{"id":43472,"date":"2015-09-17T11:25:58","date_gmt":"2015-09-17T16:25:58","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/contracts\/uncategorized\/merger-agreement-in-principle-futuretrak-international-inc-and.html"},"modified":"2015-09-17T11:25:58","modified_gmt":"2015-09-17T16:25:58","slug":"merger-agreement-in-principle-futuretrak-international-inc-and","status":"publish","type":"corporate_contracts","link":"https:\/\/corporate.findlaw.com\/contracts\/planning\/merger-agreement-in-principle-futuretrak-international-inc-and.html","title":{"rendered":"Merger Agreement in Principle &#8211; FutureTrak International Inc. and Celerity Systems Inc."},"content":{"rendered":"<pre>                                        As of April 26, 1999\n\n\nFutureTrak International, Inc.\n3635 Park Central Boulevard North\nPompano Beach, FL 33064\n\nGentlemen:\n\n      This Letter sets forth our mutual understanding and agreement in principle\npursuant to which FutureTrak International, Inc., a Florida corporation\n(\"FutureTrak\"), will merge with and into Celerity Systems, Inc., a Delaware\ncorporation (\"Celerity\"; Celerity and FutureTrak are sometimes hereinafter\nreferred to singly as a \"Company\" and together as the \"Companies\"), or a\nsubsidiary of Celerity.\n\n      1. MERGER. Upon the consummation of the merger of FutureTrak with and into\nCelerity or a subsidiary of Celerity upon the terms described in this Letter\n(the \"Merger\"), Celerity will issue one share of the common stock of Celerity\nfor each issued and outstanding share of the common stock of FutureTrak. The\nforegoing assumes that FutureTrak will, prior to Merger, consummate a 1 for 4\nreverse split of its issued and outstanding shares of common stock, such that\n9,546,195 shares of such common stock will be outstanding upon consummation of\nthe date of the Merger. The Companies agree that the Merger is intended to be a\ntax-free reorganization for federal income tax purposes.\n\n      2. OTHER TRANSACTIONS. The definitive agreements described in paragraph 5\nof this Letter shall provide for the occurrence of the following, upon the\nconsummation of the Merger:\n\n            (a)   the Board of Directors of Celerity shall consist of six\n                  members: three representatives of FutureTrak and three\n                  representatives of Celerity;\n\n            (b)   Celerity shall change its name to FutureTrak International,\n                  Inc. and shall change the symbol for its common stock to FTRK\n                  or such similar symbol as may be available; and\n\n\n            (c)   Celerity shall amend its Certificate of Incorporation to\n                  increase its authorized capital stock as agreed to by the\n                  Companies, including to permit the issuance of shares of its\n                  common stock in the Merger and to reserve sufficient shares of\n                  common stock for issuance in respect of outstanding common\n                  stock equivalents.\n\n      3. CLOSING CONDITIONS. The consummation of the Merger and related\ntransactions contemplated hereby by each of the Companies shall be subject to\nthe fulfillment of customary conditions, including the following conditions\nprecedent:\n\n            (a)   the negotiation and execution of a merger agreement and other\n                  definitive agreements with respect to the transactions\n                  contemplated hereby;\n\n            (b)   the formal approval of the Board of Directors and, to the\n                  extent required, the stockholders of each of the Companies to\n                  the transactions contemplated hereby;\n\n            (c)   receipt of all required third-party, regulatory and\n                  governmental approvals; and\n\n            (d)   the completion by each of the Companies of its \"due diligence\"\n                  investigation concerning the other Company.\n\n      4. CLOSING. It is anticipated that the consummation of the transactions\ncontemplated herein will occur on or before October 30, 1999, or such other date\nas the parties may agree.\n\n      5. DEFINITIVE AGREEMENTS. The definitive agreements with respect to the\ntransactions contemplated hereby will contain mutually agreeable representations\nand warranties, mutually agreeable provisions for indemnification and other\nappropriate and customary terms and conditions.\n\n      6. CONFIDENTIALITY. Except to the extent that information with respect to\neither Company provided by it, or discovered by the other Company, is in the\npublic domain without breach of any obligation of confidentiality, such\ninformation concerning each Company is hereinafter referred to as \"Confidential\nInformation.\" Prior to the consummation of the Merger, neither Company shall\ndisclose Confidential Information of the other, except on a confidential basis,\nto its respective employees, accountants, attorneys and other professional\nadvisors or as otherwise expressly provided herein, without the prior written\nconsent of the other Company. If at any time either Company is requested or\nrequired (by oral questions, interrogatories, requests for information or\ndocuments, subpoenas or similar legal process) to disclose any Confidential\nInformation of the other Company, it (to the extent reasonably practical) shall\npromptly notify the Company so that such Company may seek an appropriate\nprotective order and\/or waive compliance with the provisions hereof. If, in the\nabsence of a protective order or the receipt of a waiver hereunder, in the\nreasonable opinion of counsel for either Company, such Company is compelled to\ndisclose Confidential Information of the other Company to any tribunal or any\ngovernmental agency, it may disclose such information to such tribunal or agency\nwithout liability hereunder.\n\n\n      7. EXPENSES. Except as may be otherwise provided in the definitive\nagreement, the Companies shall each pay their respective expenses (including\nfees and expenses of legal counsel) in connection with the transactions\ncontemplated hereby.\n\n      8. EXCLUSIVITY. Unless this Agreement has been terminated, during the\nperiod ending 60 days following the date of this Letter, the Board of Directors\nand officers of FutureTrak agree that they will not solicit proposals or provide\nany information to any third party for the purpose of sale, tender offer or\nmerger with any entity except Celerity. Each such officer or director agrees\nthat he will vote his capital stock in favor of the Merger, and will not seek to\nexercise any appraisal or dissenters rights with respect to the Merger. Should\nany officer or director sell or otherwise dispose of any capital stock during\nthis period, he will retain legal proxy rights to such shares and will vote such\nshares in favor of the Merger.