EXHIBIT 2.1
AGREEMENT AND PLAN OF MERGER AND REORGANIZATION
BY AND AMONG
PARENTECH, INC.
AND
BRIDGETECH ACQUISITION CORP.
AND
BRIDGETECH HOLDINGS INTERNATIONAL, INC.
DATED
JANUARY ____ 2005
TABLE OF CONTENTS
Page
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ARTICLE I THE MERGER......................................................... 1
1.1 THE MERGER.................................................. 1
1.2 CLOSING; EFFECTIVE TIME..................................... 2
1.3 EFFECT OF THE MERGER........................................ 2
1.4 CERTIFICATE OF INCORPORATION; BYLAWS........................ 2
1.5 DIRECTORS AND OFFICERS...................................... 2
1.6 EFFECT ON CAPITAL STOCK..................................... 2
1.7 SURRENDER OF CERTIFICATES................................... 4
1.8 NO FURTHER OWNERSHIP RIGHTS IN COMPANY COMMON STOCK......... 4
1.9 LOST, STOLEN OR DESTROYED CERTIFICATES...................... 4
1.10 TAX CONSEQUENCES............................................ 4
1.11 TAKING OF NECESSARY ACTION; FURTHER ACTION.................. 4
1.12 APPRAISAL RIGHTS............................................ 5
ARTICLE II REPRESENTATIONS AND WARRANTIES OF COMPANY......................... 5
2.1 ORGANIZATION; STANDING AND POWER............................ 5
2.2 CAPITAL STRUCTURE........................................... 6
2.3 AUTHORITY................................................... 6
2.4 ACCOUNTING PRACTICES........................................ 6
2.5 LITIGATION.................................................. 7
2.6 RESTRICTIONS ON BUSINESS ACTIVITIES......................... 7
2.7 GOVERNMENTAL AUTHORIZATION.................................. 7
2.8 COMPLIANCE WITH LAW......................................... 7
2.9 BROKERS' AND FINDERS' FEES.................................. 7
2.10 VOTE REQUIRED............................................... 7
2.11 BOARD APPROVAL.............................................. 8
2.12 REPRESENTATIONS COMPLETE.................................... 8
ARTICLE III REPRESENTATIONS AND WARRANTIES OF PARENT AND MERGER SUB.......... 8
3.1 ORGANIZATION; STANDING AND POWER............................ 8
3.2 CAPITAL STRUCTURE........................................... 8
3.3 AUTHORITY................................................... 9
3.4 LITIGATION.................................................. 9
3.5 RESTRICTIONS ON BUSINESS ACTIVITIES......................... 10
3.6 CERTAIN AGREEMENTS AFFECTED BY THE MERGER................... 10
3.7 COMPLIANCE WITH LAWS........................................ 10
3.8 BROKERS' AND FINDERS' FEES.................................. 10
3.9 BOARD APPROVAL.............................................. 10
3.10 REPRESENTATIONS COMPLETE.................................... 10
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ARTICLE IV CONDUCT PRIOR TO THE EFFECTIVE TIME............................... 10
4.1 CONDUCT OF BUSINESS......................................... 11
4.2 RESTRICTIONS ON CONDUCT OF BUSINESS......................... 11
ARTICLE V ADDITIONAL AGREEMENTS.............................................. 11
5.1 MEETING OF STOCKHOLDERS..................................... 11
5.2 ACCESS TO INFORMATION....................................... 12
5.3 CONFIDENTIALITY............................................. 13
5.4 PUBLIC DISCLOSURE........................................... 13
5.5 CONSENTS; COOPERATION....................................... 13
5.6 LEGAL REQUIREMENTS.......................................... 13
5.7 TAX TREATMENT............................................... 13
5.8 COOPERATION TO SATISFY GOVERNMENT AUTHORITIES............... 14
5.9 BOARD OF DIRECTOR........................................... 14
5.10 BEST EFFORTS AND FURTHER ASSURANCES......................... 14
ARTICLE VI CONDITIONS PRECEDENT TO OBLIGATIONS OF THE COMPANY................ 14
6.1 REPRESENTATIONS AND WARRANTIES.............................. 14
6.2 PERFORMANCE OF COVENANTS.................................... 14
6.3 LITIGATION.................................................. 14
6.4 ANTITRUST LAWS COMPLIANCE................................... 14
6.5 SHAREHOLDER APPROVAL........................................ 14
ARTICLE VII CONDITIONS PRECEDENT TO THE OBLIGATIONS OF PARENT AND MERGER SUB 15
7.1 REPRESENTATIONS AND WARRANTIES.............................. 15
7.2 PERFORMANCE OF COVENANTS.................................... 15
7.3 LITIGATION.................................................. 15
7.4 ANTITRUST LAWS ACT COMPLIANCE............................... 15
7.5 CONSENTS AND APPROVALS...................................... 15
7.6 MATERIAL CHANGES............................................ 15
7.7 SHAREHOLDER APPROVAL........................................ 15
ARTICLE VIII TERMINATION..................................................... 16
8.1 TERMINATION EVENTS.......................................... 16
8.2 EFFECT OF TERMINATION....................................... 16
8.3 AMENDMENT................................................... 16
8.4 WAIVER...................................................... 16
ARTICLE IX MISCELLANEOUS..................................................... 16
9.1 CAPTIONS AND HEADINGS....................................... 16
9.2 NO ORAL CHANGE.............................................. 16
9.3 GOVERNING LAW............................................... 16
9.4 PUBLIC ANNOUNCEMENTS........................................ 17
9.5 SUCCESSORS.................................................. 17
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9.6 FURTHER ASSURANCES.......................................... 17
9.7 CONFIDENTIALITY............................................. 17
9.8 NOTICES..................................................... 17
9.9 NON-WAIVER.................................................. 18
9.10 TIME OF ESSENCE............................................. 18
9.11 REMEDIES CUMULATIVE......................................... 18
9.12 SEVERABILITY................................................ 18
9.13 ENTIRE AGREEMENT............................................ 18
9.14 RULES OF CONSTRUCTION....................................... 19
9.15 EXPENSES.................................................... 19
9.16 COUNTERPARTS................................................ 19
SIGNATURES.......................................................... 22
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This AGREEMENT AND PLAN OF MERGER AND REORGANIZATION (the "Agreement") is
made and entered into as of January ___, 2005, by and among Parentech, Inc., a
Delaware corporation ("Parent"), Bridgetech Acquisition Corp., a Florida
corporation ("Merger Sub") and wholly owned subsidiary of Parent, and Bridgetech
Holdings International, Inc., a Florida corporation ("Company") and the persons
executing this Agreement listed on the signature page hereto (referred to
collectively as "Shareholders" and individually as "Shareholder") who own 100%
of the outstanding shares of the Company.
