Exh. 10-b
AGREEMENT AND PLAN OF MERGER
by and among
Maui General Store, Inc.
MGS Trinity Acquisition Corp.
and
Trinity Biogenics, Inc.
Dated as of January 24, 2006
AGREEMENT AND PLAN OF MERGER
Agreement and Plan of Merger dated as of January 24, 2006 (the
"Agreement") by and among Maui General Store, Inc., a corporation formed
under the laws of the State of New York ("MGS"), MGS Trinity Acquisition
Corp., a corporation newly formed under the laws of the State of Florida
and a wholly owned subsidiary of MGS (the "Merger Sub"), Trinity Biogenics,
Inc., a corporation formed under the laws of the State of Florida
("Trinity") and Xxxxxxx Xxxxxx, the principal shareholder of MGS (the
"Principal Stockholder"). MGS, the Merger Sub, Trinity and the Principal
Stockholder are referred to herein individually as a "Party" and
collectively as the "Parties."
PREAMBLE
WHEREAS, MGS will acquire Trinity pursuant to a merger transaction
whereby, pursuant to the terms and subject to the conditions of this
Agreement, Trinity shall become a wholly owned subsidiary of MGS through
the merger of Trinity with and into the Merger Sub (the "Merger");
WHEREAS, in the Merger all issued and outstanding shares of capital
stock of Trinity held by the stockholders of Trinity (the "Trinity
Stockholders") shall be cancelled and converted into the right to receive
540,000,000 pre-split shares of common stock of MGS, $0.001 par value per
share (the "Merger Shares"), which shares, combined with the shares
acquired by the Trinity Stockholders as a result of the Palmera Merger,
will represent 90.90% of the issued and outstanding common stock of MGS
after the Merger; and
WHEREAS, MGS, Trinity and the Merger Sub intend that the Merger
qualify as a "reorganization" within the meaning of Section 368(a) of the
Internal Revenue Code of 1986, as amended (the "Code"), and the parties
intend this Agreement to qualify as a "plan of reorganization" within the
meaning of Treasury Regulation Sections 1.368-2(g) and 1.368-3(a);
NOW, THEREFORE, in consideration of the premises and the mutual
covenants, representations and warranties contained herein, the Parties,
intending to be legally bound, hereby agree as follows:
CERTAIN DEFINITIONS
As used in this Agreement, the following terms shall have the
meanings set forth below:
"Applicable Law" means any domestic or foreign law, statute, regulation,
rule, policy, guideline or ordinance applicable to the businesses of the
Parties, the Merger and/or the Parties.
"FBCA" means the Florida Business Corporation Act.
"GAAP" means generally accepted accounting principles in the United States
of America as promulgated by the American Institute of Certified Public
Accountants and the Financial Accounting Standards Board or any successor
institutes concerning the treatment of any accounting matter.
"Lien" means, with respect to any property or asset, any mortgage, lien,
pledge, charge, security interest, claim, encumbrance, royalty interest,
any other adverse claim of any kind in respect of such property or asset,
or any other restrictions or limitations of any nature whatsoever.
"Material Adverse Effect" with respect to any entity or group of entities
means any event, change or effect that has or would have a materially
adverse effect on the financial condition, business or results of
operations of such entity or group of entities, taken as a whole.
"Palmera" means Palmera Holdings, Inc., a Florida corporation.
"Person" means any individual, corporation, partnership, trust or
unincorporated organization or a government or any agency or political
subdivision thereof.
"Surviving Entity" shall mean Trinity as the surviving entity in the Merger
as provided in Section 1.03.
"Tax" (and, with correlative meaning, "Taxes" and "Taxable") means:
(i) any income, alternative or add-on minimum tax, gross receipts
tax, sales tax, use tax, ad valorem tax, transfer tax, franchise tax,
profits tax, license tax, withholding tax, payroll tax, employment tax,
excise tax, severance tax, stamp tax, occupation tax, property tax,
environmental or windfall profit tax, custom, duty or other tax, impost,
levy, governmental fee or other like assessment or charge of any kind
whatsoever together with any interest or any penalty, addition to tax or
additional amount imposed with respect thereto by any governmental or Tax
authority responsible for the imposition of any such tax (domestic or
foreign), and
(ii) any liability for the payment of any amounts of the type
described in clause (i) above as a result of being a member of an
affiliated, consolidated, combined or unitary group for any Taxable period,
and
(iii) any liability for the payment of any amounts of the type
described in clauses (i) or (ii) above as a result of any express or
implied obligation to indemnify any other person.
"Tax Return" means any return, declaration, form, claim for refund or
information return or statement relating to Taxes, including any schedule
or attachment thereto, and including any amendment thereof.
ARTICLE I
THE MERGER
SECTION 1.01 THE MERGER.
Upon the terms and subject to the conditions set forth in this
Agreement and in accordance with the FBCA, at the Effective Time (as
hereinafter defined), all Trinity Shares (as hereinafter defined) shall be
cancelled and converted into the right to receive the Merger Shares. In
connection therewith, the following terms shall apply:
(a) Exchange Agent. Xxxxxx Xxxxxx, Esq., counsel for Trinity,
shall act as the exchange agent (the "Exchange Agent") for the purpose of
exchanging Trinity Shares for the Merger Shares. At or prior to
theEffective Time, MGS shall deliver to the Exchange Agent certificates for
the Merger Shares.
(b) Conversion of Securities.
(i) Conversion of Trinity Securities. At the Effective Time,
by virtue of the Merger and without any action on the part of MGS, Trinity
or the Merger Sub, or the holders of any of their respective securities:
(A) Each of the issued and outstanding shares of common
stock of Trinity (the "Trinity Shares") immediately prior to the Effective
Time shall be converted into and represent the right to receive, and shall
be exchangeable for, that number of Merger Shares as shall be determined by
dividing 540,000,000 by the number of then issued and outstanding Trinity
Shares (the "Trinity Conversion Rate"). The Trinity Conversion Rate shall
be subject to equitable adjustment in the event of any split or
consolidation of the outstanding shares of MGS prior to the Effective Time.
