EXHIBIT 2.1
AGREEMENT AND PLAN OF REORGANIZATION
This AGREEMENT AND PLAN OF REORGANIZATION ("Agreement") is made and entered
into this 31st day of August, 1999 by and among TERRA INTERNATIONAL
PHARMACEUTICALS, INC., a Florida corporation having its principal place of
business at 0000 XxXxxxxx Xxxxxx, Xxxx. X, Xxx Xxxx Xxxxxx, Xxxxxxxxxx
00000-0000, ("Parent"), WORLDWIDE COLLECTIBLES, INC., a Nevada corporation and
wholly owned subsidiary of Parent ("Sub") and XXXXXXXXXXXX.xxx, a Nevada
corporation having its principal place of business at 0000 Xxx Xxxxx Xxxxxxxxx
Xxxxx, Xxxxx 000, Xxx Xxxxx Xxxxxx, ("Target") (Sub and Target hereinafter
collectively referred to as the "Constituent Corporations") and XXXXXX XXXXXXX
and XXXXX XXXXXX ("Terra Shareholders").
RECITALS
A. The Boards of Directors of Parent, Sub and Target have approved the
acquisition of Target by Parent.
B. The Boards of Directors of Parent, Sub and Target have approved the
merger of Target into Sub (the "Merger"), pursuant to the Agreement of Merger
set forth in Exhibit A hereto ("Merger Agreement") and the transactions
contemplated hereby in accordance with the applicable provisions of the statutes
of the State of Nevada, which permit such Merger.
C. For federal income tax purposes, it is intended that the Merger shall
qualify as a tax-free reorganization within the meaning of Section 368(a) of the
Internal Revenue Code of 1986, as amended (the "Code").
D. Each of the parties to this Agreement also desires to make certain
representations, warranties and agreements in connection with the Merger and
also to prescribe various conditions thereto.
AGREEMENT
NOW, THEREFORE, in consideration of the mutual covenants, promises and
agreements contained herein, the parties agree as follows:
1. THE MERGER.
(a) At the Effective Time (as defined in Section 1.2) and subject to
the terms and conditions of this Agreement and the Merger Agreement, Target
shall be merged into Sub and the separate existence of Target shall thereupon
cease, in accordance with the applicable provision of the General Corporation
Law of the State of Nevada (the "NGCL").
(b) Sub will be the surviving corporation in the Merger (sometimes
referred to herein as the "Surviving Corporation" and will continue to be
governed by the laws of the State of Nevada, and the separate corporate
existence of Sub and all of its rights, privileges,
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immunities and franchises, public or private, and all its duties and liabilities
as a corporation organized under the NGCL, will continue unaffected by the
Merger.
(c) The Merger will have the effects specified by the NGCL.
1.2 EFFECTIVE TIME. As soon as practicable following fulfillment or waiver
of the conditions specified in Article VI hereof, and provided that this
Agreement has not been terminated or abandoned pursuant to Article IX hereof,
the Constituent Corporations shall cause Articles of Merger to be filed with the
office of the Secretary of State of the State of Nevada as provided in Section
92A.200 of the NGCL. Subject to and in accordance with the laws of the State of
Nevada, the Merger will become effective at the date and time the Articles of
merger are filed with the office of the Secretary of State of the State of
Nevada or such later time or date as may be specified in the Articles of Merger
(the "Effective Time"). Each of the parties will use its best efforts to cause
the Merger to be consummated as soon as practicable following the fulfillment or
waiver of the conditions specified in Article VI hereof.
ARTICLE II
THE SURVIVING CORPORATION
2.1 ARTICLES OF INCORPORATION. The Articles of Incorporation of Sub as in
effect immediately prior to the Effective Time shall be the Articles of
Incorporation of the Surviving Corporation after the Effective Time.
2.2 BYLAWS. The Bylaws of Target as in effect immediately prior to the
Effective Time shall be the Bylaws of the Surviving Corporation after the
Effective Time.