RECITALS
A. The Boards of Directors of Company, Parent and Merger Sub believe it is in
the best interests of their respective companies and the stockholders of
their respective companies that Company and Parent combine into a single
company through the statutory merger of Merger Sub with and into Parent
(the "Merger") and, in furtherance thereof, have approved the Merger.
B. Pursuant to the Merger, among other things, the outstanding shares of
Company Common Stock, $0.001 par value ("Company Common Stock"), shall be
converted into the right to receive shares of Parent Common Stock,
$0.00001 par value ("Parent Common Stock"), at the rate set forth herein.
C. Company, Parent and Merger Sub desire to make certain representations and
warranties and other agreements in connection with the Merger.
D. The parties intend, by executing this Agreement, to adopt a plan of
reorganization within the meaning of Section 368 of the Internal Revenue
Code of 1986, as amended (the "Code"), and to cause the Merger to qualify
as a reorganization under the provisions of Section 368 of the Code, so
that such exchange will constitute a tax-free share exchange under the
Code.
NOW, THEREFORE, in consideration of the mutual covenants and premises
contained herein, and for other good and valuable consideration, the receipt and
adequacy of which are hereby conclusively acknowledged, the parties hereto,
intending to be legally bound, agree as follows:
ARTICLE I
THE MERGER
1.1 THE MERGER. At the Closing Date (as defined herein) and subject to and upon
the terms and conditions of this Agreement and in accordance with the applicable
provisions of the Delaware General Corporation Law ("Delaware Law") and the
applicable provisions of the Florida Business Corporation Act ("Florida Law"),
Merger Sub shall be merged with and into Parent, the separate corporate
existence of Merger Sub shall cease and Parent shall continue as
the surviving corporation. Parent as the surviving corporation after the Merger
is hereinafter sometimes referred to as the "Surviving Corporation."
1.2 CLOSING; EFFECTIVE TIME. The closing of the transactions contemplated hereby
(the "Closing") shall take place as soon as practicable (the "Closing Date").
The Closing shall take place at the offices of Xxxxxx X. Emas, Esquire, or at
such other location as the parties hereto agree.
1.3 EFFECT OF THE MERGER. At the Closing Date, the effect of the Merger shall be
as provided in this Agreement and the applicable provisions of Delaware and
Florida Law. Without limiting the generality of the foregoing, and subject
thereto, at the Closing Date, all the property, rights, privileges, powers and
franchises of the Company and Merger Sub shall vest in the Surviving
Corporation, and all debts, liabilities and duties of the Company and Merger Sub
shall become the debts, liabilities and duties of the Surviving Corporation.
1.4 CERTIFICATE OF INCORPORATION; BYLAWS.
1.4.1 The Certificate of Incorporation of the Surviving Corporation, as in
effect immediately prior to the Closing Date, shall be the
Certificate of Incorporation of the Surviving Corporation until
thereafter amended; except that the Certificate of Incorporation
shall be amended such that the name of the Surviving Corporations
shall be Bridgetech Holdings International, Inc.
1.4.2 The Bylaws of the Surviving Corporation, as in effect immediately
prior to the Closing Date, shall be the Bylaws of the Surviving
Corporation until thereafter amended.
1.5 DIRECTORS AND OFFICERS. At the Effective Time, the directors of the
Surviving Corporation shall remain as directors of the Surviving Corporation, in
each case until their successors are elected or appointed and qualified or until
their earlier resignation or removal. The officers of the Surviving Corporation
shall remain as officers of the Surviving Corporation, until their respective
successors are duly elected or appointed and qualified or until their earlier
resignation or removal.
1.6 EFFECT ON CAPITAL STOCK. By virtue of the Merger and without any action on
the part of Merger Sub, Company or the holders of any of the following
securities:
1.6.1 CONVERSION OF COMPANY COMMON STOCK. At the Effective Time, each of
__________ (_____) share of Company Common Stock issued and
outstanding immediately prior to the Effective Time will be canceled
and extinguished and be converted automatically into the right to
receive _______ share of Parent Common Stock (the "Exchange Ratio"),
subject to any adjustments made pursuant to Section 1.6.5 (the
"Merger Consideration"). Each certificate evidencing shares
represented by the Merger Consideration issued pursuant to this
Section 1.6.1 shall bear the following legend (in addition to any
legend required under applicable state securities laws):
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"THE SECURITIES EVIDENCED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), AND MAY NOT BE
SOLD, TRANSFERRED, ASSIGNED OR HYPOTHECATED `UNLESS THERE IS AN EFFECTIVE
REGISTRATION STATEMENT UNDER SUCH ACT COVERING SUCH SECURITIES, THE SALE
1S MADE IN ACCORDANCE WITH RULE 144 UNDER THE ACT, OR THE CORPORATION
RECEIVES AN OPINION OF COUNSEL FOR THE HOLDER OF THESE SECURITIES
REASONABLY SATISFACTORY TO THE CORPORATION STATING THAT SUCH SALE,
TRANSFER, ASSIGNMENT OR HYPOTHECATION IS EXEMPT FROM REGISTRATION AND
PROSPECTUS DELIVERY REQUIREMENTS OF SUCH ACT."
1.6.2 CANCELLATION OF COMPANY COMMON STOCK. At the Effective Time, all
shares of Company Common Stock that are owned by Company as treasury
stock immediately prior to the Closing Date shall be canceled and
extinguished without any conversion thereof.
1.6.3 COMPANY STOCK OPTIONS; WARRANTS TO PURCHASE COMPANY COMMON STOCK AND
CONVERTIBLE NOTES. At the Effective Time, all options to purchase
Company Common Stock then outstanding, all warrants to purchase
Company Common Stock then outstanding and all promissory notes
convertible into shares of Company Common Stock then outstanding
shall be assumed by Parent.
1.6.4 CAPITAL STOCK OF MERGER SUB. At the Closing Date, each share of
common stock, $0.01 par value, of Merger Sub ("Merger Sub Common
Stock") issued and outstanding immediately prior to the Closing Date
shall be converted into and exchanged for one validly issued, fully
paid and nonassessable share of common stock of the Company, and the
Company shall be a wholly owned subsidiary of Surviving Corporation.
Following the exchange of the capital stock of the Merger Sub, the
Merger Sub shall be dissolved.
1.6.5 ADJUSTMENTS TO EXCHANGE RATIO. The Exchange Ratio shall be adjusted
to reflect fully the effect of any stock split, reverse split, stock
dividend (including any dividend or distribution of securities
convertible into Parent Common Stock or Company Common Stock),
reorganization, recapitalization or other like change with respect
to Parent Common Stock or Company Common Stock occurring after the
date hereof and prior to the Closing Date, so as to provide holders
of Company Common Stock and Parent the same economic effect as
contemplated by this Agreement prior to such stock split, reverse
split, stock dividend, reorganization, recapitalization or like
change.