(B) Each warrant, option or security convertible into
common stock of Trinity shall be converted into and represent the right to
receive that number of shares of MGS common stock as would have been
received pursuant to Section 1.01(b)(A) by the holder of the number of
Trinity Shares for which the warrant option or convertible security may be
exchanged.
(C) All Trinity Shares shall no longer be outstanding
and shall automatically be canceled and retired and shall cease to exist,
and each holder of a certificate representing any such shares shall cease
to have any rights with respect thereto, except the right to receive the
Merger Shares to be issued pursuant to this Section 1.01(b)(i) upon the
surrender of such certificate in accordance with Section 1.07, without
interest. No fractional shares may be issued; but each fractional share
that would result from the Merger will be rounded to the nearest whole
number of shares.
(ii) Conversion of Merger Sub Stock. At the Effective Time,
by virtue of the Merger and without any action on the part of Trinity, MGS,
the Merger Sub, or the holders of any of their respective securities, each
share of capital stock of Merger Sub outstanding immediately prior to the
Effective Time shall be converted into one share of the common stock of the
Surviving Entity and the shares of common stock of the Surviving Entity so
issued in such conversion shall constitute the only outstanding shares of
capital stock of the Surviving Entity and the Surviving Entity shall be a
wholly owned subsidiary of MGS.
SECTION 1.02 CLOSING.
The closing of the Merger (the "Closing") will take place at the
offices of Xxxxxx Xxxxxx, Esq. within one (1) business day following the
satisfaction or waiver of the conditions precedent set forth in Article V
or at such other date as MGS and Trinity shall agree (the "Closing Date"),
but in any event no later than December 31, 2006.
SECTION 1.03 MERGER; EFFECTIVE TIME.
At the Effective Time and subject to and upon the terms and
conditions of this Agreement, Merger Sub shall, and MGS shall cause Merger
Sub to, merge with and into Trinity in accordance with the provisions of
the FBCA, the separate corporate existence of Merger Sub shall cease and
Trinity shall continue as the Surviving Entity. The Effective Time shall
occur upon the filing with the Secretary of State of the State of Florida
of a Certificate of Merger (the "Certificate of Merger") and executed in
accordance with the applicable provisions of the FBCA (the "Effective
Time"). The date on which the Effective Time occurs is referred to as the
"Effective Date." Provided that this Agreement has not been terminated
pursuant to Article VI, the Parties will cause the Certificate of Merger to
be filed as soon as practicable after the Closing.
SECTION 1.04 EFFECT OF THE MERGER.
The Merger shall have the effect set forth in Section 607.11101 of
the FBCA. Without limiting the generality of the foregoing, and subject
thereto, at the Effective Time, all the properties, rights, privileges,
powers and franchises of Trinity and Merger Sub shall vest in the Surviving
Entity, and all debts, liabilities and duties of Trinity and Merger Sub
shall become the debts, liabilities and duties of the Surviving Entity.
SECTION 1.05 ARTICLES OF INCORPORATION AND BYLAWS; DIRECTORS AND OFFICERS.
Pursuant to the Merger:
(a) The Articles of Incorporation and Bylaws of Trinity as in
effect immediately prior to the Effective Time shall be the Articles of
Incorporation and Bylaws of the Surviving Entity immediately following the
Merger.
(b) The directors and officers of Trinity immediately prior to the
Effective Time shall be the directors and officers of the Surviving Entity
subsequent to the Merger.
SECTION 1.06 RESTRICTIONS ON RESALE
(a) The Merger Shares. The Merger Shares will not be registered
under the Securities Act, or the securities laws of any state, and cannot
be transferred, hypothecated, sold or otherwise disposed of until: (i) a
registration statement with respect to such securities is declared
effective under the Securities Act, or (ii) MGS receives an opinion of
counsel for the stockholders, reasonably satisfactory to counsel for MGS,
that an exemption from the registration requirements of the Securities Act
is available.
The certificates representing the Merger Shares which are being
issued to the Trinity Stockholders shall contain a legend substantially as
follows:
"THE SECURITIES WHICH ARE REPRESENTED BY THIS CERTIFICATE HAVE
NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED, AND MAY NOT BE SOLD, TRANSFERRED, HYPOTHECATED OR
OTHERWISE DISPOSED OF UNTIL A REGISTRATION STATEMENT WITH
RESPECT THERETO IS DECLARED EFFECTIVE UNDER SUCH ACT, OR MAUI
GENERAL STORE, INC. RECEIVES AN OPINION OF COUNSEL FOR THE
HOLDER REASONABLY SATISFACTORY TO COUNSEL FOR MAUI GENERAL
STORE, INC. THAT AN EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF SUCH ACT IS AVAILABLE."
SECTION 1.07 EXCHANGE OF CERTIFICATES.
(a) EXCHANGE OF CERTIFICATES. After the Effective Time and
pursuant to a customary letter of transmittal or other instructional form
provided by the Exchange Agent to the Trinity Stockholders, the Trinity
Stockholders shall be required to surrender all their Trinity Shares to the
Exchange Agent, and the Trinity Stockholders shall be entitled upon such
surrender to receive in exchange therefor certificates representing the
proportionate number of Merger Shares into which the Trinity Shares
theretofore represented by the stock transfer forms so surrendered shall
have been exchanged pursuant to this Agreement. Until so surrendered, each
outstanding certificate which, prior to the Effective Time, represented
Trinity Shares shall be deemed for all corporate purposes, subject to the
further provisions of this Article I, to evidence the ownership of the
number of whole Merger Shares for which such Trinity Shares have been so
exchanged. No dividend payable to holders of Merger Shares of record as of
any date subsequent to the Effective Time shall be paid to the owner of any
certificate which, prior to the Effective Time, represented Trinity Shares,
until such certificate or certificates representing all the relevant
Trinity Shares, together with a stock transfer form, are surrendered as
provided in this Article I or pursuant to letters of transmittal or other
instructions with respect to lost certificates provided by the Exchange
Agent.
(b) FULL SATISFACTION OF RIGHTS. All Merger Shares for which the
Trinity Shares shall have been exchanged pursuant to this Article I shall
be deemed to have been issued in full satisfaction of all rights pertaining
to the Trinity Shares.
(c) EXCHANGE OF CERTIFICATES. All certificates representing
Trinity Shares converted into the right to receive Merger Shares pursuant
to this Article I shall be furnished to MGS subsequent to delivery thereof
to the Exchange Agent pursuant to this Agreement.
