and regular course of business
or as otherwise consented to by Acquisition and Ener1 in writing. After the
Closing, Splinex will own, or have the unrestricted right to use, all properties
and assets that are currently used in connection with its business.
3.13 LITIGATION. There is no Claim pending or, to the best knowledge of
Splinex, threatened against Splinex which, if adversely determined, would have a
Material Adverse Effect on Splinex nor is there any Order outstanding against
Splinex having, or which, insofar as can be reasonably foreseen, in the future
may have, a Material Adverse Effect on Splinex.
3.14 TAX MATTERS. Splinex has filed all Tax Returns required to be
filed and has duly paid all relevant Taxes due or claimed to be due by all
Taxing Authorities. From the date hereof until the Closing Date Splinex shall
fully reserve on its financial statements all amounts necessary for the payment
of all Taxes that have accrued up to and including the Closing Date. All Taxes
which are required to be withheld or collected by Splinex have been duly
withheld or collected and, to the extent required, have been paid to the proper
Taxing Authority or properly segregated or deposited as required by applicable
law. There are no Liens for Taxes upon any property or assets of Splinex, except
for Liens for Taxes not yet due and payable. The items relating to the business,
properties or operations of Splinex on the Tax Returns filed by Splinex for all
taxable years (including the supporting schedules filed therewith), available
copies of which have been supplied to Ener1, state accurately, in all material
respects the information requested with respect to Splinex and such information
was derived from Splinex's books and records. Splinex is not subject to any
joint venture, partnership, or other arrangement or Contract which is treated as
a partnership for Federal income tax purposes. Splinex is not party to any tax
sharing agreement. Splinex has not made any payments, nor is it obligated to
make any payments, nor is it a party to any agreement that under certain
circumstances could obligate it to make any payments that will not be deductible
under Section 280G of the Code.
3.15 INTELLECTUAL PROPERTY. Except as set forth on SCHEDULE 3.15,
Splinex owns all right, title and interest in the Proprietary Rights used in or
necessary for its business as conducted on the date hereof and as proposed to be
conducted on the date hereof. All such Proprietary Rights have been duly
registered with, filed in, or issued by the appropriate domestic or foreign
governmental agency, to the extent required, and each such registration, filing
and issuance remains in full force and effect. Except as set forth on SCHEDULE
3.15, no Claim adverse to the interests of Splinex in the Proprietary Rights or
Contracts necessary to operate Splinex as proposed in its business plan has been
made in litigation or otherwise and, to the knowledge of Splinex, no such Claim
been threatened and no basis for such a Claim exists. Splinex has taken all
reasonable measures to protect the proprietary nature of each Proprietary Right,
and to maintain in confidence all trade secrets and confidential information
that it owns or uses. To the knowledge of Splinex, (i) no other Person has any
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rights to any of the Proprietary Rights owned or used by Splinex except pursuant
to agreements or licenses specified in SCHEDULE 3.15 hereto, (ii) no other
Person is infringing, violating or misappropriating any such Proprietary Right
that Splinex owns or uses and (iii) no Proprietary Right is subject to any
outstanding Order or Claim.
3.16 AFFILIATE TRANSACTIONS. SCHEDULE 3.16 hereto sets forth a complete
and accurate list of all oral or written Contracts to which Splinex is, will be
or has been a party, at any time from its formation to the Closing Date, and to
which any one or more Affiliates is also a party.
3.17 INSURANCE. Splinex currently has, and through the Closing Date
will have, Policies in full force and effect that provide for coverages that are
usual and customary as to amount and scope in the business of Splinex. All of
the Policies are in full force and effect, all premiums with respect thereto
covering all periods up to and including the Closing Date have been paid or
accrued therefor, and no notice of cancellation or termination has been received
with respect to any Policy.
3.18 BROKERAGE. There are no claims for brokerage commissions, finders'
fees or similar compensation in connection with the transactions contemplated by
this Agreement based on any arrangement or agreement binding upon Splinex.
3.19 COMPLIANCE WITH LAW AND APPLICABLE GOVERNMENT REGULATIONS. Splinex
is presently, and has been since its formation, in compliance with regard to its
operations, practices, real property, plants, structures, machinery, equipment
and other property, and all other aspects of its business, with all applicable
Regulations and Orders, including, but not limited to, all Regulations relating
to the safe conduct of business, environmental protection, quality and labeling,
antitrust, Taxes, consumer protection, equal opportunity, discrimination,
health, sanitation, fire, zoning, building and occupational safety. There are no
Claims pending, or threatened, nor has Splinex received any written notice,
regarding any violations of any Regulations and Orders enforced by any Authority
claiming jurisdiction over Splinex including any requirement of OSHA or any
pollution and environmental control agency (including air and water).
3.20 LOAN AGREEMENT. The Revolving Loan Agreement dated June 9, 2004
between Splinex and Bzinfin, S.A. (the "LOAN AGREEMENT") is in full force and
effect.
3.21 PERMITS. Splinex possesses all Permits requires to conduct its
business as presently conducted, except for those the absence of which would not
have any Material Adverse Effect on the assets, financial condition, results of
operations or future prospects of Splinex. Each such Permit is in full force and
effect and, to the knowledge of Splinex, no suspension or cancellation of any
such Permit is threatened and there is no basis for believing that such Permit
will not be renewable upon expiration.
3.22 FOREIGN CORRUPT PRACTICES. To Splinex's knowledge, neither
Splinex, nor any director, officer, agent, employee or other person acting on
behalf of Splinex, has (i) used any corporate funds for any unlawful
contribution, gift, entertainment or other unlawful expenses relating to
political activity, (ii) made any direct or indirect unlawful payment to any
foreign or domestic government official or employee, or (iii) violated any
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provision of the Foreign Corrupt Practices Act of 1977, as amended, or made any
bribe, rebate, payoff, influence payment, kickback or other unlawful payment to
any foreign or domestic government official or employee.
3.23 DISCLOSURE. Neither this Agreement nor any of the exhibits,
attachments, written statements, documents, certificates or other items prepared
for or supplied to Ener1 by or on behalf of Splinex with respect to the
transactions contemplated hereby contains any untrue statement of a material
fact or omits a material fact necessary to make each statement contained herein
or therein not misleading. There is no fact which Splinex has not disclosed to
Ener1 herein and of which Splinex, or any of its officers or directors is aware
and which could reasonably be anticipated to have a Material Adverse Effect on
Ener1 or the ability of the Surviving Corporation to continue the businesses of
Splinex in the same manner as Splinex conducted its business prior to the
Closing Date. Splinex has disclosed to Ener1 all material information relating
to the business of Splinex or the transactions contemplated by this Agreement.
Splinex will update or have updated, as applicable, the Schedules and Exhibits
hereto to reflect any and all changes that occurred from the date hereof through
and including the Closing Date PROVIDED, HOWEVER, that such update shall not be
deemed to cure any breach of a representation or warranty.
