EXHIBIT 8.2
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Technology Business Tax Certificate Program
This Agreement (hereinafter "Agreement"), made as of 30th day of
November, 1999, by and between NUCYCLE Therapy Inc./FKA Phytotech, Inc.,
("Selling Company"), a company organized under the laws of the State of New
Jersey, having its principal offices at ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇, ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ and PSE&G ("Buying Company"), a company organized under the
laws of the State of New Jersey, having its principal offices at ▇▇ ▇▇▇▇ ▇▇▇▇▇,
▇.▇. ▇▇▇ ▇▇▇, ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, the above entities being hereinafter referred
to as the "Parties."
WITNESSETH:
WHEREAS, in order for society to appreciate the anticipated potential
rewards from emerging technology and biotechnology research, private industry
must have access to sufficient financial resources to conduct research and
transfer research discoveries into viable commercial products;
WHEREAS, pursuant to P.L. 1997, c.334 as amended, the State of New
Jersey created a tax benefit transfer program for emerging technology and
biotechnology companies in order to provide additional funds to said companies
by allowing new or expanding emerging technology and biotechnology companies
with Unused NOL Carryover and/or Unused R & D Credits to surrender those tax
benefits for use by other corporation business taxpayers in exchange for private
financial assistance;
WHEREAS, the Division of Taxation has established the amount of tax
benefits that Selling Company can transfer over State Fiscal Year 2000 to be
$414,869;
NOW, therefore, in consideration of the mutual promises and covenant
the Parties agree as follows:
ARTICLE I
Section 1.01 Definitions:
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"NJEDA" means the New Jersey Economic Development Authority
established pursuant to section 4 of P.L. 1974, c. 80 (C. 34:1B-4), as amended
and supplemented;
"Affiliated Business" means an entity which directly or indirectly
owns or controls 5% or more of the voting rights of any kind or 5% or more of
the value of all classes of stock of both the taxpayer receiving the benefits
and a corporation surrendering the benefits.
"Biotechnology" means the continually expanding body of fundamental
knowledge about the functioning of biological systems from the macro level to
the molecular and sub-atomic levels, as well as products, services, technologies
and sub-technologies developed as a result of insights gained from research
advances which add to that body of fundamental knowledge;
"Biotechnology company" means an emerging corporation that has a
headquarters or base of operations located in New Jersey and that is engaged in
the research, development, production, or provision of biotechnology for the
purpose of developing or providing products or processes for specific commercial
or public purposes, including but not limited to, medical, pharmaceutical,
nutritional, and other health-related purposes, agricultural purposes, and
environmental purposes, or a corporation that has a headquarters or base of
operations located in New Jersey and that is engaged in providing services or
products necessary for such research, development, production, or provision;
"Certificate" means the certificate issued by the Division relating to
the Unused NOL Carryover and/or Unused R & D Credits of the Selling Company;
"Division" means the New Jersey Division of Taxation.
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"Technology company" means an emerging corporation that has a
headquarters or base of operations located in New Jersey, and who employs some
combination of the following: highly educated or trained managers and workers,
or both, employed in New Jersey who use sophisticated scientific research
service or production equipment, processes or knowledge to discover, develop,
test, transfer or manufacture a product or service;
"Unused NOL Carryover" means unused net operating loss carryover,
pursuant to N.J.S.A. 54:10A-4(k)(6)(B), of the Selling Company.
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"Unused R & D Credits" means unused amounts of research and
development tax credits, pursuant to N.J.S.A. 54:10A-5.24(1)(b), of the Selling
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Company.
ARTICLE II
Section 2.01 Compensation.
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a) subject to the conditions set forth in Section 2.02 hereof,
within 10 days of Selling Company's notifying Buying Company of its receipt of
the Certificate from the Division, Buying Company agrees to purchase the
Certificate for a purchase price in the aggregate amount of $342,266.93 for the
transfer of tax benefits in the amount of $414,869 for the years and amounts
more fully set forth in the Selling Business Tax Benefit Identification Form,
attached.
b) subject to the conditions set forth in Section 2.02 hereof,
Buying Company agrees to purchase and Selling Company agrees to sell additional
tax benefits in the amount of $306,797 for the years and amounts more fully set
forth on Schedule A, to the extent that the Selling Company is authorized by
NJEDA to transfer those tax benefits In subsequent years. Within 10 days of
Selling Company's notifying Buying Company of its receipt of a Certificate
permitting the transfer of all or part of those tax benefits, Buying Company
shall pay Selling Company a purchase price of 83 and 1/8 cents ($.83125) for
each dollar of tax benefit transferred
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in that Certificate. Buying Company shall be permitted to assign its right to
purchase tax benefits in subsequent years to Public Service Enterprise Group,
Incorporated or any of Public Service Enterprise Group, Incorporated's
subsidiaries without prior approval from NJEDA or Selling Company.