1.6.6 NO FRACTIONAL SHARES. No fractional shares of Parent Common Stock
shall be issued in connection with the Merger, and no certificates
or scrip for any such fractional shares shall be issued. Any holder
of Company Common Stock who would otherwise be entitled to receive a
fraction of a share of Parent
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Common Stock (after aggregating all fractional shares of Parent
Common Stock issuable to such holder) shall, in lieu of such
fraction of a share, be rounded up to the nearest whole number of
shares of Parent Common Stock.
1.7 SURRENDER OF CERTIFICATES.
1.7.1 EXCHANGE AGENT. Parent's transfer agent shall act as exchange agent
(the "Exchange Agent") in the Merger.
1.7.2 PARENT TO PROVIDE COMMON STOCK. Promptly after the Closing Date,
Parent shall make available to the Exchange Agent for exchange in
accordance with this Article I, through such reasonable procedures
as Parent may adopt, certificates representing the shares of Parent
Common Stock issuable pursuant to Section 1.6.1 in exchange for
shares of Company Common Stock outstanding immediately prior to the
Closing Date.
1.7.3 EXCHANGE PROCEDURES. Promptly after the Closing Date, Parent shall
cause the Exchange Agent to mail to each holder of record of a
certificate or certificates (the "Certificates") which immediately
prior to the Closing Date represented outstanding shares of Company
Common Stock, whose shares were converted into the right to receive
shares of Parent Common Stock pursuant to Section 1.6.
1.8 NO FURTHER OWNERSHIP RIGHTS IN COMPANY COMMON STOCK. All shares of Parent
Common Stock issued upon the surrender for exchange of shares of Company Common
Stock in accordance with the terms hereof shall be deemed to have been issued in
full satisfaction of all rights pertaining to such shares of Company Common
Stock, and there shall be no further registration of transfers on the records of
the Surviving Corporation of shares of Company Common Stock which were
outstanding immediately prior to the Effective Time.
1.9 LOST, STOLEN OR DESTROYED CERTIFICATES. In the event any Certificates shall
have been lost, stolen or destroyed, the Exchange Agent shall issue in exchange
for such lost, stolen or destroyed Certificates, upon the making of an affidavit
of that fact by the holder thereof, such shares of Parent Common Stock as may be
required pursuant to Section 1.6; provided, however, that Parent may, in its
discretion and as a condition precedent to the issuance thereof, require the
owner of such lost, stolen or destroyed Certificates to deliver a bond in such
sum as it may reasonably direct as indemnity against any claim that may be made
against Parent, the Surviving Corporation or the Exchange Agent with respect to
the Certificates alleged to have been lost, stolen or destroyed.
1.10 TAX CONSEQUENCES. It is intended by the parties hereto that the Merger
shall constitute a reorganization within the meaning of Section 368 of the Code.
1.11 TAKING OF NECESSARY ACTION; FURTHER ACTION. If, at any time after the
Effective Time, any further action is necessary or desirable to carry out the
purposes of this Agreement and to vest the Surviving Corporation with full
right, title and possession to all assets, property, rights, privileges, powers
and franchises of Company and Merger Sub, the officers and directors of Company
and Merger Sub are fully authorized in the name of their respective
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corporations or otherwise to take, and will take, all such lawful and necessary
action, so long as such action is not inconsistent with this Agreement.
1.12 APPRAISAL RIGHTS. Notwithstanding anything in this Agreement to the
contrary, Company Common Stock that are issued and outstanding immediately prior
to the Effective Time and which are held by stockholders who did not vote in
favor of the Merger (the "Dissenting Shares"), which stockholders comply with
all of the relevant provisions of Florida Law (the "Dissenting Stockholders"),
shall not be converted into or be exchangeable for the right to receive the
Merger Consideration, unless and until such holders shall have failed to perfect
or shall have effectively withdrawn or lost their rights to appraisal under
Florida Law.
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF COMPANY
In this Agreement, any reference to any event, change, condition or effect being
"material" with respect to any person, means any material event, change,
condition or effect related to the condition (financial or otherwise),
properties, assets (including intangible assets), liabilities, business,
operations or results of operations of such person and its subsidiaries, taken
as a whole. In this Agreement, any reference to a "Material Adverse Effect" with
respect to any person means any event, change or effect that is materially
adverse to the condition (financial or otherwise), properties, assets,
liabilities, business, operations or results of operations of such person and
its subsidiaries, taken as a whole.
In this Agreement, any reference to a party's "Knowledge" means such party's
actual knowledge after reasonable inquiry of executive officers and directors
(within the meaning of Rule 405 under the Securities Act of 1933, as amended
("Securities Act")).
Except as disclosed in that section of the document of even date herewith
delivered by Company to Parent prior to the execution and delivery of this
Agreement (the "Company Disclosure Schedule") corresponding to the Section of
this Agreement to which any of the following representations and warranties
specifically relate or as disclosed in another section of the Company Disclosure
Schedule if it is reasonably apparent from the nature of the disclosure that it
is applicable to another Section of this Agreement, Company represents and
warrants to Parent and Merger Sub as follows:
2.1 ORGANIZATION; STANDING AND POWER. The Company is a corporation duly
organized, validly existing and in good standing in the state of Florida, and no
certificate of dissolution has been filed under the laws of its jurisdiction of
organization. The Company has no subsidiaries. The Company has the power to own
its properties and to carry on its business as now being conducted and as
presently proposed to be conducted and is duly authorized and qualified to do
business and is in good standing in each jurisdiction in which the failure to be
so qualified and in good standing would have a Material Adverse Effect on
Company. Company has delivered or made available to Parent a true and correct
copy of the Articles of Incorporation (the "Company Articles of Incorporation"),
and the Bylaws, or other charter documents, as applicable, of the Company each
as amended to date. The Company is not in violation of any of the provisions of
its charter or bylaws or equivalent organization documents. The Company has
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delivered to Parent correct and complete copies of the minute books (containing
the records of meetings of the Stockholders, the board of directors and
committees of the board of directors). Such minute books accurately reflect in
all material respects the matters referenced therein. The Company has also
delivered to Parent correct and complete copies of the stock certificate books
and the stock record books of the Company and such books and records accurately
reflect the matters referenced therein. The Company has no subsidiaries and
never had any subsidiaries.
2.2 CAPITAL STRUCTURE. The authorized capital stock of Company consists of
100,000,000 shares of Common Stock, $0.01 par value, and no shares of preferred
stock, of which there were issued and outstanding as of the close of business on
January __, 2005, _______ shares of Common Stock, and no additional shares of
Common Stock or preferred stock have been issued through the date of this
Agreement. All outstanding shares of Company Common Stock are duly authorized,
validly issued, fully paid and non-assessable and are free of any liens or
encumbrances other than any Liens or encumbrances created by or imposed upon the
holders thereof, and are not subject to preemptive rights or rights of first
refusal created by statute, the Company Certificate of Incorporation or Bylaws
of Company or any agreement to which Company is a party or by which it is bound.