2.3 BOARD OF DIRECTORS. From and after the Effective Time, the Board of
Directors of Target shall be the Board of Directors of the Surviving
Corporation.
2.4 OFFICERS. From and after the Effective Time, the Officers of Target
shall be the Officers of the Surviving Corporation.
ARTICLE III
CONVERSION OF SHARES
3.1 CONVERSION OF TARGET SHARES IN THE MERGER. Pursuant to the Merger
Agreement, at the Effective Time, by virtue of the Merger and without any action
on the part of any holder of any capital stock of Target:
(a) all shares of Common Stock, par value $.001 per share, of Target
("Target Common Stock") owned by Parent or any subsidiary of Parent or Target
shall be canceled and shall cease to exist from and after the Effective Time;
and
(b) each remaining issued and outstanding share of Target Common
Stock, other than Target Dissenting Shares (as defined in Section 3.4 hereof),
shall be converted into, and become exchangeable for, one (1) share of validly
issued, fully paid and nonassessable common stock, $.001 par value per share, of
Parent ("Parent Common Stock"). The
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consideration referred to in this Section 3.1 is hereinafter referred to as the
"Merger Consideration."
3.2 STATUS OF SUB SHARES. At the Effective Time, by virtue of the Merger
and without any action on the part of any holder of any capital stock of Sub,
each issued and outstanding share of common stock of Sub shall continue
unchanged and remain outstanding as a share of common stock of the Surviving
Corporation.
3.3 EXCHANGE OF STOCK CERTIFICATES.
(a) Immediately following the Closing, Parent shall provide
instructions to its transfer agent, Interwest Transfer Company ("Exchange
Agent"), which shall be effective as of the Effective Time, to issue the
certificates representing shares of Parent Common Stock required to effect the
exchange referred to in Section 3.3(b). Shares of Parent Common Stock into which
shares of Target Common Stock shall be converted in the Merger shall be deemed
to have been issued at the Effective Time.
(b) From and after the Effective Time, each holder of a certificate
which immediately prior to the Effective Time represented outstanding shares of
Target Common Stock, other than shares with respect to which dissenter's rights,
if any, are granted by reason of the Merger under the NGCL, shall be entitled to
receive in exchange therefor, upon surrender to the Exchange Agent, a
certificate or certificates representing the number of whole shares of Parent
Common Stock into which such holder's shares of Target common Stock were
converted pursuant to Section 3.1. From and after the Effective Time, Parent
shall be entitled to treat the certificates which immediately prior to the
Effective Time represented shares of Target Common Stock and which have not been
surrendered for exchange as evidencing the ownership of the number of shares of
Parent Common Stock into which the shares of Target Common Stock represented by
such certificates shall have been converted pursuant to Section 3.1,
notwithstanding the failure to surrender such certificates.
(c) As soon as practicable after the Effective Time, Parent shall
deliver to Xxxxxx Xxxxx in exchange for the options to acquire 5,000 shares of
Target Common Stock held by him, options to acquire an equal number of shares of
Parent Common Stock on the terms and conditions set forth in the options being
exchanged.
3.4 DISSENTING SHARES. Notwithstanding anything to the contrary contained
in this Agreement or the Merger Agreement, holders of shares of Target Common
Stock with respect to which dissenter's rights, if any, are granted by reason of
the Merger under the NGCL and who comply with the NGCL ("Target Dissenting
Shares"), shall not be entitled to shares of Parent Common Stock pursuant to
Section 3.1, unless and until the holder thereof shall have failed to perfect or
shall have effectively withdrawn or lost such holder's right to dissent from the
Merger under the NGCL, and shall be entitled to receive only the payment
provided for pursuant to the NGCL. If any holder shall have failed to perfect,
or shall have effectively withdrawn or lost such holder's dissenter's rights
under the NGCL, such holder's Target Dissenting Shares shall thereupon be deemed
to have been converted into and to have become exchangeable for, as of the
Effective Time, the right to receive the Merger Consideration.