3.24 REGISTRATION STATEMENT. None of the information regarding Splinex
or its subsidiaries provided by Splinex for inclusion in, or incorporation by
reference into, the Registration Statement will, at the time it becomes
effective and at the Effective Time, contain an untrue statement of a material
fact or omit to state any material fact required to be stated therein or
necessary in order to make the statements therein, in the light of the
circumstances under which they are made, not misleading.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF ENER1
Ener1 represents and warrants to Splinex as of the date hereof and as
of the Closing Date:
4.1 CORPORATE ORGANIZATION, ETC. Ener1 is a corporation duly organized,
validly existing and in good standing under the laws of its jurisdiction of
incorporation with full corporate power and authority to carry on its business
as it is now being conducted and to own, operate and lease its properties and
assets. It is duly qualified or licensed to do business and is in corporate and
Tax good standing in the State of its jurisdiction of incorporation any other
State in which it conducts its business, owns or leases its properties, or is
required to be so qualified or licensed except where the failure to be so
qualified or licensed would not have a Material Adverse Effect on Ener1 and its
Subsidiaries taken as a whole.
4.2 AUTHORIZATION, ETC. Ener1 has full power and authority to enter
into this Agreement and the agreements contemplated hereby and to consummate the
transactions contemplated hereby and thereby. The execution, delivery and
performance of this Agreement and all other agreements and transactions
contemplated hereby have been duly authorized by the board of directors of Ener1
and no other corporate proceedings on its part are necessary to authorize this
Agreement and the transactions contemplated hereby. This Agreement and all other
agreements contemplated hereby to be entered into by Ener1 each constitutes a
legal, valid and binding obligation of Ener1 enforceable against it in
accordance with its terms.
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4.3 NO VIOLATION. Other than as set forth on SCHEDULE 4.3, the
execution, delivery and performance by Ener1 of this Agreement, and all other
agreements contemplated hereby, and the fulfillment of and compliance with the
respective terms hereof and thereof by Ener1, do not and will not (i) conflict
with or result in a breach of the terms, conditions or provisions of, (ii)
constitute a default or event of default under (with due notice, lapse of time
or both), (iii) result in the creation of any Lien upon Ener1's capital stock or
assets pursuant to, (iv) give any third party the right to accelerate any
obligation under, (v) result in a violation of or (vi) require any
authorization, consent, approval, exemption or other action by, notice to, or
filing with any Authority pursuant to, the charter or bylaws of Ener1 or any
applicable Regulation, Order or any Contract to which Ener1 is subject. Ener1
has complied with all applicable Regulations and Orders in connection with the
execution, delivery and performance of this Agreement and the transactions
contemplated hereby.
4.4 BROKERAGE. Other than amounts to be paid to Capitalink, L.C., there
are no claims for brokerage commissions, finders' fees or similar compensation
in connection with the transactions contemplated by this Agreement based on any
arrangement or agreement binding upon Ener1.
4.5 OPINION OF ENER1 FINANCIAL ADVISOR. Ener1 has received an opinion
of Capitalink, L.C. to the effect that as of the date of the opinion, the Merger
Consideration is fair, from a financial point of view, to the shareholders of
Ener1.
ARTICLE V
MUTUAL COVENANTS OF ACQUISITION AND SPLINEX
Until the Closing Date, Splinex and Acquisition agree that they shall
act, or refrain from acting where required hereinafter, to comply with the
following:
5.1 REGULAR COURSE OF BUSINESS. Each of Splinex and Acquisition: shall
operate its business diligently and in good faith, consistent with past
management practices; shall maintain all of its properties in customary repair,
order and condition, reasonable wear and tear excepted; shall maintain (except
for expiration due to lapse of time) all leases and material Contracts in effect
without change except as expressly provided herein; shall comply in all material
respects with the provisions of all Regulations and Orders applicable to it and
the conduct of its business; shall not cancel, release, waive or compromise any
debt, Claim or right in its favor having a value in excess of $5,000 other than
in connection with returns for credit or replacement in the ordinary course of
business; shall not alter the rate or basis of compensation of any of its
officers, directors or employees other than in the ordinary course of business;
shall not, in a single transaction or a series of related transactions, sell
(including sale-leaseback), lease, pledge, encumber or otherwise dispose of, or
agree to sell (or engage in a sale-leaseback), lease (whether such lease is an
operating or capital lease), pledge, encumber or otherwise dispose of, any of
its assets with a value in excess of $5,000, and shall maintain the insurance
coverage in effect on the date hereof up to the Closing Date.
5.2 AMENDMENTS. Except as required for the transactions contemplated in
this Agreement, no change or amendment shall be made in the charter or bylaws of
Splinex. No amendment shall be made in the charter or bylaws of Acquisition
without the prior written consent of Splinex. Neither Splinex nor Acquisition
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shall merge into or consolidate with any other Person or change the character of
its business.
5.3 CAPITAL CHANGES; PLEDGES. Neither Splinex nor Acquisition shall
issue or sell any shares of its capital stock or issue or sell any securities
convertible into or Options to subscribe for any shares of its capital stock or
pledge or otherwise encumber any shares of its capital stock.
5.4 DIVIDENDS. Other than as contemplated by this Agreement, neither
Splinex nor Ener1 shall declare, pay or set aside for payment any dividend or
other distribution in respect of its capital stock.
5.5 CAPITAL AND OTHER EXPENDITURES. Neither Splinex nor Acquisition
shall make any capital expenditures or commitments with respect thereto, or make
any loan or advance to any Affiliate.
5.6 BORROWING. Neither Splinex nor Acquisition shall incur, assume or
Guarantee any Indebtedness not reflected on their respective financial
statements except in the ordinary course of business under existing credit
facilities or for purposes of consummation of transactions contemplated by this
Agreement, and in any case only after consultation with, and agreement in
writing by, the other party.
5.7 OTHER COMMITMENTS. Except as set forth in this Agreement, except as
incurred or transacted in the ordinary course of business, or permitted in
writing by the other party, neither Splinex nor Acquisition shall enter into any
transaction or make any commitment or incur any obligation (including entering
into any real property leases).