(d) CLOSING OF TRANSFER BOOKS. On the Effective Date, the stock
transfer book of Trinity shall be deemed to be closed and no transfer of
Trinity Shares shall thereafter be recorded thereon.
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF MGS
AND THE MGS PRINCIPAL STOCKHOLDER
MGS and the MGS Principal Stockholder, and, where applicable, the
Merger Sub, hereby jointly and severally represent and warrant to Trinity,
as of the date of this Agreement, as follows:
SECTION 2.01 ORGANIZATION, STANDING AND POWER.
MGS is a company duly incorporated, validly existing and in good
standing under the laws of the State of New York and has corporate power
and authority to conduct its business as presently conducted by it and to
enter into and perform this Agreement and to carry out the transactions
contemplated by this Agreement. Merger Sub is a company duly incorporated,
validly existing and in good standing under the laws of the State of
Florida and has corporate power and authority to enter into and perform
this Agreement and to carry out the transactions contemplated by this
Agreement. MGS has not engaged in any business activities since June 2005
other than negotiation of potential acquisitions, and has no material
property or assets. Other than its ownership of the Merger Sub and of MGS
Acquisition Corp., MGS does not have an ownership interest in any Person.
Merger Sub is a recently formed corporation and prior to the date hereof ,
Merger Sub has not conducted any operating business, become a party to any
agreements, or incur any liabilities or obligations.
SECTION 2.02 CAPITALIZATION.
(a) There are 500,000,000 shares of capital stock of MGS
authorized, consisting of 500,000,000 shares of common stock, $0.001 par
value per share (the "MGS Common Shares"). As of the date of this
Agreement, there are 143,256,635 MGS Common Shares issued and outstanding.
(b) The MGS Principal Stockholder owns of record and beneficially
115, 497,305 MGS Common Shares. No MGS Common Shares have been reserved for
issuance to any Person, and there are no other outstanding rights,
warrants, options or agreements for the purchase of MGS Common Shares
except as provided in this Agreement.
(c) All outstanding MGS Common Shares are validly issued, fully
paid, non-assessable, not subject to pre-emptive rights and have been
issued in compliance with all state and federal securities laws or other
Applicable Law. The Merger Shares issuable to the Trinity Stockholders
will, when issued pursuant to this Agreement, be duly and validly
authorized and issued, fully paid and non-assessable.
SECTION 2.03 AUTHORITY FOR AGREEMENT.
The execution, delivery, and performance of this Agreement by each of
MGS and Merger Sub has been duly authorized by all necessary corporate and
shareholder action, and this Agreement, upon its execution by the Parties,
will constitute the valid and binding obligation of each of MGS and Merger
Sub enforceable against each of them in accordance with and subject to its
terms, except as enforceability may be affected by bankruptcy, insolvency
or other laws of general application affecting the enforcement of
creditors' rights. The execution and consummation of the transactions
contemplated by this Agreement and compliance with its provisions by MGS
and Merger Sub will not violate any provision of Applicable Law and will
not conflict with or result in any breach of any of the terms, conditions,
or provisions of, or constitute a default under, MGS's Certificate of
Incorporation, Merger Sub's Certificate of Incorporation, or any of their
Bylaws, in each case as amended, or, in any material respect, any
indenture, lease, loan agreement or other agreement or instrument to which
MGS is a party or by which it or any of its properties are bound, or any
decree, judgment, order, statute, rule or regulation applicable to MGS or
Merger Sub.
SECTION 2.04 FINANCIAL STATEMENTS.
(a) MGS has made available to Trinity copies of its audited
consolidated financial statements at December 31, 2004 and 2003 for the
fiscal years then ended, as well as its unaudited consolidated financial
statements for the fiscal period ending September 30, 2005 (collectively,
"MGS Financial Statements").
(b) Each set of consolidated financial statements (including, in
each case, any related notes thereto) contained in the MGS Financial
Statements was prepared in accordance with GAAP applied on a consistent
basis throughout the periods involved (except as may be indicated in the
notes thereto). Such financial statements fairly present the consolidated
financial position of MGS as at the dates thereof and the consolidated
results of its operations and its consolidated cash flows for the periods
then ended.
(c) As at the date of this Agreement, the aggregate
liabilities of MGS which would be required to be disclosed on a balance
sheet prepared in accordance with GAAP do not and will not exceed $10,000.
SECTION 2.05 ABSENCE OF CERTAIN CHANGES OR EVENTS. Since September 30, 2005:
(a) There has not been any material adverse change in the business,
operations, properties, assets, or financial condition of MGS;
(b) MGS has not (i) amended its Certificate of Incorporation; (ii)
declared or made, or agreed to declare or make, any payment of dividends or
distributions of any assets of any kind whatsoever to stockholders or
purchased or redeemed, or agreed to purchase or redeem, any outstanding
capital stock; (iii) made any material change in its method of management,
operation, or accounting; (iv) entered into any material transaction (other
than the assignment of certain claims to the Principal Stockholder in
exchange for his waiver of certain debts); or (v) made any accrual or
arrangement for payment of bonuses or special compensation of any kind or
any severance or termination pay to any present or former officer or
employee.
SECTION 2.06 GOVERNMENTAL AND THIRD PARTY CONSENTS
No consent, waiver, approval, order or authorization of, or
registration, declaration or filing with, any court, administrative agency
or commission or other federal, state, county, local or other foreign
governmental authority, instrumentality, agency or commission or any third
party, including a party to any agreement with MGS or Merger Sub, is
required by or with respect to MGS or Merger Sub in connection with the
execution and delivery of this Agreement or the consummation of the
transactions contemplated hereby, except for such consents, waivers,
approvals, orders, authorizations, registrations, declarations and filings
as may be required under (i) applicable securities laws, or (ii) the FCBA.
SECTION 2.07 LITIGATION
There is no action, suit, investigation, audit or proceeding pending
against, or to the best knowledge of MGS threatened against or affecting,
MGS or any of its assets or properties before any court or arbitrator or
any governmental body, agency or official.