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3.5 CLOSING OF TRANSFER BOOKS. From and after the Effective Time, the stock
transfer books of Target shall be closed and no transfer of shares of Target
common Stock shall thereafter be made. If, after the Effective Time, Target
Certificates are presented to Parent, they shall be canceled and exchanged for
the Merger Consideration in accordance with the procedures in this Article III.
3.6 CLOSING. The closing (the "Closing") of the transactions contemplated
by this Agreement shall take place at (a) the officers of Target's counsel at
9:00 a.m., local time, on the later of September 6, 1999, and (ii) the second
business day immediately following the date on which the last of the conditions
set forth in Article VI hereof is fulfilled or waived, or (b) at such other time
and place on such other date as Parent and Target shall agree (the "Closing
Date").
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF TARGET
Except as set forth in the Target Disclosure Schedule delivered to Parent on the
Closing Date, and signed by the President and Secretary of Target (the "Target
Disclosure Schedule"), the sections of which are numbered to correspond to the
subsection numbers of this Agreement, Target hereby represents and warrants to
Parent as follows:
4.1 ORGANIZATION, QUALIFICATION.
(a) Target is a corporation duly organized, validly existing and in
good standing under the laws of the State of Nevada. Target has all requisite
corporate power and authority to own, lease and operate its properties and to
carry on its business as now being conducted.
(b) Target has delivered to Parent complete and accurate copies of its
Articles of Incorporation and Bylaws, each as amended, minutes of all its
directors' and shareholder meetings, and a shareholder list correctly setting
forth the record ownership as of the date of this Agreement of all outstanding
shares.
4.2 CAPITALIZATION. As of the Closing Date, Target shall have authorized
capital stock of 50,000,000 of Common Stock, $.001 par value, of which no more
than 537,500 shares will be issued and outstanding and 5,000 shares shall be
reserved for issuance upon the exercise of options. All outstanding shares of
Target capital stock have been duly authorized, validly issued, fully paid and
nonassessable and are not be subject to preemptive rights created by statute,
the Articles of Incorporation or Bylaws of Target or any agreement to which
Target is a party or by which it is bound.
4.3 SUBSIDIARIES. Except for Target's wholly owned subsidiary, Xxxxxx
Enterprises, Inc., Target does not have and has never had any subsidiaries and
does not directly or indirectly own any equity interest in, or any interest
convertible into or exchangeable for any equity or similar interest in, any
corporation, partnership, joint venture or other business association or entity.
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4.4 AUTHORITY RELATIVE TO THIS AGREEMENT. Target has full corporate power
to execute and deliver this Agreement and to consummate the transactions
contemplated hereby and thereby. The execution and delivery of this Agreement
and the consummation of the transactions contemplated hereby and thereby have
been duly and validly authorized by the Board of Directors of Target.
4.5 FINANCIAL STATEMENTS OF TARGET. The business, assets, liabilities and
financial condition of Target are, in all material respects, as set forth in the
financial statements ("Target Financial Statements") and other representations
attached hereto as Schedule 3.5, which financial statements do not fail to state
any material fact necessary to make the information therein not misleading.
4.6 UNDISCLOSED LIABILITIES. Target does not have any material liabilities,
whether absolute, accrued, contingent or otherwise, and whether due or to become
due, except for those liabilities which (i) are accrued or fully reserved
against in the balance sheet of the Target Financial Statements; or (ii) are of
a normally recurring nature and were incurred after in the ordinary course of
business consistent with past practice. Section 3.6 of the Target Disclosure
Schedule lists all liabilities of Target incurred after June 30, 1999 which are
of a type required to be disclosed or reflected in financial statements and
which either (a) are not in the ordinary course of business, or (b) exceed
$1,000,000 with respect to any single transaction or single series of related
transactions.
4.7 ABSENCE OF CHANGES. Since June 30, 1999, there has not been any
material adverse change in the business, assets, liabilities, financial
condition, results of operations or prospects of Target taken as a whole.