5.8 PREPARATION OF FORM S-1; OTC BULLETIN BOARD.
(a) Promptly following the execution of this Agreement, Splinex and
Ener1 shall prepare and file with the Securities and Exchange Commission (the
"SEC") a registration statement on Form S-1 to register (i) the issuance of the
common stock of the Surviving Corporation in the Merger and (ii) the resale of
the common stock of the Surviving Corporation held by affiliates of the
Surviving Corporation, including, without limitation, Splinex, LLC and Ener1
Group, Inc. (the "SELLING STOCKHOLDERS"), including any shares of common stock
of the Surviving Corporation held by the Selling Stockholders prior to the
Merger and any shares of common stock of the Surviving Corporation received by
the Selling Stockholders in the Merger (the "REGISTRATION STATEMENT"). Ener1
shall furnish to Splinex all information concerning it as is required by the SEC
in connection with the preparation of the Registration Statement. Splinex shall
use its reasonable best efforts to have the Registration Statement declared
effective under the Securities Act as promptly as practicable after such filing
and to keep the Registration Statement effective until the fifth anniversary of
the effective date of the Registration Statement, and Ener1 shall use its
reasonable best efforts to assist Splinex in this regard. The Parties shall
promptly provide copies, consult with each other and prepare written responses
with respect to any written comments received from the SEC with respect to the
Registration Statement and advise one another of any oral comments with respect
to the Registration Statement received from the SEC. The parties hereto will
cooperate in preparing and filing with the SEC any necessary amendment or
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supplement to the Registration Statement. No amendment or supplement to the
Registration Statement shall be filed without the approval of Splinex and Ener1,
which approvals shall not be unreasonably withheld or delayed. Ener1 will cause
the prospectus included in the Registration Statement to be mailed to Ener1's
shareholders as promptly as practicable after the Registration Statement is
declared effective under the Securities Act. The Registration Statement shall
comply as to form in all material respects with the rules and regulations
promulgated by the SEC under the Securities Act and the Exchange Act,
respectively.
(b) If any event should occur that results in the Registration
Statement containing an untrue statement of a material fact or omitting to state
any material fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under which they are made,
not misleading, or that otherwise should be described in an amendment or
supplement to the Registration Statement, Splinex and Ener1 shall promptly
notify each other of the occurrence of such event and then promptly prepare,
file and clear with the SEC such amendment or supplement and Ener1 shall, as may
be required by the SEC, mail to its shareholders each such amendment or
supplement.
(c) Ener1 shall pay, by wire transfer of immediately available funds to
the SEC, any registration fee required by the SEC in connection with the
Registration Statement. All other expenses incurred in connection with the
Registration Statement, including (without limitation) all printers' and
accounting fees, shall be borne by Splinex. All underwriting discounts and
commissions and fees and expenses of counsel and other advisors to each Selling
Stockholder shall be borne by such Selling Stockholder.
(d) Splinex and Ener1 shall use their respective reasonable best
efforts to cause the common stock of the Surviving Corporation to be quoted on
the Over-the-Counter Bulletin Board as soon as practicable following the date
the Registration Statement is declared effective under the Securities Act.
5.9 FULL ACCESS AND DISCLOSURE. (a) Each of Splinex and Acquisition
shall afford to the other party and its counsel, accountants, agents and other
authorized representatives reasonable access during business hours to the
party's plants, properties, books and records in order that the other party may
have full opportunity to make such reasonable investigations as it shall desire
to make of the affairs of the other party; and each party shall cause its
officers, employees and auditors to furnish such additional financial and
operating data and other information as the other party shall from time to time
reasonably request including, without limitation, any internal control
recommendations made by its independent auditors in connection with any audit of
the party.
(b) From time to time prior to the Closing Date, each party hereto
shall promptly supplement or amend information previously delivered to the other
party with respect to any matter hereafter arising which, if existing or
occurring at the date of this Agreement, would have been required to be set
forth or disclosed; PROVIDED, HOWEVER, that such supplemental information shall
not be deemed to be an amendment to any schedule or exhibit hereto.
5.10 CONFIDENTIALITY. Each party hereto agrees that the party and its
representatives and its Affiliates and their representatives and advisors will
hold in strict confidence all data and information obtained from the other party
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or any of their Affiliates in connection with the transactions contemplated
hereby, except any of the same which: (i) was, is now, or becomes generally
available to the public (but not as a result of a breach of any duty of
confidentiality by which the party and its representatives and its Affiliates
and their representatives and advisors is bound); (ii) was known to the party
prior to its disclosure as demonstrated by the party's written records; or (iii)
is disclosed to the party by a third party not subject to any duty of
confidentiality to the party or any of its Affiliates prior to its disclosure to
the party. Each party hereto will use such data and information solely for the
specific purpose of evaluating the transactions contemplated hereby. If this
Agreement is terminated, each party hereto and its Affiliates and their
representatives and advisors will promptly return to the other party all such
data, information and other written material (including all copies thereof)
which has been obtained by the party, and the party will make no further use
whatsoever of any of such or the information and knowledge contained therein or
derived therefrom.
5.11 FURTHER ASSURANCES. Subject to the terms and conditions of this
Agreement, each of Splinex and Acquisition shall use their reasonable best
efforts to take, or cause to be taken, all action, and to do, or cause to be
done, all things necessary, proper or advisable under applicable Regulations and
Orders to consummate and make effective as promptly as possible the transactions
contemplated by this Agreement, and to cooperate with each other in connection
with the foregoing.
5.12 DELIVERIES AFTER CLOSING. From time to time after the Closing, at
Splinex or Acquisition's request and without expense to the party, the party
receiving the request shall execute and deliver such other instruments of
conveyance and transfer and take such other action as the other reasonably may
require to convey, transfer to and vest in the other party and to put the other
party's possession of any rights or property to be sold, conveyed, transferred
and delivered hereunder.
5.13 PUBLIC ANNOUNCEMENTS. No party hereto, nor any Affiliate,
representative or shareholder thereof, shall disclose any of the terms of this
Agreement to any third party without the other parties' prior written consent.
The form, content and timing of all press releases, public announcements or
publicity statements with respect to this Agreement and transactions
contemplated hereby shall be subject to the prior approval of both Splinex and
Ener1, which approval shall not be unreasonably withheld. No press releases,
public announcements or publicity statements shall be released by any party to
this Agreement without such prior agreement among all the parties to this
Agreement. Notwithstanding anything to the contrary herein, in the case of press
releases, public announcements or publicity statements which Ener1 is required
by law to make, issue or release, the making, issuing or releasing of any such
announcement, statement, acknowledgment or revelation by the party so required
to do so by law shall not constitute a breach of this Agreement if Ener1 shall
have given, to the extent reasonably possible, not less than two calendar days
prior notice to Splinex, and shall have attempted, to the extent reasonably
possible, to clear such announcement, statement, acknowledgment or revelation
with Splinex
5.14 SEC FILINGS. After the Closing, Splinex shall use its reasonable
best efforts to timely file with the SEC all reports required to be filed
pursuant to the Exchange Act and refrain from terminating its status as an
issuer required by the Exchange Act to file reports thereunder even if the
Exchange Act or the rules or regulations thereunder would permit such
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termination. Splinex will timely file such reports under the Exchange Act as are
necessary to make generally available to holders of its securities as soon as
may be practicable an earnings statement (which need not be audited but shall be
in reasonable detail) covering a period of 12 months commencing after the
effective date of the Registration Statement, which will satisfy the provisions
of Section 11(a) of the Securities Act (including Rule 158 of the rules and
regulations thereunder)
ARTICLE VI
CONDITIONS TO THE OBLIGATIONS OF SPLINEX
Each and every obligation of Splinex under this Agreement shall be
subject to the satisfaction, on or before the Closing Date, of each of the
following conditions unless waived in writing by Splinex:
6.1 REPRESENTATIONS AND WARRANTIES; PERFORMANCE. The representations
and warranties of Acquisition and Ener1 contained in Articles II and IV and
elsewhere in this Agreement and all information contained in any Exhibit or
Schedule delivered by, or on behalf of, Acquisition or Ener1 to Splinex, shall
be true and correct in all material respects (except to the extent that any of
such representations and warranties is already qualified as to materiality, in
which case such representations and warranties shall be true, correct and
complete without further qualification) when made and on the Closing Date as
though then made, except as expressly provided herein. Acquisition and Ener1
shall have performed and complied with all agreements, covenants and conditions
required by this Agreement to be performed and complied with by them prior to
the Closing Date. The chief executive officer of each of Acquisition and of
Ener1 shall each have delivered to Splinex a certificate, dated as of the
Closing Date, in the form designated EXHIBIT B hereto, certifying to the
foregoing.