Section 2.02 Conditions to Purchase. Buying Company's obligation
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to purchase is conditioned upon:
a) the approval by NJEDA of Selling Company's application for
transfer of tax benefits for private financial assistance;
b) the approval of this Agreement by the NJEDA and the Division;
c) a final determination by the Division that the amount of the
Certificate for fiscal year 2000 is equal to $414,869 or a final determination
by the Division of the amount of the Certificate issued in any subsequent year.
d) the Selling Company agrees not to sell any tax benefit
certificate in connection with the Technology Business Tax Certificate Program,
to an Affiliated Business.
ARTICLE III
Section 3.01 Covenants of the Selling Company. The Selling Company
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covenants:
a) it shall maintain a headquarters or a base of operations in the
State through the next calendar year following the signature dates of this
agreement.
b) the Selling Company shall expend the proceeds of this purchase in
connection with the operation of the Selling Company in the State of New Jersey
including but not limited to the expenses of fixed assets, such as the
construction, acquisition and development of real estate, materials, start-up,
tenant fit-out, working capital, salaries, research and
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development expenditures and any other expenses determined by the NJEDA to be
necessary to carry out the purposes of the New Jersey Emerging Technology and
Biotechnology Financial Assistance Program and any other expenses determined by
the New Jersey Emerging Technology and Biotechnology Financial Assistance
Program.
Section 3.02 Covenants of the Buying Company. The Buying Company
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covenants:
a) it shall not assign, sell or transfer the Certificate to any
Affiliated Business of Selling Company.
b) if any representation made by Buying Company in this Agreement is
willfully false or materially misleading or if Buying Company breaches the
covenant set forth in Paragraph 3.02(a), the transfer of tax benefits
contemplated by this Agreement shall be null and void.
Section 3.03 Representation by Selling Company. The Selling Company
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represents to Buying Company, NJEDA and the Division that Selling Company is not
an Affiliated Business of Buying Company.
Section 3.04 Representation by Buying Company. The Buying Company
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represents to Selling Company, NJEDA and the Division that Buying Company is not
an Affiliated Business of Selling Company.
ARTICLE IV
Section 4.01 Non-assignability. The Buying Company may not assign
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or transfer the Certificate in any manner.
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ARTICLE V
Section 5.01 Third Party Beneficiary. The NJEDA shall be a third
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party beneficiary to this agreement, with the authority to enforce the
provisions hereof and to declare a default hereunder.
ARTICLE VI
Section 6.01 Default. Failure by the Selling Company to comply with
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any covenant for a period of 30 days shall constitute an event of default.
Section 6.02 Remedies upon Default. Upon the existence of any events
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of default, the Buying Company or the NJEDA, as third party beneficiary to the
agreement, may take any action legally available to it.
Section 6.03 Forbearance Not a Waiver. No act of forbearance or
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failure to insist on the prompt performance of the obligations pursuant to this
Agreement, either expressed or implied, shall be construed as a waiver of any of
its rights hereunder. In the event that any provision of this Agreement should
be breached and the breach may thereafter be waived, such waiver shall be
limited to the particular breach waived and shall not be deemed to waive any
other breach.
ARTICLE VII
Section 7.01 Indemnification. Selling Company covenants and agrees
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to indemnify and hold harmless, the NJEDA and the State of New Jersey and their
respective members, agents, officers, employees and servants from all losses,
claims, damages, liabilities, and costs whatsoever (including all costs,
expenses and reasonable counsel fees incurred in investigating and defending
such losses and claims, etc.), brought by any person or entity, and caused by,
related to, arising or purportedly arising out of, or from: (i) the condition,
use,
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possession, conduct, management, construction, and financing of the Selling
Company's facility, (ii) the performance by Selling Party of its obligations
under this Agreement; (iii) any loss, damage of injury to, or death of, any
person occurring at or about or resulting from, the operations at the Selling
Company's facility and, (iv) any damage or injury to property of Selling Party
or to the agents, servants, or employees of Selling Party, or to any other
person who may be about the Selling Party's facility caused by the negligence of
any person. The provisions of this Paragraph shall survive termination of this
Agreement.
ARTICLE VIII
Section 8.01 Governing Law. This Agreement shall be governed by the
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laws of the State of New Jersey.
Section 8.02 Forum and Venue. All actions related to the matters
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which are the subject of this Agreement shall be formed and venued in the court
of competent jurisdiction in the County of ▇▇▇▇▇▇, State of New Jersey.
Section 8.03 Entire Agreement. This Agreement and its exhibits, the
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application forms of the Selling Company and Buying Company and any documents
referred to herein constitute the complete understanding of the Parties and
merge and supersede any and all other discussions, agreements and
understandings, (other than the aforementioned applications) between the Parties
with respect to the subject matter of this Agreement.