4.8 PROPERTIES AND INVENTORIES. Target has good and marketable title to,
valid leasehold interests in or other valid right to use all of the material
assets used in its operations or necessary for the conduct of its business,
subject to no security interests, licenses, encumbrances, restrictions or
adverse claims, except as disclosed in the notes to the Target Financial
Statements and except for any lien for taxes not yet due and payable and except
for any statutory liens for which payment is not delinquent.
4.9 REAL PROPERTY. Section 4.9 of the Target Disclosure Schedule contains a
list and description of all real property owned and all real property leased by
Target. Prior to the Closing, Target will provide Parent with copies of all of
the referenced leases. Target has either fee simple title or enforceable
leasehold interests in all property shown in the Target Disclosure Schedule.
4.10 LITIGATION. Target is not engaged in, nor has it been threatened with,
any material litigation, arbitration, investigation or other legal proceeding
relating to Target or its business, property or employee benefit plans or
policies, nor, to the knowledge of Target, is there any valid basis for any such
proceeding.
4.11 PURCHASE, SALE AND OTHER AGREEMENTS. Target shall list in its
Disclosure Schedule each contract or agreement, oral or written, which may
materially affect its financial statements.
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4.12 LICENSES, TRADEMARKS, PATENTS AND OTHER RIGHTS. To the best of
Target'S knowledge, Target owns, is licensed or otherwise entitled to use, or
can obtain the right to use on a basis which is commercially reasonable, all
patents, trademarks, trade names, service marks, copyrights, and other
proprietary rights, and necessary to the business of Target as currently
conducted or as contemplated by its current business plan. Section 4.12(a) of
the Target Disclosure Schedule lists all Target patents and registered
trademarks, trade names and service marks and copyrights, and applications for
any of the foregoing. Except as set forth in Section 4.12(b) of the Target
Disclosure Schedule, no claims (including any request to enter into a license
agreement) have been asserted or threatened by any person (i) to the effect that
any activity in which Target is engaged infringes on any patents or other
proprietary rights, (ii) against the use by Target of any trademarks, trade
names, technology, know-how or processes necessary for the operation of the
business of Target as currently conducted or presently contemplated, or (iii)
challenging or questioning the validity or effectiveness of any of the Target
Intellectual Property; and Target is not aware of any valid basis for any such
claim. To the best of its knowledge, no party is infringing the Target
Intellectual Property.
4.13 EMPLOYEES. Section 4.13 of the Target Disclosure Schedule identifies
all consulting or employment agreements and other agreements with individual
consultants or employees to which Target is a party and which are either
currently effective or will become effective at the Closing.
4.14 COMPLIANCE WITH CONTRACTS. Target has performed all material
obligations required to be performed by it as of the date of this Agreement
under each material contract, obligation, commitment, agreement, undertaking,
arrangement or lease referred to in this Agreement or the Target Disclosure
Schedule and has not received any notice that it is in default thereunder. To
its knowledge no other party is in default under such material agreements. The
Merger and the actions contemplated thereby will not conflict with or result in
a breach of the terms, conditions or provisions of any such material agreement
or cause any acceleration of maturity of any such material agreements.
4.15 COMPLIANCE WITH LAWS. Target has substantially complied with all laws,
regulations, judgments, decrees or orders of any court or governmental agency or
entity applicable in any material respect to the conduct of its business.
4.16 TAXES. All United States, foreign, state and local tax returns and
reports (collectively "Target Returns") required to be filed to date with
respect to the operations of Target have been accurately prepared in all
material respects. and duly filed, or an extension therefrom has been duly
obtained.
4.17 ACCOUNTS RECEIVABLE. All accounts receivable reflected on the balance
sheet of Target at June 30, 1999 are bona fide, arose in the ordinary course of
business in the aggregate amount thereof and, to the best of Target'S knowledge,
are collectible (less any reserve for doubtful accounts and normal discounts) in
the ordinary course of business.