SECTION 2.08 INTERESTED PARTY TRANSACTIONS
Except for debts to Xxxxxxx Xxxxxx which are disclosed on the MGS
Financial Statements, which will be satisfied prior to the Effective Time,
MGS is not indebted to any officer or director of MGS, and no such person
is indebted to MGS.
SECTION 2.09 COMPLIANCE WITH APPLICABLE LAWS.
To the knowledge of MGS, the business of each of MGS and Merger Sub
has not been, and is not being, conducted in violation of any Applicable
Law.
SECTION 2.10 TAX RETURNS AND PAYMENT
MGS has duly and timely filed all material Tax Returns required to be
filed by it and has duly and timely paid all Taxes shown thereon to be due.
There is no material claim for Taxes that is a Lien against the property of
MGS. MGS has not received written notification of any audit of any Tax
Return of MGS being conducted or pending by a Tax authority where an
adverse determination could have a Material Adverse Effect on MGS, no
extension or waiver of the statute of limitations on the assessment of any
Taxes has been granted by MGS which is currently in effect, and MGS is not
a party to any agreement, contract or arrangement with any Tax authority or
otherwise, which may result in the payment of any amount in excess of the
amount reflected on the MGS Financial Statements.
SECTION 2.11 MGS PUBLIC FILINGS
MGS is a fully compliant reporting company under the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and all MGS public
filings required under the Exchange Act have been made. All public filings
by MGS under the Exchange Act are true, correct and complete in all
material respects, are not misleading and do not omit to state any material
fact which is necessary to make the statements contained in such public
filings not misleading in any material respect. To the knowledge of MGS,
MGS has not been threatened or is not subject to removal of its common
stock from the OTC Bulletin Board.
SECTION 2.12 MGS AGREEMENTS
MGS is not a party to any material agreements.
SECTION 2.13 EMPLOYEES AND BENEFIT PLANS
MGS has no employees. With respect to its former employees, MGS
complied with Applicable Laws relating to employment, civil rights and
equal employment opportunities or other employment practices, and MGS has
received no notice of any claim before any governmental body brought by or
on behalf of any prospective employee, former employee, retiree, labor
organization or other representative of employees or any governmental body
or, to the knowledge of MGS is any such claim threatened against MGS . MGS
has paid in full to all of its former employees all wages, salaries,
commissions, bonuses, benefits and other compensation due and payable to
such employees.
SECTION 2.14 FINDERS' FEES
Neither MGS nor the Principal Stockholder has incurred, nor will it
incur, directly or indirectly, any liability for brokers' or finders' fees
or agents' commissions or investment bankers' fees or any similar charges
in connection with this Agreement.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF TRINITY
Trinity hereby represents and warrants to MGS, Merger Sub and the
Principal Stockholder, as of the date of this Agreement and as of the
Effective Time (except as otherwise indicated), as follows:
SECTION 3.01 ORGANIZATION, STANDING AND POWER.
Trinity is a privately held corporation duly incorporated, validly
existing and in good standing under the laws of the State of Florida, and
has full corporate power and authority to conduct its business as presently
conducted by it and to enter into and perform this Agreement and to carry
out the transactions contemplated by this Agreement. Trinity is duly
qualified to do business as a foreign corporation in each state in which
the nature of the business conducted by it or the character or location of
the properties and assets owned or leased by it make such qualification
necessary. Trinity does not have any ownership interest in any Person.
SECTION 3.02 CAPITALIZATION.
There are 20,000,000 shares of Trinity capital stock authorized,
consisting of 20,000,000 shares of common stock with $.001 par value (the
"Trinity Common Shares"). As of the date of this Agreement, there were
18,217,910 issued and outstanding Trinity Common Shares. No Trinity Common
Shares have been reserved for issuance to any Person, and there are no
outstanding rights, warrants, options or agreements for the purchase of
Trinity Common Shares. Trinity does not intend to issue any such
derivative securities prior to the Closing. No Person is entitled to any
rights with respect to the conversion, exchange or delivery of the Trinity
Common Shares. The Trinity Common Shares have been issued in compliance
with all Applicable Law.
SECTION 3.03 AUTHORITY FOR AGREEMENT.
The execution, delivery and performance of this Agreement by Trinity
has been duly authorized by all necessary corporate action, and this
Agreement constitutes the valid and binding obligation of Trinity,
enforceable against it in accordance with its terms, except as
enforceability may be affected by bankruptcy, insolvency or other laws of
general application affecting the enforcement of creditors' rights. The
execution and consummation of the transactions contemplated by this
Agreement and compliance with its provisions by Trinity will not violate
any provision of Applicable Law and will not conflict with or result in any
breach of any of the terms, conditions, or provisions of, or constitute a
default under, Trinity's Certificate of Incorporation or Bylaws, in each
case as amended, or, to the knowledge of Trinity, in any material respect,
any indenture, lease, loan agreement or other agreement instrument to which
Trinity is a party or by which it or any of its properties are bound, or
any decree, judgment, order, statute, rule or regulation applicable to
Trinity, except to the extent that any breach or violation of any of the
foregoing would not constitute or result in a Material Adverse Effect on
Trinity.
SECTION 3.04 LICENSE AGREEMENT
e Intellectual Property License Agreement assigned by Palmera to
Trinity licensing to Palmera rights to certain technology developed by The
Xxxxx Foundation is in full force and effect, and neither party has
committed any breach of the said agreement.