2.3 AUTHORITY. Company has all requisite corporate power and authority to enter
into 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 authorized by
all necessary corporate action on the part of Company, subject only to the
adoption of this Agreement by Company's stockholders holding a majority of the
outstanding shares of Company Common Stock. This Agreement has been duly
executed and delivered by Company and constitutes the valid and binding
Obligation of Company enforceable against Company in accordance with its terms,
except as enforceability may be limited by bankruptcy and other laws affecting
the rights and remedies of creditors generally and general principles of equity.
The execution and delivery of this Agreement by Company does not, and the
consummation of the transactions contemplated hereby will not, conflict with, or
result in any violation of, or default under (with or without notice or lapse of
time, or both), or give rise to a right of termination, cancellation or
acceleration of any obligation or loss of any benefit under (i) any provision of
the Company Articles of Incorporation or Bylaws of Company, as amended, or (ii)
any mortgage, indenture, lease, contract or other agreement or instrument,
permit, concession, franchise, license, judgment, order, decree, statute, law,
ordinance, rule or regulation applicable to the Company or any of its properties
or assets. No consent, approval, order or authorization of, or registration,
declaration or filing with, any court, administrative agency or commission or
other governmental authority or instrumentality ("Governmental Entity") is
required by or with respect to Company in connection with the execution and
delivery of this Agreement by Company or the consummation by Company of the
transactions contemplated hereby.
2.4 ACCOUNTING PRACTICES. The Company makes and keeps accurate books and records
reflecting its assets and maintains internal accounting controls that provide
reasonable assurance that (i) transactions are executed with management's
authorization, (ii) transactions are recorded as necessary to permit preparation
of the Company financial statements and to maintain accountability for the
assets of the Company and (iii) the reported accountability of the assets of
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the Company other than furniture, equipment and fixtures is compared with
existing assets at reasonable intervals.
2.5 LITIGATION. There is no private or governmental action, suit, proceeding,
claim, arbitration, audit or investigation pending before any agency, court or
tribunal, foreign or domestic, or, to the knowledge of Company, threatened
against Company or any of its respective properties or any of their respective
officers or directors (in their capacities as such) that, individually or in the
aggregate, would reasonably be expected to have a Material Adverse Effect on
Company. There is no injunction, judgment, decree, order or regulatory
restriction imposed upon Company or any of its assets or business, or, to the
knowledge of Company and any of its directors or officers (in their capacities
as such), that would prevent, enjoin, alter or materially delay any of the
transactions contemplated by this Agreement, or that could reasonably be
expected to have a Material Adverse Effect on Company.
2.6 RESTRICTIONS ON BUSINESS ACTIVITIES. There is no agreement, judgment,
injunction, order or decree binding upon Company which has or reasonably could
be expected to have the effect of prohibiting or materially impairing any
business practice of Company, any acquisition of property by Company or the
conduct of business by Company.
2.7 GOVERNMENTAL AUTHORIZATION. The Company has obtained each federal, state,
county, local or foreign governmental consent, license, permit, grant, or other
authorization of a Governmental Entity (i) pursuant to which Company currently
operates or holds any interest in any of its properties or (ii) that is required
for the operation of Company's business or the holding of any such interest ((i)
and (ii) herein collectively called "Company Authorizations"), and all of such
Company Authorizations are in full force and effect, except where the failure to
obtain or have any of such Company Authorizations or where the failure of such
Company Authorizations to be in full force and effect would not reasonably be
expected to have a Material Adverse Effect on Company.
2.8 COMPLIANCE WITH LAW. The Company has complied with and is not in violation
of, and have not received any notices of violation with respect to, any federal,
state, local or foreign statute, law or regulation with respect to the conduct
of its business, or the ownership or operation of its business, except for such
violations or failures to comply as would not be reasonably expected to have a
Material Adverse Effect on Company.
2.9 BROKERS' AND FINDERS' FEES. The Company has not incurred, nor will it incur,
directly or indirectly, any liability for brokerage or finders' fees or agents'
commissions or investment bankers' fees or any similar charges in connection
with this Agreement or any transaction contemplated hereby.
2.10 VOTE REQUIRED. The Company has or will have the affirmative vote of the
holders of at least a majority of the shares of Company Common Stock outstanding
on the record date set for the meeting of the Company stockholders (the "Company
Stockholders Meeting ") and such vote is the only vote of the holders of any of
Company's capital stock necessary to approve this Agreement and the transactions
contemplated hereby.
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2.11 BOARD APPROVAL. The Board of Directors of Company has (i) approved this
Agreement and the Merger, (ii) determined that this Agreement and the Merger are
advisable and in the best interests of the stockholders of Company and are on
terms that are fair to such stockholders and (iii) recommended that the
stockholders of Company adopt and approve this Agreement and the consummation of
the Merger.
2.12 REPRESENTATIONS COMPLETE. None of the representations or warranties made by
Company herein or in any Schedule hereto, including the Company Disclosure
Schedule, or certificates furnished by Company pursuant to this Agreement, when
all such documents are read together in their entirety, contains or will contain
at the Effective Time any untrue statement of a material fact, or omits or will
omit at the Effective Time to state any material fact necessary in order to make
the statements contained herein or therein, in the light of the circumstances
under which made, not misleading. All projected, forecasted or prospective
financial information provided by Company to Parent has been prepared in good
faith on the basis of assumptions Company believes are reasonable and
supportable.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF PARENT AND MERGER SUB
Except as disclosed in that section of the document of even date herewith
delivered by Parent to the Company prior to the execution and delivery of this
Agreement (the "Parent Disclosure Schedule") corresponding to the Section of
this Agreement to which any of the following representations and warranties
specifically relate or as disclosed in another section of the Parent Disclosure
Schedule if it is reasonably apparent on the face of the disclosure that it is
applicable to another Section of this Agreement, Parent represents and warrants
to the Company as follows:
3.1 ORGANIZATION; STANDING AND POWER. Parent is a corporation duly organized,
validly existing and in good standing, and no certificates of dissolution have
been filed under the laws of its jurisdiction of organization. Parent has the
power to own its properties and to carry on its business as now being conducted
and as presently proposed to be conducted and is duly authorized and qualified
to do business and is in good standing in each jurisdiction in which the failure
to be so qualified and in good standing would have a Material Adverse Effect on
Parent. Parent has delivered to the Company a true and correct copy of the
Certificate of Incorporation (the "Parent Certificate of Incorporation"), and
the Bylaws, or other charter documents, as applicable, of Parent, as amended to
date. Parent and Merger Sub are not in violation of any of the provisions of
their respective charter or bylaws or equivalent organization documents. Parent
is the owner of all outstanding shares of capital stock of Merger Sub and all
such shares are duly authorized, validly issued, fully paid and nonassessable.