6.2 CONSENTS AND APPROVALS. Acquisition, Splinex and Ener1 shall have
obtained any and all consents, approvals, Orders, qualifications, licenses,
Permits or other authorizations required by all applicable Regulations, Orders
and Contracts of Splinex or binding on its properties and assets, with respect
to the execution, delivery and performance of the Agreement, the financing and
consummation of the transactions contemplated herein and the conduct of the
business of Splinex in the same manner after the Closing Date as before the
Closing Date.
6.3 NO PROCEEDING OR LITIGATION. No preliminary or permanent injunction
or other Order issued by a court of competent jurisdiction or by any Authority,
or any Regulation or Order promulgated or enacted by any Authority shall be in
effect, which would prevent the consummation of the transactions contemplated
hereby.
6.4 PROCEEDINGS AND DOCUMENTS. All corporate and other proceedings in
connection with the transactions contemplated hereby and all documents and
instruments incident to such transactions shall be reasonably satisfactory in
form and substance to Splinex's counsel, and Acquisition shall have made
available to Splinex for examination the originals or true, complete and correct
copies of all records and documents relating to the business and affairs of
Acquisition that Splinex may reasonably request in connection with said
transaction.
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6.5 SECRETARY'S CERTIFICATE. Splinex shall have received a certificate
by the secretary of Acquisition, as to the charter and bylaws of Acquisition,
the resolutions adopted by the directors and stockholders of Acquisition in
connection with this Agreement, the incumbency of certain officers of
Acquisition and the jurisdictions in which Acquisition is qualified to conduct
business in the form of EXHIBIT C hereto.
6.6 CERTIFICATES OF GOOD STANDING. At the Closing, Acquisition shall
have delivered to Splinex certificates issued by the appropriate governmental
authorities evidencing the good standing of Acquisition as of a date not more
than 15 days prior to the Closing Date as a corporation organized under the laws
of the State of Delaware and as a foreign corporation authorized to do business
under the laws of the State of Florida.
6.7 OTHER DOCUMENTS. Acquisition shall have furnished Splinex with such
other and further documents and certificates, including certificates of
Acquisition's officers and others, as Splinex shall reasonably request to
evidence compliance with the conditions set forth in this Agreement.
6.8 EFFECTIVENESS OF REGISTRATION STATEMENT. The Registration Statement
shall have become effective in accordance with the Securities Act and the
Exchange Act and shall not be the subject of any stop order or proceedings
seeking a stop order and no similar proceeding in respect of the Registration
Statement shall have been initiated or threatened by the SEC and not concluded
or withdrawn.
ARTICLE VII
CONDITIONS TO THE OBLIGATIONS OF ACQUISITION AND ENER1
Each and every obligation of Acquisition and Ener1 under this
Agreement, shall be subject to the satisfaction, on or before the Closing Date,
of each of the following conditions unless waived in writing by Acquisition and
Ener1:
7.1 REPRESENTATIONS AND WARRANTIES; PERFORMANCE. The representations
and warranties of Splinex contained in Article III and elsewhere in this
Agreement and all information contained in any exhibit or schedule hereto
delivered by, or on behalf of, Splinex to Acquisition or Ener1, shall be true
and correct in all material respects (except to the extent that any of such
representations and warranties is already qualified as to materiality, in which
case such representations and warranties shall be true, correct and complete
without further qualification) when made and on the Closing Date as though then
made. Splinex shall have performed and complied with all agreements, covenants
and conditions required by this Agreement to be performed and complied with by
them prior to the Closing Date. An officer of Splinex shall have delivered to
Acquisition a certificate, dated as of the Closing Date, in the form designated
EXHIBIT B hereto, certifying to the foregoing.
7.2 CONSENTS AND APPROVALS. Splinex, Acquisition and Ener1 shall have
obtained any and all material consents, approvals, Orders, qualifications,
licenses, permits or other authorizations required by all applicable
Regulations, Orders or Contracts, with respect to the execution, delivery and
performance of the Agreement, and the consummation of the transactions
contemplated herein.
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7.3 OPINION OF COUNSEL. Acquisition shall have received an opinion of
Splinex's counsel, dated as of the Closing Date and addressed to Acquisition,
reasonably satisfactory to Acquisition in form and substance.
7.4 NO PROCEEDING OR LITIGATION. No preliminary or permanent injunction
or other Order issued by a court of competent jurisdiction or by any Authority,
or any Regulation or executive order promulgated or enacted by any Authority
shall be in effect, which would prevent the consummation of the transactions
contemplated hereby.
7.5 SECRETARY'S CERTIFICATE. Acquisition shall have received a
certificate by the secretary of Splinex, dated as of the Closing Date, as to the
charter and bylaws of Splinex, the resolutions adopted by the directors of
Splinex in connection with this Agreement, the incumbency of certain officers of
Splinex and the jurisdictions in which Splinex is qualified to conduct business
in the form of EXHIBIT C hereto.
7.6 CERTIFICATES OF GOOD STANDING. At the Closing, Splinex shall have
delivered to Acquisition certificates issued by the appropriate governmental
authorities evidencing the good standing of Splinex as of a date not more than
15 days prior to the Closing Date as a corporation organized under the laws of
the State of Delaware and as a foreign corporation authorized to do business
under the laws of the State of Florida.
7.7 OTHER DOCUMENTS. Splinex shall have furnished Acquisition with such
other and further documents and certificates, including certificates of
Splinex's officers and others, as Acquisition shall reasonably request to
evidence compliance with the conditions set forth in this Agreement.
7.8 PROCEEDINGS AND DOCUMENTS. All corporate and other proceedings in
connection with the transactions contemplated hereby and all documents and
instruments incident to such transactions shall be reasonably satisfactory in
form and substance to Acquisition's counsel, and Splinex shall have made
available to Acquisition for examination the originals or true, complete and
correct copies of all records and documents relating to the business and affairs
of Splinex that Acquisition may reasonably request in connection with said
transaction.