SECTION 3.05 ABSENCE OF CERTAIN CHANGES OR EVENTS. To the knowledge of
Trinity, since the date of its formation:
(a) there has not been (i) any material adverse change in the
business, operations, properties, assets, or condition of Trinity or (ii)
any damage, destruction, or loss to Trinity (whether or not covered by
insurance) materially and adversely affecting the business, operations,
properties, assets, or condition of Trinity;
(b) Trinity has not (i) amended its Articles of Incorporation or
Bylaws; (ii) declared or made, or agreed to declare or make, any payment
of dividends or distributions of any assets of any kind whatsoever to
stockholders or purchased or redeemed, or agreed to purchase or redeem, any
outstanding capital stock; (iii) waived any rights of value which in the
aggregate are extraordinary or material considering the business of
Trinity; (iv) made any material change in its method of management,
operation, or accounting; (v) other than in the ordinary course of
business, entered into any other material transaction; (vi) made any
accrual or arrangement for payment of bonuses or special compensation of
any kind or any severance or termination pay to any present or former
officer or employee; (vii) other than pursuant to any existing employment
agreement, increased the rate of compensation payable or to become payable
by it to any of its officers or any of its employees; or (viii) made any
increase in any profit sharing, bonus, deferred compensation, insurance,
pension, retirement, or other employee benefit plan, payment, or
arrangement made to, for, or with its officers, directors, or employees;
(c) Trinity has not (i) borrowed or agreed to borrow any funds or
incurred, or become subject to, any material obligation or liability
(absolute or contingent) except liabilities incurred in the ordinary course
of business; (ii) sold or transferred, or agreed to sell or transfer, any
material assets, properties, or rights, or canceled, or agreed to cancel,
any material debts or claims; or (iv) made or permitted any material
amendment or termination of any contract, agreement, or license to which it
is a party;
(d) To its knowledge, Trinity has not become subject to any law or
regulation which has had or in the future is substantially likely to have a
Material Adverse Effect on Trinity.
SECTION 3.06 GOVERNMENTAL OR THIRD PARTY CONSENT
No consent, waiver, approval, order or authorization of, or
registration, declaration or filing with, any court, administrative agency
or commission or other federal, state, county, local or other foreign
governmental authority, instrumentality, agency or commission or any third
party, including a party to any agreement with Trinity, is required by or
with respect to Trinity in connection with the execution and delivery of
this Agreement or the consummation of the transactions contemplated hereby,
except for such consents, waivers, approvals, orders, authorizations,
registrations, declarations and filings as may be required under (i)
applicable securities laws, or (ii) the FBCA.
SECTION 3.07 LITIGATION
There is no action, suit, investigation, audit or proceeding pending
against or, to the knowledge of Trinity, threatened, against or affecting
Trinity or any of its material assets or properties before any court or
arbitrator or any governmental body, agency or official.
SECTION 3.08 INTERESTED PARTY TRANSACTIONS
Trinity is not indebted to any officer or director of Trinity, and no
such person is indebted to Trinity.
SECTION 3.09 COMPLIANCE WITH APPLICABLE LAWS.
To the knowledge of Trinity, the business of Trinity has not been,
and is not being, conducted in violation of any Applicable Law.
SECTION 3.10 TAX RETURNS AND PAYMENT
Trinity is a newly formed corporation which has not yet been required
to file any Tax Returns.
SECTION 3.11 FINDERS' FEES
Trinity has not incurred, nor will it incur, directly or indirectly,
any liability for brokers' or finders' fees or agents' commissions or
investment bankers' fees or any similar charges in connection with this
Agreement.
ARTICLE IV
CERTAIN COVENANTS AND AGREEMENTS
SECTION 4.01 COVENANTS OF TRINITY
Trinity covenants and agrees that, during the period from the date of
this Agreement until the Closing Date, Trinity shall, except as otherwise
disclosed in this Agreement and other than as contemplated by this
Agreement or for the purposes of effecting the Merger and Closing pursuant
to this Agreement, conduct its business as presently operated and solely in
the ordinary course, and consistent with such operation, and, in connection
therewith, without the written consent of the Principal Stockholder:
(a) shall not amend its Articles of Incorporation or Bylaws;
(b) shall not sell, transfer, or otherwise dispose of
any material assets required for the operations of Trinity's business,
except for the transfer of certain material technology to an affiliate
of Trinity and except in the ordinary course of business consistent
with past practices;
(c) shall not create, incur, assume, or guarantee any
material indebtedness for money borrowed except in the ordinary course
of business, or create or suffer to exist any mortgage, lien or other
encumbrance on any of its material assets, except those in existence on
the date hereof or those granted pursuant to agreements in effect on the
date of this Agreement or created for the benefit of MGS , the Merger Sub
or the Principal Stockholder;
(d) shall not declare or pay any dividends on or make any
distribution of any kind with respect to the Trinity Shares; and
(e) shall use commercially reasonable efforts to comply
with and not be in default or violation under any known law, regulation,
decree or order applicable to Trinity's business, operations or assets
where such violation would have a Material Adverse Effect on Trinity.
SECTION 4.02 COVENANTS OF THE PARTIES
(a) Tax-free Reorganization. The Parties intend that the Merger
qualify as a Tax-free "reorganization" under Sections 368(a) of the Code,
as amended, and the Parties will take the position for all purposes that
the Merger shall qualify as a reorganization under such Section. In
addition, the Parties covenant and agree that they will not engage in any
action, or fail to take any action, which action or failure to take action
would reasonably be expected to cause the Merger to fail to qualify as a
Tax-free "reorganization" under Section 368(a) of the Code, whether or not
otherwise permitted by the provisions of this Agreement;
(b) Announcement. Neither Trinity, on the one hand, nor MGS on
the other hand, shall issue any press release or otherwise make any public
statement with respect to this Agreement or the transactions contemplated
hereby without the prior consent of the other Party, except as may be
required by applicable law or securities regulation. Upon execution of
this Agreement, MGS shall issue a press release, which shall be approved by
Trinity.
(c) Notification of Certain Matters. Trinity shall give prompt
written notice to MGS, and MGS shall give prompt written notice to Trinity,
of:
(i) The occurrence, or nonoccurrence, of any event the
occurrence, or nonoccurrence, of which would be reasonably likely to cause
any representation or warranty contained in this Agreement to be untrue or
inaccurate in any material respect at or prior to the Effective Time; and
(ii) Any material failure of Trinity on the one hand, or
MGS or the MGS Principal Stockholder, on the other hand, to comply with or
satisfy any covenant, condition or agreement to be complied with or
satisfied by it hereunder.
(d) Reasonable Best Efforts. Before Closing, upon the terms and
subject to the conditions of this Agreement, the Parties agree to use their
respective reasonable best efforts to take, or cause to be taken, all
actions, and to do, or cause to be done, all things necessary, proper or
advisable (subject to applicable laws) to consummate and make effective the
Merger and other transactions contemplated by this Agreement as promptly as
practicable including, but not limited to:
(i) The preparation and filing of all forms, registrations
and notices required to be filed to consummate the Merger, including
without limitation, any approvals, consents, orders, exemptions or waivers
by any third party or governmental entity; and
(ii) The satisfaction of the Party's conditions precedent
to Closing.