4.18 INVESTMENT REPRESENTATIONS. Target understands and acknowledge that
the Parent Common Stock will not be registered under the Securities Act nor
qualified under the securities laws of Florida or Nevada, by virtue of
exemptions thereto. Each of the Target shareholders
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(either alone or in conjunction with his or her professional advisers) has such
experience and knowledge in investment, financial and business matters in
investments similar to Parent Common Stock that her, she or it is are capable of
protecting his, her or its own interest in connection therewith and qualifying
for such exemptions. Further, each shareholder of Target is acquiring Parent
Common Stock for investment purposes only for such shareholder's own account,
and not on behalf of any other person nor with a view to, or for resale in
connection with any distribution thereof. The certificates representing the
Parent Common Stock will be stamped with a legend substantially in the following
form:
THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933 AND MAY NOT BE SOLD OR OFFERED FOR SALE IN THE ABSENCE OF AN
EFFECTIVE REGISTRATION STATEMENT AS TO THE SECURITIES UNDER SAID ACT
OR AN OPINION OF COUNSEL OR OTHER EVIDENCE SATISFACTORY TO THE ISSUER
THAT SUCH REGISTRATION IS NOT REQUIRED.
4.19 TAX CONSEQUENCES. Although the exchange of shares and subsequent
merger of Target with and into Sub by this Agreement is intended to be a "tax
free reorganization" pursuant to Section 368(a) of the Internal Revenue Code of
1986, as amended, Target understands that no assurance is given by Parent that
such transaction shall be deemed by the Internal Revenue Service to be a
transaction upon which no gain or loss is recognized.
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ARTICLE V
REPRESENTATIONS AND WARRANTIES OF PARENT AND TERRA SHAREHOLDERS
Parent and the Terra Shareholders hereby, jointly and severally, represent
and warrant to Target as follows:
5.1 CAPITALIZATION. The authorized capital stock of Parent consists of
50,000,000 shares of common stock, of which 44,270,000 are issued and
outstanding, all of which outstanding shares are duly authorized, validly
issued, fully paid and nonassessable. There is no commitment, plan or
arrangement to issue and no outstanding options, warrants or other rights
calling for the issuance of any share of capital stock of Parent or any security
or other instrument convertible into, exercisable for or exchangeable for
capital stock of Parent. There is outstanding no security or other instrument
convertible into or exchangeable for capital stock of Parent. By authority of
the shareholders given to the Board of Directors of Parent at a shareholders
meeting duly held on August 9, 1999, the outstanding stock of the corporation
will be reverse split, upon the execution of this Agreement, and in
contemplation of the Merger and prior to the Closing such that no more than
537,500 shares of common stock of Parent shall be outstanding immediately prior
to the Merger of Target into Sub.
5.2 ISSUANCE AND DELIVERY OF PARENT COMMON STOCK. The issuance and delivery
of the Parent Common Stock has been duly authorized, and the shares of Parent
Common Stock, when issued and delivered in accordance with the terms of this
Agreement, shall be duly authorized, validly issued, fully paid and
nonassessable.
5.3 ORGANIZATION. Parent is a corporation duly organized, validly existing
and in good standing under the laws of the State of Florida and has the
corporate power and authority to own its properties and to carry on its business
as now being conducted.
5.4 AUTHORITY, BINDING AGREEMENT. This Agreement has been approved by the
Board of Directors of Parent. No consents, authorizations or approvals, whether
of a governmental agency or instrumentality or otherwise, are necessary in order
to enable Parent to enter into and perform this Agreement. This Agreement
constitutes the legal, valid and binding obligation of Parent and is enforceable
against Parent in accordance with its terms.
5.5 FINANCIAL CONDITION. The business, assets, liabilities and financial
condition of Parent are, in all material respects, as set forth in the financial
statements and other representations attached hereto as Schedule 5.5 ("Parent
Financial Statements"), which Parent Financial Statements (i) have been prepared
in conformity with generally accepted accounting principles, consistently
applied, and (ii) do not fail to state any material fact necessary to make the
information therein not misleading.