There are no outstanding subscriptions, options, warrants, puts, calls, rights,
exchangeable or convertible securities or other commitments or agreements of any
character relating to the issued or unissued capital stock or other securities
of any such subsidiary, or otherwise obligating Parent to issue, transfer, sell,
purchase, redeem or otherwise acquire any such securities.
3.2 CAPITAL STRUCTURE. The authorized capital stock of Parent consists of
________ shares of common stock, $_______ par value, and _______ shares of
preferred stock, $_______ par value, of which there were issued and outstanding
as of the close of business on
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_____________ 2004, _______ shares of common stock and _______ shares of
Preferred Stock. The shares of Parent Common Stock to be issued pursuant to the
Merger will be duly authorized, validly issued, fully paid, and non-assessable,
free of any liens or encumbrances imposed by Parent or Merger Sub. All
outstanding shares of Parent Common Stock are duly authorized, validly issued,
fully paid and non-assessable and are free of any liens or encumbrances other
than any liens or encumbrances created by or imposed upon the holders thereof,
and are not subject to preemptive rights or rights of first refusal created by
statute, the Certificate of Incorporation or Bylaws of Parent or any agreement
to which Parent is a party or by which it is bound.
3.3 AUTHORITY. Parent and Merger Sub have all requisite corporate power and
authority to enter into this Agreement and to consummate the transactions
contemplated hereby. The execution and delivery of this Agreement and the
consummation of the transactions contemplated hereby have been duly authorized
by all necessary corporate action on the part of Parent and Merger Sub. This
Agreement has been duly executed and delivered by Parent and Merger Sub and
constitutes the valid and binding obligations of Parent and Merger Sub
enforceable against Parent and Merger Sub in accordance with its terms, except
as enforceability may be limited by bankruptcy and other laws affecting the
rights and remedies of creditors generally and general principles of equity. The
execution and delivery of this Agreement do not, and the consummation of the
transactions contemplated hereby will not, conflict with, or result in any
violation of, or default under (with or without notice or lapse of time, or
both), or give rise to a right of termination, cancellation or acceleration of
any obligation or loss of any benefit under.
3.3.1 any provision of the Certificate of Incorporation or Bylaws of
Parent, as amended, or;
3.3.2 any mortgage, indenture, lease, contract or other agreement or
instrument, permit, concession, franchise, license, judgment, order,
decree, statute, law, ordinance, rule or regulation applicable to
Parent or its properties or assets. No consent, approval, order or
authorization of, or registration, declaration or filing with, any
Governmental Entity is required by or with respect to Parent in
connection with the execution and delivery of this Agreement by
Parent and Merger Sub or the consummation by Parent and Merger Sub
of the transactions contemplated hereby.
3.4 LITIGATION. There is no private or governmental action, suit, proceeding,
claim, arbitration, audit or investigation pending before any agency, court or
tribunal, foreign or domestic, or, to the knowledge of Parent, threatened
against Parent or any of its respective properties or any of its respective
officers or directors (in their capacities as such) that, individually or in the
aggregate, would reasonably be expected to have a Material Adverse Effect on
Parent. There is no injunction, judgment, decree, order or regulatory
restriction imposed upon Parent or any of its assets or business, or, to the
knowledge of Parent, any of its directors or officers (in their capacities as
such), that would prevent, enjoin, alter or materially delay any of the
transactions contemplated by this Agreement, or that could reasonably be
expected to have a Material Adverse Effect on Parent. Schedule 3.4 lists all
actions, suits, proceedings, claims, arbitrations, audits and investigations
pending before any agency, court or tribunal that involve Parent.
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3.5 RESTRICTIONS ON BUSINESS ACTIVITIES. There is no agreement, judgment,
injunction, order or decree binding upon Parent which has or reasonably could be
expected to have the effect of prohibiting or materially impairing any business
practice of Parent, any acquisition of property by Parent or the conduct of
business by Parent.
3.6 CERTAIN AGREEMENTS AFFECTED BY THE MERGER. Neither the execution and
delivery of this Agreement nor the consummation of the transaction contemplated
hereby will (i) result in any entitlement, payment or benefit (including,
without limitation, severance, unemployment compensation, golden parachute,
bonus or benefit under any Parent plan or policy or otherwise) becoming due to
any current or former director or employee of Parent, (ii) increase the amount
of any entitlements, payments or benefits otherwise payable by Parent, or (iii)
result in the acceleration of the time of payment or vesting of any such
entitlements, payments or benefits.
3.7 COMPLIANCE WITH LAWS. Parent has complied with, is in violation of, and has
not received any notices of violation with respect to, any federal, state, local
or foreign statute, law or regulation with respect to the conduct of its
business, or the ownership or operation of its business, except for such
violations or failures to comply as would not be reasonably expected to have a
Material Adverse Effect on Parent.
3.8 BROKERS' AND FINDERS' FEES. Parent has not incurred, nor will it incur,
directly or indirectly, any liability for brokerage or finders' fees or agents'
commissions or investment bankers' fees or any similar charges in connection
with this Agreement or any transaction contemplated hereby.
3.9 BOARD APPROVAL. The Board of Directors of Parent has (i) approved this
Agreement and the Merger, and (ii) approved the issuance of the shares of Parent
Common Stock pursuant to this Agreement. The Board of Directors of Merger Sub
has approved this Agreement and the Merger, and recommended that the sole
stockholder of Merger Sub approve this Agreement and the Merger. The affirmative
vote of the Parent's stockholders is not required to approve the Merger and the
affirmative vote of Parent as sole stockholder of Merger Sub is the only vote of
the holders of any of Parent's or Merger Sub's capital stock necessary to
approve this Agreement and the transactions contemplated hereby.
3.10 REPRESENTATIONS COMPLETE. None of the representations or warranties made by
Parent or Merger Sub herein contains or will contain at the Effective Time any
untrue statement of a material fact, or omits or will omit at the Effective Time
to state any material fact necessary in order to make the statements contained
herein or therein, in the light of the circumstances under which made, not
misleading. All projected, forecasted or prospective financial information
provided by Parent to the Company has been prepared in good faith on the basis
of assumptions Parent believes are reasonable and supportable.
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ARTICLE IV
CONDUCT PRIOR TO THE EFFECTIVE TIME
4.1 CONDUCT OF BUSINESS. During the period from the date of this Agreement and
continuing until the earlier of the termination of this Agreement or the
Effective Time, each of Parent and Company agrees (except to the extent
expressly contemplated by this Agreement or as consented to in writing by the
other party), to carry on its business in the ordinary course in substantially
the same manner as heretofore conducted, to pay and to cause its subsidiaries to
pay debts and federal and state taxes when due subject to good faith disputes
over such debts or taxes, to pay or perform other obligations when due, and to
use all reasonable efforts consistent with past practice and policies to
preserve intact its and its subsidiaries' present business organizations, use
its reasonable best efforts consistent with past practice to keep available the
services of its present officers and key employees and use its reasonable best
efforts consistent with past practice to preserve its relationships with
customers, suppliers, distributors, licensors, licensees, and others having
business dealings with it or its subsidiaries, to the end that its and its
subsidiaries' goodwill and ongoing businesses shall be unimpaired at the Closing
Date. Each of Parent and Company agrees to promptly notify the other of any
material event or occurrence not in the ordinary course of its or its
subsidiaries' business, and of any event that would have a Material Adverse
Effect on Parent or Company.