(e) Access to Information
(i) Inspection by Trinity. MGS will make available for
inspection by Trinity, during normal business hours and in a manner so as
not to interfere with normal business operations, all of MGS's records
(including tax records), books of account, premises, contracts and all
other documents in MGS's possession or control that are reasonably
requested by Trinity to inspect and examine the business and affairs of
MGS. MGS will cause its managerial employees and regular independent
accountants to be available upon reasonable advance notice to answer
questions of Trinity concerning the business and affairs of MGS. Trinity
will treat and hold as confidential any information it receives from MGS in
the course of the reviews contemplated by this Section 4.02(e). No
examination by Trinity will, however, constitute a waiver or relinquishment
by Trinity of its rights to rely on MGS's or the MGS Principal
Stockholder's covenants, representations and warranties made herein or
pursuant hereto.
(ii) Inspection by MGS. Trinity will, if requested, make
available for inspection by MGS, during normal business hours and in a
manner so as not to interfere with normal business operations, all of
Trinity's records (including tax records), books of account, premises,
contracts and all other documents in Trinity's possession or control that
are reasonably requested by MGS to inspect and examine the business and
affairs of Trinity. Trinity will cause its managerial employees and
regular independent accountants to be available upon reasonable advance
notice to answer questions of MGS concerning the business and affairs of
Trinity. MGS will treat and hold as confidential any information they
receive from Trinity in the course of the reviews contemplated by this
Section 4.02(e). No examination by MGS will, however, constitute a waiver
or relinquishment by MGS of its rights to rely on Trinity's covenants,
representations and warranties made herein or pursuant hereto.
(f) Approval by MGS Principal Stockholder. By his execution and
delivery of this Agreement, the MGS Principal Stockholder does hereby
approve, adopt and ratify this Merger Agreement, the Merger and all of the
transactions contemplated hereby and pursuant to all exhibits hereto.
ARTICLE V
CONDITIONS PRECEDENT
SECTION 5.01 CONDITIONS PRECEDENT TO THE PARTIES' OBLIGATIONS.
The obligations of the Parties as provided herein shall be subject to
each of the following conditions precedent, unless waived in writing by
both MGS and Trinity:
(a) Consents, Approvals. The Parties shall have obtained all
necessary consents and approvals of their respective boards of directors,
and all consents, approvals and authorizations required under their
respective charter documents, and all material consents, including any
material consents and waivers by the Parties' respective lenders and other
third-parties, if necessary, to the consummation of the transactions
contemplated by this Agreement.
(b) Shareholder Approval. This Agreement and the transactions
contemplated hereby shall have been approved by the shareholders of Trinity
and by the shareholder of Merger Sub in accordance with the applicable
provisions of the FBCA and their respective bylaws.
(c) Increase in Authorized Shares. The Certificate of
Incorporation of MGS shall have been amended in accordance with Applicable
Law to increase the number of authorized MGS Shares to a number of shares
at least sufficient to allow for the issuance of the Merger Shares, and all
filings required by applicable securities laws in connection with such
amendment shall have been made.
(d) Absence of Certain Litigation. No action or proceeding shall
be threatened or pending before any governmental entity or authority which,
in the reasonable opinion of counsel for the Parties, is likely to result
in a restraint, prohibition or the obtaining of damages or other relief in
connection with this Agreement or the consummation of the Merger.
(e) Palmera Merger. The Palmera Merger shall have taken place.
SECTION 5.02 CONDITIONS PRECEDENT TO THE OBLIGATIONS OF MGS AND
THE MGS PRINCIPAL STOCKHOLDER
The obligations of MGS and the MGS Principal Stockholder on the
Closing Date as provided herein shall be subject to the satisfaction, on or
prior to the Closing Date, of the following conditions precedent, unless
waived in writing by MGS or the MGS Principal Stockholder:
(a) Consents And Approvals. Trinity shall have obtained all
material consents, including any material consents and waivers by Trinity's
lenders and other third-parties, if necessary, to the consummation of the
transactions contemplated by this Agreement.
(b) Representations and Warranties. The representations and
warranties by Trinity in Article III herein shall be true and accurate in
all material respects on and as of the Closing Date with the same force and
effect as though such representations and warranties had been made at and
as of the Closing Date, except to the extent that any changes therein are
specifically contemplated by this Agreement.
(c) Performance. Trinity shall have performed and complied in all
material respects with all agreements to be performed or complied with by
it pursuant to this Agreement at or prior to the Closing.
(d) Proceedings and Documents. All corporate, company and other
proceedings in connection with the transactions contemplated by this
Agreement and all documents and instruments incident to such transactions
shall be reasonably satisfactory in substance and form to MGS and its
counsel, and MGS and its counsel shall have received all such counterpart
originals (or certified or other copies) of such documents as they may
reasonably request.
(e) Certificate of Good Standing. Trinity shall have delivered to
MGS a certificate as to the good standing of Trinity certified by the
Secretary of State of the State of Florida on or within fourteen (14)
business days prior to the Closing Date.
(f) Material Changes. Except as contemplated by this Agreement,
since the date hereof, Trinity shall not have suffered a Material Adverse
Effect, and, without limiting the generality of the foregoing, there shall
be no pending litigation to which Trinity is a party which is reasonably
likely to have a Material Adverse Effect on Trinity;
(g) SEC Filing. No less than one week prior to the Closing,
Trinity shall have delivered to MGS the financial statements, report of
Trinity's independent public accountant, and other information required for
inclusion in the Current Report that MGS will file with the Securities and
Exchange Commission within four business days after the Effective Time ;
(h) Financing. The conditions for Forward Delivery of the Escrowed
Documents defined in the Reorganization Agreement shall have been
satisfied.
SECTION 5.03 CONDITIONS PRECEDENT TO THE OBLIGATIONS OF TRINITY
The obligations of Trinity on the Closing Date as provided herein
shall be subject to the satisfaction, on or prior to the Closing Date, of
the following conditions precedent, unless waived in writing by Trinity:
(a) Consents And Approvals. MGS and Merger Sub shall have obtained
all material consents, including any material consents and waivers of its
respective lenders and other third parties, if necessary, to the
consummation of the transactions contemplated by this Agreement.