Section 8.04 Severability. Whenever possible, each provision of this
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Agreement shall be interpreted in such manner as to be effective and valid
pursuant to applicable law, but if any provision of this Agreement is held to be
prohibited by or invalid under applicable law, such provisions shall be
ineffective only to the extent of such prohibition or invalidity, without
invalidating the remainder of such provisions of this Agreement, unless Buying
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Company shall in its sole and absolute discretion deem the invalidated provision
essential to the accomplishment of the public purposes served by this Agreement,
in which case Buying Company has the right to terminate this Agreement and all
benefits provided to Selling Company hereunder upon the giving of sixty (60)
days prior notice as set forth in Paragraph 8.05 hereof.
Section 8.05 Notices. All notices, consents, demands, requests and
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other communications which may be or are required to be given pursuant to any
term of this Agreement shall be in writing and shall be deemed duly given or
personally delivered or sent by United States mail, registered or certified,
return receipt requested, postage prepaid, to the addresses set forth hereunder
or to such other address as each party to this Agreement may hereafter designate
in a written notice to the other party transmitted in accordance with this
provision.
Selling Company Address:
NUCYCLE Therapy, Inc./ FKA Phytotech, Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Buying Company Address:
PSE&G
▇▇ ▇▇▇▇ ▇▇▇▇▇
▇.▇. ▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Section 8.06 Amendments or Modifications. This Agreement may only
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be amended or modified in a writing executed by both Parties, for good cause
shown. Such amendments or modifications shall become effective only upon
execution of same by both
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Parties and submission of the amendment or modification to the NJEDA and the
Division for approval.
Section 8.07 Headings. Section headings contained in this Agreement
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are inserted for convenience only and shall not be deemed to be a part of this
Agreement.
Section 8.08 Counterparts. This Agreement may be executed in any
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number of counterparts, each of which shall be an original and all of which
shall constitute but one and the same instrument.
Section 8.09 Successors and Assigns. This Agreement shall be
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binding upon the successors and assigns of the parties hereto.
IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to
be executed by their respective officers duly authorized as of the date and year
first set forth above.
ATTEST: SELLING COMPANY
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
-------------------- ----------------------------
NAME: ▇▇▇▇ ▇. ▇▇▇▇▇▇ NAME: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
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TITLE: CEO TITLE: CFO
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ATTEST: BUYING COMPANY
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇ By: /s/ ▇. ▇▇▇▇▇▇▇
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NAME: ▇▇▇▇ ▇▇▇▇▇▇▇ NAME: ▇. ▇▇▇▇▇▇▇
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TITLE: Director CI&SGA TITLE: Assistant Treasurer
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NUCYCLE THERAPY INC. FKA as PHYTOTECH, INC.
SCHEDULE A
NJEDA NOL TAX SALE PROGRAM
NET OPERATING LOSS CARRYFORWARD
AND RESEARCH & DEVELOPMENT CREDITS
AMOUNT SOLD
STATE FISCAL YEAR 2000
YEAR GROSS NET BENEFIT GROSS R & D NOL TOTAL BALANCE
NOL AVAILABLE R & D CREDITS BENEFIT AVAILABLE AVAILABLE REMAINING
AVAILABLE IN 2000 IN 2000 FOR 2001
1993 90,499 8,113 - - 8,113 8,113 -
1994 529,814 47,496 12,175 12,175 47,496 59,671 -
1995 1,542,151 138,250 19,615 19,615 138,250 157,865 -
1996 2,418,303 216,795 20,928 20,928 168,292 189,220 48,503
1997 2,881,251 258,293 - - - - 258,293
--------- ------- ------ ------ ------- ------- -------
7,461,982 668,947 52,718 52,718 362,151 414,869 306,796
6/28/99 1
SELLING BUSINESS
TAX BENEFIT IDENTIFICATION FORM
Technology Business Tax Certificate Program
Business Name NUCYCLE THERAPY, Inc./FKA PHYTOTECH, INC.
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Primary Business Address ONE DEER PARK DRIVE, SUITE M
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▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
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Contact Name and Title ▇▇. ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, CFO
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Telephone ▇▇▇ ▇▇▇-▇▇▇▇ EXT. 12
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Tax Identification Number ▇▇-▇▇▇▇▇▇▇
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Summary of Prior Years' Activities
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Accumulated Prior Years' NOLs Authorized to be Sold $668,947
Accumulated Prior Years' NOLs Sold $ -0-
Accumulated Prior Years' R & D Tax Credits Authorized
to be Sold $ 52,718
Accumulated Prior Years' R & D Tax Credits Sold $ -0-
Total Authorized $721,665
Total Sold $414,869
Current Year Authorization
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Current Year 2000 Authorization $414,869
_______ Check here if you would like the New Jersey Division of Taxation to
determine which years and the amounts of Net Operating Loss (NOL) and Research
and Development (R & D) Tax Credit carryforwards within the amount that the
Selling Business has been authorized to sell.