7.9 EFFECTIVENESS OF REGISTRATION STATEMENT. The Registration Statement
shall have become effective in accordance with the Securities Act and the
Exchange Act and shall not be the subject of any stop order or proceedings
seeking a stop order and no similar proceeding in respect of the Registration
Statement shall have been initiated or threatened by the SEC and not concluded
or withdrawn.
7.10 LOAN AGREEMENT. The Loan Agreement shall be in full force and
effect and Bzinfin, S.A. shall have performed all obligations required to be
performed by it thereunder and shall not be in default in any respect
thereunder.
7.11 ELECTION BY CERTAIN CONVERTIBLE SECURITIES HOLDERS. None of the
holders of Ener1's 5% Senior Secured Convertible Debentures Due 2009 (the "ENER1
DEBENTURES") or of the Warrants to purchase the Ener1 Common Stock issued in
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connection with the Ener1 Debentures (the "ENER1 WARRANTS") shall have elected
to adjust the conversion price of the Debentures or the exercise price of the
Ener1 Warrants as a result of the Distribution.
7.12 CONTRIBUTION. Splinex, LLC shall have contributed substantially
all of its assets and liabilities to Splinex.
ARTICLE VIII
CLOSING
8.1 CLOSING. Unless this Agreement shall have been terminated or
abandoned pursuant to the provisions of Article XI hereof, a closing of the
transactions contemplated by this Agreement (the "CLOSING") shall be held on the
Effective Date or on such other date (the "CLOSING DATE") agreed upon by Splinex
and Acquisition.
8.2 INTERVENING LITIGATION. If prior to the Closing Date any
preliminary or permanent injunction or other Order issued by a court of
competent jurisdiction or by any other Authority shall restrain or prohibit this
Agreement or the consummation of the transactions contemplated herein for a
period of 15 days or longer, the Closing shall be adjourned at the option of
either party for a period of not more than 30 days. If at the end of such 30-day
period such injunction or Order shall not have been favorably resolved, either
party may, by written notice thereof to the other, terminate this Agreement,
without liability or further obligation hereunder.
ARTICLE IX
TERMINATION AND ABANDONMENT
9.1 METHODS OF TERMINATION. This Agreement may be terminated and the
transactions herein contemplated may be abandoned:
(a) by mutual written consent of the parties hereto;
(b) by Splinex or Acquisition if this Agreement is not consummated on
or before December 31, 2004; PROVIDED that if any party has breached or
defaulted with respect to its respective obligations under this Agreement on or
before such date, such party may not terminate this Agreement pursuant to this
Section 9.1(b), and each other party to this Agreement shall at its option
enforce its rights against such breaching or defaulting party and seek any
remedies against such party, in either case as provided hereunder and by
applicable law; or
(c) (i) by Splinex if as of the Closing Date any of the conditions
specified in Article VI hereof have not been satisfied or if Acquisition or
Ener1 are otherwise in default under this Agreement or if at any time prior to
the Closing Date it becomes apparent to Splinex that Acquisition and Ener1 will
be unable to so satisfy one or more of the closing conditions in Article VI or
(ii) by Acquisition if as of the Closing Date any of the conditions specified in
Article VII hereof have not been satisfied or if Splinex is otherwise in default
under this Agreement or if at any time prior to the Closing Date it becomes
apparent to Acquisition that Splinex will be unable to so satisfy one or more of
the closing conditions in Article VII.
9.2 PROCEDURE UPON TERMINATION. In the event of termination and
abandonment pursuant to Section 9.1 hereof, and subject to the proviso contained
in Section 9.1(b), this Agreement shall terminate and shall be abandoned,
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without further action by any of the parties hereto. If this Agreement is
terminated as provided herein:
(a) each party shall redeliver all documents and other material of any
other party relating to the transactions contemplated hereby, whether obtained
before or after the execution hereof, to the party furnishing the same;
(b) all information received by any party hereto with respect to the
business of the other party (other than information which is a matter of public
knowledge or which has heretofore been or is hereafter published in any
publication for public distribution or filed as public information with any
governmental authority) shall not at any time be used for the advantage of, or
disclosed to third parties by, such party to the detriment of the party
furnishing such information; and
(c) other than as provided in Section 11.15, no non-breaching party
hereto shall have any liability or further obligation to any other party to this
Agreement.
ARTICLE X
INDEMNIFICATION
10.1 INDEMNIFICATION BY SPLINEX. Splinex agrees to indemnify, to the
extent permitted by law, Ener1, its officers, directors, employees, agents and
representatives and each Person who controls (within the meaning of the
Securities Act) Ener1 (collectively, the "ENER1 INDEMNITEES") against all
losses, claims, actions, damages, liabilities and expenses (collectively,
"LOSSES") based on (i) any untrue or alleged untrue statement of material fact
contained in the Registration Statement, or any prospectus or preliminary
prospectus included therein or any amendment thereof or supplement thereto or
any omission or alleged omission of a material fact required to be stated
therein or necessary to make the statements therein not misleading, or (ii) any
violation by Splinex of any rule or regulation promulgated under the Securities
Act applicable to Splinex and relating to action or inaction required of Splinex
in connection with any such registration, qualification or compliance, and to
pay to each Ener1 Indemnitee, as incurred, any legal and any other expenses
reasonably incurred in connection with investigating, preparing or defending any
such claim, loss, damage, liability or action (except as otherwise provided in
this Section 10.1), except insofar as the same are caused by or contained in any
information furnished in writing to Splinex by Ener1 expressly for use in the
Registration Statement, prospectus or preliminary prospectus included therein or
any amendment thereof or supplement thereto.
10.2 INDEMNIFICATION BY ENER1. Ener1 agrees to indemnify, to the extent
permitted by law, Splinex, its officers, directors, employees, agents and
representatives and each Person who controls (within the meaning of the
Securities Act) Splinex (collectively, the "SPLINEX INDEMNITEES") against any
Losses caused by (i) any untrue or alleged untrue statement of material fact
contained in the Registration Statement, or any prospectus or preliminary
prospectus included therein or any amendment thereof or supplement thereto, or
any omission or alleged omission of a material fact required to be stated
therein or necessary to make the statements therein not misleading, but only to
the extent that such untrue statement or omission is contained in any
information furnished in writing by Ener1 expressly for us in the Registration
Statement or (ii) any violation by Ener1 of any rule or regulation promulgated
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under the Securities Act applicable to Ener1 and relating to action or inaction
required of Ener1 in connection with any such registration, qualification or
compliance, and to pay to each Splinex Indemnitee, as incurred, any legal and
any other expenses reasonably incurred in connection with investigating,
preparing or defending any such claim, loss, damage, liability or action.