(b) Performance. MGS, the MGS Principal Stockholder and Merger Sub
shall have performed and complied in all material respects with all
agreements to be performed or complied with by it pursuant to this
Agreement prior to or at the Closing.
(c) Proceedings And Documents. All corporate, company and other
proceedings in connection with the transactions contemplated by this
Agreement and all documents and instruments incident to such transactions
shall be reasonably satisfactory in substance and form to Trinity and its
counsel, and Trinity and its counsel shall have received all such
counterpart originals (or certified or other copies) of such documents as
they may reasonably request.
(d) Certificates of Good Standing. MGS shall have delivered to
Trinity a certificate as to its good standing in the State of New York, and
the Merger Sub shall have delivered to Trinity a certificate as to its good
standing in the State of Florida, in each case certified by the Secretary
of State not more than fourteen (14) business days prior to the Closing Date.
ARTICLE VI
TERMINATION
SECTION 6.01 TERMINATION.
This Agreement may be terminated and the Merger may be abandoned at any
time prior to the Effective Time by:
(a) Either MGS, on the one hand, or Trinity, on the other hand,
if any governmental entity or court of competent jurisdiction shall have
issued an order, decree or ruling or taken any other action (which order,
decree, ruling or other action the Parties shall use their commercially
reasonable best efforts to lift), which restrains, enjoins or otherwise
prohibits the Merger or the issuance of the Merger Shares pursuant to the
Merger and such order, decree, ruling or other action shall have become
final and non-appealable;
(b) MGS, if Trinity shall have breached in any material respect any
of its representations, warranties, covenants or other agreements contained
in this Agreement, and the breach cannot be or has not been cured within
thirty (30) calendar days after the giving of written notice by MGS to
Trinity;
(c) Trinity, if MGS shall have breached in any material respect any
of its representations, warranties, covenants or other agreements contained
in this Agreement, and the breach cannot be or has not been cured within
thirty (30) calendar days after the giving of written notice by Trinity to
MGS; or
(d) Without any action on the part of the Parties if required by
Applicable Law or if the Palmera Merger shall not have been Closed by
February 15, 2006.
SECTION 6.02 EFFECT OF TERMINATION.
If this Agreement is terminated as provided in Section 6.01, written
notice of such termination shall be given by the terminating Party to the
other Party specifying the provision of this Agreement pursuant to which
such termination is made, this Agreement shall become null and void and
there shall be no liability on the part of MGS or Trinity, provided,
however, that (a) the provisions of Article VII hereof shall survive the
termination of this Agreement; (b) nothing in this Agreement shall relieve
any Party from any liability or obligation with respect to any willful
breach of this Agreement; and (c) termination shall not affect accrued
rights or liabilities of any party at the time of such termination.
ARTICLE VII
CONFIDENTIALITY
SECTION 7.01 CONFIDENTIALITY
MGS, on the one hand, and Trinity, on the other hand, will keep
confidential all information and documents obtained from the other,
including but not limited to any information or documents provided pursuant
to Section 4.02(e) hereof, which are designated by such Party as
confidential (except for any information disclosed to the public pursuant
to a press release authorized by the Parties); and in the event the Closing
does not occur or this Agreement is terminated for any reason, will
promptly return such documents and all copies of such documents and all
notes and other evidence thereof, including material stored on a computer,
and will not use such information for its own advantage, except to the
extent that (i) the information must be disclosed by law, (ii) the
information becomes publicly available by reason other than disclosure by
the Party subject to the confidentiality obligation, (iii) the information
is independently developed without use of or reference to the other Party's
confidential information, (iv) the information is obtained from another
source not obligated to keep such information confidential, or (v) the
information is already publicly known or known to the receiving Party when
disclosed as demonstrated by written documentation in the possession of
such Party at such time.
ARTICLE VIII
INDEMNIFICATION
SECTION 8.01 INDEMNIFICATION BY MGS
MGS and the MGS Principal Stockholder shall, jointly and severally,
indemnify, defend and hold harmless each of Trinity, any subsidiary or
affiliate thereof and each person who is now, or has been at any time prior
to the date hereof or who becomes prior to the Closing, an officer,
director or partner of Trinity, any subsidiary or affiliate thereof or an
employee of Trinity, any subsidiary or affiliate thereof and their
respective heirs, legal representatives, successors and assigns (the
"Trinity Indemnified Parties") against all losses, claims, damages, costs,
expenses (including reasonable attorneys' fees), liabilities or judgments
or amounts that are paid in settlement of or in connection with any
threatened or actual third party claim, action, suit, proceeding or
investigation based in whole or in part on or arising in whole or in part
out of (i) any material breach of this Agreement by the Principal
Stockholder, MGS or any subsidiary or affiliate thereof, including but not
limited to failure of any representation or warranty to be true and correct
at or before the Closing, (ii) any willful or grossly negligent act,
omission or conduct of any officer, director or agent of MGS or any
subsidiary or affiliate thereof prior to the Closing, whether asserted or
claimed prior to, at or after, the Closing, or (iii) relating to the
consummation of the transactions contemplated herein, and any action taken
in connection therewith. Any Trinity Indemnified Party wishing to claim
indemnification under this Section 8.01, upon learning of any such claim,
action, suit, proceeding or investigation, shall notify MGS in writing, but
the failure to so notify shall not relieve MGS from any liability that it
may have under this Section 8.01, except to the extent that such failure
would materially prejudice MGS.