4.2 RESTRICTIONS ON CONDUCT OF BUSINESS. During the period from the date of this
Agreement and continuing until the earlier of the termination of this Agreement
or the Effective Time, except as expressly contemplated by this Agreement, each
of Parent and Company shall not do, cause or permit any of the following, or
allow, without the prior written consent of the other:
4.2.1 CHARTER DOCUMENTS. Cause or permit any amendments to its Certificate
of Incorporation or Bylaws;
4.2.2 DIVIDENDS; CHANGES IN CAPITAL STOCK. Declare or pay any dividends on
or make any other distributions (whether in cash, stock or property)
in respect of any of its capital stock, or split, combine or
reclassify any of its capital stock or issue or authorize the
issuance of any other securities in respect of, in lieu of or in
substitution for shares of its capital stock, or repurchase or
otherwise acquire, directly or indirectly, any shares of its capital
stock except from former employees, directors and consultants in
accordance with agreements providing for the repurchase of shares in
connection with any termination of service to it or its
subsidiaries;
4.2.3 STOCK OPTION PLANS, ETC. Take any action to accelerate, amend or
change the period of exercisability or vesting of options or other
rights granted under its stock plans or authorize cash payments in
exchange for any options or other rights granted under any of such
plans.
ARTICLE V
ADDITIONAL AGREEMENTS
5.1 MEETING OF STOCKHOLDERS. The Company shall promptly after the date hereof
take all action necessary in accordance with Florida Law and its respective
Articles of
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Incorporation and Bylaws to convene the Company Stockholders Meeting. The
Company shall use its reasonable best efforts to solicit from its stockholders
proxies in favor of the adoption of this Agreement and the Merger and shall take
all other action necessary or advisable to secure the vote or consent of
stockholders required to effect the Merger. The Company shall use reasonable
efforts to obtain from its stockholders holding in the aggregate of over 95% of
the issued and outstanding shares of Company Common Stock (i) a waiver of such
stockholders' appraisal rights with respect to the transactions contemplated by
this Agreement; and (ii) the written consent of such stockholders to the
transactions contemplated by this Agreement.
5.2 ACCESS TO INFORMATION.
5.2.1 Except as prohibited by applicable law, each of Parent and Company
shall afford the other and its accountants, counsel and other
representatives, reasonable access during normal business hours
during the period prior to the Effective Time to (i) all of such
party's and its subsidiaries' properties, books, contracts,
commitments and records, and (ii) all other information concerning
the business, properties and personnel of such party and its
subsidiaries as the other party may reasonably request. Each of
Parent and Company agrees to provide to the other and its
accountants, counsel and other representatives copies of internal
financial statements promptly upon request.
5.2.2 Subject to compliance with applicable law, from the date hereof
until the Closing Date, each of Parent and Company shall confer on a
regular and frequent basis with one or more representatives of the
other party to report operational matters of materiality and the
general status of ongoing operations.
5.2.3 No information or knowledge obtained in any investigation pursuant
to this Section 5.6 shall affect or be deemed to modify any
representation or warranty contained herein or the conditions to the
obligations of the parties to consummate the Merger.
5.2.4 Each of Parent and Company shall provide the other and its
accountants, counsel and other representatives reasonable access,
during normal business hours during the period prior to the
Effective Time, to all of such party's and its subsidiaries' Tax
Returns and other records and workpapers relating to Taxes, and
shall also provide the following information upon the request of the
other party or its subsidiaries: (i) a schedule of the types of Tax
Returns being filed by Parent or Company, as applicable, and each of
its subsidiaries in each taxing jurisdiction, (ii) a schedule of the
year of the commencement of the filing of each such type of Tax
Return, (iii) a schedule of all closed years with respect to each
such type of Tax Return filed in each jurisdiction, (iv) a schedule
of all material Tax elections filed in each jurisdiction by Parent
or Company, as applicable, and each of its subsidiaries, (v) a
schedule of any deferred intercompany gain with respect to
transactions to which Parent or Company, as applicable, has been a
party, and (vi) receipts for any Taxes paid to foreign Tax
authorities.
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5.3 CONFIDENTIALITY. The parties acknowledge that each of Parent and Company
have previously executed a non-disclosure agreement, which agreement shall
continue in full force and effect in accordance with its terms.
5.4 PUBLIC DISCLOSURE. Unless otherwise permitted by this Agreement, Parent and
Company shall consult with each other before issuing any press release or
otherwise making any public statement or making any other public (or
non-confidential) disclosure (whether or not in response to an inquiry)
regarding the terms of this Agreement and the transactions contemplated hereby,
and neither shall issue any such press release or make any such statement or
disclosure without the prior approval of the other (which approval shall not be
unreasonably withheld), except as may be required by law, in which case the
party proposing to issue such press release or make such public statement or
disclosure shall use its commercially reasonable efforts to consult with the
other party before issuing such press release or making such public statement or
disclosure.
5.5 CONSENTS; COOPERATION. Each of Parent and Company shall promptly apply for
or otherwise seek, and use its reasonable best efforts to obtain, all consents
and approvals required to be obtained by it for the consummation of the Merger,
including those required under the Delaware Law and Florida Law. The Company
shall use its reasonable best efforts to obtain all necessary consents, waivers
and approvals under any of its material contracts in connection with the Merger
for the assignment thereof or otherwise. The parties hereto will consult and
cooperate with one another, and consider in good faith the views of one another,
in connection with any analyses, appearances, presentations, memoranda, briefs,
arguments, opinions and proposals made or submitted by or on behalf of any party
hereto in connection with proceedings under or relating to the Delaware
Corporate Law or any other federal or state antitrust or fair trade law.
5.6 LEGAL REQUIREMENTS. Each of Parent, Merger Sub and Company will, and will
cause their respective subsidiaries to, take all reasonable actions necessary to
comply promptly with all legal requirements which may be imposed on them with
respect to the consummation of the transactions contemplated by this Agreement
and will promptly cooperate with and furnish information to any party hereto
necessary in connection with any such requirements imposed upon such other party
in connection with the consummation of the transactions contemplated by this
Agreement and will take all reasonable actions necessary to obtain (and will
cooperate with the other parties hereto in obtaining) any consent, approval,
order or authorization of, or any registration, declaration or filing with, any
Governmental Entity or other person, required to be obtained or made in
connection with the taking of any action contemplated by this Agreement.