\n\n      9. PUBLIC DISCLOSURE. Subject to any applicable requirements of law,\nneither of the Companies shall make any public disclosure concerning the subject\nmatter hereof or the transactions contemplated hereby without the prior written\nconsent of the other. The parties agree to prepare a mutually acceptable press\nrelease or releases with respect to the transactions contemplated hereby which\nwill be released by the Companies on or about the date of the execution of this\nLetter.\n\n      10. PREPARATION. Each of the Companies agrees to provide the other Company\nand its advisors full access to its books, records and premises in order to\nenable them to complete their \"due diligence\" with respect to the Merger and\nrelated transactions. Subject to Section 11, each of the Companies agrees to\nnegotiate in good faith and cooperate with the other party in connection with\nthe preparation of definitive agreements, to use its commercially reasonable\nefforts to complete such preparation and execute and deliver definitive\nagreements prior to June 30, 1999 and to close the transactions contemplated\nhereby as expeditiously as possible thereafter; provided that, if the Companies\nconclude prior to June 30, 1999 that it is impractical for them to consummate\nthe Merger, subject to Section 11, each of the Companies agrees to negotiate in\ngood faith and cooperate with the other party in connection with the preparation\nof definitive documents concerning another business combination intended to\nachieve, as nearly as practicable, similar economic results for the Companies as\nthe Merger, if any such business combination is practicable, to use commercially\nreasonable efforts to execute and deliver definitive agreements with respect\nthereto prior to June 30, 1999 and to close the transactions contemplated hereby\nas soon as practicable thereafter. The parties further agree to cooperate in\nconnection with the preparation of any required governmental or regulatory\nfilings.\n\n      11. TERMINATION. The obligations of the Companies under this Letter may be\nterminated (a) by mutual agreement of the Companies; (b) by either Company if\nthe definitive agreements have not been executed on or prior to June 30, 1999;\nor (c) prior thereto, if the other Company is no longer negotiating in good\nfaith as provided in Section 10 or if the Board of Directors of such Company\ndetermines in the good faith exercise of its fiduciary duties that such\ntermination is in the best interests of such Company. In the event either of the\nCompanies decides to terminate this Agreement, it shall, to the extent\nreasonably practical, endeavor to inform the other Company of\n\n\nthe reasons for such decision, to provide the other Company ten days' prior\nwritten notice of its intention to terminate and to afford the other party an\nopportunity during such ten-business day period to address the reasons for such\ntermination.\n\n      12. NATURE OF AGREEMENT. The Companies acknowledge that this Letter is a\nstatement of their mutual intention only, and unless definitive agreements are\nexecuted and delivered by the Companies, there are no legally binding agreements\nbetween the Companies with respect to the transactions contemplated hereby.\nNotwithstanding the foregoing, the provisions of paragraphs 6, 7, 8, 9, 10 and\n11 hereof shall constitute binding legal agreements, shall be enforceable\nagainst the parties in accordance with their respective terms and shall survive\nany termination of the transactions contemplated hereby.\n\n      13. GOVERNING LAW. This Letter shall be governed by, and construed in\naccordance with, the laws of the State of Delaware applicably to contracts made\nand wholly to be performed within such state.\n\n\n            If you are in agreement with the terms and conditions of this\nLetter, please sign and date the enclosed duplicate of this Letter in the space\nprovided below and return it to the undersigned.\n\n                                          Very truly yours,\n\n                                          CELERITY SYSTEMS, INC.\n\n\n                                          By: \/s\/ KENNETH D. VAN METER  \n                                             ----------------------------  \n                                             Name:  Kenneth D. Van Meter\n                                             Title: President\/CEO\n\nAccepted and agreed as of the \n27th day of April, 1999:\n\nFUTURETRAK INTERNATIONAL, INC.\n\n\nBy: \/s\/ AHMAD MORADI                                \n    -----------------------------\n    Name:  Ahmad Moradi\n    Title: CEO\n\nAccepted and agreed with respect to \nSection 8 only, as of the 27th day \nof April, 1999:\n\n\n\/s\/ AHMAD MORADI                                        \n---------------------------------\nAhmad Moradi\n\n\n\/s\/ ROBERT KELNER                                         \n---------------------------------\nRobert Kelner\n\n\n\/s\/ WILLIAM TESSARO                                     \n---------------------------------\nWilliam Tessaro\n\n\n\/s\/ STEPHEN REMONDINI                                 \n---------------------------------\nStephen Remondini\n\n\n<\/pre>\n","protected":false},"template":"","meta":{"_acf_changed":false,"_stopmodifiedupdate":true,"_modified_date":"","_cloudinary_featured_overwrite":false},"corporate_contracts_companies":[7040],"corporate_contracts_industries":[9510],"corporate_contracts_types":[9622,9626],"class_list":["post-43472","corporate_contracts","type-corporate_contracts","status-publish","hentry","corporate_contracts_companies-celerity-systems-inc","corporate_contracts_industries-technology__programming","corporate_contracts_types-planning","corporate_contracts_types-planning__merger"],"acf":[],"_links":{"self":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts\/43472","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts"}],"about":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/types\/corporate_contracts"}],"wp:attachment":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/media?parent=43472"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=43472"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=43472"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=43472"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}