SECTION 8.02 INDEMNIFICATION BY TRINITY
Trinity shall indemnify, defend and hold harmless each of MGS, any
subsidiary or affiliate thereof and each person who is now, or has been at
any time prior to the date hereof or who becomes prior to the Closing, an
officer, director or partner of MGS, any subsidiary or affiliate thereof or
an employee of MGS, any subsidiary or affiliate thereof and their
respective heirs, legal representatives, successors and assigns (the "MGS
Indemnified Parties") against all losses, claims, damages, costs, expenses
(including reasonable attorneys' fees), liabilities or judgments or amounts
that are paid in settlement of or in connection with any threatened or
actual third party claim, action, suit, proceeding or investigation based
in whole or in part on or arising in whole or in part out of (i) any
material breach of this Agreement by Trinity or any subsidiary or affiliate
thereof, including but not limited to failure of any representation or
warranty to be true and correct at or before the Closing, (ii) any willful
or negligent act, omission or conduct of any officer, director or agent of
Trinity or any subsidiary or affiliate thereof prior to the Closing,
whether asserted or claimed prior to, at or after, the Closing, or (iii)
relating to the consummation of the transactions contemplated herein, and
any action taken in connection therewith. Any MGS Indemnified Party
wishing to claim indemnification under this Section 8.02, upon learning of
any such claim, action, suit, proceeding or investigation, shall notify
Trinity in writing, but the failure to so notify shall not relieve Trinity
from any liability that it may have under this Section 8.02, except to the
extent that such failure would materially prejudice Trinity.
SECTION 8.03 INDEMNIFICATION OF EXCHANGE AGENT
(a) MGS, Trinity and Merger Sub (for the purposes of this Section
8.03, the "Indemnitors") agree to indemnify the Exchange Agent ( the
"Indemnitee") against, and hold him harmless of and from, any and all loss,
liability, cost, damage and expense, including without limitation,
reasonable counsel fees, which the Indemnitee may suffer or incur by reason
of any action, claim or proceeding brought against the Indemnitee arising
out of or relating in any way to the Exchange Agent's service in such
capacity, unless such action, claim or proceeding is the result of the
willful misconduct or gross negligence of the Indemnitee.
(b) If the indemnification provided for in Section 8.03(a) is
applicable, but for any reason is held to be unavailable, the Indemnitors
shall jointly and severally contribute such amounts as are just and
equitable to pay, or to reimburse the Indemnitee for, the aggregate of any
and all losses, liabilities, costs, damages and expenses, including counsel
fees, actually incurred by the Indemnitee as a result of or in connection
with, and any amount paid in settlement of, any action, claim or proceeding
arising out of or relating in any way to any actions or omissions of the
Indemnitors.
ARTICLE IX
MISCELLANEOUS
SECTION 9.01 EXPENSES.
Except as contemplated by this Agreement, all costs and expenses
incurred in connection with this Agreement and the consummation of the
transactions contemplated by this Agreement shall be paid by Trinity.
SECTION 9.02 APPLICABLE LAW
This Agreement shall be governed by the laws of the State of Florida,
without giving effect to the principles of conflicts of laws thereof, as
applied to agreements entered into and to be performed in such state.
SECTION 9.03 NOTICES.
All notices and other communications under this Agreement shall be in
writing and shall be deemed to have been duly given or made as follows:
(a) If sent by reputable overnight air courier (such as Federal
Express), 2 business days after being sent;
(b) If sent by facsimile transmission, with a copy delivered in
the manner provided in clauses (a) or (c) , when transmitted and receipt is
confirmed by the fax machine; or
(c) If otherwise actually personally delivered, when delivered.
All notices and other communications under this Agreement shall be
sent or delivered as follows:
If to Trinity, to:
M. Xxxxx Xxxxx, III
President
19321 US Highway 00 Xxxxx
Xxxx. X, Xxxxx 000
Xxxxxxxxxx, XX 00000
Telephone: 000-000-0000
Facsimile: 727-535-9600
with a copy to (which shall not constitute notice):
Xxxxxx Xxxxxx, Esq
000 0xx Xxxxxx
Xxxxxxxx, XX 00000
Telephone: 000-000-0000
Facsimile: 000-000-0000
If to MGS and/or the Principal Stockholder, to:
Xxxxxxx Xxxxxx
X.X. Xxx 000
Xxxx. Xxxx, Xxxxxx 00000
Telephone: 000-000-0000
Facsimile: 000-000-0000
with a copy to (which shall not constitute notice):
Xxxxxx Xxxxx, Esq.
0000 Xx. Xxxxxxx Xx.
Xxxxx 000
Xxxxxxxxx, XX 00000
Telephone: 000-000-0000
Facsimile: 000-000-0000
Each Party may change its address by written notice in accordance
with this Section.
SECTION 9.04 ASSIGNMENT.
Neither this Agreement nor any of the rights, interests or
obligations under this Agreement shall be assigned by any of the Parties
(whether by operation of law or otherwise) without the prior written
consent of the other Parties; provided that in no event may the right to
indemnification provided by Article VIII hereto be assigned by any of the
Parties, with or without consent, except by operation of law. Subject to
the immediately foregoing sentence of this Section 9.05, this Agreement
will be binding upon, inure to the benefit of and be enforceable by, the
Parties and their respective heirs, legal representatives, successors and
assigns.
SECTION 9.05 COUNTERPARTS.
This Agreement may be executed in one or more counterparts, each of
which shall be deemed to be an original but all of which shall be
considered one and the same agreement.
SECTION 9.06 NO THIRD PARTY BENEFICIARIES.
Except as expressly provided by this Agreement, nothing herein is
intended to confer upon any person or entity not a Party to this Agreement
any rights or remedies under or by reason of this Agreement.
SECTION 9.07 RULES OF CONSTRUCTION.
The Parties agree that they have been represented by counsel during
the negotiation and execution of this Agreement and, therefore, waive the
application of any law, regulation, holding or rule of construction
providing that ambiguities in an agreement or other document will be
construed against the party drafting such agreement or document.
IN WITNESS WHEREOF, the parties have duly executed this Agreement as of the
date first above written.
MAUI GENERAL STORE, INC.
By: /s/ Xxxxxxx Xxxxxx
-------------------------------
Name: Xxxxxxx Xxxxxx
Title: Chief Executive Officer
MGS TRINITY ACQUISITION CORP.
By: /s/ Xxxxxxx Xxxxxx
-------------------------------
Name: Xxxxxxx Xxxxxx
Title: President
MGS PRINCIPAL STOCKHOLDER
/s/ Xxxxxxx Xxxxxx
-------------------------
XXXXXXX XXXXXX
TRINITY BIOGENICS, INC.
By: /s/ Xx. Xxxxxxxx Xxxxx
------------------------------
Name: Xx. Xxxxxxxx Xxxxx
Title: Chairman