5.6 LITIGATION. There is no suit, action or other legal or administrative
proceeding pending or threatened against Parent, and to its knowledge, no
circumstances exist or have occurred which may lead to any suit, action,
proceeding or investigation which could materially and adversely affect its
business, assets or financial condition. Parent has received no notice from
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any federal, state or local governmental agency asserting any violation by
Parent of any law, ordinance or regulation.
5.7 SUBSIDIARIES. Parent does not have and has never had any subsidiaries
and does not directly or indirectly own any equity interest in or any interest
convertible into or exchangeable for any equity or similar interest in any
corporation, partnership, joint venture or other business association or entity.
5.8 CONSENTS AND APPROVAL; NO VIOLATION. There is no requirement for Parent
to make any filing with or to obtain any permanent authorization, consent or
approval of any governmental or regulatory authority as a condition to the
lawful consummation by Parent of the transactions contemplated by this
Agreement.
5.9 UNDISCLOSED LIABILITIES. Parent does not have any material liabilities,
whether absolute, accrued, contingent or otherwise and whether due or to become
due except for those liabilities which (1) are accrued and fully reserved
against in the Parent Financial Statements or (2) are of a normally recurring
nature and were incurred after June 30, 1999 in the ordinary course of business
consistent with past practice. Subsequent to June 30, 1999, Parent does not have
any liabilities of a type required to be disclosed or reflected in financial
statements and which either (a) are not in the ordinary course of a business
transaction or (b) exceed $5,000 with respect to any single transaction or
single series of related transactions.
5.10 ABSENCE OF CHANGES. Since June 30, 1999 there have not been any
material adverse changes in the business, assets, liabilities, financial
condition, results of operation or prospects of Parent taken as a whole.
5.11 PURCHASE, SALE AND OTHER AGREEMENTS. Parent is not a party to any
contract or agreement, oral or written, which may materially affect the Parent
Financial Statements.
5.12 COMPLIANCE WITH LAWS. Parent has substantially complied with all laws,
regulations, judgments, decrees or orders of any court or governmental agency or
entity applicable in any material respects to the conduct of its business.
5.13 TAXES. All United States, foreign, state and local tax returns and
reports (collectively the "Returns") required to be filed to date with respect
to the operations of Parent have been accurately prepared in all material
respects and duly filed or an extension therefrom has been duly obtained.
5.14 REVIEW OF INFORMATION. Parent has such knowledge and experience in
investment, financial and business matters that is capable of protecting its own
interests. Parent has been provided complete access to all books and records of
Target and is entering into this transaction based solely upon its business
knowledge and experience and written information provided to Parent by Target.
Parent is not relying upon any oral representations of any officer, director,
agent or employee of Target in entering into this transaction.
5.15 NAME CHANGE. By authority of the shareholders given to the Board of
Directors of Parent at a shareholders meeting, on August 9, 1999 the name of
Parent shall be changed to xxxxxxxxxxxx.xxx upon the execution of this Agreement
and prior to the Closing.
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5.16. RECAPITALIZATION. By authority of the shareholders given to the Board
of Directors of Parent at a shareholders meeting, on August 9, 1999 the negative
retained deficit of additional paid in capital of Parent be restated to $0 as of
December 31, 1998, the end of most recent fiscal year, and the difference be
charged off to additional paid in capital.
ARTICLE VI
CONDITIONS TO CLOSING
6.1 CONDITIONS TO EACH PARTY'S OBLIGATION TO EFFECT THE MERGER. The
respective obligations of each party to effect the Merger shall be subject to
the fulfillment of all of the following conditions precedent at or prior to the
Effective Time:
(a) The Merger shall be approved by the shareholders of Target.
(b) Parent shall have taken all required action to comply with Rule
506 of the Securities Exchange Act of 1933 and the blue sky laws of the states
in which the shareholders of Target reside in connection with the issuance of
the Parent Common Stock.
(c) There shall be no injunction, order or decree by any Federal,
state or foreign court which prevents the consummation of the Merger.
(d) There shall have been no statute or regulation enacted which would
prevent consummation of the Merger.