10.3 PROCEDURES. Any Person entitled to indemnification hereunder shall
(i) give prompt written notice to the indemnifying party of any claim with
respect to which it seeks indemnification (provided that the failure to give
prompt notice shall not impair any Person's right to indemnification hereunder
to the extent such failure has not prejudiced the indemnifying party) and (ii)
unless in such indemnified party's reasonable judgment a conflict of interest
between such indemnified and indemnifying parties may exist with respect to such
claim, permit such indemnifying party to assume the defense of such claim with
counsel reasonably satisfactory to the indemnified party. If such defense is
assumed, the indemnifying party shall not be subject to any liability for any
settlement made by the indemnified party without its consent (but such consent
shall not be unreasonably withheld). An indemnifying party who is not entitled
to, or elects not to, assume the defense of a claim shall not be obligated to
pay the fees and expenses of more than one counsel for all parties indemnified
by such indemnifying party with respect to such claim, unless in the reasonable
judgment of counsel to any indemnified party a conflict of interest may exist if
the same counsel were to represent such indemnified party and any other of such
indemnified parties with respect to such claim. In such instance, the
conflicting indemnified parties shall have a right to retain one separate
counsel, chosen by the Holders of a majority of the Registrable Securities
included in the registration, at the expense of the indemnifying party. No
indemnifying party, in the defense of such claim or litigation, shall, except
with the consent of each indemnified party, consent to the entry of any judgment
or enter into any settlement which does not include as an unconditional term
thereof the giving by the claimant or plaintiff to such indemnified party of a
release from all liability in respect to such claim or litigation.
10.4 SURVIVAL. The indemnification provided for under this Agreement
shall remain in full force and effect regardless of any investigation made by or
on behalf of the indemnified party or any officer, director or controlling
Person of such indemnified party.
10.5 CONTRIBUTION. If the indemnification provided for in this
Article X is held by a court of competent jurisdiction to be unavailable to an
indemnified party with respect to any Losses, then the indemnifying party, in
lieu of indemnifying such indemnified party hereunder, shall contribute to the
amount paid or payable by such indemnified party as a result of such Losses in
such proportion as is appropriate to reflect the relative fault of the
indemnifying party on the one hand and of the indemnified party on the other in
connection with the actions, statements or omissions that resulted in such
Losses as well as any other relevant equitable considerations. The relative
fault of the indemnifying party and of the indemnified party shall be determined
by a court of competent jurisdiction.
ARTICLE XI
MISCELLANEOUS PROVISIONS
11.1 AMENDMENT AND MODIFICATION. Subject to applicable law, this
Agreement may be amended, modified and supplemented only by written agreement of
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the parties hereto, at any time prior to the Closing Date with respect to any of
the terms contained herein.
11.2 WAIVER OF COMPLIANCE; CONSENTS. Any failure of any party hereto to
comply with any obligation, covenant, agreement or condition herein may be
waived in writing by the other parties hereto, but such waiver or failure to
insist upon strict compliance with such obligation, covenant, agreement or
condition shall not operate as a waiver of, or estoppel with respect to, any
subsequent or other failure. Whenever this Agreement requires or permits consent
by or on behalf of any party hereto, such consent shall be given in writing.
11.3 CERTAIN DEFINITIONS AND RULES OF CONSTRUCTION. (a) Definitions.
"ACQUISITION" has the meaning set forth in the preamble hereto.
"AFFILIATE" means, with regard to any Person, (i) any Person, directly
or indirectly, controlled by, under common control of, or controlling such
Person, (ii) any Person, directly or indirectly, in which such Person holds, of
record or beneficially, 5% or more of the equity or voting securities, (iii) any
Person that holds, of record or beneficially, 5% or more of the equity or voting
securities of such Person, (iv) any Person that, through Contract, relationship
or otherwise, exerts a substantial influence on the management of such Person's
affairs, (v) any Person that, through Contract, relationship or otherwise, is
influenced substantially in the management of their affairs by such Person or
(vi) any director, officer, partner or individual holding a similar position in
respect of such Person.
"AGREEMENT" has the meaning set forth in the preamble hereto.
"AUTHORITY" means any governmental, regulatory or administrative body,
agency, commission, board, arbitrator or authority, any court or judicial
authority, any public, private or industry regulatory authority, whether
international, national, Federal, State or local.
"CERTIFICATE OF INCORPORATION" has the meaning set forth in Section
1.5.
"CERTIFICATE OF MERGER" has the meaning set forth in Section 1.2.
"CLAIM" means any action, claim, lawsuit, demand, suit, inquiry,
hearing, investigation, notice of a violation, litigation, proceeding,
arbitration, appeals or other dispute, whether civil, criminal, administrative
or otherwise.
"CLOSING" has the meaning set forth in Section 8.1.
"CLOSING DATE" has the meaning set forth in Section 8.1.
"CODE" shall mean the Internal Revenue Code of 1986, as amended, and
the Regulations thereunder.
"CONTRACT" means any agreement, contract, commitment, instrument or
other binding arrangement or understanding, whether written or oral.
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"CONVERTIBLE SECURITIES" means any security (i) convertible into or
exercisable for shares of Ener1 Common Stock and (ii) whose terms entitle the
holder thereof to receive shares of common stock of the Surviving Company in the
Distribution.
"DGCL" has the meaning set forth in Section 1.2.
"DISTRIBUTION" has the meaning set forth in Section 1.8.
"EFFECTIVE TIME" has the meaning set forth in Section 1.3.
"ENER1" has the meaning set forth in the preamble hereto.
"ENER1 COMMON STOCK" has the meaning set forth in Section 1.8 hereof.
"ENER1 DEBENTURES" has the meaning set forth in Section 7.11.
"ENER1 RECORD DATE" means on the date to be determined by the Board of
Directors of Ener1 as the record date for determining stockholders of Ener1
entitled to receive the Merger Consideration, which date shall be the day of, or
the business day immediately preceding the day of, the Effective Time, but the
close of business on such date shall in any event precede the Effective Time.
"ENER1 WARRANTS" has the meaning set forth in Section 7.11.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as amended.
"EXCHANGE AGENT" means the American Stock Transfer & Trust Company.
"EXCHANGE FUND" has the meaning set forth in Section 1.8.
"ENER1 INDEMNITEES" has the meaning set forth in Section 10.1.
"EXHIBITS" means the exhibits to this Agreement.
"FUNDING COMMITMENT" has the meaning set forth in the recitals hereto.
"GAAP" means generally accepted accounting principles, consistently
applied, as in existence at the date hereof.
"GUARANTEE" means any guarantee or other contingent liability (other
than any endorsement for collection or deposit in the ordinary course of
business), direct or indirect with respect to any obligations of another Person,
through an agreement or otherwise, including, without limitation, (i) any
endorsement or discount with recourse or undertaking substantially equivalent to
or having economic effect similar to a guarantee in respect of any such
obligations and (ii) any Contract (A) to purchase, or to advance or supply funds
for the payment or purchase of, any such obligations, (B) to purchase, sell or
lease property, products, materials or supplies, or transportation or services,
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in respect of enabling such other Person to pay any such obligation or to assure
the owner thereof against loss regardless of the delivery or nondelivery of the
property, products, materials or supplies or transportation or services or (C)
to make any loan, advance or capital contribution to or other investment in, or
to otherwise provide funds to or for, such other Person in respect of enabling
such Person to satisfy an obligation (including any liability for a dividend,
stock liquidation payment or expense) or to assure a minimum equity, working
capital or other balance sheet condition in respect of any such obligation.