5.7 TAX TREATMENT. For U.S. federal income tax purposes, it is intended that the
Merger qualify as a reorganization within the meaning of the Code, and the
parties hereto intend that the transactions contemplated by this Agreement shall
constitute a "plan of reorganization" within the meaning of Section 368 of the
Code and Treasury Regulations Sections 1.368-2(g) and 1.368-3(a). Parent will
report the Merger on its income tax returns in a manner consistent with
treatment of the Merger as a Code Section 368 reorganization. Neither Parent,
the Company nor any of their respective affiliates has taken any action, nor
will they take any action, that would prevent or impede the Merger from
qualifying as a reorganization under Section 368 of the Code.
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5.8 COOPERATION TO SATISFY GOVERNMENT AUTHORITIES. Parent and the Company shall
cooperate to promptly address and, to the extent commercially reasonable or
practicable, resolve any concerns of any Government Authority in connection with
the Merger.
5.9 BOARD OF DIRECTOR. The Board of Directors of Parent will take all actions
within its power to cause the Board of Directors of the Surviving Corporation,
effective upon the Effective Time, to consist of the current Directors of the
Company.
5.10 BEST EFFORTS AND FURTHER ASSURANCES. Each of the parties to this Agreement
shall use its best efforts to effectuate the transactions contemplated hereby
and to fulfill and cause to be fulfilled the conditions to closing under this
Agreement. Each party hereto, at the reasonable request of another party hereto,
shall execute and deliver such other instruments and do and perform such other
acts and things as may be necessary or desirable for effecting completely the
consummation of this Agreement and the transactions contemplated hereby.
ARTICLE VI
CONDITIONS PRECEDENT TO OBLIGATIONS OF THE COMPANY
The Company's obligation to enter into and complete the Closing is
conditioned upon the satisfaction or waiver in writing by the Company, on or
before the Closing Date, of all of the following conditions:
6.1 REPRESENTATIONS AND WARRANTIES. The representations and warranties made by
Parent and Merger Sub contained in this Merger Agreement, the schedules or
exhibits hereto or in any certificate or document delivered to the Company by
Parent and Merger Sub in connection with the transactions contemplated by this
Merger Agreement shall be true in all respects, (without giving effect to any
materiality qualifications or limitations therein) on and as of the Closing Date
with the same effect as though such representations and warranties were made on
such date except for such failures to be true and correct which in the aggregate
would not reasonably be expected to result in a Material Adverse Effect on
Parent and Merger Sub.
6.2 PERFORMANCE OF COVENANTS. Parent and Merger Sub shall have performed and
complied in all material respects with all of the agreements and covenants
required by this Merger Agreement to be performed and complied with by it prior
to or on the Closing Date.
6.3 LITIGATION. No injunction shall have been issued by any court or
Governmental Authority which restrains or prohibits this Merger Agreement or the
consummation of the transactions contemplated hereby.
6.4 ANTITRUST LAWS COMPLIANCE. There is an applicable exemption to rules and
regulations of the Antitrust Laws applicable to the transactions contemplated by
this Merger Agreement.
6.5 SHAREHOLDER APPROVAL. The Company Shareholder Approval required in
connection with the consummation of the Merger shall have been obtained.
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ARTICLE VII
CONDITIONS PRECEDENT TO THE OBLIGATIONS OF
PARENT AND MERGER SUB
The obligations of Parent and Merger Sub to enter into and complete the
Closing are conditioned upon the satisfaction or waiver by Parent on behalf of
itself and Merger Sub, on or before the Closing Date, of the following
conditions:
7.1 REPRESENTATIONS AND WARRANTIES. The representations and warranties made by
the Company contained in this Merger Agreement, the schedules or exhibits hereto
or in any certificate or document delivered to Parent or the Merger Sub by the
Company in connection with the transactions contemplated by this Merger
Agreement shall be true in all respects (without giving effect to any
materiality qualifications or limitations therein) on and as of the Closing Date
with the same effect as though such representations and warranties were made on
such date, except (i) as otherwise contemplated by this Merger Agreement and
(ii) for such failures to be true and correct which in the aggregate would not
reasonably be expected to result in a Material Adverse Effect on the Company.
7.2 PERFORMANCE OF COVENANTS. The Company shall have performed and complied in
all material respects with all of the agreements and covenants required by this
Merger Agreement to be performed and complied with by it prior to or on the
Closing Date, except as otherwise contemplated by this Merger Agreement.
7.3 LITIGATION. No injunction shall have been issued by any court or
Governmental Authority which restrains or prohibits this Merger Agreement or the
consummation of the transactions contemplated hereby.
7.4 ANTITRUST LAWS ACT COMPLIANCE. There is an applicable exemption to rules and
regulations of the Antitrust Laws Act applicable to the transactions
contemplated by this Merger Agreement.
7.5 CONSENTS AND APPROVALS. The consents and approvals specified herein shall
have been obtained in form and substance satisfactory to Parent in its
reasonable discretion.
7.6 MATERIAL CHANGES. There shall not have been any change that has had or could
reasonably be expected to have a Material Adverse Effect on the assets,
properties, condition (financial or otherwise), prospects or results of
operations of the Company from the date hereof to the Closing Date, nor shall
there exist any condition which could reasonably be expected to result in such a
Material Adverse Effect, and there shall have been delivered to Parent a
certificate, dated the Closing Date, to such effect signed by an authorized
officer of the Company.
7.7 SHAREHOLDER APPROVAL. The Company Shareholder Approval required in
connection with the consummation of the Merger shall have been obtained.
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ARTICLE VIII
TERMINATION
8.1 TERMINATION EVENTS. This Merger Agreement may be terminated and the Merger
may be abandoned at any time prior to the Effective Time without prejudice to
any other rights or remedies either party may have:
8.1.1 by written agreement, duly authorized by the Boards of Directors of
Parent, Merger Sub and the Company;
8.1.2 by Parent or the Company if any Governmental Authority shall have
issued an order, decree, injunction or judgment or taken any other
action permanently restraining, enjoining or otherwise prohibiting
the Merger and such order or other action shall have become final
and nonappealable.
8.2 EFFECT OF TERMINATION. In the event this Merger Agreement is terminated
pursuant to Section 8.1, all further obligations of the parties hereunder shall
terminate. Each party's right of termination hereunder is in addition to any
other rights it may have hereunder or otherwise and the exercise of a right of
termination shall not be an election of remedies.
8.3 AMENDMENT. To the extent permitted by applicable law, this Merger Agreement
may be amended by action taken by or on behalf of the respective Boards of
Directors of the Company, Parent and Merger Sub at any time. This Merger
Agreement may not be amended except by an instrument in writing signed on behalf
of all of the parties hereto.