(e) All governmental consents and approvals required for the Merger
shall have been obtained. Any of such conditions may be waived by all parties
but only in writing.
6.2 CONDITIONS TO OBLIGATIONS OF TARGET TO EFFECT THE MERGER. The
obligation of Target to effect the Merger is subject to the fulfillment of all
of the following conditions precedent at or prior to the Effective Time:
(a) The representations and warranties made by Parent and Sub shall be
true and correct as of the Closing.
(b) All obligations of Parent and Sub under this Agreement and the
Merger Agreement shall have been complied with and performed in all material
respects.
(c) There shall be no material change in the business, assets,
liabilities or financial condition of Parent from that set forth in the Parent
Financial Statements.
(d) Target shall have received an opinion of counsel for Parent and
Sub in the form of Exhibit B hereto dated as of the Closing Date.
(e) Parent shall have effected a reverse stock split of its common
stock such that the outstanding shares of common stock of Parent shall have been
reduced to no more than 537,500 shares.
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(f) Parent shall have amended its Articles of Incorporation to change
its corporate name to "xxxxxxxxxxxx.xxx".
(g) Parent shall have obtained a new CUSIP number for its common
stock.
(h) Parent shall have changed the trading symbol for its common stock
to "ACOM" or such other trading symbol as it approved by Target.
(i) Target shall have completed its due diligence investigation of
Parent and shall be satisfied in its sole discretion with the results of such
investigation.
Any of such conditions may be waived by Target but only in writing.
6.3 CONDITIONS TO OBLIGATIONS OF PARENT AND SUB TO EFFECT THE MERGER. The
obligations of Parent and Sub to effect the Merger are subject to the
fulfillment of all of the following conditions precedent at or prior to the
Effective Time:
(a) The representations and warranties made by Target shall be true
and correct as of the Closing.
(b) All obligations of Target under this Agreement and the Merger
Agreement shall have been complied with and performed in all material respects.
(c) There shall be no material change in the business, assets,
liabilities or financial condition of Target from that set forth in the Target
Financial Statements.
(d) Parent shall have received an opinion of counsel for Target in the
form of Exhibit C hereto dated as of the Closing Date.
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ARTICLE VII
INDEMNIFICATION
8.1 INDEMNIFICATION OF TARGET. Terra Shareholders shall indemnify, save and
keep Target and its affiliates, successors and assigns including Sub and Parent
("Target Indemnitees") harmless against and from all liability, demands, claims,
actions or causes of action, assessments, losses, fines, penalties, costs,
damages and expenses, including reasonable attorneys' fees, disbursements and
expenses (collectively, "Damages") sustained or incurred by Target Indemnitees
as a result of, arising out of or by virtue of any misrepresentation, breach of
any warranty or representation or non-fulfillment of any agreement on the part
of Parent, Sub or Terra Shareholders, contained in this Agreement or the Merger
Agreement or any exhibit or schedule hereto or thereto.
8.2 INDEMNIFICATION OF PARENT. Target and Sub shall indemnify, save and
keep Parent and its affiliates, successors and assigns ("Parent Indemnitees")
harmless against and from all liability, demands, claims, actions or causes of
action, assessments, losses, fines, penalties, costs, damages and expenses,
including reasonable attorneys' fees, disbursements and expenses (collectively,
"Damages") sustained or incurred by Parent Indemnitees as a result of, arising
out of or by virtue of any misrepresentation, breach of any warranty or
representation or non-fulfillment of any agreement on the part of Target,
contained in this Agreement or the Merger Agreement or any exhibit or schedule
hereto or thereto.
ARTICLE VIII
TERMINATION, AMENDMENT AND WAIVER
8.1 TERMINATION. This Agreement may be terminated at any time prior to the
Effective Time, whether before or after approval by the shareholders of Target:
(a) by mutual consent of Parent and Target; or
(b) by either Parent or Target if (i) the Merger shall have not been
consummated on or before September 15, 1999 (the "Termination Date"), (ii) the
requisite vote of the shareholders of Target to approve the Merger shall not be
obtained, (iii) any court of competent jurisdiction in the United States or any
state shall have issued an order, judgment or decree restraining, enjoining or
otherwise prohibiting the Merger and such order, judgment or decree shall have
become final and nonappealable; or
(c) by Target in its sole discretion based on its due diligence
investigation of Parent.