"INDEBTEDNESS" with respect to any Person means any obligation of such
Person for borrowed money, but in any event shall include (i) any obligation or
liabilities incurred for all or any part of the purchase price of property,
services or other assets or for the cost of property or other assets constructed
or of improvements thereto, other than accounts payable included in current
liabilities and incurred in respect of property purchased in the ordinary course
of business and which are not more than 30 days past due, (whether or not such
Person has assumed or become liable for the payment of such obligation) (whether
accrued, absolute, contingent, unliquidated or otherwise, known or unknown,
whether due or to become due), (ii) the face amount of all letters of credit
issued for the account of such Person and all drafts drawn thereunder, (iii) all
indebtedness, liabilities and obligations secured by a Lien (other than a
Permitted Lien) existing on property owned by such Person, whether or not the
indebtedness, liabilities or obligations secured thereby have been assumed by
such Person or are non-recourse to such Person, (iv) capitalized lease
obligations, (v) all Guarantees of such Person, (vi) all reimbursement
obligations of such Person (whether contingent or otherwise) in respect of
bankers' acceptances, surety or other bonds and similar instruments; and (vii)
all liabilities and obligations of such Person to redeem or retire shares of
capital stock of such Person.
"LIEN" means any security interest, lien, mortgage, pledge,
hypothecation, encumbrance, Claim, easement, charge, restriction on transfer or
otherwise, or interest of another Person of any kind or nature.
"LOAN AGREEMENT" has the meaning set forth in Section 3.20.
"LOSSES" has the meaning set forth in Section 10.1.
"MATERIAL ADVERSE CHANGE" means any developments or changes which would
have a Material Adverse Effect.
"MATERIAL ADVERSE EFFECT" means any circumstances, state of facts or
matters which would reasonably be expected to have a material adverse effect in
respect of the party's business, operations, properties, assets, condition
(financial or otherwise), results, plans, strategies or prospects.
"MERGER" has the meaning set forth in the recitals hereto.
"MERGER CONSIDERATION" means 5,000,000 shares of common stock of the
Surviving Corporation, after the common stock of the Surviving Corporation has
been split 1:95,000.
"OPTION" means any subscription, option, warrant, right, security,
Contract, commitment, understanding, outstanding or stock appreciation, phantom
stock option, profit participation or arrangement by which the party is bound to
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issue any additional shares of its capital stock or rights pursuant to which any
Person has a right to purchase shares of the party's capital stock.
"ORDER" means any decree, order, judgment, injunction, rule, ruling,
Lien, voting right, consent of or by an Authority.
"PERMITS" means all permits, licenses, registrations, certificates,
Orders or approvals from any Authority or other Person (including without
limitation those relating to the occupancy or use of owned or leased real
property) issued to or held by the party.
"PERMITTED LIENS" means (i) statutory Liens not yet delinquent, (ii)
such imperfections or irregularities of title or Liens as do not materially
detract from or interfere with the present use of the properties or assets
subject thereto or affected thereby, otherwise impair present business
operations at such properties, or do not detract from the value of such
properties and assets, (iii) Liens reflected in the Financial Statements or the
notes thereto, (iv) the rights of customers of the party with respect to
inventory or work in progress under orders or Contracts entered into by the
party in the ordinary course of business, (v) mechanics', carriers', workers',
repairmen's, warehousemen's, or other similar Liens arising in the ordinary
course of business in respect of obligations not overdue or which are being
contested in good faith and covered by a bond in an amount at least equal to the
amount of the Lien and (vi) deposits or pledges to secure workmen's
compensation, unemployment insurance, old age benefits or other social security
obligations in connection with, or to secure the performance of, bids, tenders,
trade contracts not for the payment of money or leases, or to secure statutory
obligations or surety or appeal bonds or other pledges or deposits for purposes
of like nature in the ordinary course of business.
"PERSON" means any corporation, partnership, limited liability company,
joint venture, organization, entity, Authority or natural person.
"POLICIES" means all Contracts that insure (i) the party's properties,
plant and equipment for loss or damage and (ii) the party or its officers,
directors, employees or agents against any liabilities, losses or damages (or
lost profits) for any reason or purpose.
"PROPRIETARY RIGHTS" means all (i) patents, patent applications, patent
disclosures and all related continuation, continuation-in-part, divisional,
reissue, reexamination, utility, model, certificate of invention and design
patents, patent applications, registrations and applications for registrations,
(ii) trademarks, service marks, trade dress, logos, trade names and corporate
names and registrations and applications for registration thereof, (iii)
copyrights and registrations and applications for registration thereof, (iv)
mask works and registrations and applications for registration thereof, (v)
computer software, data and documentation, (vi) trade secrets and confidential
business information, whether patentable or unpatentable and whether or not
reduced to practice, know-how, manufacturing and production processes and
techniques, research and development information, copyrightable works,
financial, marketing and business data, pricing and cost information, business
and marketing plans and customer and supplier lists and information, (vii) other
proprietary rights relating to any of the foregoing and (viii) copies and
tangible embodiments thereof.
"REGISTRATION STATEMENT" has the meaning set forth in Section 5.8.
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"REGULATION" means any rule, law, code, statute, regulation, ordinance,
requirement, announcement or other binding action of or by an Authority.
"SCHEDULES" means the schedules to this Agreement.
"SEC" has the meaning set forth in Section 5.8.
"SECURITIES ACT" means the Securities Act of 1933, as amended.
"SELLING STOCKHOLDERS" has the meaning set forth in Section 5.8.
"SPLINEX" has the meaning set forth in the preamble hereto.
"SPLINEX FINANCIAL STATEMENTS" has the meaning set forth in Section
3.8.
"SPLINEX INDEMNITEES" has the meaning set forth in Section 10.2.
"SUBSIDIARY" any Person (i) in which the party has an ownership
interest, or (ii) to which the party has advanced funds or provided financial
accommodations , in each case secured by an ownership interest or (iii) in which
the party has an Option to acquire an ownership interest.
"SURVIVING CORPORATION" has the meaning set forth in Section 1.1.
"TAX RETURNS" means Federal, State, foreign and local tax reports,
returns, information returns and other documents.
"TAXES" means including without limitation income, gross receipts, net
proceeds, alternative or add-on minimum, ad valorem, value added, turnover,
sales, use, property, personal property (tangible and intangible), stamp,
leasing, lease, user, excise, duty, franchise, transfer, license, withholding,
payroll, employment, foreign, fuel, excess profits, occupational and interest
equalization, windfall profits, severance, and other charges (including interest
and penalties).
"TAXING AUTHORITIES" means Internal Revenue Service and any other
Federal, State, or local authority which has the right to impose Taxes on the
party.
(b) Rules of Construction.Words in the singular shall include the
plural and vice versa, and words importing the masculine shall include the
feminine and neuter and vice versa.