8.4 WAIVER. At any time prior to the Effective Time any party hereto may, to the
extent legally allowed, (i) extend the time for the performance of any of the
obligations or other acts of the other parties hereto, (ii) waive any
inaccuracies in the representations and warranties made to such party contained
herein or in any document delivered pursuant hereto and (iii) waive compliance
with any of the agreements or conditions for the benefit of such party contained
herein. Any agreement on the part of a party hereto to any such extension or
waiver shall be valid only if set forth in an instrument in writing signed on
behalf of such party.
ARTICLE IX
MISCELLANEOUS
9.1 CAPTIONS AND HEADINGS. The Article and paragraph headings throughout this
Agreement are for convenience and reference only, and shall in no way be deemed
to define, limit, or add to the meaning of any provision of this Agreement.
9.2 NO ORAL CHANGE. This Agreement and any provision hereof, may not be waived,
changed, modified, or discharged orally, but only by an agreement in writing
signed by the party against whom enforcement of any waiver, change,
modification, or discharge is sought.
9.3 GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws of the State of Florida, without regard to the laws
that might otherwise govern
16
under applicable principles of conflicts of law. Each of the parties hereto
irrevocably consents to the exclusive jurisdiction of any court located within
the State of Florida in connection with any matter based upon or arising out of
this Agreement or the matters contemplated herein, agrees that process may be
served upon them in any manner authorized by the laws of the State of Florida
for such persons and waives and covenants not to assert or plead any objection
which they might otherwise have to such jurisdiction and such process.
9.4 PUBLIC ANNOUNCEMENTS. Subject to any requirement of applicable law or stock
exchange listing agreement, all public announcements or similar publicity with
respect to this Merger Agreement or the transactions contemplated hereby shall
be issued only with the consent of Parent and the Company. Unless consented to
by each party hereto in advance prior to the Closing, all parties hereto shall
keep the provisions of this Merger Agreement strictly confidential and make no
disclosure thereof to any Person, other than such party's respective legal and
financial advisors, subject to the requirements of applicable law or securities
exchange regulations.
9.5 SUCCESSORS. This Merger Agreement shall be binding upon and shall inure to
the benefit of the parties hereto and their respective successors and permitted
assigns.
9.6 FURTHER ASSURANCES. Each of the parties hereto agrees that it will, from
time to time after the date of this Merger Agreement, execute and deliver such
other certificates, documents and instruments and take such other action as may
be reasonably requested by the other party to carry out the actions and
transactions contemplated by this Merger Agreement.
9.7 CONFIDENTIALITY. The Confidentiality Agreement between Parent and the
Company is incorporated by reference herein and shall continue in full force and
effect in accordance with the terms thereof.
9.8 NOTICES. All notices requests, demands, and other communications under this
Agreement shall be in writing and shall be deemed to have been duly given on the
date of service if served personally on the party to whom notice is to be given,
or on the third day after mailing if mailed to the party to whom notice is to be
given, by first class mail, registered or certified, postage prepaid, and
properly addressed, and by fax, as follows:
If to Parent or Merger Sub:
Parentech, Inc.
000 X. Xxxxx Xxx. 000, Xxx. 000
Xxxxxx Xxxxx, XX 00000
Attention: Xxxxx Xxxxxx
Chief Executive Officer
Telephone: (000) 000-0000
17
With a copy to:
Xxxxxx X. Emas
Attorney at Law
0000 Xxxxxxxxxx Xxxxxx
Xxxxx Xxxxx, Xxxxxxx 00000
Telephone: (000) 000-0000
If to the Company:
_____________________________
_____________________________
_____________________________
9.9 NON-WAIVER. Except as otherwise expressly provided herein, no waiver of any
covenant, condition, or provision of this Agreement shall be deemed to have been
made unless expressly in writing and signed by the party against whom such
waiver is charged; and (i) the failure of any party to insist in any one or more
cases upon the performance of any of the provisions, covenants, or conditions of
this Agreement or to exercise any option herein contained shall not be construed
as a waiver or relinquishment for the future of any such provisions, covenants,
or conditions, (ii) the acceptance of performance of anything required by this
Agreement to be performed with knowledge of the breach or failure of a covenant,
condition, or provision hereof shall not be deemed a waiver of such breach or
failure, and (iii) no waiver by any party of one breach by another party shall
be construed as a waiver with respect to any other or subsequent breach.
9.10 TIME OF ESSENCE. Time is of the essence of this Agreement and of each and
every provision hereof.
9.11 REMEDIES CUMULATIVE. Except as otherwise provided herein, any and all
remedies herein expressly conferred upon a party will be deemed cumulative with
and not exclusive of any other remedy conferred hereby, or by law or equity upon
such party, and the exercise by a party of any one remedy will not preclude the
exercise of any other remedy.
9.12 SEVERABILITY. If any provision of this Agreement, or the application
thereof, becomes or is declared by a court of competent jurisdiction to be
illegal, void or unenforceable, the remainder of this Agreement will continue in
full force and effect and the application of such provision to other persons or
circumstances will be interpreted so as reasonably to effect the intent of the
parties hereto. The parties further agree to replace such void or unenforceable
provision of this Agreement with a valid and enforceable provision that will
achieve, to the extent possible, the economic, business and other purposes of
such void or unenforceable provision.
9.13 ENTIRE AGREEMENT. This Agreement contains the entire Agreement and
understanding between the parties hereto, and supersedes all prior agreements
and understandings.
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9.14 RULES OF CONSTRUCTION. The parties hereto agree that they have been
represented by counsel during the negotiation, preparation 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.
9.15 EXPENSES. Except as expressly otherwise provided herein, each party shall
bear its own expenses incurred in connection with the preparation, execution and
performance of this Merger Agreement and the transactions contemplated hereby,
including all fees and expenses of agents, representatives, counsel and
accountants. All such expenses incurred by the Company ("Company Transaction
Expenses") shall be repaid in full at the Closing.
9.16 COUNTERPARTS. This Agreement may be executed in one or more counterparts,
all of which shall be considered one and the same agreement and shall become
effective when one or more counterparts have been signed by each of the parties
and delivered to the other parties, it being understood that all parties need
not sign the same counterpart.
IN WITNESS WHEREOF, the parties have executed this Merger Agreement as of
the date first above written.
PARENT THE COMPANY
Parentech, Inc, Bridgetech Holdings International, Inc.
By: /s/Xxxxx X. Xxxxxx By: /s/Xxxxxxx Xxxx
----------------------- -------------------------------
Name: Xxxxx X. Xxxxxx Name: Xxxxxxx Xxxx
Title: Chief Executive Officer Title: Chairman
MERGER SUB
Bridgetech Acquisition Corp.
By: /s/Xxxxxx X. Emas
-----------------
Name: Xxxxxx X. Emas
Title: Chief Executive Officer
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