2
SELLING BUSINESS
TAX BENEFIT IDENTIFICATION FORM
Technology Business Tax Certificate Program
Directions: If the line on page I has not been checked, fill out the section
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below to identify which years and the amounts of the NOL and R & D Tax Credit
carryforwards you would like to sell up to the amount provided on the Current
Year Authorization line. Prior years' authorized or expired NOL and R&D Tax
Credit carryforwards cannot be listed.
Calculated NOL R & D Tax Credit
Gross Value of Carryforwards Carryforwards
Year NOLs Intended to be Sold Intended to be Sold
12-31-93 $ 90,499 $ 8,113 $_______
12-31-94 $ 529,814 $ 47,496 $ 12,175
12-31-95 $ 1,542,151 $ 138,250 $ 20,928
12-31-96 $ 2,418,303 $ 216,795 $ 19,615
12-31-97 $ 2,881,215 $ 258,293 $_______
$__________ $________ $_______
$__________ $________ $_______
Totals $ 7,461,982 $ 668,947 $ 52,718
GRAND TOTAL $721,665 (The sum
of Totals for the third and fourth
columns should be entered here.
This figure should equal the amount
provided on the Current Year
Authorization line.)
7/7/99 1
BUYING BUSINESS INFORMATION SHEET
Technology Business Tax Certificate Program
Please provide the information requested below and sign and date as requested.
A. Buying Business
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Business Name PSE&G
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Primary Business Address ▇▇ ▇▇▇▇ ▇▇▇▇▇
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Contact Name and Title ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Assistant Corp.
General Counsel
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Telephone ▇▇▇-▇▇▇-▇▇▇▇
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Tax Identification Number ▇▇-▇▇▇▇▇▇▇
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B. Selling Business
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Business Name Nucycle Therapy, Inc./FKA Phytotech, Inc.
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Primary Business Address One Deer Park Drive, Suite M
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Contact Name and Title ▇▇. ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, CFO
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Telephone ▇▇▇-▇▇▇-▇▇▇▇, Ext. 12
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Tax Identification Number ▇▇-▇▇▇▇▇▇▇
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Tax Benefits Authorized to be Sold $ 414,869
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C. Estimated Sale Price of Benefits to be Transferred
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$ 342,266.93 (This must be at least 75% of the Tax Benefits Authorized
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to be Sold shown on the line above.)
____________ (Initial of Selling Business Contact or Authorized
Representative who signed the Selling Business Application)
It is expressly agreed and understood that any information submitted to or
obtained by the New Jersey Economic Development Authority (NJEDA) or the New
Jersey Division of Taxation in connection with this application may be shared by
the NJEDA, the New Jersey Division of Taxation and/or the New Jersey Commission
on Science and Technology.
The information provided in connection with this application is accurate to the
best of my knowledge.
CERTIFICATE
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With respect to each officer and director of Public Service Enterprise Group
Incorporated:
(a) within the last five (5) years, no petition under the Bankruptcy
Code or any state insolvency law was filed by or against, nor was a receiver,
fiscal agent or similar officer appointed by a court for the business or
property of, such person or any partnership in which such person was a general
partner at or within two years before the time of such filing, or any
corporation or business association of which such person was an executive
officer at or within two years before the time of such filing;
(b) within the last five (5) years, such person has never been
charged with or convicted of a criminal offense (excluding traffic violations
and other minor offenses), nor is such person the named subject of any criminal
proceeding which is presently pending;
(c) such person has never been found by any Federal or State court of
competent jurisdiction or authority, agency or commission to have violated, or
to have aided, abetted, commanded, or procured the violation by any other
person, of a Federal or State securities law, or any Federal commodities law or
of any rule or regulation under any such Acts or laws, nor has such person ever
been prohibited, restricted, barred, suspended, limited or enjoined, permanently
or temporarily from
(i) engaging in any activity in connection with the purchase
or sale of any security or commodity or in connection with any
violation of Federal or State securities laws or Federal commodities
laws, or acting as a futures commission merchant, introducing broker,
commodity trading advisor, commodity pool operator, floor broker,
leverage transaction merchant, any other person regulated by the
Commodity Futures Trading Commission, or an associated person of any
of the foregoing, or engaging in or continuing in any conduct or
practice in connection with the purchase or sale of any security or
securities, including acting as an investment adviser, underwriter,
broker or dealer, or as an affiliated person, director or employee of
any investment company, bank, savings and loan association or
insurance company; or
(ii) engaging in any type of business practice or in any trade
business; or
(iii) being associated with persons engaged in any activity
referred to in this subparagraph (c).
Date: November 24, 1999 /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇.
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇.
Secretary