11.4 NOTICES. All notices, requests, demands and other communications
required or permitted hereunder shall be in writing and shall be deemed to have
been duly given upon (a) a transmitter's confirmation of a receipt of a
facsimile transmission, (b) confirmed delivery of a standard overnight courier
or when delivered by hand or (c) the expiration of five business days after the
date mailed by certified or registered mail (return receipt requested), postage
prepaid, to the parties at the following addresses:
(a) If to Acquisition, to:
Ener1 Acquisition Corp.
500 West Cypress Creek Road, Suite 120
Fort Lauderdale FL 33309
Attention: Kevin Fitzgerald, President
Fax: (954) 202-2884
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with a copy to:
Stephen I. Glover Esq.
Gibson, Dunn & Crutcher LLP
1050 Connecticut Avenue, NW
Washington, DC 20036
Fax: (202) 467-0539
or to such other Person or address as Acquisition shall furnish by notice to the
other parties in writing.
(b) If to Splinex, to:
Splinex Technology Inc.
550 W. Cypress Creek Road, Suite 410
Fort Lauderdale FL 33309
Attention: Peter Novak
with a copy to:
Victor M. Alvarez, Esq.
White & Case LLP
200 South Biscayne Boulevard, Suite 4900
Miami, Florida 33131
or to such other Person or address as Splinex shall furnish by notice to the
other parties in writing.
(c) If to Ener1, to:
Ener1, Inc.
500 West Cypress Creek Road, Suite 120
Fort Lauderdale FL 33309
Attention: Kevin Fitzgerald
with a copy to:
Stephen I. Glover Esq.
Gibson, Dunn & Crutcher LLP
1050 Connecticut Avenue, NW
Washington, DC 20036
Fax: (202) 467-0539
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or to such other Person or address as Ener1 shall furnish by notice to the other
parties in writing.
11.5 ASSIGNMENT. This Agreement and all of the provisions hereof shall
be binding upon and inure to the benefit of the parties hereto and their
respective successors and permitted assigns, but neither this Agreement nor any
of the rights, interests or obligations hereunder shall be assigned by any of
the parties hereto without the prior written consent of the other parties.
11.6 GOVERNING LAW. The Agreement shall be governed by the internal
laws of the State of Florida as to all matters, including but not limited to
matters of validity, construction, effect and performance.
11.7 COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
11.8 HEADINGS. The article and section headings contained in this
Agreement are for reference purposes only and shall not affect in any way the
meaning or interpretation of this Agreement.
11.9 ENTIRE AGREEMENT. This Agreement, including the Schedules and
Exhibits, certificates and instruments referred to herein, embodies the entire
agreement and understanding of the parties hereto in respect of the transactions
contemplated by this Agreement and supersedes all prior agreements,
representations, warranties, promises, covenants, arrangements, communications
and understandings, oral or written, express or implied, between the parties
with respect to such transactions. There are no agreements, representations,
warranties, promises, covenants, arrangements or understandings among the
parties with respect to such transactions, other than those expressly set forth
or referred to herein.
11.10 CONSENT TO JURISDICTION; SERVICE OF PROCESS. All parties hereto
hereby irrevocably submit to the jurisdiction of the State or Federal courts
located in Miami-Dade County, Florida in connection with any suit, action or
other proceeding arising out of or relating to this Agreement and the
transactions contemplated hereby, and hereby agree not to assert, by way of
motion, as a defense, or otherwise in any such suit, action or proceeding that
the suit, action or proceeding is brought in an inconvenient forum, that the
venue of the suit, action or proceeding is improper or that this Agreement or
the subject matter hereof may not be enforced by such courts.
11.11 BINDING EFFECT. This Agreement shall not be construed so as to
confer any right or benefit upon any Person other than the signatories to this
Agreement and each of their respective successors and permitted assigns.
11.12 INJUNCTIVE RELIEF. The parties hereto agree that in the event of
a breach of any provision of this Agreement, the aggrieved party or parties may
be without an adequate remedy at law. The parties therefore agree that in the
event of a breach of any provision of this Agreement, the aggrieved party or
parties may elect to institute and prosecute proceedings in any court of
competent jurisdiction to enforce specific performance or to enjoin the
continuing breach of such provision, as well as to obtain damages for breach of
this Agreement. By
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seeking or obtaining any such relief, the aggrieved party shall not be precluded
from seeking or obtaining any other relief to which it may be entitled.
11.13 DELAYS OR OMISSIONS. No delay or omission to exercise any right,
power or remedy accruing to any party hereto, upon any breach or default of any
other party under this Agreement, shall impair any such right, power or remedy
of such party nor shall it be construed to be a waiver of any such breach or
default, or an acquiescence therein, or of or in any similar breach or default
thereafter occurring; nor shall any waiver of any single breach or default be
deemed a waiver of any other breach or default theretofore or thereafter
occurring. Any waiver, permit, consent or approval of any kind or character on
the part of any party hereto of any breach or default under this Agreement, or
any waiver on the part of any party of any provisions or conditions of this
Agreement must be made in writing and shall be effective only to the extent
specifically set forth in such writing. All remedies, either under this
Agreement or by law or otherwise afforded to any party, shall be cumulative and
not alternative.
11.14 SEVERABILITY. Unless otherwise provided herein, if any provision
of this Agreement shall be invalid, illegal or unenforceable, the validity,
legality and enforceability of the remaining provisions shall not in any way be
affected or impaired thereby.
11.15 EXPENSES. Unless otherwise provided herein, each party hereto
shall bear its own expenses, including without limitation, legal fees and
expenses, with respect to this Agreement and the transactions contemplated
hereby.
11.16 WAIVER OF JURY TRIAL. THE PARTIES HERETO KNOWINGLY, VOLUNTARILY
AND INTENTIONALLY WAIVES ANY RIGHTS IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF
ANY LITIGATION BASED HEREON, OR ARISING OUT OF, UNDER, OR IN CONNECTION WITH,
THIS AGREEMENT OR ANY EXHIBIT HERETO, OR ANY COURSE OF CONDUCT, COURSE OF
DEALING OR STATEMENTS (WHETHER VERBAL OR WRITTEN) RELATING TO THE FOREGOING.
THIS PROVISION IS A MATERIAL INDUCEMENT FOR THE PARTIES HERETO TO ENTER INTO
THIS AGREEMENT.
(signature page to follow)
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IN WITNESS WHEREOF, the parties hereto have made and entered into this
Agreement and Plan of Merger as of the date first set forth above.
ENER1 ACQUISITION CORP.
By: /s/ Kevin Fitzgerald
-----------------------------------
Name: Kevin Fitzgerald
Title: President
SPLINEX TECHNOLOGY INC.
By: /s/ Peter Novak
-----------------------------------
Name: Peter Novak
Title: President
ENER1, INC.
By: /s/ Kevin Fitzgerald
-----------------------------------
Name: Kevin Fitzgerald
Title: Chief Executive Officer
S-1