8.2 EFFECT OF TERMINATION. In the event of termination of this Agreement by
either Parent or Target, as provided in Section 8.1, this Agreement shall
forthwith become void and there shall be no liability on the part of either
Target, Parent or Sub or their respective officers or directors (except as set
forth in this Section 8.2) and each party shall bear its own costs incident to
the negotiation, preparation and anticipated Closing of this Agreement. In such
event, each party shall return any data, material or assets of the other party
received by it in contemplation of
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the Closing. Nothing in this Section 8.2 shall relieve any party from liability
for any breach of this Agreement.
ARTICLE IX
MISCELLANEOUS
9.1 OTHER DOCUMENTS. Target shall, at any time after the Closing upon the
request of Parent, execute and deliver to Parent such documents or instruments
of conveyance, license or assignment or take such other action as is reasonably
necessary to complete the transfer of the Target Common Stock or other
transactions contemplated by this Agreement.
9.2 COSTS. Except as otherwise specifically provided herein, Parent shall
pay the Closing costs and transfer cost applicable to this Agreement and the
transfer of Parent Common Stock hereunder. Each party hereto shall bear the
costs of their respective counsel and all other legal fees and costs related
thereto. Parent shall pay all of such costs and fees prior to the Closing. Both
Parent and Target each hold the other harmless from any obligation for the
payment of any finders fees or commissions in connection with the transactions
contemplated by this Agreement as a result of any action of the indemnifying
party.
9.3 INVALIDITY, MODIFICATION AND WAIVER. If any provision of this Agreement
shall be held to be invalid or void, the remaining provisions shall nevertheless
remain in effect. No provision of this Agreement may be modified and the
performance or observance thereof may not be waived except by written agreement
of the parties affected thereby. No waiver of any violation or nonperformance of
any provision of this Agreement shall be deemed to be a waiver of any subsequent
violation or nonperformance of the same or any other provision of this
Agreement.
9.4 DISPUTES, CHOICE OF LAW. This Agreement, the performance of the parties
hereunder and any disputes related hereto shall be governed by the laws of the
State of Nevada and subject to the exclusive jurisdiction of the courts therein.
If either party shall initiate a legal proceeding to enforce its rights
hereunder, the prevailing party in such legal proceedings shall be entitled to
recover from the other party all costs, expenses and reasonable attorney's fees
incurred in connection with such proceedings.
9.5 ENTIRE AGREEMENT. This Agreement is and represents the entire agreement
between the parties hereto with respect to the subject matter hereof and
supersedes any prior or contemporaneous discussions or agreements related
thereto.
9.6 COUNTERPARTS. This Agreement may be executed in two or more
counterparts, all of which shall be originals and enforceable, and together
shall constitute a single agreement.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed by their respective authorized representative as of the date first
written above.
"Parent"
TERRA INTERNATIONAL
PHARMACEUTICALS, INC.,
a Florida corporation
By:
-------------------------------------
Xxxxx Xxxxxx, President
By:
-------------------------------------
Xxxxxxx Xxxxxxx, Secretary
"Terra Shareholders"
XXXXXX XXXXXXX
XXXXX XXXXXX
[Signatures continue]
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"Sub"
WORLDWIDE COLLECTIBLES, INC.,
a Nevada corporation
By:
-------------------------------------
Xxxxx Xxxxxx, President
By:
-------------------------------------
Xxxxxxx Xxxxxxx, Secretary
"Target"
XXXXXXXXXXXX.xxx,
a Nevada corporation
By:
-------------------------------------
Xxxx Xxxxx, President
By:
-------------------------------------
Xxxxx Xxxxxxxxxx, Secretary
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